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0	Where petitioner was tried for murder in Arizona almost three years after he was charged and 28 months after he first demanded that Arizona either extradite him from California, where he was serving a prison term, or drop a detainer against him, the Arizona Supreme Court, in affirming the denial of petitioner's pretrial habeas corpus application, erred in ruling that a showing of prejudice to the defense at trial was essential to establish a federal speedy trial claim. In addition to possible prejudice, a court must weigh the reasons for delay in bringing an incarcerated defendant to trial, and should also consider the possible impact pending charges might have on defendant's prospects for parole and meaningful rehabilitation. Smith v. Hooey, ; Dickey v. Florida, ; Barker v. Wingo, . Certiorari granted; 109 Ariz. 111, 506 P.2d 242, vacated and remanded.PER CURIAM.Almost three years after he was charged and 28 months after he first demanded that Arizona either extradite him from California, where he was serving a prison term, or drop a detainer against him, petitioner was tried for murder in Arizona. Prior to trial, he filed a state habeas corpus application, alleging a deprivation of his Sixth and Fourteenth Amendment right to a speedy trial. In affirming the denial of the petition, the Arizona Supreme Court ruled that under this Court's decisions in Dickey v. Florida, , and Barker v. Wingo, , a showing of prejudice to the defense at trial was essential to establish a federal speedy trial claim. The state court found no such prejudice here because petitioner was afforded a preliminary hearing and allowed to subpoena witnesses.1 109 Ariz. 111, 506 P.2d 242 (1973).The state court was in fundamental error in its reading of Barker v. Wingo and in the standard applied in judging petitioner's speedy trial claim. Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial: "We regard none of the four factors identified above [length of delay, reason for delay, defendant's assertion of his right, and prejudice to the defendant] as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution." 407 U.S., at 533 (footnote omitted). In addition to possible prejudice, any court must thus carefully weigh the reasons for the delay in bringing an incarcerated defendant to trial. In the face of petitioner's repeated demands, did the State discharge its "constitutional duty to make a diligent, good-faith effort to bring him [to trial]"? Smith v. Hooey, .Moreover, prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings.2 Inordinate delay,"wholly aside from possible prejudice to a defense on the merits, may `seriously interfere with the defendant's liberty, whether he is free on bail or not, and ... 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.' United States v. Marion, . These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty." Barker v. Wingo, supra, at 537 (WHITE, J., concurring). See also id., at 532-533 (majority opinion). Some of these factors may carry quite different weight where a defendant is incarcerated after conviction in another State, but no court should overlook the possible impact pending charges might have on his prospects for parole and meaningful rehabilitation. Strunk v. United States, .The State of Arizona itself has conceded that this is a close case under Barker v. Wingo and that it is arguable whether the three-year delay was excusable. Because we agree and because "the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment," Klopfer v. North Carolina, , we grant the motion for leave to proceed in forma pauperis and the petition, vacate the judgment, and remand to the Arizona Supreme Court to reassess petitioner's case under the standards mandated by Smith, Barker, and Dickey. So ordered.
0	The trial judge presiding over petitioner's criminal trial excluded the testimony of defense-witness Pamela Maples. After his conviction, petitioner argued on appeal, inter alia, that the exclusion of Maples' testimony violated Chambers v. Mississippi, 410 U. S. 284, which held that a combination of erroneous evidentiary rulings rose to the level of a due-process violation. The California Court of Appeal did not explicitly address that argument in affirming, but stated, without specifying which harmless-error standard it was applying, that "no possible prejudice" could have resulted in light of the cumulative nature of Maples' testimony. The State Supreme Court denied discretionary review. Petitioner then filed a federal habeas petition raising the due-process and other claims. The Magistrate Judge found the state appellate court's failure to recognize Chambers error an unreasonable application of clearly established law as set forth by this Court, and disagreed with the finding of "no possible prejudice," but concluded there was an insufficient showing that the improper exclusion of Maples' testimony had a "substantial and injurious effect" on the jury's verdict under Brecht v. Abrahamson, 507 U. S. 619, 631. Agreeing, the District Court denied relief, and the Ninth Circuit affirmed.Held: In 28 U. S. C. §2254 proceedings, a federal court must assess the prejudicial impact of constitutional error in a state-court criminal trial under Brecht's "substantial and injurious effect" standard, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California, 386 U. S. 18, 24. Pp. 3-8. (a) That Brecht applies in §2254 cases even if the state appellate court has not found, as did the state appellate court in Brecht, that the error was harmless under Chapman, is indicated by this Court's Brecht opinion, which did not turn on whether the state court itself conducted Chapman review, but instead cited concerns about finality, comity, and federalism as the primary reasons for adopting a less onerous standard on collateral review. 507 U. S., at 637. Since each of these concerns applies with equal force whether or not the state court reaches the Chapman question, it would be illogical to make the standard of review turn upon that contingency. Brecht, supra, at 636, distinguished. Petitioner presents a false analogy in arguing that, if Brecht applies whether or not the state appellate court conducted Chapman review, then Brecht would apply even if a State eliminated appellate review altogether. The Court also rejects petitioner's contention that, even if Brecht adopted a categorical rule, post-Brecht developments — the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as interpreted in Mitchell v. Esparza, 540 U. S. 12 — require a different review standard. That result is not suggested by Esparza, which had no reason to decide the point, nor by AEDPA, which sets forth a precondition, not an entitlement, to the grant of habeas relief. Pp. 3-7. (b) Petitioner's argument that the judgment below must still be reversed because excluding Maples' testimony substantially and injuriously affected the jury's verdict is rejected as not fairly encompassed by the question presented. Pp. 7-8.Affirmed. Scalia, J., delivered the opinion for a unanimous Court with respect to all but footnote 1 and Part II-B. Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined that opinion in full; Stevens, Souter, and Ginsburg, JJ., joined it as to all but Part II-B; and Breyer, J., joined as to all but footnote 1 and Part II-B. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter and Ginsburg, JJ., joined, and in which Breyer, J., joined in part. Breyer, J., filed an opinion concurring in part and dissenting in part.JOHN FRANCIS FRY, PETITIONER v. CHERYLK. PLILER, WARDENon writ of certiorari to the united states court of appeals for the ninth circuit[June 11, 2007] Justice Scalia delivered the opinion of the Court. We decide whether a federal habeas court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the "substantial and injurious effect" standard set forth in Brecht v. Abrahamson, 507 U. S. 619 (1993), when the state appellate court failed to recognize the error and did not review it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California, 386 U. S. 18 (1967).I After two mistrials on account of hung juries, a third jury convicted petitioner of the 1992 murders of James and Cynthia Bell. At trial, petitioner sought to attribute the murders to one or more other persons. To that end, he offered testimony of several witnesses who linked one Anthony Hurtz to the killings. But the trial court excluded the testimony of one additional witness, Pamela Maples, who was prepared to testify that she had heard Hurtz discussing homicides bearing some resemblance to the murder of the Bells. In the trial court's view, the defense had provided insufficient evidence to link the incidents described by Hurtz to the murders for which petitioner was charged. Following his conviction, petitioner appealed to the California Court of Appeal, arguing (among other things) that the trial court's exclusion of Maples' testimony deprived him of a fair opportunity to defend himself, in violation of Chambers v. Mississippi, 410 U. S. 284 (1973) (holding that a combination of erroneous evidentiary rulings rose to the level of a due process violation). Without explicitly addressing petitioner's Chambers argument, the state appellate court held that the trial court had not abused its discretion in excluding Maples' testimony under California's evidentiary rules, adding that "no possible prejudice" could have resulted in light of the "merely cumulative" nature of the testimony. People v. Fry, No. A072396 (Ct. App. Cal., 1st App. Dist., Mar. 30, 2000), App. 97, n. 17. The court did not specify which harmless-error standard it was applying in concluding that petitioner suffered "no possible prejudice." The Supreme Court of California denied discretionary review, and petitioner did not then seek a writ of certiorari from this Court. Petitioner next filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California, raising the aforementioned due-process claim (among others). The case was initially assigned to a Magistrate Judge, who ultimately recommended denying relief. He found the state appellate court's failure to recognize error under Chambers to be "an unreasonable application of clearly established law as set forth by the Supreme Court," App. 180, and disagreed with the state appellate court's finding of "no possible prejudice." But he nevertheless concluded that "there ha[d] been an insufficient showing that the improper exclusion of the testimony of Ms. Maples had a substantial and injurious effect on the jury's verdict" under the standard set forth in Brecht. App. 181-182. The District Court adopted the Magistrate Judge's findings and recommendations in full, and a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. We granted certiorari. 549 U. S. ___ (2006).IIA In Chapman, supra, a case that reached this Court on direct review of a state-court criminal judgment, we held that a federal constitutional error can be considered harmless only if a court is "able to declare a belief that it was harmless beyond a reasonable doubt." Id., at 24. In Brecht, supra, we considered whether the Chapman standard of review applies on collateral review of a state-court criminal judgment under 28 U. S. C. §2254. Citing concerns about finality, comity, and federalism, we rejected the Chapman standard in favor of the more forgiving standard of review applied to nonconstitutional errors on direct appeal from federal convictions. See Kotteakos v. United States, 328 U. S. 750 (1946). Under that standard, an error is harmless unless it " 'had substantial and injurious effect or influence in determining the jury's verdict.' " Brecht, supra, at 631 (quoting Kotteakos, supra, at 776). The question in this case is whether a federal court must assess the prejudicial impact of the unconstitutional exclusion of evidence during a state-court criminal trial under Brecht even if the state appellate court has not found, as the state appellate court in Brecht had found, that the error was harmless beyond a reasonable doubt under Chapman.1 We begin with the Court's opinion in Brecht. The primary reasons it gave for adopting a less onerous standard on collateral review of state-court criminal judgments did not turn on whether the state court itself conducted Chapman review. The opinion explained that application of Chapman would "undermin[e] the States' interest in finality," 507 U. S., at 637; would "infring[e] upon [the States'] sovereignty over criminal matters," ibid.; would undercut the historic limitation of habeas relief to those " 'grievously wronged,' " ibid.; and would "impos[e] significant 'societal costs,' " ibid. (quoting United States v. Mechanik, 475 U. S. 66, 72 (1986)). Since each of these concerns applies with equal force whether or not the state court reaches the Chapman question, it would be illogical to make the standard of review turn upon that contingency. The opinion in Brecht clearly assumed that the Kotteakos standard would apply in virtually all §2254 cases. It suggested an exception only for the "unusual case" in which "a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct ... infect[s] the integrity of the proceeding." 507 U. S., at 638, n. 9. This, of course, has nothing to do with whether the state court conducted harmless-error review. The concurring and dissenting opinions shared the assumption that Kotteakos would almost always be the standard on collateral review. The former stated in categorical terms that the "Kotteakos standard" "will now apply on collateral review" of state convictions, 507 U. S., at 643 (Stevens, J., concurring). Justice White's dissent complained that under the Court's opinion Kotteakos would apply even where (as in this case) the state court found that "no violation had occurred," 507 U. S., at 644; and Justice O'Connor's dissent stated that Chapman would "no longer appl[y] to any trial error asserted on habeas," 507 U. S., at 651. Later cases also assumed that Brecht's applicability does not turn on whether the state appellate court recognized the constitutional error and reached the Chapman question. See Penry v. Johnson, 532 U. S. 782, 795 (2001); Calderon v. Coleman (per curiam). Petitioner's contrary position misreads (or at least exaggerates the significance of) a lone passage from our Brecht opinion. In that passage, the Court explained:"State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect on the trial process under Chapman, and state courts often occupy a superior vantage point from which to evaluate the effect of trial error. For these reasons, it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review." 507 U. S., at 636 (citation omitted).But the quoted passage does little to advance petitioner's position. To say (a) that since state courts are required to evaluate constitutional error under Chapman it makes no sense to establish Chapman as the standard for federal habeas review is not at all to say (b) that whenever a state court fails in its responsibility to apply Chapman the federal habeas standard must change. It would be foolish to equate the two, in view of the other weighty reasons given in Brecht for applying a less onerous standard on collateral review — reasons having nothing to do with whether the state court actually applied Chapman. Petitioner argues that, if Brecht applies whether or not the state appellate court conducted Chapman review, then Brecht would apply even if a State eliminated appellate review altogether. That is not necessarily so. The federal habeas review rule applied to the class of case in which state appellate review is available does not have to be the same rule applied to the class of case where it is not. We have no occasion to resolve that hypothetical (and highly unrealistic) question now. In the case before us petitioner did obtain appellate review of his constitutional claim; the state court simply found the underlying claim weak and therefore did not measure its prejudicial impact under Chapman. The attempted analogy — between (1) eliminating appellate review altogether and (2) providing appellate review but rejecting a constitutional claim without assessing its prejudicial impact under Chapman — is a false one. Petitioner contends that, even if Brecht adopted a categorical rule, post-Brecht developments require a different standard of review. Three years after we decided Brecht, Congress passed, and the President signed, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which a habeas petition may not be granted unless the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States ... ." 28 U. S. C. §2254(d)(1). In Mitchell v. Esparza (per curiam), we held that, when a state court determines that a constitutional violation is harmless, a federal court may not award habeas relief under §2254 unless the harmlessness determination itself was unreasonable. Petitioner contends that §2254(d)(1), as interpreted in Esparza, eliminates the requirement that a petitioner also satisfy Brecht's standard. We think not. That conclusion is not suggested by Esparza, which had no reason to decide the point. Nor is it suggested by the text of AEDPA, which sets forth a precondition to the grant of habeas relief ("a writ of habeas corpus ... shall not be granted" unless the conditions of §2254(d) are met), not an entitlement to it. Given our frequent recognition that AEDPA limited rather than expanded the availability of habeas relief, see, e.g., Williams v. Taylor, 529 U. S. 362, 412 (2000), it is implausible that, without saying so, AEDPA replaced the Brecht standard of " 'actual prejudice,' " 507 U. S., at 637 (quoting United States v. Lane, 474 U. S. 438, 449 (1986)), with the more liberal AEDPA/Chapman standard which requires only that the state court's harmless-beyond-a-reasonable-doubt determination be unreasonable. That said, it certainly makes no sense to require formal application of both tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former. Accordingly, the Ninth Circuit was correct to apply the Brecht standard of review in assessing the prejudicial impact of federal constitutional error in a state-court criminal trial.2B Petitioner argues that, even if Brecht provides the standard of review, we must still reverse the judgment below because the exclusion of Maples' testimony substantially and injuriously affected the jury's verdict in this case. That argument, however, is not fairly encompassed within the question presented. We granted certiorari to decide a question that has divided the Courts of Appeals — whether Brecht or Chapman provides the appropriate standard of review when constitutional error in a state-court trial is first recognized by a federal court. Compare, e.g., Bains v. Cambra, 204 F. 3d 964, 976-977 (CA9 2000), with Orndorff v. Lockhart, 998 F. 2d 1426, 1429-1430 (CA8 1993). It is true that the second sentence of the question presented asks: "Does it matter which harmless error standard is employed?" Pet. for Cert. I. But to ask whether Brecht makes any real difference is not to ask whether the Ninth Circuit misapplied Brecht in this particular case. Petitioner seems to have understood this. Only in a brief footnote of his petition did he hint that the Ninth Circuit erred in its application of the Brecht standard. Pet. for Cert. 23, n. 19.3 Indeed, if application of the Brecht standard to the facts of this case were encompassed within the question presented, so too would be the question of whether there was constitutional error in the first place. After all, it would not "matter which harmless error standard is employed" if there were no underlying constitutional error. Unlike the dissenting Justices, some of whom would reverse the decision below on the ground that the error was harmful under Brecht, and one of whom would vacate the decision below on the ground that it is unclear whether there was constitutional error in the first instance, we read the question presented to avoid these tangential and factbound questions, and limit our review to the question of whether Chapman or Brecht provides the governing standard.* * * We hold that in §2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the "substantial and injurious effect" standard set forth in Brecht, 507 U. S. 619, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman, 386 U. S. 18. Since the Ninth Circuit correctly applied the Brecht standard rather than the Chapman standard, we affirm the judgment below.It is so ordered.JOHN FRANCIS FRY, PETITIONER v. CHERYL K. PLILER, WARDENon writ of certiorari to the united states court of appeals for the ninth circuit[June 11, 2007] Justice Stevens, with whom Justice Souter and Justice Ginsburg join, and with whom Justice Breyer joins in part, concurring in part and dissenting in part. While I join all of the Court's opinion except Part II-B, I am persuaded that we should also answer the question whether the constitutional error was harmless under the standard announced in Brecht v. Abrahamson, 507 U. S. 619 (1993). The parties and the Solicitor General as amicus curiae fully briefed and argued the question, presumably because it appears to fit within the awkwardly drafted question that we agreed to review.1 Moreover, our answer to the question whether the error was harmless would emphasize the important point that the Brecht standard, as more fully explained in our opinion in Kotteakos v. United States, 328 U. S. 750 (1946), imposes a significant burden of persuasion on the State. Both the history of this litigation and the nature of the constitutional error involved provide powerful support for the conclusion that if the jurors had heard the testimony of Pamela Maples, they would at least have had a reasonable doubt concerning petitioner's guilt. Petitioner was not found guilty until after he had been tried three times. The first trial ended in a mistrial with the jury deadlocked 6 to 6. App. 121. The second trial also resulted in a mistrial due to a deadlocked jury, this time 7 to 5 in favor of conviction. Ibid. In the third trial, after the jurors had been deliberating for 11 days, the foreperson advised the judge that they were split 7 to 5 and " 'hopelessly deadlocked.' " Id., at 74-75. When the judge instructed the jury to continue its deliberations, the foreperson requested clarification on the definition of "reasonable doubt." Id., at 75. The jury deliberated for an additional 23 days after that exchange — a total of five weeks — before finally returning a guilty verdict.2 It is not surprising that some jurors harbored a reasonable doubt as to petitioner's guilt weeks into their deliberations. The only person to offer eyewitness testimony, a disinterested truckdriver, described the killer as a man who was 5'7" to 5'8" tall, weighed about 140 pounds, and had a full head of hair. Tr. 4574 (Apr. 26, 1995). Petitioner is 6'2" tall, weighed 300 pounds at the time of the murder, and is bald. Record, Doc. No. 13, Exh. L (arrest report); Ibid., Exh. M (petitioner's driver's license). Seven different witnesses linked the killings to a man named Anthony Hurtz, some testifying that Hurtz had admitted to them that he was in fact the killer. App. 60-64, 179. Each of those witnesses, unlike the truckdriver, was impeached by evidence of bias, either against Hurtz or for petitioner. Id., at 61-64, 73, 179-180. However, Pamela Maples, a cousin of Hurtz's who was in all other respects a disinterested witness, did not testify at either of petitioner's first two trials. During the third trial, she testified out of the presence of the jury that she had overheard statements by Hurtz that he had committed a double murder strikingly similar to that witnessed by the truckdriver. As the Magistrate Judge found, the exclusion of Maples' testimony for lack of foundation was clear constitutional error under Chambers v. Mississippi, 410 U. S. 284 (1973), and the State does not argue otherwise.3 Cf. Skipper v. South Carolina, 476 U. S. 1, 8 (1986) ("The testimony of more disinterested witnesses ... would quite naturally be given much greater weight by the jury"). Chambers error is by nature prejudicial. We have said that Chambers "does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence." United States v. Scheffer, 523 U. S. 303, 316 (1998). Rather, due process considerations hold sway over state evidentiary rules only when the exclusion of evidence "undermine[s] fundamental elements of the defendant's defense." Id., at 315. Hence, as a matter of law and logical inference, it is well-nigh impossible for a reviewing court to conclude that such error "did not influence the jury, or had but very slight effect" on its verdict. Kotteakos, 328 U. S., at 764; see also O'Neal v. McAninch, 513 U. S. 432, 445 (1995) ("[W]hen a habeas court is in grave doubt as to the harmlessness of an error that affects substantial rights, it should grant relief"). It is difficult to imagine a less appropriate case for an exception to that commonsense proposition. We found in Parker v. Gladden, 385 U. S. 363 (1966) (per curiam), that 26 hours of juror deliberations in a murder trial "indicat[ed] a difference among them as to the guilt of petitioner." Id., at 365. Here, the jury was deprived of significant evidence of third-party guilt, and still we measure the length of deliberations by weeks, not hours. In light of the jurors' evident uncertainty, the prospect of rebutting the near-conclusive presumption that the Chambers error did substantial harm vanishes completely.4 We have not been shy in emphasizing that federal habeas courts do not lightly find constitutional error. See Carey v. Musladin, 549 U. S. ___ (2006). It follows that when they do find an error, they may not lightly discount its significance. Rather, a harmlessness finding requires "fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Kotteakos, 328 U. S., at 765. Given "all that happened" in this case, and given the nature of the error, I cannot agree with the Ninth Circuit's conclusion that the erroneous exclusion of Maples' testimony was harmless under that standard. Accordingly, I would reverse the judgment of the Court of Appeals.JOHN FRANCIS FRY, PETITIONER v. CHERYL K. PLILER, WARDENon writ of certiorari to the united states court of appeals for the ninth circuit[June 11, 2007] Justice Breyer, concurring in part and dissenting in part. I agree with the Court that Brecht v. Abrahamson, 507 U. S. 619 (1993), sets forth the proper standard of review. Cf. id., at 643 (Stevens, J., concurring). At the same time, I agree with Justice Stevens that we should consider the application of the standard, that the error was not harmless, and that "Chambers error is by nature prejudicial." Ante, at 3 (opinion concurring in part and dissenting in part) (citing Chambers v. Mississippi, 410 U. S. 284 (1973)). Cf. Kyles v. Whitley, 514 U. S. 419, 435 (1995) (similar statement as to errors under Brady v. Maryland, 373 U. S. 83 (1963)). Nonetheless, I would remand this case rather than reversing the Court of Appeals. My reason arises out of the fact that here, for purposes of deciding whether Chambers error exists, the question of harm is inextricably tied to other aspects of the trial court's determination. The underlying evidentiary judgment at issue involved a weighing of the probative value of proffered evidence against, e.g., its cumulative nature, its tendency to confuse or to prejudice the jury, or the likelihood that it will simply waste the jury's time. See App. 96-97; Cal. Evid. Code Ann. §352 (West 1995); cf. Fed. Rule Evid. 403. In this context, to find a Chambers error a court must take account both of the way in which (and extent to which) the trial court misweighed the relevant admissibility factors and of the extent to which doing so harmed the defendant. Moreover, to find this kind of error harmless, as the Court of Appeals found it, should preclude the possibility of a Chambers error; but to find this kind of error harmful does not guarantee the contrary. A garden-variety nonharmless misapplication of evidentiary principles normally will not rise to the level of a constitutional, Chambers, mistake. Cf., e.g., United States v. Scheffer, 523 U. S. 303, 308 (1998). All this, it seems to me, requires reconsideration by the Court of Appeals of its Chambers determination. I would not consider the question whether that exclusion of evidence amounted to Chambers error because that question is not before us, see ante, at 3, n. 1 (opinion of the Court). But the logically inseparable question of harm is before us; and that, I believe, is sufficient. I would remand the case to the Ninth Circuit so that, taking account of the points Justice Stevens raises, ante, at 1-4, it can reconsider whether there was an error of admissibility sufficiently serious to violate Chambers. I therefore join the Court's opinion except as to footnote 1 and Part II-B, and I join Justice Stevens' opinion in part.FOOTNOTESFootnote 1 As this case comes to the Court, we assume (without deciding) that the state appellate court's decision affirming the exclusion of Maples' testimony was an unreasonable application of Chambers v. Mississippi, 410 U. S. 284, 302 (1973). We also assume that the state appellate court did not determine the harmlessness of the error under the Chapman standard, notwithstanding its ambiguous conclusion that the exclusion of Maples' testimony resulted in "no possible prejudice."Footnote 2 We do not agree with petitioner's amicus that Brecht's concerns regarding the finality of state-court criminal judgments and the difficulty of retrying a defendant years after the crime "have been largely alleviated by [AEDPA]," which "sets strict time limitations on habeas petitions and limits second or successive petitions as well." Brief for Innocence Network 7. Even cases governed by AEDPA can span a decade, as the nearly 12-year gap between petitioner's conviction and the issuance of this decision illustrates.Footnote 3 The question presented included one additional issue: "[I]f the Brecht standard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?" Pet. for Cert. I. We have previously held that, when a court is "in virtual equipoise as to the harmlessness of the error" under the Brecht standard, the court should "treat the error ... as if it affected the verdict ... ." O'Neal v. McAninch, 513 U. S. 432, 435 (1995). The majority opinion below did not refer to O'Neal, presumably because the majority harbored no grave doubt as to the harmlessness of the error. Neither did the dissenting judge refer to O'Neal, presumably because she did not think the majority harbored grave doubt as to the harmlessness of the error. Moreover, the State has conceded throughout this §2254 proceeding that it bears the burden of persuasion. Thus, there is no basis on which to conclude that the court below ignored O'Neal.FOOTNOTESFootnote 1 In Brecht itself the application of the standard of Kotteakos v. United States, 328 U. S. 750 (1946), to the facts of the case was not even arguably encompassed within the question presented. We nonetheless found it appropriate to rule on whether the error was harmless under that standard. See Brecht, 507 U. S., at 638 ("All that remains to be decided is whether petitioner is entitled to relief").Footnote 2 According to data compiled by the National Center for State Courts, the average length of jury deliberations for a capital murder trial in California is 12 hours. See Judge and Attorney Survey (California), State of the States — Survey of Jury Improvement Efforts (2007), online at http://www.ncsconline.org/D_research/cjs/xls/SOSJAData/CA_JA_ State.xls (as visited June 8, 2007, and available in Clerk of Court's case file). Three days before the jury reached a verdict in this noncapital case, the trial judge speculated that it was perhaps the longest deliberation in the history of Solano County. Tr. 5315 (June 5, 1995).Footnote 3 As the Magistrate Judge remarked, "[j]ust how many double execution style homicides involving a female driver shot in the head and a male passenger also shot in a parked car could there be in a community proximate to the victims' murder herein?" App. 179.Footnote 4 See United States v. Fields, 483 F. 3d 313, 379 (CA5 2007) (Benavides, J., dissenting from Part II-A-I and dissenting, in part, from the judgment) ("Courts often have been unwilling to find error harmless where the record, as in this case, affirmatively shows that the jurors struggled with their verdict"); Kennedy v. Lockyer, 379 F. 3d 1041, 1056, n. 18 (CA9 2004) ("From the fact that the first trial ended in a mistrial, as well as the fact that the jury deliberated for a considerable amount of time in the second trial, we infer that the question as to [the defendant's] guilt or innocence was a close one in both trials"); Powell v. Collins, 332 F. 3d 376, 401 (CA6 2003) (finding prejudicial error in a habeas case in part because the jury at one point told the court that it was " 'at a stalemate' "); United States v. Varoudakis, 233 F. 3d 113, 127 (CA1 2000) (noting, in weighing harmlessness, that "the jury's 'impasse' note reveals uncertainty about [the defendant's] guilt"); United States v. Ottersburg, 76 F. 3d 137, 140 (CA7 1996) ("The length of the jury's deliberations makes clear that this case was not an easy one"); Medina v. Barnes, 71 F. 3d 363, 369 (CA10 1995) (basing prejudice determination in a habeas case in part on the fact that "at one point during their deliberations, the jurors indicated that they might be unable to reach a unanimous verdict").
7	Petitioner multiemployer association and respondents (collectively the Union) are parties to collective-bargaining agreements governing the terms and conditions of employment in construction-related industries in California. The Union filed suit in Federal District Court, alleging that petitioner and its members, in violation of the antitrust laws, coerced certain third parties and some of petitioner's members to enter into business relationships with nonunion contractors and subcontractors, and thus adversely affected the trade of certain unionized firms, thereby restraining the Union's business activities. Treble damages were sought under 4 of the Clayton Act, which authorizes recovery of such damages by "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws." The District Court dismissed the complaint as insufficient to allege a cause of action for treble damages under 4. The Court of Appeals reversed.Held: Based on the allegations of the complaint, the Union was not a person injured by reason of a violation of the antitrust laws within the meaning of 4 of the Clayton Act. Pp. 526-546. (a) Even though coercion allegedly directed by petitioner at third parties in order to restrain the trade of "certain" contractors and subcontractors may have been unlawful, it does not necessarily follow that the Union is a person injured by reason of a violation of the antitrust laws within the meaning of 4. Pp. 526-529. (b) The question whether the Union may recover for the alleged injury cannot be answered by literal reference to 4's broad language. Instead, as was required in common-law damages litigation in 1890 when 4's predecessor was enacted as 7 of the Sherman Act, the question requires an evaluation of the Union's harm, the petitioner's alleged wrongdoing, and the relationship between them. Pp. 529-535. (c) The Union's allegations of consequential harm resulting from a violation of the antitrust laws, although buttressed by an allegation of intent to harm the Union, are insufficient as a matter of law. Other relevant factors - the nature of the alleged injury to the Union, which is neither a consumer nor a competitor in the market in which trade was allegedly restrained, the tenuous and speculative character of the causal relationship between the Union's alleged injury and the alleged restraint, the potential for duplicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy - weigh heavily against judicial enforcement of the Union's antitrust claim. Pp. 535-546. 648 F.2d 527, reversed.STEVENS, J., delivered the opinion of the Court in which BURGER, C. J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, post, p. 546.James P. Watson argued the cause for petitioner. With him on the briefs was George M. Cox.Victor J. Van Bourg argued the cause and filed a brief for respondents.* [Footnote *] Briefs of amici curiae urging reversal were filed by Solicitor General Lee, Assistant Attorney General Baxter, Deputy Solicitor General Wallace, Elinor Hadley Stillman, Robert B. Nicholson, and Robert J. Wiggers for the United States; by Peter G. Nash for the Associated General Contractors of America, Inc.; and by Edward B. Miller and Stephen A. Bokat for the Chamber of Commerce of the United States.J. Albert Woll, Laurence Gold, and George Kaufmann filed briefs for the American Federation of Labor and Congress of Industrial Organization as amicus curiae urging affirmance.Kenneth E. Ristau, Jr., and David A. Cathcart filed a brief for the Pacific Maritime Association as amicus curiae.JUSTICE STEVENS delivered the opinion of the Court.This case arises out of a dispute between parties to a multiemployer collective-bargaining agreement. The plaintiff unions allege that, in violation of the antitrust laws, the multiemployer association and its members coerced certain third parties, as well as some of the association's members, to enter into business relationships with nonunion firms. This coercion, according to the complaint, adversely affected the trade of certain unionized firms and thereby restrained the business activities of the unions. The question presented is whether the complaint sufficiently alleges that the unions have been "injured in [their] business or property by reason of anything forbidden in the antitrust laws" and may therefore recover treble damages under 4 of the Clayton Act. 38 Stat. 731, 15 U.S.C. 15. Unlike the majority of the Court of Appeals for the Ninth Circuit, we agree with the District Court's conclusion that the complaint is insufficient.IThe two named plaintiffs (the Union) - the California State Council of Carpenters and the Carpenters 46 Northern Counties Conference Board - are affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. The Union represents more than 50,000 individuals employed by the defendants in the carpentry, drywall, piledriving, and related industries throughout the State of California. The Union's complaint is filed as a class action on behalf of numerous affiliated local unions and district councils. The defendants are Associated General Contractors of California, Inc. (Associated), a membership corporation composed of various building and construction contractors, approximately 250 members of Associated who are identified by name in an exhibit attached to the complaint, and 1,000 unidentified co-conspirators.The Union and Associated, and their respective predecessors, have been parties to collective-bargaining agreements governing the terms and conditions of employment in construction-related industries in California for over 25 years. The wages and other benefits paid pursuant to these agreements amount to more than $750 million per year. In addition, approximately 3,000 contractors who are not members of Associated have entered into separate "memorandum agreements" with the Union, which bind them to the terms of the master collective-bargaining agreements between the Union and Associated. The amended complaint does not state the number of nonsignatory employers or the number of nonunion employees who are active in the relevant market.In paragraphs 23 and 24 of the amended complaint, the Union alleges the factual basis for five different damages claims.1 Paragraph 23 alleges generally that the defendants conspired to abrogate and weaken the collective-bargaining relationship between the Union and the signatory employers. In seven subsections, paragraph 24 sets forth activities allegedly committed pursuant to the conspiracy. The most specific allegations relate to the labor relations between the parties.2 The complaint's description of actions affecting nonparties is both brief and vague. It is alleged that defendants "(3) Advocated, encouraged, induced, and aided non-members of defendant Associated General Contractors of California, Inc. to refuse to enter into collective bargaining relationships with plaintiffs and each of them; "(4) Advocated, encouraged, induced, coerced, aided and encouraged owners of land and other letters of construction contracts to hire contractors and subcontractors who are not signatories to collective bargaining agreements with plaintiffs and each of them; "(5) Advocated, induced, coerced, encouraged, and aided members of Associated General Contractors of California, Inc., non-members of Associated General Contractors of California, Inc., and `memorandum contractors' to enter into subcontracting agreements with subcontractors who are not signatories to any collective bargaining agreements with plaintiffs and each of them"; App. E to Pet. for Cert. 17-19 (emphasis added).3 Paragraph 25 describes the alleged "purpose and effect" of these activities: first, "to weaken, destroy, and restrain the trade of certain contractors," who were either members of Associated or memorandum contractors who had signed agreements with the Union; and second, to restrain "the free exercise of the business activities of plaintiffs and each of them."4 Plaintiffs claim that these alleged antitrust violations caused them $25 million in damages.5 The complaint does not identify any specific component of this damages claim.After hearing "lengthy oral argument" and after receiving two sets of written briefs, one filed before and the second filed after this Court's decision in Connell Construction Co. v. Plumbers & Steamfitters, , the District Court dismissed the complaint, including the federal antitrust claim. 404 F. Supp. 1067 (ND Cal. 1975).6 The court observed that the complaint alleged "a rather vague, general conspiracy," and that the allegations "appear typical of disputes a union might have with an employer," which in the normal course are resolved by grievance and arbitration or by the NLRB. Id., at 1069.7 Without seeking to clarify or further amend the first amended complaint, the Union filed its notice of appeal on October 9, 1975.Over five years later, on November 20, 1980, the Court of Appeals reversed the District Court's dismissal of the Union's federal antitrust claim. 648 F.2d 527.8 The majority of the Court of Appeals disagreed with the District Court's characterization of the antitrust claim; it adopted a construction of the amended complaint which is somewhat broader than the allegations in the pleading itself.9 The Court of Appeals held (1) that a Sherman Act violation - a group boycott - had been alleged, id., at 531-532; (2) that the defendants' conduct was not within the antitrust exemption for labor activities, id., at 532-536; and (3) that the plaintiffs had standing to recover damages for the injury to their own business activities occasioned by the defendants' "industry-wide boycott against all subcontractors with whom the Unions had signed agreements ... ." Id., at 537. In support of the Union's standing, the majority reasoned that the Union was within the area of the economy endangered by a breakdown of competitive conditions, not only because injury to the Union was a foreseeable consequence of the antitrust violation, but also because that injury was specifically intended by the defendants. The court noted that its conclusion was consistent with other cases holding that union organizational and representational activities constitute a form of business protected by the antitrust laws.10 IIAs the case comes to us, we must assume that the Union can prove the facts alleged in its amended complaint. It is not, however, proper to assume that the Union can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged.11 We first note that the Union's most specific claims of injury involve matters that are not subject to review under the antitrust laws. The amended complaint alleges that the defendants have breached their collective-bargaining agreements in various ways, and that they have manipulated their corporate names and corporate status in order to divert business to nonunion divisions or firms that they actually control. Such deceptive diversion of business to the nonunion portion of a so-called "double-breasted" operation might constitute a breach of contract, an unfair labor practice, or perhaps even a common-law fraud or deceit, but in the context of the bargaining relationship between the parties to this litigation, such activities are plainly not subject to review under the federal antitrust laws.12 Similarly, the charge that the defendants "advocated, encouraged, induced, and aided nonmembers ... to refuse to enter into collective bargaining relationships" with the Union (§ 24(3)) does not describe an antitrust violation.13 The Union's antitrust claims arise from alleged restraints caused by defendants in the market for construction contracting and subcontracting.14 The complaint alleges that defendants "coerced"15 two classes of persons: (1) landowners and others who let construction contracts, i. e., the defendants' customers and potential customers; and (2) general contractors, i. e., defendants' competitors and defendants themselves. Coercion against the members of both classes was designed to induce them to give some of their business - but not necessarily all of it - to nonunion firms.16 Although the pleading does not allege that the coercive conduct increased the aggregate share of nonunion firms in the market, it does allege that defendants' activities weakened and restrained the trade "of certain contractors." See n. 4, supra. Thus, particular victims of coercion may have diverted particular contracts to nonunion firms and thereby caused certain unionized subcontractors to lose some business.We think the Court of Appeals properly assumed that such coercion might violate the antitrust laws.17 An agreement to restrain trade may be unlawful even though it does not entirely exclude its victims from the market. See Associated Press v. United States, . Coercive activity that prevents its victims from making free choices between market alternatives is inherently destructive of competitive conditions and may be condemned even without proof of its actual market effect. Cf. Klors, Inc. v. Broadway-Hale Stores, Inc., .18 Even though coercion directed by defendants at third parties in order to restrain the trade of "certain" contractors and subcontractors may have been unlawful, it does not, of course, necessarily follow that still another party - the Union - is a person injured by reason of a violation of the antitrust laws within the meaning of 4 of the Clayton Act.IIIWe first consider the language in the controlling statute. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., . The class of persons who may maintain a private damages action under the antitrust laws is broadly defined in 4 of the Clayton Act. 15 U.S.C. 15. That section provides: "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." A literal reading of the statute is broad enough to encompass every harm that can be attributed directly or indirectly to the consequences of an antitrust violation. Some of our prior cases have paraphrased the statute in an equally expansive way.19 But before we hold that the statute is as broad as its words suggest, we must consider whether Congress intended such an open-ended meaning.The critical statutory language was originally enacted in 1890 as 7 of the Sherman Act. 26 Stat. 210. The legislative history of the section shows that Congress was primarily interested in creating an effective remedy for consumers who were forced to pay excessive prices by the giant trusts and combinations that dominated certain interstate markets.20 That history supports a broad construction of this remedial provision. A proper interpretation of the section cannot, however, ignore the larger context in which the entire statute was debated. The repeated references to the common law in the debates that preceded the enactment of the Sherman Act make it clear that Congress intended the Act to be construed in the light of its common-law background.21 Senator Sherman stated that the bill "does not announce a new principle of law, but applies old and well recognized principles of the common law to the complicated jurisdiction of our State and Federal Government."22 Thus our comments on the need for judicial interpretation of 1 are equally applicable to 7: "One problem presented by the language of 1 of the Sherman Act is that it cannot mean what it says. The statute says that `every' contract that restrains trade is unlawful. But, as Mr. Justice Brandeis perceptively noted, restraint is the very essence of every contract; read literally, 1 would outlaw the entire body of private contract law... . "Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition." National Society of Professional Engineers v. United States, (footnotes omitted). Just as the substantive content of the Sherman Act draws meaning from its common-law antecedents, so must we consider the contemporary legal context in which Congress acted when we try to ascertain the intended scope of the private remedy created by 7.In 1890, notwithstanding general language in many state constitutions providing in substance that "every wrong shall have a remedy,"23 a number of judge-made rules circumscribed the availability of damages recoveries in both tort and contract litigation - doctrines such as foreseeability and proximate cause,24 directness of injury,25 certainty of damages,26 and privity of contract.27 Although particular common-law limitations were not debated in Congress, the frequent references to common-law principles imply that Congress simply assumed that antitrust damages litigation would be subject to constraints comparable to well-accepted common-law rules applied in comparable litigation.28 The federal judges who first confronted the task of giving meaning to 7 so understood the congressional intent. Thus in 1910 the Court of Appeals for the Third Circuit held as a matter of law that neither a creditor nor a stockholder of a corporation that was injured by a violation of the antitrust laws could recover treble damages under 7. Loeb v. Eastman Kodak Co., 183 F. 704. The court explained that the plaintiff's injury as a stockholder was "indirect, remote, and consequential." Id., at 709.29 This holding was consistent with Justice Holmes' explanation of a similar construction of the remedial provision of the Interstate Commerce Act a few years later: "The general tendency of the law, in regard to damages at least, is not to go beyond the first step." Southern Pacific Co. v. Darnell-Taenzer Lumber Co., .30 When Congress enacted 4 of the Clayton Act in 1914, and when it reenacted that section in 1955, 69 Stat. 282, it adopted the language of 7 and presumably also the judicial gloss that avoided a simple literal interpretation.As this Court has observed, the lower federal courts have been "virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation." Hawaii v. Standard Oil Co., , n. 14 (1972). Just last Term we stated:"An antitrust violation may be expected to cause ripples of harm to flow through the Nation's economy; but `despite the broad wording of 4 there is a point beyond which the wrongdoer should not be held liable.' [Illinois Brick Co. v. Illinois, 431 U.S.], at 760 (BRENNAN, J., dissenting). It is reasonable to assume that Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property." Blue Shield of Virginia v. McCready, . It is plain, therefore, that the question whether the Union may recover for the injury it allegedly suffered by reason of the defendants' coercion against certain third parties cannot be answered simply by reference to the broad language of 4. Instead, as was required in common-law damages litigation in 1890, the question requires us to evaluate the plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship between them.31 IVThere is a similarity between the struggle of common-law judges to articulate a precise definition of the concept of "proximate cause,"32 and the struggle of federal judges to articulate a precise test to determine whether a party injured by an antitrust violation may recover treble damages.33 It is common ground that the judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrong-doing. In both situations the infinite variety of claims that may arise make it virtually impossible to announce a black-letter rule that will dictate the result in every case.34 Instead, previously decided cases identify factors that circumscribe and guide the exercise of judgment in deciding whether the law affords a remedy in specific circumstances.The factors that favor judicial recognition of the Union's antitrust claim are easily stated. The complaint does allege a causal connection between an antitrust violation and harm to the Union and further alleges that the defendants intended to cause that harm. As we have indicated, however, the mere fact that the claim is literally encompassed by the Clayton Act does not end the inquiry. We are also satisfied that an allegation of improper motive, although it may support a plaintiff's damages claim under 4,35 is not a panacea that will enable any complaint to withstand a motion to dismiss.36 Indeed, in McCready, we specifically held: "The availability of the 4 remedy to some person who claims its benefit is not a question of the specific intent of the conspirators." 457 U.S., at 479.37 A number of other factors may be controlling. In this case it is appropriate to focus on the nature of the plaintiff's alleged injury. As the legislative history shows, the Sherman Act was enacted to assure customers the benefits of price competition, and our prior cases have emphasized the central interest in protecting the economic freedom of participants in the relevant market.38 Last Term in Blue Shield of Virginia v. McCready, supra, we identified the relevance of this central policy to a determination of the plaintiff's right to maintain an action under 4. McCready alleged that she was a consumer of psychotherapeutic services and that she had been injured by the defendants' conspiracy to restrain competition in the market for such services.39 The Court stressed the fact that "McCready's injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws." 457 U.S., at 483, citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., . After noting that her injury "was inextricably intertwined with the injury the conspirators sought to inflict on psychologists and the psychotherapy market," 457 U.S., at 484, the Court concluded that such an injury "falls squarely within the area of congressional concern." Ibid. In this case, however, the Union was neither a consumer nor a competitor in the market in which trade was restrained.40 It is not clear whether the Union's interests would be served or disserved by enhanced competition in the market. As a general matter, a union's primary goal is to enhance the earnings and improve the working conditions of its membership; that goal is not necessarily served, and indeed may actually be harmed, by uninhibited competition among employers striving to reduce costs in order to obtain a competitive advantage over their rivals.41 At common law - as well as in the early days of administration of the federal antitrust laws - the collective activities of labor unions were regarded as a form of conspiracy in restraint of trade.42 Federal policy has since developed not only a broad labor exemption from the antitrust laws,43 but also a separate body of labor law specifically designed to protect and encourage the organizational and representational activities of labor unions. Set against this background, a union, in its capacity as bargaining representative, will frequently not be part of the class the Sherman Act was designed to protect, especially in disputes with employers with whom it bargains. In each case its alleged injury must be analyzed to determine whether it is of the type that the antitrust statute was intended to forestall. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, at 487-488. In this case, particularly in light of the longstanding collective-bargaining relationship between the parties, the Union's labor-market interests seem to predominate, and the Brunswick test is not satisfied.An additional factor is the directness or indirectness of the asserted injury. In this case, the chain of causation between the Union's injury and the alleged restraint in the market for construction subcontracts contains several somewhat vaguely defined links. According to the complaint, defendants applied coercion against certain landowners and other contracting parties in order to cause them to divert business from certain union contractors to nonunion contractors.44 As a result, the Union's complaint alleges, the Union suffered unspecified injuries in its "business activities."45 It is obvious that any such injuries were only an indirect result of whatever harm may have been suffered by "certain" construction contractors and subcontractors.46 If either these firms, or the immediate victims of coercion by defendants, have been injured by an antitrust violation, their injuries would be direct and, as we held in McCready, they would have a right to maintain their own treble-damages actions against the defendants. An action on their behalf would encounter none of the conceptual difficulties that encumber the Union's claim.47 The existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement diminishes the justification for allowing a more remote party such as the Union to perform the office of a private attorney general.48 Denying the Union a remedy on the basis of its allegations in this case is not likely to leave a significant antitrust violation undetected or unremedied.Partly because it is indirect, and partly because the alleged effects on the Union may have been produced by independent factors, the Union's damages claim is also highly speculative. There is, for example, no allegation that any collective-bargaining agreement was terminated as a result of the coercion, no allegation that the aggregate share of the contracting market controlled by union firms has diminished, no allegation that the number of employed union members has declined, and no allegation that the Union's revenues in the form of dues or initiation fees have decreased. Moreover, although coercion against certain firms is alleged, there is no assertion that any such firm was prevented from doing business with any union firms or that any firm or group of firms was subjected to a complete boycott. See nn. 9, 15, and 16, supra. Other than the alleged injuries flowing from breaches of the collective-bargaining agreements - injuries that would be remediable under other laws - nothing but speculation informs the Union's claim of injury by reason of the alleged unlawful coercion. Yet, as we have recently reiterated, it is appropriate for 4 purposes "to consider whether a claim rests at bottom on some abstract conception or speculative measure of harm." Blue Shield of Virginia v. McCready, 457 U.S., at 475, n. 11, citing Hawaii v. Standard Oil Co., 405 U.S., at 262-263, n. 14.49 The indirectness of the alleged injury also implicates the strong interest, identified in our prior cases, in keeping the scope of complex antitrust trials within judicially manageable limits.50 These cases have stressed the importance of avoiding either the risk of duplicate recoveries on the one hand, or the danger of complex apportionment of damages on the other. Thus, in Hanover Shoe, Inc. v. United Shoe Machinery Corp., , we refused to allow the defendants to discount the plaintiffs' damages claim to the extent that overcharges had been passed on to the plaintiffs' customers. We noted that any attempt to ascertain damages with such precision "would often require additional long and complicated proceedings involving massive evidence and complicated theories." Id., at 493. In Illinois Brick Co. v. Illinois, , we held that treble damages could not be recovered by indirect purchasers of concrete blocks who had paid an enhanced price because their suppliers had been victimized by a price-fixing conspiracy. We observed that potential plaintiffs at each level in the distribution chain would be in a position to assert conflicting claims to a common fund, the amount of the alleged overcharge, thereby creating the danger of multiple liability for the fund and prejudice to absent plaintiffs. "Permitting the use of pass-on theories under 4 essentially would transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge - from direct purchasers to middlemen to ultimate consumers. However appealing this attempt to allocate the overcharge might seem in theory, it would add whole new dimensions of complexity to treble-damages suits and seriously undermine their effectiveness." Id., at 737-738. The same concerns should guide us in determining whether the Union is a proper plaintiff under 4 of the Clayton Act.51 As the Court wrote in Illinois Brick, massive and complex damages litigation not only burdens the courts, but also undermines the effectiveness of treble-damages suits. Id., at 745. In this case, if the Union's complaint asserts a claim for damages under 4, the District Court would face problems of identifying damages and apportioning them among directly victimized contractors and subcontractors and indirectly affected employees and union entities. It would be necessary to determine to what extent the coerced firms diverted business away from union subcontractors, and then to what extent those subcontractors absorbed the damage to their businesses or passed it on to employees by reducing the work force or cutting hours or wages. In turn it would be necessary to ascertain the extent to which the affected employees absorbed their losses and continued to pay union dues.52 We conclude, therefore, that the Union's allegations of consequential harm resulting from a violation of the antitrust laws, although buttressed by an allegation of intent to harm the Union, are insufficient as a matter of law. Other relevant factors - the nature of the Union's injury, the tenuous and speculative character of the relationship between the alleged antitrust violation and the Union's alleged injury, the potential for duplicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy - weigh heavily against judicial enforcement of the Union's antitrust claim. Accordingly, we hold that, based on the allegations of this complaint, the District Court was correct in concluding that the Union is not a person injured by reason of a violation of the antitrust laws within the meaning of 4 of the Clayton Act. The judgment of the Court of Appeals is reversed. It is so ordered.
8	Petitioner sued in the Court of Claims to recover compensation for property in the Philippine Islands allegedly requisitioned by the United States for military purposes during the Japanese invasion of the Islands more than six years previously. The Government moved to dismiss the claims on the ground that they were barred by the six-year limitation prescribed by 156 of the Judicial Code, now 28 U.S.C. 2501. Petitioner contended that, during the Japanese occupation of the Islands, it was deprived of access to information bearing on the existence of its claims; but its pleadings contained no such allegations. The Court of Claims considered this contention but dismissed the claims. Held: 1. Since the question whether deprivation of access to information bearing on the existence of petitioner's claims during the Japanese occupation of the Philippine Islands could or would affect the operation of the six-year statute of limitations is not properly presented on the record, this Court will not consider it. Pp. 158-160. 2. Since the court below considered facts not stated in the pleadings and its opinion and judgment take cognizance of such facts, its judgment is vacated and the cause is remanded with discretion to permit further pleadings. Pp. 160-161. 3. If permission to plead further is denied, or if it is granted and petitioner fails to plead further, the cause shall be dismissed. P. 161. 112 Ct. Cl. 137, 80 F. Supp. 657, judgment vacated and cause remanded. The Court of Claims dismissed petitioner's claim for compensation for property allegedly requisitioned by the United States. 112 Ct. Cl. 137, 80 F. Supp. 657. This Court granted certiorari. . Judgment vacated and cause remanded, p. 161.Albert R. Connelly argued the cause for petitioner. With him on the brief was George S. Collins. Newell A. Clapp argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and Samuel D. Slade.MR. JUSTICE MINTON delivered the opinion of the Court.On December 5, 1947, petitioner filed suit in the Court of Claims to recover just compensation for certain of its properties in the Philippine Islands which the United States had allegedly requisitioned for military purposes. On March 24, 1948, petitioner filed an amended petition, including for the first time the claims here involved, the Seventh and the Fifteenth. A second amended petition was filed June 1, 1948. In the Seventh claim of the amended petition, petitioner alleged that the United States on or about December 18, 1941, requisitioned and took certain petroleum products and other personal and real property of petitioner located in the Philippine Islands. The Fifteenth claim of the amended petition contained an allegation, inter alia, that during the period from December 1941 to January 1942, respondent took and disbursed certain other petroleum products of petitioner located at another place in the Philippine Islands.1 In the interim between the filing of the first and the second amended petitions, on April 12, 1948, the United States had filed a motion to dismiss the Seventh and Fifteenth claims on the ground that it appeared on the face of the amended petition that the claims sued upon each accrued more than six years prior to the filing of the amended petition, that the claims were therefore barred by 156 of the Judicial Code,2 and the Court of Claims was without jurisdiction to hear said claims. The court allowed this motion to stand directed against the second amended petition. After hearing argument, the court sustained the motion to dismiss, and did dismiss the Seventh and Fifteenth claims. 112 Ct. Cl. 137, 80 F. Supp. 657. We granted certiorari () on the assumption that the record presented the question whether deprivation of access to information bearing on the existence of petitioner's claims during the Japanese occupation of the Philippine Islands could or did affect the operation of the six-year statute. But since the record does not properly present that question, we cannot answer it.The case reaches us upon pleadings that allege only the fact of taking in 1941 and 1942, more than six years before the Seventh and Fifteenth claims were filed by petitioner. We do not intimate that any facts could have the effect of relieving petitioner from the limitation of the statute, nor what facts should be alleged that could have that effect.It might be assumed in favor of petitioner's pleadings what is judicially known, that the Japanese were, for all practical purposes, in complete control of the Philippine Islands by May 1942 and continued in control until sometime subsequent to October 1944, when the United States Army returned. But it cannot be assumed that petitioner was deprived of information about its property before and during that period. The pleadings do not so inform, and certainly a court could not know judicially the facts of petitioner's information or lack of information. Then there is the period from the United States reoccupation in 1945 to March 24, 1948. With respect to this period of United States control of the Islands, nothing is alleged by petitioner concerning its deprivation of or access to information about the taking of its property at the times set forth in the claims.True, the discussion of petitioner's claims seems to have been at large before the Court of Claims as to the information or lack of information petitioner had concerning its claims and as to the effect such information or lack thereof might have had upon petitioner's right to file the claims more than six years after they accrued. The majority opinion of the Court of Claims recites:"Plaintiff alleges that because of the loss and destruction of its records proper claims could not be filed until the Japanese occupation had ended and opportunity had to reconstruct statistically the properties, stocks, equipment, etc., owned by it at the time of requisitioning or destruction." 112 Ct. Cl. at 139, 80 F. Supp. at 658. There are no such allegations in the amended petition. What allegations there are in the petition bring the case squarely within the statute, which denies the Court of Claims power to entertain an action brought more than six years after the action accrues.Thus the case was decided not only upon what was alleged in the pleadings but upon other allegations as well, as to which no clear inkling appears in the record. Because the Court of Claims considered these additional allegations, it is urged that we should also consider them. But we cannot consider such allegations in determining the sufficiency of the cause stated. After all, pleadings and the making of a proper record have not been dispensed with. They still have a function to perform. This case points up that function. We will not review questions not clearly raised on the record.Since it is apparent that facts were considered by both the Court of Claims and counsel that were not in the pleadings, and the court's opinion and judgment take cognizance of such facts, the judgment is vacated and the cause is remanded. The Court of Claims may permit further pleadings if in the court's discretion such further pleadings seem proper and just. If permission to plead further is denied, or if petitioner fails to plead further should permission be granted, the cause shall be dismissed. It is so ordered.MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.
3	Wisconsin legislative resolution citing petitioner for contempt for conduct on the floor of the State Assembly that occurred two days previous to the contempt resolution and sentencing him to confinement held violative of due process, since petitioner, who was readily available, was given no notice before the resolution was adopted or afforded any opportunity to respond by way of defense or extenuation. Pp. 499-507. 436 F.2d 326 and 331, reversed.BURGER, C. 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 case.William M. Coffey argued the cause for petitioner. With him on the brief were Robert J. Lerner, John D. Murray, and Steven H. Steinglass.Sverre O. Tinglum, Assistant Attorney General of Wisconsin, argued the cause for respondent. With him on the brief was Robert W. Warren, Attorney General.Melvin L. Wulf, Sanford J. Rosen, and Robert H. Friebert filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted the writ of certiorari to review the holding of the Court of Appeals for the Seventh Circuit, denying petitioner relief in habeas corpus proceedings after the District Court had granted relief.On October 1, 1969, the Assembly of the Wisconsin Legislature passed a resolution citing petitioner for contempt and directing his confinement in the Dane County jail for a period of six months or for the duration of the 1969 Regular Session of the legislature, whichever was shorter. The resolution recited that petitioner had, two days previously, led a gathering of people which, by its presence on the floor of the Assembly during a regular meeting in violation of an Assembly Rule, "prevented the Assembly from conducting public business and performing its constitutional duty." The resolution contained a finding that petitioner's actions constituted "disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings" which the Assembly was authorized to punish under the State Constitution and statutes.1 The record before us contains little to flesh out the recitations of the contempt resolution with the details of petitioner's conduct on the day of September 29, 1969. The Wisconsin Supreme Court, in its opinion denying petitioner's application for habeas corpus, took judicial notice that petitioner's conduct was designed to protest cuts in the state budget for certain welfare programs, and that the "occupation" of the Assembly chamber by petitioner and his supporters continued from midday to "well toward midnight," during all of which time the Assembly was prevented from conducting its lawful business.2 The contempt resolution was adopted without giving notice to petitioner or affording him an opportunity to present a defense or information in mitigation. A copy of the resolution was then served on petitioner who, at the time the resolution was passed, was already confined in the Dane County jail following his arrest on disorderly conduct charges arising out of the same incident as that underlying the resolution.3 Petitioner's confinement after he was served with the resolution was pursuant to its authority.Petitioner then commenced actions in both state and federal courts contending that his confinement violated his constitutional rights, and seeking his release. Petitioner's applications for habeas corpus were denied by the Circuit Court for Dane County and the Wisconsin Supreme Court. However, after the state courts had acted, the United States District Court for the Western District of Wisconsin granted petitioner's federal habeas application. The District Court was of the view that petitioner had been denied due process of law guaranteed by the Fourteenth Amendment by the failure of the Assembly to accord him "some minimal opportunity to appear and to respond to a charge" prior to the imposition of punishment for contempt. On appeal, the Court of Appeals reversed the holding of the District Court; the holding of the panel was adopted by a narrowly divided court on rehearing en banc. We granted certiorari. For the reasons stated herein, we conclude that petitioner was denied due process of law by the procedures employed in punishing him for contempt, and we reverse the judgment of the Court of Appeals.IThe past decisions of this Court expressly recognizing the power of the Houses of the Congress to punish contemptuous conduct leave little question that the Constitution imposes no general barriers to the legislative exercise of such power. E. g., Jurney v. MacCracken, ; Anderson v. Dunn, 6 Wheat. 204 (1821). There is nothing in the Constitution that would place greater restrictions on the States than on the Federal Government in this regard. See Kilbourn v. Thompson, . We are therefore concerned only with the procedures that the Due Process Clause of the Federal Constitution requires a state legislature to meet in imposing punishment for contemptuous conduct committed in its presence.This Court has often recognized that the requirements of due process cannot be ascertained through mechanical application of a formula. See, e. g., Cafeteria Workers v. McElroy, ; Hannah v. Larche, . Mr. Justice Frankfurter, in another context, aptly stated that due process "is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess... ." Joint AntiFascist Committee v. McGrath, (concurring opinion). Courts must be sensitive to the nature of a legislative contempt proceeding and the "possible burden on that proceeding" that a given procedure might entail. Hannah v. Larche, 363 U.S., at 442. Legislatures are not constituted to conduct full-scale trials or quasi-judicial proceedings and we should not demand that they do so although they possess inherent power to protect their own processes and existence by way of contempt proceedings. For this reason, the Congress of the United States, for example, no longer undertakes to exercise its contempt powers in all cases but elects to delegate that function to federal courts. 52 Stat. 942, 2 U.S.C. 192-194.The potential for disrupting or immobilizing the vital legislative processes of State and Federal Governments that would flow from a rule requiring a full-blown legislative "trial" prior to the imposition of punishment for contempt of the legislature is a factor entitled to very great weight; this is particularly true where the contemptuous conduct, as here, is committed directly in the presence of the legislative body. The past decisions of this Court strongly indicate that the panoply of procedural rights that are accorded a defendant in a criminal trial has never been thought necessary in legislative contempt proceedings. The customary practice in Congress has been to provide the contemnor with an opportunity to appear before the bar of the House, or before a committee, and give answer to the misconduct charged against him. See Jurney v. MacCracken, 294 U.S., at 143-144; Kilbourn v. Thompson, 103 U.S., at 173, 174; Anderson v. Dunn, 6 Wheat., at 209-211; Marshall v. Gordon, .4 Such would appear to have been the general practice in colonial times, and in the early state legislatures.5 This practice more nearly resembles the traditional right of a criminal defendant to allocution prior to the imposition of sentence than it does a criminal prosecution. See Green v. United States, . IIIn this case, however, there is no occasion to define or delineate precisely what process is due and must be accorded to a contemnor prior to the legislative imposition of punishment for contemptuous conduct. Here, the Wisconsin Assembly, two days after the conduct had occurred, found petitioner in contempt and sentenced him to confinement without giving him notice of any kind or opportunity to answer. There is no question of his having fled or become otherwise unavailable for, as we have noted, he was confined in the county jail at the time, and could easily have been given notice, if indeed not compelled, to appear before the Assembly. We find little in our past decisions that would shed light on the precise problem, but nothing to give warrant to the summary procedure employed here, coming as it did two days after the contempt. Indeed, we have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are "basic in our system of jurisprudence." In re Oliver, . See, e. g., Joint Anti-Fascist Committee v. McGrath, 341 U.S., at 143, 164-165, 171-172, 178, 185 (concurring opinions of Black, Frankfurter, DOUGLAS, and Jackson, JJ.); Cole v. Arkansas, . We have emphasized this fundamental principle where rights of less standing than personal liberty were at stake. E. g., Sniadach v. Family Finance Corp., ; Morgan v. United States, ; Grannis v. Ordean, . In Mullane v. Central Hanover Trust Co., , the Court stated:"Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." 339 U.S., at 313. Although this language was addressed to judicial adjudication, historical practice would indicate that legislatures themselves have recognized the value of prior notice and hearing in cases of legislative contempt.In exercise of the right to be heard, however briefly - the length and nature of which would traditionally be left largely to the legislative body - the putative contemnor might establish, for example, that it was a case of mistaken identity, or, also by way of affirmative defense, that he was mentally incompetent.6 Other matters in explanation or mitigation might lessen the harshness of the legislative judgment or avoid punishment altogether.IIIWisconsin, however, argues that the power of a legislature to summarily punish for contempts committed in its immediate presence follows logically from the recognized power of courts in that respect. E. g., Ex parte Terry, . Even if it be assumed that courts and legislatures are fully analogous in this respect, the recorded cases dealing with the power of a court to impose summary punishment for contempt committed in its immediate presence show that such power has not ordinarily been exercised under conditions such as those here, with a lapse of two days following the event and without notice or opportunity for hearing of any kind. A legislature, like a court, must, of necessity, possess the power to act "immediately" and "instantly" to quell disorders in the chamber if it is to be able to maintain its authority and continue with the proper dispatch of its business. In re Oliver, 333 U.S., at 274-275; Ex parte Terry, 128 U.S., at 308, 310; Johnson v. Mississippi, ; Mayberry v. Pennsylvania, . Where, however, the contemptuous episode has occurred two days previously, it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable a legislative body to proceed with its business.The function of the contempt process by a legislative body is perhaps more related to deterrence of those disposed to create disorders than to restoring order. But the deterrence function can equally be served - perhaps even better - by giving notice and bringing the contemnor before the body and giving opportunity to be heard before being declared in contempt and sentenced.7 Where a court acts immediately to punish for contemptuous conduct committed under its eye, the contemnor is present, of course. There is then no question of identity, nor is hearing in a formal sense necessary because the judge has personally seen the offense and is acting on the basis of his own observations.8 Moreover, in such a situation, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution. See Levine v. United States, ; Brown v. United States, ; United States v. Sacher, 182 F.2d 416, 418 (CA2 1950), aff'd, . Even in those circumstances, as we have noted, the conduct and utterance might be found excusable by a legislature or a court should it develop that the contemnor was suffering from some mental disorder rendering him unable to conform his conduct to requirements of the law and conventional behavior. Where, however, a legislative body acts two days after the event, in the absence of the contemnor, and without notice to him, there is no assurance that the members of the legislature are acting, as a judge does in a contempt case, on the basis of personal observation and identification of the contemnor engaging in the conduct charged, nor is there any opportunity whatsoever for him to speak in defense or mitigation, if he is in fact the offender.Ex parte Terry, supra, does not control this case. There the circuit court acted promptly after the contemnor - who was a lawyer - had voluntarily absented himself from the courtroom and while he was present in an adjacent room of the court building. This Court concluded that the contemnor could not defeat the jurisdiction of the circuit court to act as soon as reasonably possible to punish the contempt by his voluntary departure from the courtroom. 128 U.S., at 310-311. The Court reasoned that"The departure of the petitioner from the courtroom to another room, near by, in the same building, was his voluntary act. And his departure, without making some apology for, or explanation of, his conduct, might justly be held to aggravate his offence, and to make it plain that, consistently with the public interests, there should be no delay, upon the part of the court, in exerting its power to punish." Id., at 311. Dealing only with the narrow circumstances present in Terry, the Court expressly reserved the question whether the circuit court would have had the power to proceed on a subsequent day without according the contemnor an opportunity to be heard. Id., at 314. By way of contrast, the resolution in this case was, as we have noted, adopted two days after the event and while petitioner was being detained in the county jail in the same city, and hence available to be served with notice. In Sacher v. United States, , the Court approved the trial judge's action in waiting until the end of a nine-month trial to summarily hold defense counsel9 in contempt for breaches committed during the trial. However, the Court was careful to observe that an immediate holding of contempt during the trial might have prejudiced the defendants in the eyes of the jury or otherwise impeded their advocacy. Moreover, the contemnors were present throughout the course of the trial, were repeatedly warned by the trial judge that their conduct was contemptuous, were advised that they could be called to account later,10 and were given an opportunity to speak.11 At a very early stage in our history this Court stated that the legislative contempt power should be limited to "[t]he least possible power adequate to the end proposed." Anderson v. Dunn, 6 Wheat., at 231; In re Oliver, 333 U.S., at 274. While a different result might well follow had the Wisconsin Assembly acted immediately upon occurrence of the contemptuous conduct and while the contemnor was in the chamber,12 or nearby within the Capitol building, as in Terry, we conclude that the procedures employed in this case were beyond the legitimate scope of that power because of the absence of notice or any opportunity to respond. The judgment of the Court of Appeals is Reversed.MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
7	Petitioner cities, which own and operate electric utility systems both within and beyond their respective city limits as authorized by Louisiana law, brought an action in District Court against respondent investor-owned electric utility with which petitioners compete, alleging that it committed various federal antitrust offenses that injured petitioners in the operation of their electric utility systems. Respondent counterclaimed, alleging that petitioners had committed various antitrust offenses that injured respondent in its business and property. Petitioners moved to dismiss the counterclaim on the ground that, as cities and subdivisions of the State, the "state action" doctrine of Parker v. Brown, , rendered federal antitrust laws inapplicable to them. The District Court granted the motion, but the Court of Appeals reversed and remanded. Held: Apart from whether petitioners are exempt from the antitrust laws as agents of the State under the Parker doctrine there are insufficient grounds for inferring that Congress did not intend to subject cities to antitrust liability. Pp. 394-408. (a) The definition of "person" or "persons" covered by the antitrust laws clearly includes cities, whether as municipal utility operators suing as plaintiffs seeking damages for antitrust violations or as such operators being sued as defendants. Chattanooga Foundry & Pipe Works v. Atlanta, ; Georgia v. Evans, . Pp. 394-397. (b) Petitioners have failed to show the existence of any overriding public policy inconsistent with a construction of coverage of the antitrust laws. The presumption against implied exclusion from such laws cannot be negated either on the ground that it would be anomalous to subject municipalities to antitrust liability or on the ground that the antitrust laws are intended to protect the public only from abuses of private power and not from action of municipalities that exist to serve the public weal. Pp. 400-408. MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, concluded: 1. Parker v. Brown does not automatically exempt from the antitrust laws all governmental entities, whether state agencies or subdivisions of a State, simply by reason of their status as such, but exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service. Pp. 408-413. 2. The Court of Appeals did not err in holding that further inquiry should be made to determine whether petitioners' actions were directed by the State, since when the State itself has not directed or authorized an anticompetitive practice, the State's subdivisions in exercising their delegated power must obey the antitrust laws. While a subordinate governmental unit's claim to Parker immunity is not as readily established as the same claim by a state government sued as such, an adequate state mandate for anticompetitive activities of cities and other subordinate governmental units exists when it is found "from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of." Pp. 413-417. THE CHIEF JUSTICE, while agreeing with the directions for remand in Part III because they represent at a minimum what is required to establish an exemption, would insist that the State compel the alleged anticompetitive activity and that the cities demonstrate that the exemption is essential to the state regulatory scheme. Pp. 425-426, and n. 6. 532 F.2d 431, affirmed.BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part I, in which BURGER, C. J., and MARSHALL, POWELL, and STEVENS, JJ., joined; and an opinion with respect to Parts II and III, in which MARSHALL, POWELL, and STEVENS, JJ., joined. MARSHALL, J., filed a concurring opinion, post, p. 417. BURGER, C. J., filed an opinion concurring in part and concurring in the judgment, post, p. 418. STEWART, J., filed a dissenting opinion, in which WHITE and REHNQUIST, JJ., joined, and in all but Part II-B of which BLACKMUN, J., joined, post, p. 426. BLACKMUN, J., filed a dissenting opinion, post, p. 441.Jerome A. Hochberg argued the cause for petitioners. With him on the briefs were James F. Fairman, Jr., and Ivor C. Armistead III.Andrew P. Carter argued the cause for respondent. With him on the brief was William T. Tete.William T. Crisp argued the cause for the National Rural Electric Cooperative Assn. et al. as amici curiae urging affirmance. With him on the brief were Robert D. Tisinger, James H. Eddleman, J. J. Davidson, Jr., C. Pinckney Roberts, and B. D. St. Clair.* [Footnote *] Solicitor General McCree, Acting Assistant Attorney General Shenefield, and Barry Grossman filed a brief for the United States as amicus curiae urging affirmance. Frederick T. Searls and Michael P. Graney filed a brief for the Columbus and Southern Ohio Electric Co. et al. as amici curiae.MR. JUSTICE BRENNAN delivered the opinion of the Court (Part I), together with an opinion (Parts II and III), in which MR. JUSTICE MARSHALL, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS joined.Parker v. Brown, , held that the federal antitrust laws do not prohibit a State "as sovereign" from imposing certain anticompetitive restraints "as an act of government." The question in this case is the extent to which the antitrust laws prohibit a State's cities from imposing such anticompetitive restraints.Petitioner cities are organized under the laws of the State of Louisiana,1 which grant them power to own and operate electric utility systems both within and beyond their city limits.2 Petitioners brought this action in the District Court for the Eastern District of Louisiana, alleging that, among others,3 Louisiana Power & Light Co. (LP&L), an investorowned electric service utility with which petitioners compete in the areas beyond their city limits,4 committed various antitrust offenses which injured petitioners in the operation of their electric utility systems.5 LP&L counterclaimed, seeking damages and injunctive relief for various antitrust offenses which petitioners had allegedly committed and which injured it in its business and property.6 Petitioners moved to dismiss the counterclaim on the ground that, as cities and subdivisions of the State of Louisiana, the "state action" doctrine of Parker v. Brown, rendered federal antitrust laws inapplicable to them. The District Court granted the motion, holding that the decision of the Court of Appeals for the Fifth Circuit in Saenz v. University Interscholastic League, 487 F.2d 1026 (1973), required dismissal, notwithstanding that "[t]hese plaintiff cities are engaging in what is clearly a business activity ... in which a profit is realized," and "for this reason ... this court is reluctant to hold that the antitrust laws do not apply to any state activity."7 App. 47 (emphasis in original). The District Court in this case read Saenz to interpret the "state action" exemption8 as requiring the "holding that purely state government activities are not subject to the requirements of the antitrust laws of the United States," App. 48, thereby making petitioners' status as cities determinative against maintenance of antitrust suits against them. The Court of Appeals for the Fifth Circuit reversed and remanded for further proceedings.9 532 F.2d 431 (1976). The Court of Appeals noted that the District Court had acted before this Court's decision in Goldfarb v. Virginia State Bar, , and held that "taken together" Parker v. Brown and Goldfarb "require the following analysis":"A subordinate state governmental body is not ipso facto exempt from the operation of the antitrust laws. Rather, a district court must ask whether the state legislature contemplated a certain type of anticompetitive restraint. In our opinion, though, it is not necessary to point to an express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activity was clearly within the legislative intent. Thus, a trial judge may ascertain, from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of. On the other hand, as in Goldfarb, the connection between a legislative grant of power and the subordinate entity's asserted use of that power may be too tenuous to permit the conclusion that the entity's intended scope of activity encompassed such conduct. Whether a governmental body's actions are comprehended within the powers granted to it by the legislature is, of course, a determination which can be made only under the specific facts in each case. A district judge's inquiry on this point should be broad enough to include all evidence which might show the scope of legislative intent." 532 F.2d, at 434-435 (footnotes omitted). We granted certiorari, . We affirm.IPetitioners' principal argument is that "since a city is merely a subdivision of a state and only exercises power delegated to it by the state, Parker's findings regarding the congressionally intended scope of the Sherman Act apply with equal force to such political subdivisions." Brief for Petitioners 5. Before addressing this question, however, we shall address the contention implicit in petitioners' arguments in their brief that, apart from the question of their exemption as agents of the State under the Parker doctrine, Congress never intended to subject local governments to the antitrust laws.AThe antitrust laws impose liability on and create a cause of action for damages for a "person" or "persons" as defined in the Acts.10 Since the Court has held that the definition of "person" or "persons" embraces both cities and States, it is understandable that the cities do not argue that they are not "persons" within the meaning of the antitrust laws.Section 8 of the Sherman Act, ch. 647, 26 Stat. 210, 15 U.S.C. 7 (1976 ed.), and 1 of the Clayton Act, 38 Stat. 730, 15 U.S.C. 12 (1976 ed.), are general definitional sections which define "person" or "persons," "wherever used in this [Act] ... to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country."11 Section 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. 15 (1976 ed.), provides, in pertinent part, that "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court ..., and shall recover threefold the damages by him sustained ... ."12 Chattanooga Foundry & Pipe Works v. Atlanta, , held that a municipality is a "person" within the meaning of 8 of the Sherman Act, the general definitional section, and that the city of Atlanta therefore could maintain a treble-damages action under 7, the predecessor of 4 of the Clayton Act,13 against a supplier from whom the city purchased water pipe which it used to furnish water as a municipal utility service. Some 36 years later, Georgia v. Evans, , held that the words "any person" in 7 of the Sherman Act included States. Under that decision, the State of Georgia was permitted to bring an action in its own name charging injury from a combination to fix prices and suppress competition in the market for asphalt which the State purchased annually for use in the construction of public roads. The Court reasoned that "[n]othing in the Act, its history, or its policy, could justify so restrictive a construction of the word 'person' in 7 as to exclude a State." 316 U.S., at 162.Although both Chattanooga Foundry and Georgia v. Evans involved the public bodies as plaintiffs, whereas petitioners in the instant case are defendants to a counterclaim, the basis of those decisions plainly precludes a reading of "person" or "persons" to include municipal utility operators that sue as plaintiffs but not to include such municipal operators when sued as defendants. Thus, the conclusion that the antitrust laws are not to be construed as meant by Congress to subject cities to liability under the antitrust laws must rest on the impact of some overriding public policy which negates the construction of coverage, and not upon a reading of "person" or "persons" as not including them.14 BPetitioners suggest several reasons why, in addition to their arguments for exemption as agents of the State under the Parker doctrine, a congressional purpose not to subject cities to the antitrust laws should be inferred. Those arguments, like the Parker exemption itself, necessarily must be considered in light of the presumption against implied exclusions from coverage under the antitrust laws.(1)The purposes and intended scope of the Sherman Act have been developed in prior cases and require only brief mention here. Commenting upon the language of the Act in rejecting a claim that the insurance business was excluded from coverage, the Court stated: "Language more comprehensive is difficult to conceive. On its face it shows a carefully studied attempt to bring within the Act every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states." United States v. South-Eastern Underwriters Assn., . That and subsequent cases reviewing the legislative history of the Sherman Act have concluded that Congress, exercising the full extent of its constitutional power,15 sought to establish a regime of competition as the fundamental principle governing commerce in this country.16 For this reason, our cases have held that even when Congress by subsequent legislation establishes a regulatory regime over an area of commercial activity, the antitrust laws will not be displaced unless it appears that the antitrust and regulatory provisions are plainly repugnant. E. g., United States v. Philadelphia Nat. Bank, , and n. 28 (1963) (collecting cases). The presumption against repeal by implication reflects the understanding that the antitrust laws establish overarching and fundamental policies, a principle which argues with equal force against implied exclusions. See Goldfarb, 421 U.S., at 786-788.Two policies have been held sufficiently weighty to override the presumption against implied exclusions from coverage of the antitrust laws. In Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., , the Court held that, regardless of anticompetitive purpose or intent, a concerted effort by persons to influence lawmakers to enact legislation beneficial to themselves or detrimental to competitors was not within the scope of the antitrust laws. Although there is nothing in the language of the statute or its history which would indicate that Congress considered such an exclusion, the impact of two correlative principles was held to require the conclusion that the presumption should not support a finding of coverage. The first is that a contrary construction would impede the open communication between the polity and its lawmakers which is vital to the functioning of a representative democracy. Second, "and of at least equal significance," is the threat to the constitutionally protected right of petition which a contrary construction would entail. Id., at 137-138.17 Parker v. Brown18 identified a second overriding policy, namely that "[i]n a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." 317 U.S., at 351.Common to the two implied exclusions was potential conflict with policies of signal importance in our national traditions and governmental structure of federalism. Even then, however, the recognized exclusions have been unavailing to prevent antitrust enforcement which, though implicating those fundamental policies, was not thought severely to impinge upon them. See, e. g., Goldfarb, supra; California Motor Transport Co. v. Trucking Unlimited, .Petitioners' arguments therefore cannot prevail unless they demonstrate that there are countervailing policies which are sufficiently weighty to overcome the presumption. We now turn to a consideration of whether, apart from the question of their exemption as agents of the State under the Parker doctrine, petitioners have made that showing.(2)Petitioners argue that their exclusion must be inferred because it would be anomalous to subject municipalities to the criminal and civil liabilities imposed upon violators of the antitrust laws. The short answer is that it has not been regarded as anomalous to require compliance by municipalities with the substantive standards of other federal laws which impose such sanctions upon "persons." See Union Pacific R. Co. v. United States, .19 See generally Ohio v. Helvering, ;20 California v. United States, .21 But those cases do not necessarily require the conclusion that remedies appropriate to redress violations by private corporations would be equally appropriate for municipalities; nor need we decide any question of remedy in this case.22 Petitioners next argue that the antitrust laws are intended to protect the public only from abuses of private power and not from actions of municipalities that exist to serve the public weal.Petitioners' contention that their goal is not private profit but public service is only partly correct. Every business enterprise, public or private, operates its business in furtherance of its own goals. In the case of a municipally owned utility, that goal is likely to be, broadly speaking, the benefit of its citizens. But the economic choices made by public corporations in the conduct of their business affairs, designed as they are to assure maximum benefits for the community constituency, are not inherently more likely to comport with the broader interest of national economic well-being than are those of private corporations acting in furtherance of the interests of the organization and its shareholders. The allegations of the counterclaim, which for present purposes we accept as true,23 aptly illustrate the impact which local governments, acting as providers of services, may have on other individuals and business enterprises with which they interrelate as purchasers, suppliers, and sometimes, as here, as competitors.24 LP&L alleged that the city of Plaquemine contracted to provide LP&L's electric customers outside its city limits gas and water service only on condition that the customers purchase electricity from the city and not from LP&L.25 The effect of such a tie-in is twofold. First, the tying contract might injure former LP&L customers in two ways. The net effect of the tying contract might be to increase the cost of electric service to these customers. Moreover, a municipality conceivably might charge discriminatorily higher rates to such captive customers outside its jurisdiction without a cost-justified basis. Both of these practices would provide maximum benefits for its constituents, while disserving the interests of the affected customers. Second, the practice would necessarily have an impact on the regulated public utility whose service is displaced.26 The elimination of customers in an established service area would likely reduce revenues, and possibly require abandonment or loss of existing equipment the effect of which would be to reduce its rate base and possibly affect its capital structure. The surviving customers and the investor-owners would bear the brunt of these consequences. The decision to displace existing service, rather than being made on the basis of efficiency in the distribution of services, may be made by the municipality in the interest of realizing maximum benefits to itself without regard to extraterritorial impact and regional efficiency.27 The second allegation of LP&L's counterclaim,28 is that petitioners conspired with others to engage in sham and frivolous litigation against LP&L before various federal agencies29 and federal courts for the purpose, and with the effect, of delaying approval and construction of LP&L's proposed nuclear electric generating plant. It is alleged that this course of conduct was designed to deprive LP&L of needed financing and to impose delay costs, amounting to $180 million, which would effectively block construction of the proposed project. Such activity may benefit the citizens of Plaquemine and Lafayette by eliminating a competitive threat to expansion of the municipal utilities in still undeveloped areas beyond the cities' territorial limits. But that kind of activity, if truly anticompetitive,30 may impose enormous unnecessary costs on the potential customers of the nuclear generating facility both within and beyond the cities' proposed area of expansion. In addition, it may cause significant injury to LP&L, interfering with its ability to provide expanded service.Another aspect of the public-service argument31 is that because government is subject to political control, the welfare of its citizens is assured through the political process and that federal antitrust regulation is therefore unnecessary. The argument that consumers dissatisfied with the service provided by the municipal utilities may seek redress through the political process is without merit. While petitioners recognize, as they must, that those consumers living outside the municipality who are forced to take municipal service have no political recourse at the municipal level, they argue nevertheless that the customers may take their complaints to the state legislature. It fairly may be questioned whether the consumers in question or the Florida corporation of which LP&L is a subsidiary have a meaningful chance of influencing the state legislature to outlaw on an ad hoc basis whatever anticompetitive practices petitioners may direct against them from time to time. More fundamentally, however, that argument cuts far too broadly; the same argument may be made regarding anticompetitive activity in which any corporation engages. Mulcted consumers and unfairly displaced competitors may always seek redress through the political process. In enacting the Sherman Act, however, Congress mandated competition as the polestar by which all must be guided in ordering their business affairs. It did not leave this fundamental national policy to the vagaries of the political process, but established a broad policy, to be administered by neutral courts,32 which would guarantee every enterprise the right to exercise "whatever economic muscle it can muster," United States v. Topco Associates, , without regard to the amount of influence it might have with local or state legislatures.33 In 1972, there were 62,437 different units of local government in this country.34 Of this number 23,885 were special districts which had a defined goal or goals for the provision of one or several services,35 while the remaining 38,552 represented the number of counties, municipalities, and townships, most of which have broad authority for general governance subject to limitations in one way or another imposed by the State.36 These units may, and do, participate in and affect the economic life of this Nation in a great number and variety of ways. When these bodies act as owners and providers of services, they are fully capable of aggrandizing other economic units with which they interrelate, with the potential of serious distortion of the rational and efficient allocation of resources, and the efficiency of free markets which the regime of competition embodied in the antitrust laws is thought to engender.37 If municipalities were free to make economic choices counseled solely by their own parochial interests and without regard to their anticompetitive effects, a serious chink in the armor of antitrust protection would be introduced at odds with the comprehensive national policy Congress established.38 We conclude that these additional arguments for implying an exclusion for local governments from the antitrust laws must be rejected. We therefore turn to petitioners' principal argument, that "Parker's findings regarding the congressionally intended scope of the Sherman Act apply with equal force to such political subdivisions." Brief for Petitioners 5.IIPlainly petitioners are in error in arguing that Parker held that all governmental entities, whether state agencies or subdivisions of a State, are, simply by reason of their status as such, exempt from the antitrust laws.Parker v. Brown involved the California Agricultural Prorate Act enacted by the California Legislature as a program to be enforced "through action of state officials ... to restrict competition among the growers [of raisins] and maintain prices in the distribution of their commodities to packers." 317 U.S., at 346. The Court held that the program was not prohibited by the federal antitrust laws since "nothing in the language of the Sherman Act or in its history ... suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature," id., at 350-351, and "[t]he state ... as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit." Id., at 352.Goldfarb v. Virginia State Bar, , underscored the significance of Parker's holding that the determinant of the exemption was whether the challenged action was "an act of government" by the State as "sovereign." Parker repeatedly emphasized that the anticompetitive effects of California's prorate program derived from "the state['s] command"; the State adopted, organized, and enforced the program "in the execution of a governmental policy."39 317 U.S., at 352. Goldfarb, on the other hand, presented the question "whether a minimum-fee schedule for lawyers published by the Fairfax County Bar Association and enforced by the Virginia State Bar," 421 U.S., at 775, violated the Sherman Act. Exemption was claimed on the ground that the Virginia State Bar was "a state agency by law." Id., at 790. The Virginia Legislature had empowered the Supreme Court of Virginia to regulate the practice of law and had assigned the State Bar a role in that regulation as an administrative agency of the Virginia Supreme Court. But no Virginia statute referred to lawyers' fees and the Supreme Court of Virginia had taken no action requiring the use of and adherence to minimum-fee schedules. Goldfarb therefore held that it could not be said that the anticompetitive effects of minimum-fee schedules were directed by the State acting as sovereign. Id., at 791. The State Bar, though acting within its broad powers, had "voluntarily joined in what is essentially a private anticompetitive activity," id., at 792, and was not executing the mandate of the State. Thus, the actions of the State Bar had failed to meet "[t]he threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe... ." Id., at 790. Goldfarb therefore made it clear that, for purposes of the Parker doctrine, not every act of a state agency is that of the State as sovereign.Bates v. State Bar of Arizona, , involved the actions of a state agency to which the Parker exemption applied. Bates considered the applicability of the antitrust laws to a ban on attorney advertising directly imposed by the Arizona Supreme Court. In holding the antitrust laws inapplicable, Bates noted that "[t]hat court is the ultimate body wielding the State's power over the practice of law, see Ariz. Const., Art. 3; In re Bailey, 30 Ariz. 407, 248 P. 29 (1926), and, thus, the restraint is `compelled by direction of the State acting as a sovereign.'" Id., at 360, quoting Goldfarb, supra, at 791. We emphasized, moreover, the significance to our conclusion of the fact that the state policy requiring the anticompetitive restraint as part of a comprehensive regulatory system, was one clearly articulated and affirmatively expressed as state policy, and that the State's policy was actively supervised by the State Supreme Court as the policymaker.40 These decisions require rejection of petitioners' proposition that their status as such automatically affords governmental entities the "state action" exemption.41 Parker's limitation of the exemption, as applied by Goldfarb and Bates, to "official action directed by [the] state," arises from the basis for the "state action" doctrine - that given our "dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority," 317 U.S., at 351, a congressional purpose to subject to antitrust control the States' acts of government will not lightly be inferred. To extend that doctrine to municipalities would be inconsistent with that limitation. Cities are not themselves sovereign; they do not receive all the federal deference of the States that create them. See, e. g., Edelman v. Jordan, n. 12 (1974); Lincoln County v. Luning, (political subdivisions not protected by Eleventh Amendment from immunity from suit in federal court). Parker's limitation of the exemption to "official action directed by a state," 317 U.S., at 351, is consistent with the fact that the States' subdivisions generally have not been treated as equivalents of the States themselves.42 In light of the serious economic dislocation which could result if cities were free to place their own parochial interests above the Nation's economic goals reflected in the antitrust laws, see supra, at 403-408, we are especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach.On the other hand, the fact that municipalities, simply by their status as such, are not within the Parker doctrine, does not necessarily mean that all of their anticompetitive activities are subject to antitrust restraints. Since "[m]unicipal corporations are instrumentalities of the State for the convenient administration of government within their limits." Louisiana ex rel. Folsom v. Mayor of New Orleans, , the actions of municipalities may reflect state policy. We therefore conclude that the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service. There remains the question whether the Court of Appeals erred in holding that further inquiry should be made to determine whether petitioners' actions were directed by the State.IIIThe petitioners and our Brother STEWART'S dissent focus their arguments upon the fact that municipalities may exercise the sovereign power of the State, concluding from this that any actions which municipalities take necessarily reflect state policy and must therefore fall within the Parker doctrine. But, the fact that the governmental bodies sued are cities, with substantially less than statewide jurisdiction, has significance. When cities, each of the same status under state law, are equally free to approach a policy decision in their own way, the anticompetitive restraints adopted as policy by any one of them, may express its own preference, rather than that of the State.43 Therefore, in the absence of evidence that the State authorized or directed a given municipality to act as it did, the actions of a particular city hardly can be found to be pursuant to "the state['s] command," or to be restraints that "the state ... as sovereign" imposed. 317 U.S., at 352. The most44 that could be said is that state policy may be neutral. To permit municipalities to be shielded from the antitrust laws in such circumstances would impair the goals Congress sought to achieve by those laws, see supra, at 403-408, without furthering the policy underlying the Parker "exemption." This does not mean, however, that a political subdivision necessarily must be able to point to a specific, detailed legislative authorization before it properly may assert a Parker defense to an antitrust suit. While a subordinate governmental unit's claim to Parker immunity is not as readily established as the same claim by a state government sued as such, we agree with the Court of Appeals that an adequate state mandate for anticompetitive activities of cities and other subordinate governmental units exists when it is found "from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of."45 532 F.2d, at 434.The Parker doctrine, so understood, preserves to the States their freedom under our dual system of federalism to use their municipalities to administer state regulatory policies free of the inhibitions of the federal antitrust laws without at the same time permitting purely parochial interests to disrupt the Nation's free-market goals.Our Brother STEWART'S dissent argues that the result we reach will "greatly ... impair the ability of a State to delegate governmental power broadly to its municipalities." Post, at 438 (footnote omitted). That, with respect, is simply hyperbole. Our decision will render a State no less able to allocate governmental power between itself and its political subdivisions. It means only that when the State itself has not directed or authorized an anticompetitive practice, the State's subdivisions in exercising their delegated power must obey the antitrust laws. The dissent notwithstanding, it is far too late to argue that a State's desire to insulate anticompetitive practices not imposed by it as an act of government falls within the Parker doctrine. Schwegmann Bros. v. Calvert Distillers Corp., . Moreover, by characterizing the Parker exemption as fully applicable to local governmental units simply by virtue of their status as such, the approach taken by the dissent would hold anticompetitive municipal action free from federal antitrust enforcement even when state statutes specifically provide that municipalities shall be subject to the antitrust laws of the United States. See generally La. Rev. Stat. Ann. 33:1334 (G) (West Supp. 1977), quoted in n. 44, supra. That result would be a perversion of federalism.46 Today's decision does not threaten the legitimate exercise of governmental power, nor does it preclude municipal government from providing services on a monopoly basis. Parker and its progeny make clear that a State properly may, as States did in Parker and Bates, direct or authorize its instrumentalities to act in a way which, if it did not reflect state policy, would be inconsistent with the antitrust laws. Compare Bates with Goldfarb. True, even a lawful monopolist may be subject to antitrust restraints when it seeks to extend or exploit its monopoly in a manner not contemplated by its authorization. Cf. Otter Tail Power Co. v. United States, .47 But assuming that the municipality is authorized to provide a service on a monopoly basis, these limitations on municipal action48 will not hobble the execution of legitimate governmental programs. Affirmed.
0	Statement inadmissible against a defendant in the prosecution's case in chief because of lack of the procedural safeguards required by Miranda v. Arizona, , may, if its trustworthiness satisfies legal standards, be used for impeachment purposes to attack the credibility of defendant's trial testimony. See Walder v. United States, . Pp. 223-226. 25 N. Y. 2d 175, 250 N. E. 2d 349, affirmed.BURGER, C. J., delivered the opinion of the Court, in which HARLAN, STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK, J., dissented. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 226.Joel Martin Aurnou argued the cause and filed a brief for petitioner.James J. Duggan argued the cause for respondent. With him on the brief was Carl A. Vergari.Sybil H. Landau argued the cause for the District Attorney of New York County as amicus curiae urging affirmance. With her on the brief were Frank S. Hogan, pro se, and Michael R. Juviler.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted the writ in this case to consider petitioner's claim that a statement made by him to police under circumstances rendering it inadmissible to establish the prosecution's case in chief under Miranda v. Arizona, , may not be used to impeach his credibility.The State of New York charged petitioner in a two-count indictment with twice selling heroin to an undercover police officer. At a subsequent jury trial the officer was the State's chief witness, and he testified as to details of the two sales. A second officer verified collateral details of the sales, and a third offered testimony about the chemical analysis of the heroin.Petitioner took the stand in his own defense. He admitted knowing the undercover police officer but denied a sale on January 4, 1966. He admitted making a sale of contents of a glassine bag to the officer on January 6 but claimed it was baking powder and part of a scheme to defraud the purchaser.On cross-examination petitioner was asked seriatim whether he had made specified statements to the police immediately following his arrest on January 7 - statements that partially contradicted petitioner's direct testimony at trial. In response to the cross-examination, petitioner testified that he could not remember virtually any of the questions or answers recited by the prosecutor. At the request of petitioner's counsel the written statement from which the prosecutor had read questions and answers in his impeaching process was placed in the record for possible use on appeal; the statement was not shown to the jury.The trial judge instructed the jury that the statements attributed to petitioner by the prosecution could be considered only in passing on petitioner's credibility and not as evidence of guilt. In closing summations both counsel argued the substance of the impeaching statements. The jury then found petitioner guilty on the second count of the indictment.1 The New York Court of Appeals affirmed in a per curiam opinion, 25 N. Y. 2d 175, 250 N. E. 2d 349 (1969).At trial the prosecution made no effort in its case in chief to use the statements allegedly made by petitioner, conceding that they were inadmissible under Miranda v. Arizona, . The transcript of the interrogation used in the impeachment, but not given to the jury, shows that no warning of a right to appointed counsel was given before questions were put to petitioner when he was taken into custody. Petitioner makes no claim that the statements made to the police were coerced or involuntary.Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.In Walder v. United States, , the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes. "It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment. "[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility." 347 U.S., at 65. It is true that Walder was impeached as to collateral matters included in his direct examination, whereas petitioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a difference in principle that warrants a result different from that reached by the Court in Walder. Petitioner's testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, ; cf. Dennis v. United States, . Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.2 Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements. Affirmed.MR. JUSTICE BLACK dissents.
8	A bus and a truck collided in California resulting in a large number of casualties, including many Canadians and citizens of five States. Four victims brought suits in California state courts for damages exceeding $1,000,000 against the bus and truck drivers and the truck owner (all Oregon citizens), and the bus company, a California corporation. Before these cases were tried or other suits brought, petitioner insurance company, an Illinois corporation, brought this action in the nature of interpleader in the Federal District Court in Oregon against the drivers, the bus company, truck owner, and each prospective claimant, asserting that it had insured the truck driver against bodily injury liability to the extent of $10,000 per person, and $20,000 per occurrence. It paid the latter sum into court, and asked that all claims against it and the insured be established only in this single proceeding and that it be discharged from all further obligations under its policy, including its duty to defend the truck driver in lawsuits arising from the accident. Alternatively, it asked to be relieved of all liability on the policy, claiming that the policy excluded from coverage accidents such as the one involved here resulting from the insured's operation of a truck owned by and being used in the business of another. Jurisdiction was based on general diversity of citizenship and 28 U.S.C. 1335, which, inter alia, vests the district courts with jurisdiction in an interpleader action where a corporation has issued an insurance policy if two or more "adverse claimants, of diverse citizenship" claim "or may claim" to be entitled to money or the benefits arising under a policy and if the plaintiff has paid the amount due into the court's registry. An injunction was issued providing that all suits against the insurance company and its insured and (on the bus company's motion) the bus company and its driver be prosecuted in the interpleader proceeding. On interlocutory appeal, the Court of Appeals reversed, holding that in States like Oregon which do not permit "direct action" suits against an insurance company, federal interpleader may not be invoked until the claims against the insured have been reduced to judgment, since persons with unliquidated tort claims are not "claimants" within the meaning of 1335. Held: 1. The diversity requirement of 28 U.S.C. 1335 is satisfied here and the federal courts have jurisdiction since that provision requires only "minimal diversity," i. e., diversity of citizenship between two or more claimants, without regard to the circumstance that other rival claimants may be co-citizens, and "minimal diversity" is permissible under Article III of the Constitution. Pp. 530-531. 2. Section 1335 authorizes interpleader where adverse claimants "may claim" benefits, and petitioner insurance company need not wait until claimants against the insured have reduced their claims to judgment before seeking to invoke the benefits of the interpleader statute. Pp. 531-533. 3. An injunction barring the prosecution of suits against the insurance company and the alleged tortfeasors outside the confines of the interpleader proceeding was not authorized by 28 U.S.C. 2361, the scope of the litigation being vastly more extensive than the deposited proceeds of the insurance policy which constituted the "fund." Pp. 533-537. (a) This is not a case where the effect of the interpleader is to confine the litigation to a single forum and proceeding as where rival claims are limited to the fund itself. P. 534. (b) The fortuitous circumstance that one of the prospective defendants happens to be insured should not limit the other plaintiffs to the forum selected by the insurance company. Pp. 534-535. (c) The insurance company's interest, which is confined to its $20,000 fund, is fully vindicated when the court restrains claimants from seeking to enforce against the insurance company any judgment obtained against the insured except in the interpleader proceeding itself. The District Court had no power in that proceeding to control claimants' lawsuits against the insured or other alleged tortfeasors. P. 535. (d) Interpleader was never intended to serve as a "bill of peace" and solve all the problems of multiparty litigation arising out of a mass tort. Pp. 535-536. 363 F.2d 7, reversed and remanded. Otto R. Skopil, Jr., and John Gordon Gearin argued the cause and filed briefs for petitioners.Nick Chaivoe and James B. Griswold argued the cause and filed a brief for respondents.Mark C. McClanahan filed a brief for Anderson & Geary et al., as amici curiae.MR. JUSTICE FORTAS delivered the opinion of the Court.Early one September morning in 1964, a Greyhound bus proceeding northward through Shasta County, California, collided with a southbound pickup truck. Two of the passengers aboard the bus were killed. Thirty-three others were injured, as were the bus driver, the driver of the truck and its lone passenger. One of the dead and 10 of the injured passengers were Canadians; the rest of the individuals involved were citizens of five American States. The ensuing litigation led to the present case, which raises important questions concerning administration of the interpleader remedy in the federal courts.The litigation began when four of the injured passengers filed suit in California state courts, seeking damages in excess of $1,000,000. Named as defendants were Greyhound Lines, Inc., a California corporation; Theron Nauta, the bus driver; Ellis Clark, who drove the truck; and Kenneth Glasgow, the passenger in the truck who was apparently its owner as well. Each of the individual defendants was a citizen and resident of Oregon. Before these cases could come to trial and before other suits were filed in California or elsewhere, petitioner State Farm Fire & Casualty Company, an Illinois corporation, brought this action in the nature of interpleader in the United States District Court for the District of Oregon. In its complaint State Farm asserted that at the time of the Shasta County collision it had in force an insurance policy with respect to Ellis Clark, driver of the truck, providing for bodily injury liability up to $10,000 per person and $20,000 per occurrence and for legal representation of Clark in actions covered by the policy. It asserted that actions already filed in California and others which it anticipated would be filed far exceeded in aggregate damages sought the amount of its maximum liability under the policy. Accordingly, it paid into court the sum of $20,000 and asked the court (1) to require all claimants to establish their claims against Clark and his insurer in this single proceeding and in no other, and (2) to discharge State Farm from all further obligations under its policy - including its duty to defend Clark in lawsuits arising from the accident. Alternatively, State Farm expressed its conviction that the policy issued to Clark excluded from coverage accidents resulting from his operation of a truck which belonged to another and was being used in the business of another. The complaint, therefore, requested that the court decree that the insurer owed no duty to Clark and was not liable on the policy, and it asked the court to refund the $20,000 deposit.Joined as defendants were Clark, Glasgow, Nauta, Greyhound Lines, and each of the prospective claimants. Jurisdiction was predicated upon 28 U.S.C. 1335, the federal interpleader statute,1 and upon general diversity of citizenship, there being diversity between two or more of the claimants to the fund and between State Farm and all of the named defendants.An order issued, requiring the defendants to show cause why they should not be restrained from filing or prosecuting "any proceeding in any state or United States Court affecting the property or obligation involved in this interpleader action, and specifically against the plaintiff and the defendant Ellis D. Clark." Personal service was effected on each of the American defendants, and registered mail was employed to reach the 11 Canadian claimants. Defendants Nauta, Greyhound, and several of the injured passengers responded, contending that the policy did cover this accident and advancing various arguments for the position that interpleader was either impermissible or inappropriate in the present circumstances. Greyhound, however, soon switched sides and moved that the court broaden any injunction to include Nauta and Greyhound among those who could not be sued except within the confines of the interpleader proceeding.When a temporary injunction along the lines sought by State Farm was issued by the United States District Court for the District of Oregon, the present respondents moved to dismiss the action and, in the alternative, for a change of venue - to the Northern District of California, in which district the collision had occurred. After a hearing, the court declined to dissolve the temporary injunction, but continued the motion for a change of venue. The injunction was later broadened to include the protection sought by Greyhound, but modified to permit the filing - although not the prosecution - of suits. The injunction, therefore, provided that all suits against Clark, State Farm, Greyhound, and Nauta be prosecuted in the interpleader proceeding.On interlocutory appeal,2 the Court of Appeals for the Ninth Circuit reversed. 363 F.2d 7. The court found it unnecessary to reach respondents' contentions relating to service of process and the scope of the injunction, for it concluded that interpleader was not available in the circumstances of this case. It held that in States like Oregon which do not permit "direct action" suits against insurance companies until judgments are obtained against the insured, the insurance companies may not invoke federal interpleader until the claims against the insured, the alleged tortfeasor, have been reduced to judgment. Until that is done, said the court, claimants with unliquidated tort claims are not "claimants" within the meaning of 1335, nor are they "persons having claims against the plaintiff" within the meaning of Rule 22 of the Federal Rules of Civil Procedure.3 Id., at 10. In accord with that view, it directed dissolution of the temporary injunction and dismissal of the action. Because the Court of Appeals' decision on this point conflicts with those of other federal courts,4 and concerns a matter of significance to the administration of federal interpleader, we granted certiorari. . Although we reverse the decision of the Court of Appeals upon the jurisdictional question, we direct a substantial modification of the District Court's injunction for reasons which will appear. I. Before considering the issues presented by the petition for certiorari, we find it necessary to dispose of a question neither raised by the parties nor passed upon by the courts below. Since the matter concerns our jurisdiction, we raise it on our own motion. Treinies v. Sunshine Mining Co., . The interpleader statute, 28 U.S.C. 1335, applies where there are "Two or more adverse claimants, of diverse citizenship ... ." This provision has been uniformly construed to require only "minimal diversity," that is, diversity of citizenship between two or more claimants, without regard to the circumstance that other rival claimants may be co-citizens.5 The language of the statute, the legislative purpose broadly to remedy the problems posed by multiple claimants to a single fund, and the consistent judicial interpretation tacitly accepted by Congress, persuade us that the statute requires no more. There remains, however, the question whether such a statutory construction is consistent with Article III of our Constitution, which extends the federal judicial power to "Controversies ... between Citizens of different States ... and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." In Strawbridge v. Curtiss, 3 Cranch 267 (1806), this Court held that the diversity of citizenship statute required "complete diversity": where co-citizens appeared on both sides of a dispute, jurisdiction was lost. But Chief Justice Marshall there purported to construe only "The words of the act of congress," not the Constitution itself.6 And in a variety of contexts this Court and the lower courts have concluded that Article III poses no obstacle to the legislative extension of federal jurisdiction, founded on diversity, so long as any two adverse parties are not co-citizens.7 Accordingly, we conclude that the present case is properly in the federal courts. II. We do not agree with the Court of Appeals that, in the absence of a state law or contractual provision for "direct action" suits against the insurance company, the company must wait until persons asserting claims against its insured have reduced those claims to judgment before seeking to invoke the benefits of federal interpleader. That may have been a tenable position under the 19268 and 1936 interpleader statutes.9 These statutes did not carry forward the language in the 1917 Act authorizing interpleader where adverse claimants "may claim" benefits as well as where they "are claiming" them.10 In 1948, however, in the revision of the Judicial Code, the "may claim" language was restored.11 Until the decision below, every court confronted by the question has concluded that the 1948 revision removed whatever requirement there might previously have been that the insurance company wait until at least two claimants reduced their claims to judgments.12 The commentators are in accord.13 Considerations of judicial administration demonstrate the soundness of this view which, in any event, seems compelled by the language of the present statute, which is remedial and to be liberally construed. Were an insurance company required to await reduction of claims to judgment, the first claimant to obtain such a judgment or to negotiate a settlement might appropriate all or a disproportionate slice of the fund before his fellow claimants were able to establish their claims. The difficulties such a race to judgment pose for the insurer,14 and the unfairness which may result to some claimants, were among the principal evils the interpleader device was intended to remedy.15 III. The fact that State Farm had properly invoked the interpleader jurisdiction under 1335 did not, however, entitle it to an order both enjoining prosecution of suits against it outside the confines of the interpleader proceeding and also extending such protection to its insured, the alleged tortfeasor. Still less was Greyhound Lines entitled to have that order expanded so as to protect itself and its driver, also alleged to be tortfeasors, from suits brought by its passengers in various state or federal courts. Here, the scope of the litigation, in terms of parties and claims, was vastly more extensive than the confines of the "fund," the deposited proceeds of the insurance policy. In these circumstances, the mere existence of such a fund cannot, by use of interpleader, be employed to accomplish purposes that exceed the needs of orderly contest with respect to the fund.There are situations, of a type not present here, where the effect of interpleader is to confine the total litigation to a single forum and proceeding. One such case is where a stakeholder, faced with rival claims to the fund itself, acknowledges - or denies - his liability to one or the other of the claimants.16 In this situation, the fund itself is the target of the claimants. It marks the outer limits of the controversy. It is, therefore, reasonable and sensible that interpleader, in discharge of its office to protect the fund, should also protect the stakeholder from vexatious and multiple litigation. In this context, the suits sought to be enjoined are squarely within the language of 28 U.S.C. 2361, which provides in part: "In any civil action of interpleader or in the nature of interpleader under section 1335 of this title, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action ... ." (Emphasis added.) But the present case is another matter. Here, an accident has happened. Thirty-five passengers or their representatives have claims which they wish to press against a variety of defendants: the bus company, its driver, the owner of the truck, and the truck driver. The circumstance that one of the prospective defendants happens to have an insurance policy is a fortuitous event which should not of itself shape the nature of the ensuing litigation. For example, a resident of California, injured in California aboard a bus owned by a California corporation should not be forced to sue that corporation anywhere but in California simply because another prospective defendant carried an insurance policy. And an insurance company whose maximum interest in the case cannot exceed $20,000 and who in fact asserts that it has no interest at all, should not be allowed to determine that dozens of tort plaintiffs must be compelled to press their claims - even those claims which are not against the insured and which in no event could be satisfied out of the meager insurance fund - in a single forum of the insurance company's choosing. There is nothing in the statutory scheme, and very little in the judicial and academic commentary upon that scheme, which requires that the tail be allowed to wag the dog in this fashion.State Farm's interest in this case, which is the fulcrum of the interpleader procedure, is confined to its $20,000 fund. That interest receives full vindication when the court restrains claimants from seeking to enforce against the insurance company any judgment obtained against its insured, except in the interpleader proceeding itself. To the extent that the District Court sought to control claimants' lawsuits against the insured and other alleged tortfeasors, it exceeded the powers granted to it by the statutory scheme.We recognize, of course, that our view of interpleader means that it cannot be used to solve all the vexing problems of multiparty litigation arising out of a mass tort. But interpleader was never intended to perform such a function, to be an all-purpose "bill of peace."17 Had it been so intended, careful provision would necessarily have been made to insure that a party with little or no interest in the outcome of a complex controversy should not strip truly interested parties of substantial rights - such as the right to choose the forum in which to establish their claims, subject to generally applicable rules of jurisdiction, venue, service of process, removal, and change of venue. None of the legislative and academic sponsors of a modern federal interpleader device viewed their accomplishment as a "bill of peace," capable of sweeping dozens of lawsuits out of the various state and federal courts in which they were brought and into a single interpleader proceeding. And only in two reported instances has a federal interpleader court sought to control the underlying litigation against alleged tortfeasors as opposed to the allocation of a fund among successful tort plaintiffs. See Commercial Union Insurance Co. of New York v. Adams, 231 F. Supp. 860 (D.C. S. D. Ind. 1964) (where there was virtually no objection and where all of the basic tort suits would in any event have been prosecuted in the forum state), and Pan American Fire & Casualty Co. v. Revere, 188 F. Supp. 474 (D.C. E. D. La. 1960). Another district court, on the other hand, has recently held that it lacked statutory authority to enjoin suits against the alleged tortfeasor as opposed to proceedings against the fund itself. Travelers Indemnity Co. v. Greyhound Lines, Inc., 260 F. Supp. 530 (D.C. W. D. La. 1966).In light of the evidence that federal interpleader was not intended to serve the function of a "bill of peace" in the context of multiparty litigation arising out of a mass tort, of the anomalous power which such a construction of the statute would give the stakeholder, and of the thrust of the statute and the purpose it was intended to serve, we hold that the interpleader statute did not authorize the injunction entered in the present case. Upon remand, the injunction is to be modified consistently with this opinion.18 IV. The judgment of the Court of Appeals is reversed, and the case is remanded to the United States District Court for proceedings consistent with this opinion. It is so ordered.[Footnote 1] 28 U.S.C. 1335 (a) provides: "The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a ... policy of insurance ... of value or amount of $500 or more ... if "(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any ... policy ...; and if (2) the plaintiff has ... paid ... the amount due under such obligation into the registry of the court, there to abide the judgment of the court ... ."[Footnote 2] 28 U.S.C. 1292 (a) (1).[Footnote 3] We need not pass upon the Court of Appeals' conclusions with respect to the interpretation of interpleader under Rule 22, which provides that "(1) Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability... ." First, as we indicate today, this action was properly brought under 1335. Second, State Farm did not purport to invoke Rule 22. Third, State Farm could not have invoked it in light of venue and service of process limitations. Whereas statutory interpleader may be brought in the district where any claimant resides (28 U.S.C. 1397), Rule interpleader based upon diversity of citizenship may be brought only in the district where all plaintiffs or all defendants reside (28 U.S.C. 1391 (a)). And whereas statutory interpleader enables a plaintiff to employ nationwide service of process (28 U.S.C. 2361), service of process under Rule 22 is confined to that provided in Rule 4. See generally 3 Moore, Federal Practice § 22.04. With respect to the Court of Appeals' views on Rule 22, which seem to be shared by our Brother DOUGLAS, compare Underwriters at Lloyd's v. Nichols, 363 F.2d 357 (C. A. 8th Cir. 1966), and A/S Krediit Pank v. Chase Manhattan Bank, 155 F. Supp. 30 (D.C. S. D. N. Y. 1957), aff'd, 303 F.2d 648 (C. A. 2d Cir. 1962), with National Casualty Co. v. Insurance Co. of North America, 230 F. Supp. 617 (D.C. N. D. Ohio 1964), and American Indemnity Co. v. Hale, 71 F. Supp. 529 (D.C. W. D. Mo. 1947). See also 3 Moore, Federal Practice § 22.04, at 3008 and n. 4.[Footnote 4] See, e. g., Travelers Indemnity Co. v. Greyhound Lines, Inc., 260 F. Supp. 530 (D.C. W. D. La. 1966); Commercial Union Insurance Co. of New York v. Adams, 231 F. Supp. 860 (D.C. S. D. Ind. 1964); Pan American Fire & Casualty Co. v. Revere, 188 F. Supp. 474 (D.C. E. D. La. 1960); Onyx Refining Co. v. Evans Production Corp., 182 F. Supp. 253 (D.C. N. D. Tex. 1959). Although Travelers and Revere were brought in Louisiana, a State which authorizes "direct action" suits against insurance companies, the statute was not relied upon in Travelers (see 260 F. Supp., at 533, n. 3), and furnished only an alternative ground in Revere (see 188 F. Supp., at 482-483). The only post-1948 case relied upon by the Court of Appeals and respondents, National Casualty Co. v. Insurance Co. of North America, 230 F. Supp. 617 (D.C. N. D. Ohio 1964), turns out to be of little assistance with respect to statutory interpleader since that court denied statutory interpleader solely on the ground that all claimants were citizens of Ohio and hence lacked the required diversity of citizenship. Id., at 619.[Footnote 5] See, e. g., Haynes v. Felder, 239 F.2d 868, 872-875 (C. A. 5th Cir. 1957); Holcomb v. Aetna Life Insurance Co., 255 F.2d 577, 582 (C. A. 10th Cir.), cert. denied sub nom. Fleming v. Aetna Life Insurance Co., ; Cramer v. Phoenix Mut. Life Ins. Co., 91 F.2d 141, 146-147 (C. A. 8th Cir.), cert. denied, ; Commercial Union Insurance Co. of New York v. Adams, 231 F. Supp. 860, 863 (D.C. S. D. Ind. 1964); 3 Moore, Federal Practice § 22.09, at 3033.[Footnote 6] Subsequent decisions of this Court indicate that Strawbridge is not to be given an expansive reading. See, e. g., Louisville Railroad Co. v. Letson, 2 How. 497, 554-556 (1844), expressing the view that in 1839 Congress had in fact acted to "rid the courts of the decision in the case of Strawbridge and Curtis." Id., at 556.[Footnote 7] See, e. g., American Fire & Cas. Co. v. Finn, , n. 3 (1951), and Barney v. Latham, , construing the removal statute, now 28 U.S.C. 1441 (c); Supreme Tribe of Ben-Hur v. Cauble, , concerning class actions; Wichita R. R. & Light Co. v. Public Util. Comm., , dealing with intervention by co-citizens. Full-dress arguments for the constitutionality of "minimal diversity" in situations like interpleader, which arguments need not be rehearsed here, are set out in Judge Tuttle's opinion in Haynes v. Felder, 239 F.2d, at 875-876; in Judge Weinfeld's opinion in Twentieth Century-Fox Film Corp. v. Taylor, 239 F. Supp. 913, 918-921 (D.C. S. D. N. Y. 1965); and in ALI, Study of the Division of Jurisdiction Between State and Federal Courts 180-190 (Official Draft, Pt. 1, 1965); 3 Moore, Federal Practice § 22.09, at 3033-3037; Chafee, Federal Interpleader Since the Act of 1936, 49 Yale L. J. 377, 393-406 (1940); Chafee, Interpleader in the United States Courts, 41 Yale L. J. 1134, 1165-1169 (1932). We note that the American Law Institute's proposals for revision of the Judicial Code to deal with the problem of multiparty, multijurisdiction litigation are predicated upon the permissibility of "minimal diversity" as a jurisdictional basis.[Footnote 8] 44 Stat. 416 (1926), which added casualty companies to the enumerated categories of plaintiffs able to bring interpleader, and provided for the enjoining of proceedings in other courts.[Footnote 9] 49 Stat. 1096 (1936), which authorized "bills in the nature of interpleader," meaning those in which the plaintiff is not wholly disinterested with respect to the fund he has deposited in court. See Chafee, The Federal Interpleader Act of 1936: I, 45 Yale L. J. 963 (1936).[Footnote 10] 39 Stat. 929 (1917). See Klaber v. Maryland Casualty Co., 69 F.2d 934, 938-939 (C. A. 8th Cir. 1934), which held that the omission in the 1926 Act of the earlier statute's "may claim" language required the denial of interpleader in the face of unliquidated claims (alternative holding).[Footnote 11] Although the Reviser's Note did not refer to the statutory change or its purpose, we have it on good authority that it was the omission in the Note rather than the statutory change which was inadvertent. See 3 Moore, Federal Practice § 22.08, at 3025-3026, n. 13. And it was widely assumed that restoration of the "may claim" language would have the effect of overruling the holding in Klaber, supra, that one may not invoke interpleader to protect against unliquidated claims. See, e. g., Chafee, 45 Yale L. J., at 1163-1167; Chafee, Federal Interpleader Since the Act of 1936, 49 Yale L. J. 377, 418-420 (1940). In circumstances like these, the 1948 revision of the Judicial Code worked substantive changes. Ex parte Collett, .[Footnote 12] See cases listed in n. 4.[Footnote 13] 3 Moore, Federal Practice § 22.08, at 3024-3025; Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv. L. Rev. 27, 41-42 (1956).[Footnote 14] See Keeton, op. cit. supra, n. 13.[Footnote 15] The insurance problem envisioned at the time was that of an insurer faced with conflicting but mutually exclusive claims to a policy, rather than an insurer confronted with the problem of allocating a fund among various claimants whose independent claims may exceed the amount of the fund. S. Rep. No. 558, 74th Cong., 1st Sess., 2-3, 7, 8 (1935); Chafee, Modernizing Interpleader, 30 Yale L. J. 814, 818-819 (1921).[Footnote 16] This was the classic situation envisioned by the sponsors of interpleader. See n. 15, supra.[Footnote 17] There is not a word in the legislative history suggesting such a purpose. See S. Rep. No. 558, 74th Cong., 1st Sess. (1935). And Professor Chafee, upon whose work the Congress heavily depended, has written that little thought was given to the scope of the "second stage" of interpleader, to just what would be adjudicated by the interpleader court. See Chafee, Broadening the Second Stage of Federal Interpleader, 56 Harv. L. Rev. 929, 944-945 (1943). We note that in Professor Chafee's own study of the bill of peace as a device for dealing with the problem of multiparty litigation, he fails even to mention interpleader. See Chafee, Some Problems of Equity 149-198 (1950). In his writing on interpleader, Chafee assumed that the interpleader court would allocate the fund "among all the claimants who get judgment within a reasonable time ... ." Chafee, The Federal Interpleader Act of 1936: II, 45 Yale L. J. 1161, 1165 (1936). See also Chafee, 49 Yale L. J., at 420-421.[Footnote 18] We find it unnecessary to pass upon respondents' contention, raised in the courts below but not passed upon by the Court of Appeals, that interpleader should have been dismissed on the ground that the 11 Canadian claimants are "indispensable parties" who have not been properly served. The argument is that 28 U.S.C. 2361 provides the exclusive mode of effecting service of process in statutory interpleader, and that 2361 - which authorizes a district court to "issue its process for all claimants" but subsequently refers to service of "such process" by marshals "for the respective districts where the claimants reside or may be found" - does not permit service of process beyond the Nation's borders. Since our decision will require basic reconsideration of the litigation by the parties as well as the lower courts, there appears neither need nor necessity to determine this question at this time. We intimate no view as to the exclusivity of 2361, whether it authorizes service of process in foreign lands, whether in light of the limitations we have imposed on the interpleader court's injunctive powers the Canadian claimants are in fact "indispensable parties" to the interpleader proceeding itself, or whether they render themselves amenable to service of process under 2361 when they come into an American jurisdiction to establish their rights with respect either to the alleged tortfeasors or to the insurance fund. See 2 Moore, Federal Practice § 4.20, at 1091-1105.MR. JUSTICE DOUGLAS, dissenting in part. While I agree with the Court's view as to "minimal diversity" and that the injunction, if granted, should run only against prosecution of suits against the insurer, I feel that the use which we today allow to be made of the federal interpleader statute,1 28 U.S.C. 1335, is, with all deference, unwarranted. How these litigants are "claimants" to this fund in the statutory sense is indeed a mystery. If they are not "claimants" of the fund,2 neither are they in the category of those who "are claiming" or who "may claim" to be entitled to it. This insurance company's policy provides that it will "pay on behalf of the insured all sums which the insured shall become legally obligated to pay." To date the insured has not become "legally obligated" to pay any sum to any litigant. Since nothing is owed under the policy, I fail to see how any litigant can be a "claimant" as against the insurance company. If that is doubtful the doubt is resolved by two other conditions:(1) The policy states "[n]o action shall lie against the company ... until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company."(2) Under California law where the accident happened and under Oregon law where the insurance contract was made, a direct action against the insurer is not allowable until after a litigant receives a final judgment against the insured.3 Thus under this insurance policy as enforced in California and in Oregon a "claimant" against the insured can become a "claimant" against the insurer only after final judgment against the insured or after a consensual written agreement of the insurer, a litigant, and the insured. Neither of those two events has so far happened.4 This construction of the word "claimant" against the fund is borne out, as the Court of Appeals noted, by Rule 22 (1) of the Federal Rules of Civil Procedure.5 That Rule, also based on diversity of citizenship, differs only in the district where the suit may be brought and in the reach of service of process, as the Court points out.6 But it illuminates the nature of federal interpleader for it provides that only "persons having claims against the plaintiff [insurer] may be joined as defendants and required to interplead."Can it be that we have two kinds of interpleader statutes as between which an insurance company can choose: one that permits "claimants" against the insurer ("persons having claims against the plaintiff") to be joined and the other that permits "claimants" against the insured to be joined for the benefit of the insurer even though they may never be "claimants" against the insurer? I cannot believe that Congress launched such an irrational scheme.The Court rests heavily on the fact that the 1948 Act contains the phrase "may claim," while the 1926 and 1936 interpleader statutes contained the phrase "are claiming." From this change in language the Court infers that Congress intended to allow an insurance company to interplead even though a judgment has not been entered against the insured and there is no direct-action statute. This inference is drawn despite the fact that the Reviser's Note contains no reference to the change in wording or its purpose; the omission is dismissed as "inadvertent." But it strains credulity to suggest that mention would not have been made of such a drastic change, if in fact Congress intended to make it. And, despite the change in wording, under the 1948 Act there must be "adverse claimants ... [who] are claiming or may claim to be entitled to such money ..., or to any one or more of the benefits arising by virtue of any ... policy ... ." Absent a direct-action statute, the victims are not "claimants" against the insurer until their claims against the insured have been reduced to judgment. Understandably, the insurance company wants the best of two worlds. It does not want an action against it until judgment against its insured. But, at the same time, it wants the benefits of an interpleader statute. Congress could of course confer such a benefit. But it is not for this Court to grant dispensations from the effects of the statutory scheme which Congress has erected.I would construe its words in the normal sense and affirm the Court of Appeals.[Footnote 1] "(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more ... if "(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation; and if (2) the plaintiff has deposited such money or property ... into the registry of the court, there to abide the judgment of the court ... ."[Footnote 2] Under the policy issued by State Farm, it promises "[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons ... caused by accident arising out of the ownership, maintenance or use, including loading or unloading, of the owned automobile ... ." The insured will "become legally obligated to pay" only if he has been found to be at fault for the accident, or if the victim's claim has been settled in accord with the policy terms. The claim against the insurance company is thus contingent on a finding that the insured was at fault or a settlement. This is unlike the situation where the insurance company has issued a policy such as a workmen's compensation policy which insures the insured for liability imposed in the absence of fault.[Footnote 3] See Calif. Ins. Code 11580 (b) (2); Ore. Rev. Stat. 23.230.[Footnote 4] In those States having a direct-action statute, allowing an action against the insurer prior to judgment against the insured, interpleader jurisdiction can be sustained absent a judgment against the insured. The direct-action statute gives the injured party the status of a "claimant" against the insurer. See, e. g., Pan American Fire & Casualty Co. v. Revere, 188 F. Supp. 474, 482-483.[Footnote 5] Rule 22 (1) provides in part: "Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability."[Footnote 6] See n. 3 of the Court's opinion.
8	Certiorari is dismissed, where it appears, upon examination of the merits on oral argument in light of an intervening state statute and the intervening decision in Runyon v. McCrary, , that the grant of certiorari was improvident. Certiorari dismissed. Reported below: 511 F.2d 744.George Colvin Cochran argued the cause and filed a brief for petitioners.Will A. Hickman argued the cause for respondents. With him on the brief was S. T. Rayburn.* [Footnote *] Stephen J. Pollak, John Townsend Rich, Franklin D. Kramer, and David Rubin filed a brief for the National Education Assn. as amicus curiae urging reversal.PER CURIAM.Certiorari was granted to consider the question presented: whether, consistently with the First and Fourteenth Amendments, a Mississippi public school board may terminate the employment of teachers sending their children not to public schools, but to a private racially segregated school. However, since the grant of certiorari, Runyon v. McCrary, , held that 42 U.S.C. 1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are Negroes. Moreover, a Mississippi statute, Miss. Code Ann. 37-9-59 (Supp. 1976), enacted in 1974 after the school board action here complained of, prohibits school boards "from denying employment or reemployment to any person ... for the single reason that any eligible child of such person does not attend the school system in which such [person] is employed." Though 37-9-59 was cited in the record at the time of granting the writ, examination of the merits on oral argument in light of Runyon v. McCrary and 37-9-59 satisfies us that the grant was improvident. Accordingly, the writ of certiorari is dismissed as improvidently granted. Cf. Rice v. Sioux City Cemetery, .MR. CHIEF JUSTICE BURGER, concurring in the result.I join in the Court's disposition of this case. In doing so, I emphasize that our decision to dismiss the writ of certiorari as improvidently granted intimates no view on the question of when, if ever, public school teachers - or any comparable public employees - may be required, as a condition of their employment, to enroll their children in any particular school or refrain from sending them to a school which they, as parents, in their sole discretion, consider desirable. Few familial decisions are as immune from governmental interference as parents' choice of a school for their children, so long as the school chosen otherwise meets the educational standards imposed by the State. See Pierce v. Society of Sisters, ; Meyer v. Nebraska, ; Wisconsin v. Yoder, .
6	Respondent brought this action under 1 and 2 of the Sherman Act against petitioners, seven local unions, Associated Food Retailers of Greater Chicago, Inc. (Associated), an association of retail food stores, and Associated's secretary and treasurer, alleging that petitioners and Associated had conspired to restrain competition in retail meat markets in the Chicago area by limiting the marketing hours for the sale of fresh meat through a clause in the collective bargaining agreement between Associated and petitioners and between respondent and petitioners. The District Court, after trial, held that there was no evidence in the record to support a finding of a conspiracy to force the restrictive provision on respondent, that the marketing-hours limitation was imposed by the unions to serve their own interests respecting conditions of employment, and that such action was clearly within the labor exemption of the Sherman Act. The Court of Appeals reversed the dismissal of the complaint as to the unions and Associated, and without upsetting the District Court's finding that, apart from the contractual provision itself, there was no evidence of conspiracy, concluded that a conspiracy in restraint of trade was shown. It held that the employer-union contract concerning working hours is unlawful, as the establishment of the hours of work is a function of the employer. Held: The judgment is reversed. Pp. 679-735. 331 F.2d 547, reversed.MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE and MR. JUSTICE BRENNAN, concluded that: 1. This controversy involving whether a proposed bargaining subject is a term or condition of employment is not within the exclusive primary jurisdiction of the National Labor Relations Board. Pp. 684-688. (a) Courts have had experience in classifying bargaining subjects as terms or conditions of employment, as under the Norris-LaGuardia Act. P. 686. (b) The primary jurisdiction doctrine does not require resort to an administrative proceeding when the case must eventually be decided on a controlling legal issue unrelated to the administrative determination. P. 686. (c) There is no procedure available in this case for obtaining a determination by the Labor Board. P. 687. 2. Exemption of union-employer agreements from the coverage of the Sherman Act is a matter of accommodating that Act to the policy of the labor laws, as this Court pointed out in United Mine Workers v. Pennington, ante, p. 657, and the fact that employers and unions are required to bargain about wages, hours and working conditions weighs heavily in favor of antitrust exemption for agreement on these subjects. P. 689. 3. A provision establishing the particular hours of work would be within the ambit of wages, hours and working conditions requiring mandatory bargaining, and the unions' success in obtaining that provision through negotiation in pursuit of their own policies falls within the protection of the national labor policy and is exempt from the Sherman Act. Pp. 689-691. 4. Likewise a marketing-hours restriction would be exempt if night operation of meat markets would require night employment of butchers, impair the butchers' jurisdiction or substantially affect their workload. P. 692. 5. But if self-service markets could conduct night operations without affecting the vital interests of butchers, there might be restraint on the product market, and the limitation imposed by the unions might be nothing more than an attempt to protect one group of employers from competition from another group, which is conduct not exempt from the Sherman Act. Pp. 692-693. 6. The resolution by the District Court of the question of whether night operations without butchers, and without infringement of the butchers' interests, are feasible, in favor of the unions' position, was supported by evidence in the record and is not clearly erroneous. Pp. 694-697.MR. JUSTICE GOLDBERG, joined by MR. JUSTICE HARLAN and MR. JUSTICE STEWART, concluded that: The history of legislative enactments in the area of collective bargaining demonstrates a consistent congressional purpose to limit severely judicial intervention into the formulation of labor policy through the use of the antitrust laws. Congress intended to foreclose judges and juries from making essentially economic judgments in antitrust cases by determining whether unions or employers has good or bad motives for their agreements on mandatory subjects of collective bargaining. Pp. 697-735. (a) Where Congress deemed there were specific abuses on the part of labor unions it enacted specific proscriptions in the labor statutes. Pp. 707-708. (b) The Court should follow the approach of United States v. Hutcheson, , that the labor exemption from the antitrust laws derives from a synthesis of all pertinent legislation, and hold that collective bargaining activity concerning mandatory subjects of bargaining under the National Labor Relations Act is not subject to the antitrust laws. Pp. 709-710. (c) Multi-employer bargaining is not illegal or opposed to the national labor policy. Pp. 712-713. (d) Labor contracts establishing standardized wages, hours or other conditions of employment are often secured by bargaining with multi-employer associations or through bargaining with market leaders that sets a "pattern," and the policy of pattern bargaining should not lead to antitrust liability merely because of its form. P. 722. (e) In this case even if the self-service markets could operate after 6 p. m., without their butchers and without increasing the work of their butchers at other times, the result of such operation can reasonably be expected to be either that the small, independent service markets would have to remain open in order to compete, thus requiring their union butchers to work at night, or that the small, independent service markets would not be able to operate at night and thus be put at a competitive disadvantage. Pp. 727-728. (f) Since it is clear that the large, automated self-service markets employ fewer butchers per volume of sales than service markets do, the Union has a legitimate interest in keeping service markets competitive so as to preserve jobs. P. 728. (g) The direct interest of the Union in not working undesirable hours by curtailing all business at those hours is a far cry from the indirect interest of a union in fixing prices and allocating markets solely to increase the profits of favored employers. Pp. 728-729. (h) If unions are held liable under the antitrust laws for activities concerning mandatory subjects of collective bargaining, then the employer parties to such bargaining would also be subject to antitrust penalties, which would be clearly contrary to congressional policy and manifestly unfair in view of their statutory duty to bargain. Pp. 729-730. Bernard Dunau argued the cause for petitioners. With him on the briefs were Lester Asher, Leo Segall and Robert C. Eardley.George B. Christensen argued the cause for respondent. With him on the brief were Fred H. Daugherty, Theodore A. Groenke and Samuel Weisbard.Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Assistant Attorney General Orrick, Robert J. Hoerner, Charles Donahue and Arnold Ordman.Briefs of amici curiae, urging affirmance, were filed by Allen A. Lauterbach for the American Farm Bureau Federation; by Edwin H. Pewett, Jonathan W. Sloat and George A. Avery for the National Independent Meat Packers Association, and by Allen Whitfield for the National Livestock Feeders Association et al.MR. JUSTICE WHITE announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join.Like No. 48, United Mine Workers v. Pennington, decided today, ante, p. 657, this case presents questions regarding the application of 1 and 2 of the Sherman Antitrust Act, 26 Stat. 209, as amended, 15 U.S.C. 1, 2 (1958 ed.), to activities of labor unions. In particular, it concerns the lawfulness of the following restriction on the operating hours of food store meat departments contained in a collective bargaining agreement executed after joint multi-employer, multi-union negotiations: "Market operating hours shall be 9:00 a. m. to 6:00 p. m. Monday through Saturday, inclusive. No customer shall be served who comes into the market before or after the hours set forth above." This litigation arose out of the 1957 contract negotiations between the representatives of 9,000 Chicago retailers of fresh meat and the seven union petitioners, who are local affiliates of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, representing virtually all butchers in the Chicago area. During the 1957 bargaining sessions the employer group presented several requests for union consent to a relaxation of the existing contract restriction on marketing hours for fresh meat, which forbade the sale of meat before 9 a. m. and after 6 p. m. in both service and self-service markets.1 The unions rejected all such suggestions, and their own proposal retaining the marketing-hours restriction was ultimately accepted at the final bargaining session by all but two of the employers, National Tea Co. and Jewel Tea Co. (hereinafter "Jewel"). Associated Food Retailers of Greater Chicago, a trade association having about 1,000 individual and independent merchants as members and representing some 300 meat dealers in the negotiations, was among those who accepted. Jewel, however, asked the union negotiators to present to their membership, on behalf of it and National Tea, a counteroffer that included provision for Friday night operations. At the same time Jewel voiced its belief, as it had midway through the negotiations that any marketing-hours restriction was illegal. On the recommendation of the union negotiators, the Jewel offer was rejected by the union membership, and a strike was authorized. Under the duress of the strike vote, Jewel decided to sign the contract previously approved by the rest of the industry.In July 1958 Jewel brought suit against the unions, certain of their officers, Associated, and Charles H. Bromann, Secretary-Treasurer of Associated, seeking invalidation under 1 and 2 of the Sherman Act of the contract provision that prohibited night meat market operations. The gist of the complaint was that the defendants and others had conspired together to prevent the retail sale of fresh meat before 9 a. m. and after 6 p. m. As evidence of the conspiracy Jewel relied in part on the events during the 1957 contract negotiations - the acceptance by Associated of the market-hours restriction and the unions' imposition of the restriction on Jewel through a strike threat. Jewel also alleged that it was a part of the conspiracy that the unions would neither permit their members to work at times other than the hours specified nor allow any grocery firm to sell meat, with or without employment of their members, outside those hours; that the members of Associated, which had joined only one of the 1957 employer proposals for extended marketing hours, had agreed among themselves to insist on the inclusion of the marketing-hours limitation in all collective bargaining agreements between the unions and any food store operator; that Associated, its members and officers had agreed with the other defendants that no firm was to be permitted to operate self-service meat markets between 6 p. m. and 9 p. m.; and that the unions, their officers and members had acted as the enforcing agent of the conspiracy. The complaint stated that in recent years the prepackaged, self-service system of marketing meat had come into vogue, that 174 of Jewel's 196 stores were equipped to vend meat in this manner, and that a butcher need not be on duty in a self-service market at the time meat purchases were actually made. The prohibition of night meat marketing, it was alleged, unlawfully impeded Jewel in the use of its property and adversely affected the general public in that many persons find it inconvenient to shop during the day. An injunction, treble damages and attorneys' fees were demanded.The trial judge held the allegations of the complaint sufficient to withstand a motion to dismiss made on the grounds, inter alia, that (a) the alleged restraint was within the exclusive regulatory scope of the National Labor Relations Act and was therefore outside the jurisdiction of the Court and (b) the controversy was within the labor exemption to the antitrust laws. That ruling was sustained on appeal. Jewel Tea Co. v. Local Unions Nos. 189, etc., Amalgamated Meat Cutters, AFL-CIO, 274 F.2d 217 (C. A. 7th Cir. 1960), cert. denied, . After trial, however, the District Judge ruled the "record was devoid of any evidence to support a finding of conspiracy" between Associated and the unions to force the restrictive provision on Jewel. 215 F. Supp. 839, 845. Testing the unions' action standing alone, the trial court found that even in self-service markets removal of the limitation on marketing hours either would inaugurate longer hours and night work for the butchers or would result in butchers' work being done by others unskilled in the trade. Thus, the court concluded, the unions had imposed the marketing-hours limitation to serve their own interests respecting conditions of employment, and such action was clearly within the labor exemption of the Sherman Act established by Hunt v. Crumboch, ; United States v. Hutcheson, ; United States v. American Federation of Musicians, . Alternately, the District Court ruled that even if this was not the case, the arrangement did not amount to an unreasonable restraint of trade in violation of the Sherman Act.The Court of Appeals reversed the dismissal of the complaint as to both the unions and Associated. Without disturbing the District Court's finding that, apart from the contractual provision itself, there was no evidence of conspiracy, the Court of Appeals concluded that a conspiracy in restraint of trade had been shown. The court noted that "[t]he rest of the Industry agreed with the Defendant Local Unions to continue the ban on night operations," while plaintiff resisted, and concluded that Associated and the unions "entered into a combination or agreement, which constituted a conspiracy, as charged in the complaint... [w]hether it be called an agreement, a contract or a conspiracy, is immaterial." 331 F.2d 547, 551.Similarly, the Court of Appeals did not find it necessary to review the lower court's finding that night marketing would affect either the butchers' working hours or their jurisdiction, for the court held that an employer-union contract respecting working hours would be unlawful. "One of the proprietary functions is the determination of what days a week and what hours of the day the business will be open to supply its customers... . As long as all rights of employees are recognized and duly observed by the employer, including the number of hours per day that any one shall be required to work, any agreement by a labor union, acting in concert with business competitors of the employer, designed to interfere with his operation of a retail business ... is a violation of the Sherman Act ... . [T]he furnishing of a place and advantageous hours of employment for the butchers to supply meat to customers are the prerogatives of the employer." 331 F.2d 547, 549.We granted certiorari on the unions' petition,2 ,3 and now reverse the Court of Appeals.I.We must first consider the unions' attack on the appropriateness of the District Court's exercise of jurisdiction, which is encompassed in their contention that this controversy is within the exclusive primary jurisdiction of the National Labor Relations Board. On this point, which is distinct from the unions' argument that the operating-hours restriction is subject to regulation only by the Board and is thus wholly exempt from the antitrust laws, the unions' thesis is that the pivotal issue is whether the operating-hours restriction is a "term or condition of employment" and that the District Court should have held the case on its docket pending a Board proceeding to resolve that issue, which is said to be peculiarly within the competence of the Board."The doctrine of primary jurisdiction ... applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views." United States v. Western Pac. R. Co., . The doctrine is based on the principle "that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over," Far East Conference v. United States, , and "requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme," United States v. Philadelphia Nat. Bank, . Whether a proposed bargaining subject is a term or condition of employment is an issue that the Board frequently determines in considering charges that an employer or union has violated the duty to bargain in good faith concerning "wages, hours, and other terms and conditions of employment," the mandatory subjects of bargaining described in 8 (d) of the National Labor Relations Act, 49 Stat. 452, as amended. Such an issue may be raised by an unfair labor practice charge of violation of 8 (a) (5) or 8 (b) (3) through, for example, a refusal to bargain on a mandatory subject of bargaining, see Labor Board v. Katz, , or insistence on a nonmandatory subject, see Labor Board v. Borg-Warner Corp., . Thus, the unions contend, Jewel could have filed an unfair labor practice charge with the Board on the ground that the unions had insisted on a nonmandatory subject - the marketing-hours restriction. Obviously, classification of bargaining subjects as "terms or conditions of employment" is a matter concerning which the Board has special expertise. Nevertheless, for the reasons stated below we cannot conclude that this is a proper case for application of the doctrine of primary jurisdiction.To begin with, courts are themselves not without experience in classifying bargaining subjects as terms or conditions of employment. Just such a determination must be frequently made when a court's jurisdiction to issue an injunction affecting a labor dispute is challenged under the Norris-LaGuardia Act, which defines "labor dispute" as including "any controversy concerning terms or conditions of employment," Norris-LaGuardia Act, 13 (c), 47 Stat. 73, 29 U.S.C. 113 (c) (1958 ed.). See Order of Railroad Telegraphers v. Chicago & N. W. R. Co., ; Bakery Drivers Union v. Wagshal, ; cf. Teamsters Union v. Oliver, .Secondly, the doctrine of primary jurisdiction is not a doctrine of futility; it does not require resort to "an expensive and merely delaying administrative proceeding when the case must eventually be decided on a controlling legal issue wholly unrelated to determinations for the ascertainment of which the proceeding was sent to the agency." Maritime Board v. Isbrandtsen Co., (Frankfurter, J., dissenting). It was only after commencement of trial that it became evident that a major issue in this case would be whether the marketing-hours restriction was a term or condition of employment. Jewel's complaint alleged the existence of a conspiracy between Associated and the unions to impose the marketing-hours provision on Jewel - that is, it was alleged that the unions had agreed with a part of the bargaining unit to impose certain terms on the rest of the unit. We hold today in United Mine Workers v. Pennington with respect to allegations of a similar employer-union agreement to impose a particular scale of wages - indisputably at the core of "wages, hours, and other terms and conditions of employment" - that such an understanding is not exempt from the Sherman Act. At the stage when the decision whether to refer the parties to the Board was made, therefore, the issues were so framed that a Board determination would have been of subsidiary importance at best.Finally, we must reject the unions' primary-jurisdiction contention because of the absence of an available procedure for obtaining a Board determination. The Board does not classify bargaining subjects in the abstract but only in connection with unfair labor practice charges of refusal to bargain. The typical antitrust suit, however, is brought by a stranger to the bargaining relationship, and the complaint is not that the parties have refused to bargain but, quite the contrary, that they have agreed. Jewel's conspiracy allegation in the present case was just such a complaint. Agreement is of course not a refusal to bargain, and in such cases the Board affords no mechanism for obtaining a classification of the subject matter of the agreement. Moreover, even in the few instances when the antitrust action could be framed as a refusal to bargain charge, there is no guarantee of Board action. It is the function of the Board's General Counsel rather than the Board or a private litigant to determine whether an unfair labor practice complaint will ultimately issue. National Labor Relations Act, 3 (d), 29 U.S.C. 153 (d) (1958 ed.). And the six-month limitation period of 10 (b) of the Act, 29 U.S.C. 160 (b) (1958 ed.). would preclude many litigants from even filing a charge with the General Counsel. Indeed, Jewel's complaint in this very case was filed more than six months after it signed the 1957 collective bargaining agreement. "[W]e know of no case where the court has ordered reference of an issue which the administrative body would not itself have jurisdiction to determine in a proceeding for that purpose." Montana Dakota Utilities Co. v. Northwestern Public Serv. Co., .4 II.Here, as in United Mine Workers v. Pennington, ante, p. 657, the claim is made that the agreement under attack is exempt from the antitrust laws. We agree, but not on the broad grounds urged by the union.It is well at the outset to emphasize that this case comes to us stripped of any claim of a union-employer conspiracy against Jewel. The trial court found no evidence to sustain Jewel's conspiracy claim and this finding was not disturbed by the Court of Appeals. We therefore have a situation where the unions, having obtained a marketing-hours agreement from one group of employers, have successfully sought the same terms from a single employer, Jewel, not as a result of a bargain between the unions and some employers directed against other employers, but pursuant to what the unions deemed to be in their own labor union interests.Jewel does not allege that it has been injured by the elimination of competition among the other employers within the unit with respect to marketing hours; Jewel complains only of the unions' action in forcing it to accept the same restriction, the unions acting not at the behest of any employer group but in pursuit of their own policies. It might be argued that absent any union-employer conspiracy against Jewel and absent any agreement between Jewel and any other employer, the union-Jewel contract cannot be a violation of the Sherman Act. But the issue before us is not the broad substantive one of a violation of the antitrust laws - was there a conspiracy or combination which unreasonably restrained trade or an attempt to monopolize and was Jewel damaged in its business? - but whether the agreement is immune from attack by reason of the labor exemption from the antitrust laws. See note 3, supra. The fact that the parties to the agreement are but a single employer and the unions representing its employees does not compel immunity for the agreement. We must consider the subject matter of the agreement in the light of the national labor policy. Cf. Bakery Drivers Union v. Wagshal, .We pointed out in Pennington that exemption for union-employer agreements is very much a matter of accommodating the coverage of the Sherman Act to the policy of the labor laws. Employers and unions are required to bargain about wages, hours and working conditions, and this fact weighs heavily in favor of antitrust exemption for agreements on these subjects. But neither party need bargain about other matters and either party commits an unfair labor practice if it conditions its bargaining upon discussions of a nonmandatory subject. Labor Board v. Borg-Warner Corp., . Jewel, for example, need not have bargained about or agreed to a schedule of prices at which its meat would be sold and the unions could not legally have insisted that it do so. But if the unions had made such a demand, Jewel had agreed and the United States or an injured party had challenged the agreement under the antitrust laws, we seriously doubt that either the unions or Jewel could claim immunity by reason of the labor exemption, whatever substantive questions of violation there might be.Thus the issue in this case is whether the marketing-hours restriction, like wages, and unlike prices, is so intimately related to wages, hours and working conditions that the unions' successful attempt to obtain that provision through bona fide, arm's-length bargaining in pursuit of their own labor union policies, and not at the behest of or in combination with nonlabor groups, falls within the protection of the national labor policy and is therefore exempt from the Sherman Act.5 We think that it is.The Court of Appeals would classify the marketing-hours restriction with the product-pricing provision and place both within the reach of the Sherman Act. In its view, labor has a legitimate interest in the number of hours it must work but no interest in whether the hours fall in the daytime, in the nighttime or on Sundays. "[T]he furnishing of a place and advantageous hours of employment for the butchers to supply meat to customers are the prerogatives of the employer." 331 F.2d 547, 549. That reasoning would invalidate with respect to both service and self-service markets the 1957 provision that "eight hours shall constitute the basic work day. Monday through Saturday; work to begin at 9:00 a. m. and stop at 6:00 p. m... ." as well as the marketing-hours restriction.Contrary to the Court of Appeals, we think that the particular hours of the day and the particular days of the week during which employees shall be required to work are subjects well within the realm of "wages, hours, and other terms and conditions of employment" about which employers and unions must bargain. National Labor Relations Act, 8 (d); see Timken Roller Bearing Co., 70 N. L. R. B. 500, 504, 515-516, 521 (1946), rev'd on other grounds, 161 F.2d 949 (C. A. 6th Cir. 1947) (employer's unilateral imposition of Sunday work was refusal to bargain); Massey Gin & Machine Works, Inc., 78 N. L. R. B. 189, 195, 199 (1948) (change in starting and quitting time); Camp & McInnes, Inc., 100 N. L. R. B. 524, 532 (1952) (reduction of lunch hour and advancement of quitting time). And, although the effect on competition is apparent and real, perhaps more so than in the case of the wage agreement, the concern of union members is immediate and direct. Weighing the respective interests involved, we think the national labor policy expressed in the National Labor Relations Act places beyond the reach of the Sherman Act union-employer agreements on when, as well as how long, employees must work. An agreement on these subjects between the union and the employers in a bargaining unit is not illegal under the Sherman Act, nor is the union's unilateral demand for the same contract of other employers in the industry.Disposing of the case, as it did, on the broad grounds we have indicated, the Court of Appeals did not deal separately with the marketing-hours provision, as distinguished from hours of work, in connection with either service or self-service markets. The dispute here pertains principally to self-service markets. The unions argue that since night operations would be impossible without night employment of butchers, or an impairment of the butchers' jurisdiction, or a substantial effect on the butchers' workload, the marketing-hours restriction is either little different in effect from the valid working-hours provision that work shall stop at 6 p. m. or is necessary to protect other concerns of the union members. If the unions' factual premises are true, we think the unions could impose a restriction on night operations without violation of the Sherman Act; for then operating hours, like working hours, would constitute a subject of immediate and legitimate concern to union members.Jewel alleges on the other hand that the night operation of self-service markets requires no butcher to be in attendance and does not infringe any other legitimate union concern. Customers serve themselves; and if owners want to forgo furnishing the services of a butcher to give advice or to make special cuts, this is not the unions' concern since their desire to avoid night work is fully satisfied and no other legitimate interest is being infringed. In short, the connection between working hours and operating hours in the case of the self-service market is said to be so attenuated as to bring the provision within the prohibition of the Sherman Act.If it were true that self-service markets could actually operate without butchers, at least for a few hours after 6 p. m., that no encroachment on butchers' work would result and that the workload of butchers during normal working hours would not be substantially increased. Jewel's position would have considerable merit. For then the obvious restraint on the product market - the exclusion of self-service stores from the evening market for meat - would stand alone, unmitigated and unjustified by the vital interests of the union butchers which are relied upon in this case. In such event the limitation imposed by the unions might well be reduced to nothing but an effort by the unions to protect one group of employers from competition by another, which is conduct that is not exempt from the Sherman Act. Whether there would be a violation of 1 and 2 would then depend on whether the elements of a conspiracy in restraint of trade or an attempt to monopolize had been proved.6 Thus the dispute between Jewel and the unions essentially concerns a narrow factual question: Are might operations without butchers, and without infringement of butchers' interests, feasible? The District Court resolved this factual dispute in favor of the unions. It found that "in stores where meat is sold at night it is impractical to operate without either butchers or other employees. Someone must arrange, replenish and clean the counters and supply customer services." Operating without butchers would mean that "their work would be done by others unskilled in the trade," and "would involve an increase in workload in preparing for the night work and cleaning the next morning." 215 F. Supp., at 846. Those findings were not disturbed by the Court of Appeals, which, as previously noted, proceeded on a broader ground. Our function is limited to reviewing the record to satisfy ourselves that the trial judge's findings are not clearly erroneous. Fed. Rules Civ. Proc. 52 (a).The trial court had before it evidence concerning the history of the unions' opposition to night work, the development of the provisions respecting night work and night operations, the course of collective bargaining negotiations in 1957, 1959, and 19617 with regard to those provisions, and the characteristics of meat marketing insofar as they bore on the feasibility of night operations without butchers.The unions' opposition to night work has a long history. Prior to 1919 the operating hours of meat markets in Chicago were 7 a. m. to 7 p. m., Monday through Friday; 7 a. m. to 10 p. m. on Saturday, and 7 a. m. to 1 p. m. on Sunday. Butchers worked the full 81-hour, seven-day week. The Chicago butchers' strike of 1919 was much concerned with shortening working hours, and the resulting contract, signed in 1920, set the working day at 8 a. m. to 6 p. m., Monday through Friday, and 8 a. m. to 9 p. m. on Saturday. Various alterations in the hours were made in 1937, 1941, 1945, 1946, and again in 1947, when the present working hours (9 a. m. to 6 p. m., Monday through Saturday) were established. In a mail ballot conducted by the unions in October 1962, Jewel's meat cutters voted 759 to 28 against night work.Concomitant with the unions' concern with the working hours of butchers was their interest in the hours during which customers might be served. The 1920 agreement provided that "no customers will be served who come into the market after 6 P. M. and 9 P. M. on Saturdays and on days preceding holidays ... ." That provision was continued until 1947, when it was superseded by the formulation presently in effect and here claimed to be unlawful:"Market operating hours shall be 9:00 a. m. to 6:00 p. m. Monday through Saturday, inclusive. No customer shall be served who comes into the market before or after the hours set forth above." In 1947, Jewel had just started investigating the self-service method of meat vending. It introduced that method in the Chicago area in 1948 and in the territory of these unions in 1953.During the 1957 negotiations numerous proposals for relaxation of the operating-hours restriction were presented by the employer group. Each of these proposals, including that submitted separately by Jewel for consideration at the unions' ratification meetings, combined a provision for night operations with a provision for a more flexible workday that would permit night employment of butchers. Such juxtaposition of the two provisions could, of course, only serve to reinforce the unions' fears that night operations meant night work. Jewel did allege in its complaint, filed in July 1958, that night operations were possible without butchers, but even in the 1959 bargaining sessions Jewel failed to put forth any plan for night operations that did not also include night work. Finally, toward the end of the 1961 negotiations. Jewel did make such a suggestion, but, as the trial judge remarked, the "unions questioned the seriousness of that proposal under the circumstances." 215 F. Supp., at 843.The unions' evidence with regard to the practicability of night operations without butchers was accurately summarized by the trial judge as follows: "[I]n most of plaintiff's stores outside Chicago, where night operations exist, meat cutters are on duty whenever a meat department is open after 6 P. M... . Even in self-service departments, ostensibly operated without employees on duty after 6 P. M., there was evidence that requisite customer services in connection with meat sales were performed by grocery clerks. In the same vein, defendants adduced evidence that in the sale of delicatessen items, which could be made after 6 P. M. from self-service cases under the contract, `practically' always during the time the market was open the manager or other employees, would be rearranging and restocking the cases. There was also evidence that even if it were practical to operate a self-service meat market after 6 P. M. without employees, the night operations would add to the workload in getting the meats prepared for night sales and in putting the counters in order the next day." 215 F. Supp., at 844. Jewel challenges the unions' evidence on each of these points - arguing, for example, that its preference to have butchers on duty at night, where possible under the union contract, is not probative of the feasibility of not having butchers on duty and that the evidence that grocery clerks performed customer services within the butchers' jurisdiction was based on a single instance resulting from "entrapment" by union agents. But Jewel's argument - when considered against the historical background of union concern with working hours and operating hours and the virtually uniform recognition by employers of the intimate relationship between the two subjects, as manifested by bargaining proposals in 1957, 1959, and 1961 - falls far short of a showing that the trial judge's ultimate findings were clearly erroneous. Reversed.
8	[Footnote *] Together with No. 64, Michigan National Bank v. Hills et ux., also on petition for writ of certiorari to the same Court. Respondents purchased house trailers in Nebraska and executed notes and lien instruments to the local dealer, who negotiated them to petitioner, a national bank located in Michigan. Subsequently, respondents sued petitioner in a Nebraska State Court, alleging violations of the Nebraska Installment Loan Act and challenging the validity of the transactions and the documents executed in connection therewith. Petitioner claimed that it could not be sued in Nebraska because of 12 U.S.C. 94, which provides that actions against a national bank "may be had" in any state court in the county or city in which it is located. This contention was rejected by the Nebraska courts, and respondents obtained judgments for the relief requested. Held: Certiorari is granted; the judgments are vacated; and the causes are remanded for further proceedings. Pp. 591-594. (a) Under Mercantile Nat. Bank v. Langdeau, U.S.C. 94 applies to this suit. P. 593. (b) In the circumstances, this is not a local action within the meaning of Casey v. Adams, . Pp. 593-594. (c) This suit cannot be maintained in Nebraska unless petitioner has waived the benefit of 12 U.S.C. 94. P. 594. Reported below: 172 Neb 370, 385, 109 N. W. 2d 716, 739.Thomas M. Davies and Robert A. Barlow for petitioner in both cases.Robert A. Nelson and J. Max Harding for respondents in No. 64.PER CURIAM.Respondents in these two cases purchased house trailers in Nebraska, executing and delivering notes and lien instruments to the local dealer who in turn negotiated them to the petitioner, a national bank located in Michigan. Respondents have now sued petitioner, alleging violations of the Nebraska Installment Loan Act and challenging the validity of the transactions and of the documents executed in connection therewith.1 Petitioner claimed that it could not be sued in Nebraska because of 12 U.S.C. 942 and that 12 U.S.C. 86, the federal usury provision,3 applied to the exclusion of the Nebraska statutes. These contentions were rejected by the Nebraska courts and respondents obtained judgments for all of the relief requested.4 The petitions for certiorari place before the Court only the applicability of 12 U.S.C. 94 and we confine ourselves to that matter.All of the reasons, save one, advanced by the Nebraska Supreme Court for not applying 12 U.S.C. 94 in these cases we have already rejected in Mercantile Nat. Bank v. Langdeau, . The additional ground relied upon in No. 55 was that "[t]he instant action was a local action, not a transitory action, [s]ee 25-404 R. R. S. 1943;5 45-154, R. R. S. 1943," 172 Neb. 385, 394, 109 N. W. 2d 716, 722, and thus within the exception to 12 U.S.C. 94 carved out by Casey v. Adams, . This ground is likewise untenable. The applicable Nebraska venue statute on its face allows suit in more than one county and, in the case of foreign corporations such as petitioner, Nebraska Revised Statute 25-4086 appears to permit suit in any county where the defendant can be found. By its very nature, this is a considerably different kind of suit from the one to determine interests in property at its situs which was involved in Casey v. Adams. Moreover, although 94 by its terms is applicable to all actions against national banks, when it was re-enacted in the Act of February 18, 1875, c. 80, 18 Stat. 320, it was appended to the provisions dealing with usury actions against national banks. See Mercantile Nat. Bank v. Langdeau, supra, at 561 and 568. We think Congress clearly intended 12 U.S.C. 94 to apply to suits involving usury and the related matters at issue here.The respondents, nevertheless, would have us affirm on another ground, namely, that the documents in question here provide that all matters relating to execution, interpretation, validity and performance are to be determined by the law of the State of Nebraska and that the bank has therefore waived the benefits of 94, as it may do. Charlotte Nat. Bank v. Morgan, . But we should not deal with this matter in the first instance. The Nebraska courts do not appear to have addressed themselves to this particular issue and, if the question is still open there, they may or may not decide that under the applicable law, the contractual provision relied upon reaches the issue of venue in the event of suit.The petitions for certiorari are granted, the judgments are vacated and the causes are remanded for further proceedings not inconsistent with this opinion. It is so ordered.
1	Georgia's Constitution since 1824 has provided that a majority of the state legislature shall select the Governor from the two candidates with the highest number of votes in a general election where no gubernatorial candidate received a majority vote, a situation which arose in the November 8, 1966, general election. On equal protection grounds a three-judge District Court invalidated the provision. Held: Georgia's provision for selecting a Governor is not invalid under the Equal Protection Clause of the Fourteenth Amendment. Pp. 233-236. (a) A State can permit its legislative body to elect its Governor, there being no federal constitutional provision prescribing the method a State must use to select its Governor. Gray v. Sanders, , distinguished. Pp. 233-234. (b) The Georgia Legislature is not disqualified for malapportionment to elect a Governor, since under Toombs v. Fortson, , this Court held that it could function until May 1, 1968. P. 235. (c) The obligation under an oath taken by Democratic members of the legislature to support party candidates ended with the last general election, which is over. Pp. 235-236. 262 F. Supp. 93, reversed.Harold N. Hill, Jr., Assistant Attorney General of Georgia, argued the cause for appellant. With him on the briefs were Arthur K. Bolton, Attorney General, G. Ernest Tidwell, Executive Assistant Attorney General, Coy R. Johnson, Assistant Attorney General, and Gerald H. Cohen and Alexander Cocalis, Deputy Assistant Attorneys General.Charles Morgan, Jr., argued the cause for appellees Morris et al. With him on the briefs were Morris Brown and Melvin L. Wulf. Emmet J. Bondurant II argued the cause for appellees Justice et al. With him on the briefs were Francis Shackelford and Randolph W. Thrower.MR. JUSTICE BLACK delivered the opinion of the Court.Since 1824 a provision of the Constitution of the State of Georgia, now Art. V, I, § IV, has provided that its Governor shall be selected (1) by a majority of votes cast in a general election, and (2) if no candidate receives a majority of votes at such election, then a majority of the members of the Georgia General Assembly shall elect the Governor "from the two persons having the highest number of votes ... ."1 At the State's general election, held Tuesday, November 8, 1966, no single candidate received a majority of the votes cast. A Georgia three-judge federal district court has in this case enjoined the State Assembly from electing one of the two highest candidates as Governor on the ground that this method of election, required by Article V of the Georgia Constitution, would deny Georgia voters equal protection of the laws in violation of the Fourteenth Amendment. We uphold the constitutionality of Article V of the State Constitution, for so long as this provision is applied as it is written, we perceive no conflict with the Equal Protection Clause. We reverse the District Court's judgment.The District Court erroneously relied on Gray v. Sanders, , to strike down Article V of the State's Constitution. The Gray case held that it had been demonstrated that Georgia voters were denied equal protection of the laws by the operation of a county-unit system under which state officials were elected by a majority of counties voting as units instead of by a majority of individual voters. The result was that the number of votes of persons living in large counties was given no more weight in electing state officers than was given to a far fewer number of votes of persons residing in small counties. This discrimination against large county voters was held to deny them the equal protection of the laws. That case, as was emphasized, had to do with the equal right of "all who participate in the election," 372 U.S., at 379, to vote and have their votes counted without impairment or dilution. But as the Court said, 372 U.S., at 378, the case was "only a voting case." Not a word in the Court's opinion indicated that it was intended to compel a State to elect its governors or any other state officers or agents through elections of the people rather than through selections by appointment or elections by the State Assembly. It is wrongly cited as having either expressly or impliedly decided that a State cannot, if it wishes, permit its legislative body to elect its Governor.The language of Article V of the State Constitution struck down by the District Court has been a part of Georgia's State Constitution since 1824 and was readopted by the people in 1945. It set up two ways to select the Governor. The first, and preferred one, was election by a majority of the people; the second, and alternative one, was election by the State Assembly if any one candidate failed to receive a majority of the popular vote. Under the second method, in the legislative election the votes of the people were not to be disregarded but the State Assembly was to consider them as, in effect, nominating votes and to limit itself to choosing between the two persons on whom the people had bestowed the highest number of votes. There is no provision of the United States Constitution or any of its amendments which either expressly or impliedly dictates the method a State must use to select its Governor. A method which would be valid if initially employed is equally valid when employed as an alternative. It would be surprising to conclude that, after a State has already held two primaries and one general election to try to elect by a majority, the United States Constitution compels it to continue to hold elections in a futile effort to obtain a majority for some particular candidate. Statewide elections cost time and money and it is not strange that Georgia's people decided to avoid repeated elections. The method they chose for this purpose was not unique, but was well known and frequently utilized before and since the Revolutionary War. Georgia Governors were selected by the State Legislature, not the people, until 1824. At that time a new constitution provided for popular election, but with the provision that upon the failure of any one candidate to receive a majority, the General Assembly should elect.Two States, Mississippi and Vermont,2 that provide for majority voting also provide for state legislative election of their governors in case of no majority in the general election. Thirty-eight States of the Union which today provide for election of their governors by a plurality also provide that in case of a tie vote the State Legislatures shall elect.3 It thus turns out that Georgia, clearly acting within its rights as a State, has decided that, any one candidate failing to obtain a majority in a general election, its General Assembly will elect its Governor. Its clear choice has remained in its constitution for 142 years. The District Court below treated Article V of the Georgia Constitution as the valid law of the State except as it thought itself compelled to strike it down because of Gray v. Sanders, supra. The Gray case, however, did no more than to require the State to eliminate the county-unit machinery from its election system. The State did this in an election that resulted in the election of no candidate. Its duty now, under Article V of its Constitution, is to proceed to have the General Assembly elect its Governor from the two highest candidates in the election, unless, as some of the parties contend, the entire legislative body is incapable of performing its responsibility of electing a Governor because it is malapportioned. But this is not correct. In Toombs v. Fortson, , affirming 241 F. Supp. 65, we held that with certain exceptions, not here material, the Georgia Assembly could continue to function until May 1, 1968. Consequently the Georgia Assembly is not disqualified to elect a Governor as required by Article V of the State's Constitution. Neither is it disqualified by the fact that its Democratic members had obligated themselves to support the Democratic nominee in the general election on November 8, 1966. That election is over, and with it terminated any promises by the Democratic legislators to support the Democratic nominee.Article V of Georgia's Constitution provides a method for selecting the Governor which is as old as the Nation itself. Georgia does not violate the Equal Protection Clause by following this article as it was written. Reversed.
11	[Footnote *] Together with No. 268, Davis et al. v. United States, also on certiorari to the same Court. Pursuant to a property settlement agreement later incorporated in a divorce decree, a taxpayer in Delaware transferred to his former wife, in return for the release of her marital claims, certain shares of stock which had appreciated in market value and which were solely his property subject to certain inchoate marital rights of the wife, including a right of intestate succession and a right upon divorce to a "reasonable" share of the husband's property. He also paid the fees of her attorney for advice given to her about the tax consequences of the property settlement. Held: 1. In these circumstances and in view of pertinent provisions of Delaware law, this transfer of stock is to be considered under the Internal Revenue Code of 1954 not a nontaxable division of property between co-owners but a taxable transfer of property in satisfaction of a legal obligation. Pp. 68-71. 2. On the record in this case, the Commissioner's assessment of a taxable gain based upon the value of the stock at the date of its transfer has not been shown to be erroneous. Pp. 71-74. 3. The amount paid by the husband to his former wife's attorney as a fee for advice given to her about the tax consequences of the property settlement was not deductible by the husband under 212 (3) of the Internal Revenue Code of 1954. Pp. 74-75. 152 Ct. Cl. 805, 287 F.2d 168, affirmed in part and reversed in part.I. Henry Kutz and Harold C. Wilkenfeld argued the cause for the United States in both cases. With them on the briefs were Solicitor General Cox, Assistant Attorney General Oberdorfer, Wayne G. Barnett, Meyer Rothwacks and Arthur I. Gould.Converse Murdoch argued the cause and filed briefs for the respondents in No. 190 and petitioners in No. 268. MR. JUSTICE CLARK delivered the opinion of the Court.These cases involve the tax consequences of a transfer of appreciated property by Thomas Crawley Davis1 to his former wife pursuant to a property settlement agreement executed prior to divorce, as well as the deductibility of his payment of her legal expenses in connection therewith. The Court of Claims upset the Commissioner's determination that there was taxable gain on the transfer but upheld his ruling that the fees paid the wife's attorney were not deductible. 152 Ct. Cl. 805, 287 F.2d 168. We granted certiorari on a conflict in the Court of Appeals and the Court of Claims on the taxability of such transfers.2 . We have decided that the taxpayer did have a taxable gain on the transfer and that the wife's attorney's fees were not deductible.In 1954 the taxpayer and his then wife made a voluntary property settlement and separation agreement calling for support payments to the wife and minor child in addition to the transfer of certain personal property to the wife. Under Delaware law all the property transferred was that of the taxpayer, subject to certain statutory marital rights of the wife including a right of intestate succession and a right upon divorce to a share of the husband's property.3 Specifically as a "division in settlement of their property" the taxpayer agreed to transfer to his wife, inter alia, 1,000 shares of stock in the E. I. du Pont de Nemours & Co. The then Mrs. Davis agreed to accept this division "in full settlement and satisfaction of any and all claims and rights against the husband whatsoever (including but not by way of limitation, dower and all rights under the laws of testacy and intestacy) ... ." Pursuant to the above agreement which had been incorporated into the divorce decree, one-half of this stock was delivered in the tax year involved, 1955, and the balance thereafter. Davis' cost basis for the 1955 transfer was $74,775.37, and the fair market value of the 500 shares there transferred was $82,250. The taxpayer also agreed orally to pay the wife's legal expenses, and in 1955 he made payments to the wife's attorney, including $2,500 for services concerning tax matter relative to the property settlement.I.The determination of the income tax consequence of the stock transfer described above is basically a two-step analysis: (1) Was the transaction a taxable event? (2) If so, how much taxable gain resulted therefrom? Originally the Tax Court (at that time the Board of Tax Appeals) held that the accretion to property transferred pursuant to a divorce settlement could not be taxed as capital gain to the transferor because the amount realized by the satisfaction of the husband's marital obligations was indeterminable and because, even if such benefit were ascertainable, the transaction was a nontaxable division of property. Mesta v. Commissioner, 42 B. T. A. 933 (1940); Halliwell v. Commissioner, 44 B. T. A. 740 (1941). However, upon being reversed in quick succession by the Courts of Appeals of the Third and Second Circuits, Commissioner v. Mesta, 123 F.2d 986 (C. A. 3d Cir. 1941); Commissioner v. Halliwell, 131 F.2d 642 (C. A. 2d Cir. 1942), the Tax Court accepted the position of these courts and has continued to apply these views in appropriate cases since that time, Hall v. Commissioner, 9 T. C. 53 (1947); Patino v. Commissioner, 13 T. C. 816 (1949); Estate of Stouffer v. Commissioner, 30 T. C. 1244 (1958); King v. Commissioner, 31 T. C. 108 (1958); Marshman v. Commissioner, 31 T. C. 269 (1958). In Mesta and Halliwell the Courts of Appeals reasoned that the accretion to the property was "realized" by the transfer and that this gain could be measured on the assumption that the relinquished marital rights were equal in value to the property transferred. The matter was considered settled until the Court of Appeals for the Sixth Circuit, in reversing the Tax Court, ruled that, although such a transfer might be a taxable event, the gain realized thereby could not be determined because of the impossibility of evaluating the fair market value of the wife's marital rights. Commissioner v. Marshman, 279 F.2d 27 (1960). In so holding that court specifically rejected the argument that these rights could be presumed to be equal in value to the property transferred for their release. This is essentially the position taken by the Court of Claims in the instant case.II.We now turn to the threshold question of whether the transfer in issue was an appropriate occasion for taxing the accretion to the stock. There can be no doubt that Congress, as evidenced by its inclusive definition of income subject to taxation, i. e., "all income from whatever source derived, including ... [g]ains derived from dealings in property,"4 intended that the economic growth of this stock be taxed. The problem confronting us is simply when is such accretion to be taxed. Should the economic gain be presently assessed against taxpayer, or should this assessment await a subsequent transfer of the property by the wife? The controlling statutory language, which provides that gains from dealings in property are to be taxed upon "sale or other disposition,"5 is too general to include or exclude conclusively the transaction presently in issue. Recognizing this, the Government and the taxpayer argue by analogy with transactions more easily classified as within or without the ambient of taxable events. The taxpayer asserts that the present disposition is comparable to a nontaxable division of property between two co-owners,6 while the Government contends it more resembles a taxable transfer of property in exchange for the release of an independent legal obligation. Neither disputes the validity of the other's starting point.In support of his analogy the taxpayer argues that to draw a distinction between a wife's interest in the property of her husband in a common-law jurisdiction such as Delaware and the property interest of a wife in a typical community property jurisdiction would commit a double sin; for such differentiation would depend upon "elusive and subtle casuistries which ... possess no relevance for tax purposes," Helvering v. Hallock, , and would create disparities between common-law and community property jurisdictions in contradiction to Congress' general policy of equality between to two. The taxpayer's analogy, however, stumbles on its own premise for the inchoate rights granted a wife in her husband's property by the Delaware law do not even remotely reach the dignity of co-ownership. The wife has no interest - passive or active - over the management or disposition of her husband's personal property. Her rights are not descendable, and she must survive him to share in his intestate estate. Upon dissolution of the marriage she shares in the property only to such extent as the court deems "reasonable." 13 Del. Code Ann. 1531 (a). What is "reasonable" might be ascertained independently of the extent of the husband's property by such criteria as the wife's financial condition, her needs in relation to her accustomed station in life, her age and health, the number of children and their ages, and the earning capacity of the husband. See, e. g., Beres v. Beres, 52 Del. 133, 154 A. 2d 384 (1959).This is not to say it would be completely illogical to consider the shearing off of the wife's rights in her husband's property as a division of that property, but we believe the contrary to be the more reasonable construction. Regardless of the tags, Delaware seems only to place a burden on the husband's property rather than to make the wife a part owner thereof. In the present context the rights of succession and reasonable share do not differ significantly from the husband's obligations of support and alimony. They all partake more of a personal liability of the husband than a property interest of the wife. The effectuation of these marital rights may ultimately result in the ownership of some of the husband's property as it did here, but certainly this happenstance does not equate the transaction with a division of property by co-owners. Although admittedly such a view may permit different tax treatment among the several States, this Court in the past has not ignored the differing effects on the federal taxing scheme of substantive differences between community property and common-law systems. E. g., Poe v. Seaborn, . To be sure Congress has seen fit to alleviate this disparity in many areas, e. g., Revenue Act of 1948, 62 Stat. 110, but in other areas the facts of life are still with us.Our interpretation of the general statutory language is fortified by the long-standing administrative practice as sounded and formalized by the settled state of law in the lower courts. The Commissioner's position was adopted in the early 40's by the Second and Third Circuits and by 1947 the Tax Court had acquiesced in this view. This settled rule was not disturbed by the Court of Appeals for the Sixth Circuit in 1960 or the Court of Claims in the instant case, for these latter courts in holding the gain indeterminable assumed that the transaction was otherwise a taxable event. Such unanimity of views in support of a position representing a reasonable construction of an ambiguous statute will not lightly be put aside. It is quite possible that this notorious construction was relied upon by numerous taxpayers as well as the Congress itself, which not only refrained from making any changes in the statutory language during more than a score of years but re-enacted this same language in 1954.III.Having determined that the transaction was a taxable event, we now turn to the point on which the Court of Claims balked, viz., the measurement of the taxable gain realized by the taxpayer. The Code defines the taxable gain from the sale or disposition of property as being the "excess of the amount realized therefrom over the adjusted basis ... ." I. R. C. (1954) 1001 (a). The "amount realized" is further defined as "the sum of any money received plus the fair market value of the property (other than money) received." I. R. C. (1954) 1001 (b). In the instant case the "property received" was the release of the wife's inchoate marital rights. The Court of Claims, following the Court of Appeals for the Sixth Circuit, found that there was no way to compute the fair market value of these marital rights and that it was thus impossible to determine the taxable gain realized by the taxpayer. We believe this conclusion was erroneous.It must be assumed, we think, that the parties acted at arm's length and that they judged the marital rights to be equal in value to the property for which they were exchanged. There was no evidence to the contrary here. Absent a readily ascertainable value it is accepted practice where property is exchanged to hold, as did the Court of Claims in Philadelphia Park Amusement Co. v. United States, 130 Ct. Cl. 166, 172, 126 F. Supp. 184, 189 (1954), that the values "of the two properties exchanged in an arms-length transaction are either equal in fact, or are presumed to be equal." Accord, United States v. General Shoe Corp., 282 F.2d 9 (C. A. 6th Cir. 1960); International Freighting Corp. v. Commissioner, 135 F.2d 310 (C. A. 2d Cir. 1943). To be sure there is much to be said of the argument that such an assumption is weakened by the emotion, tension and practical necessities involved in divorce negotiations and the property settlements arising therefrom. However, once it is recognized that the transfer was a taxable event, it is more consistent with the general purpose and scheme of the taxing statutes to make a rough approximation of the gain realized thereby than to ignore altogether its tax consequences. Cf. Helvering v. Safe Deposit & Trust Co., .Moreover, if the transaction is to be considered a taxable event as to the husband, the Court of Claims' position leaves up in the air the wife's basis for the property received. In the context of a taxable transfer by the husband,7 all indicia point to a "cost" basis for this property in the hands of the wife.8 Yet under the Court of Claims' position her cost for this property. i. e., the value of the marital rights relinquished therefore, would be indeterminable, and on subsequent disposition of the property she might suffer inordinately over the Commissioner's assessment which she would have the burden of proving erroneous, Commissioner v. Hansen, . Our present holding that the value of these rights is ascertainable eliminates this problem; for the same calculation that determines the amount received by the husband fixes the amount given up by the wife, and this figure, i. e., the market value of the property transferred by the husband, will be taken by her as her tax basis for the property received.Finally, it must be noted that here, as well as in relation to the question of whether the event is taxable, we draw support from the prior administrative practice and judicial approval of that practice. See p. 71, supra. We therefore conclude that the Commissioner's assessment of a taxable gain based upon the value of the stock at the date of its transfer has not been shown erroneous.9 IV.The attorney-fee question is much simpler. It is the customary practice in Delaware for the husband to pay both his own and his wife's legal expenses incurred in the divorce and the property settlement. Here petitioner paid $5,000 of such fees in the taxable year 1955 earmarked for tax advice in relation to the property settlement. One-half of this sum went to the wife's attorney. The taxpayer claimed that under 212 (3) of the 1954 Code, which allows a deduction for the "ordinary and necessary expenses paid ... in connection with the determination, collection, or refund of any tax," he was entitled to deduct the entire $5,000. The Court of Claims allowed the $2,500 paid taxpayer's own attorney but denied the like amount paid the wife's attorney. The sole question here is the deductibility of the latter fee; the Government did not seek review of the amount taxpayer paid his own attorney, and we intimate no decision on that point. As to the deduction of the wife's fees, we read the statute, if applicable to this type of tax expense, to include only the expenses of the taxpayer himself and not those of his wife. Here the fees paid her attorney do not appear to be "in connection with the determination, collection, or refund" of any tax of the taxpayer. As the Court of Claims found, the wife's attorney "considered the problems from the standpoint of his client alone. Certainly then it cannot be said that ... [his] advice was directed to plaintiff's tax problems ... ." 152 Ct. Cl., at 805, 287 F.2d, at 171. We therefore conclude, as did the Court of Claims, that those fees were not a deductible item to the taxpayer. Reversed in part and affirmed in part.MR. JUSTICE FRANKFURTER took no part in the decision of these cases.MR. JUSTICE WHITE took no part in the consideration or decision of these cases.
3	The City Planning Commission conditioned approval of petitioner Dolan's application to expand her store and pave her parking lot upon her compliance with dedication of land (1) for a public greenway along Fanno Creek to minimize flooding that would be exacerbated by the increases in impervious surfaces associated with her development and (2) for a pedestrian/bicycle pathway intended to relieve traffic congestion in the City's Central Business District. She appealed the Commission's denial of her request for variances from these standards to the Land Use Board of Appeals (LUBA), alleging that the land dedication requirements were not related to the proposed development, and therefore constituted an uncompensated taking of her property under the Fifth Amendment. LUBA found a reasonable relationship between (1) the development and the requirement to dedicate land for a greenway, since the larger building and paved lot would increase the impervious surfaces, and thus the runoff into the creek, and (2) alleviating the impact of increased traffic from the development and facilitating the provision of a pathway as an alternative means of transportation. Both the State Court of Appeals and the State Supreme Court affirmed.Held: The city's dedication requirements constitute an uncompensated taking of property. Pp. 8-20. (a) Under the well settled doctrine of "unconstitutional conditions," the government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. In evaluating Dolan's claim, it must be determined whether an "essential nexus" exists between a legitimate state interest and the permit condition. Nollan v. Page II California Coastal Comm'n, . If one does, then it must be decided whether the degree of the exactions demanded by the permit conditions bears the required relationship to the projected impact of the proposed development. Id., at 834. Pp. 8-10. (b) Preventing flooding along Fanno Creek and reducing traffic congestion in the District are legitimate public purposes; and a nexus exists between the first purpose and limiting development within the creek's floodplain and between the second purpose and providing for alternative means of transportation. Pp. 11-12. (c) In deciding the second question - whether the city's findings are constitutionally sufficient to justify the conditions imposed on Dolan's permit - the necessary connection required by the Fifth Amendment is "rough proportionality." No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the proposed development's impact. This is essentially the "reasonable relationship" test adopted by the majority of the state courts. Pp. 12-16. (d) The findings upon which the city relies do not show the required reasonable relationship between the floodplain easement and Dolan's proposed building. The Community Development Code already required that Dolan leave 15% of her property as open space, and the undeveloped floodplain would have nearly satisfied that requirement. However, the city has never said why a public, as opposed to a private, greenway is required in the interest of flood control. The difference to Dolan is the loss of her ability to exclude others from her property, yet the city has not attempted to make any individualized determination to support this part of its request. The city has also not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by Dolan's development reasonably relates to the city's requirement for a dedication of the pathway easement. The city must quantify its finding beyond a conclusory statement that the dedication could offset some of the traffic demand generated by the development. Pp. 16-19. 317 Ore. 110, 854 P.2d 437, reversed and remanded.REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and GINSBURG, JJ., joined. SOUTER, J., filed a dissenting opinion. [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 1] CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner challenges the decision of the Oregon Supreme Court which held that the city of Tigard could condition the approval of her building permit on the dedication of a portion of her property for flood control and traffic improvements. 317 Ore. 110, 854 P.2d 437 (1993). We granted certiorari to resolve a question left open by our decision in Nollan v. California Coastal Comm'n, , of what is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development.IThe State of Oregon enacted a comprehensive land use management program in 1973. Ore.Rev.Stat. 197.005-197.860 (1991). The program required all Oregon cities and counties to adopt new comprehensive land use plans that were consistent with the statewide planning goals. 197.175(1), 197.250. The plans are implemented by land use regulations which are part of an integrated hierarchy of legally binding goals, plans, and regulations. 197.175, 197.175(2)(b). Pursuant to the State's requirements, the city of Tigard, a community [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 2] of some 30,000 residents on the southwest edge of Portland, developed a comprehensive plan and codified it in its Community Development Code (CDC). The CDC requires property owners in the area zoned Central Business District to comply with a 15% open space and landscaping requirement, which limits total site coverage, including all structures and paved parking, to 85% of the parcel. CDC, ch. 18.66, App. to Pet. for Cert. G16-G17. After the completion of a transportation study that identified congestion in the Central Business District as a particular problem, the city adopted a plan for a pedestrian/bicycle pathway intended to encourage alternatives to automobile transportation for short trips. The CDC requires that new development facilitate this plan by dedicating land for pedestrian pathways where provided for in the pedestrian/bicycle pathway plan.1 The city also adopted a Master Drainage Plan (Drainage Plan). The Drainage Plan noted that flooding occurred in several areas along Fanno Creek, including areas near petitioner's property. Record, Doc. No. F, ch. 2, pp. 2-5 to 2-8; 4-2 to 4-6; Figure 4-1. The Drainage Plan also established that the increase in impervious surfaces associated with continued urbanization would exacerbate these flooding problems. To combat these risks, the Drainage Plan suggested a series of improvements to the Fanno Creek Basin, including channel excavation in the area next to petitioner's property. [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 3] App. to Pet. for Cert. G13, G38. Other recommendations included ensuring that the floodplain remains free of structures and that it be preserved as greenways to minimize flood damage to structures. Record, Doc. No. F, ch. 5, pp. 5-16 to 5-21. The Drainage Plan concluded that the cost of these improvements should be shared based on both direct and indirect benefits, with property owners along the waterways paying more due to the direct benefit that they would receive. Id. ch. 8, p. 8-11. CDC Chapters 18.84, 18.86 and CDC 18.164.100 and the Tigard Park Plan carry out these recommendations.Petitioner Florence Dolan owns a plumbing and electric supply store located on Main Street in the Central Business District of the city. The store covers approximately 9,700 square feet on the eastern side of a 1.67-acre parcel, which includes a gravel parking lot. Fanno Creek flows through the southwestern corner of the lot and along its western boundary. The year-round flow of the creek renders the area within the creek's 100-year floodplain virtually unusable for commercial development. The city's comprehensive plan includes the Fanno Creek floodplain as part of the city's greenway system.Petitioner applied to the city for a permit to redevelop the site. Her proposed plans called for nearly doubling the size of the store to 17,600 square feet, and paving a 39-space parking lot. The existing store, located on the opposite side of the parcel, would be razed in sections as construction progressed on the new building. In the second phase of the project, petitioner proposed to build an additional structure on the northeast side of the site for complementary businesses, and to provide more parking. The proposed expansion and intensified use are consistent with the city's zoning scheme in the Central Business District. CDC 18.66.030. App. to Brief for Petitioner C1-C2. [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 4] The City Planning Commission granted petitioner's permit application subject to conditions imposed by the city's CDC. The CDC establishes the following standard for site development review approval:"Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the city shall require the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan." CDC 18.120.180.A.8, App. to Brief for Respondent. Thus, the Commission required that petitioner dedicate the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along Fanno Creek, and that she dedicate an additional 15-foot strip of land adjacent to the floodplain as a pedestrian/bicycle pathway.2 The dedication required by that condition encompasses approximately 7,000 square feet, or roughly 10% of the property. In accordance with city practice, petitioner could rely on the dedicated property to meet the 15% open space and landscaping requirement mandated by the city's zoning scheme. App. to Pet. for Cert. G28-G29. The city would bear the cost of maintaining a landscaped buffer between the dedicated area and the new store. Id., at G44-G45. [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 5] Petitioner requested variances from the CDC standards. Variances are granted only where it can be shown that, owing to special circumstances related to a specific piece of the land, the literal interpretation of the applicable zoning provisions would cause "an undue or unnecessary hardship" unless the variance is granted. CDC 18.134.010. App. to Brief for Respondent B-47.3 Rather than posing alternative mitigating measures to offset the expected impacts of her proposed development, as allowed under the CDC, petitioner simply argued that her proposed development would not conflict with the policies of the comprehensive plan. Id., at E-4. The Commission denied the request.The Commission made a series of findings concerning the relationship between the dedicated conditions and the projected impacts of petitioner's project. First, the [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 6] Commission noted that "[i]t is reasonable to assume that customers and employees of the future uses of this site could utilize a pedestrian/bicycle pathway adjacent to this development for their transportation and recreational needs." City of Tigard Planning Commission Final Order No. 91-09 PC, App. to Pet. for Cert. G24. The Commission noted that the site plan has provided for bicycle parking in a rack in front of the proposed building, and "[i]t is reasonable to expect that some of the users of the bicycle parking provided for by the site plan will use the pathway adjacent to Fanno Creek if it is constructed." Ibid. In addition, the Commission found that creation of a convenient, safe pedestrian/ bicycle pathway system as an alternative means of transportation "could offset some of the traffic demand on [nearby] streets and lessen the increase in traffic congestion." Ibid.The Commission went on to note that the required floodplain dedication would be reasonably related to petitioner's request to intensify the use of the site given the increase in the impervious surface. The Commission stated that the "anticipated increased storm water flow from the subject property to an already strained creek and drainage basin can only add to the public need to manage the stream channel and floodplain for drainage purposes." Id., at G37. Based on this anticipated increased storm water flow, the Commission concluded that "the requirement of dedication of the floodplain area on the site is related to the applicant's plan to intensify development on the site." Ibid. The Tigard City Council approved the Commission's final order, subject to one minor modification; the City Council reassigned the responsibility for surveying and marking the floodplain area from petitioner to the city's engineering department. Id., at G-7.Petitioner appealed to the Land Use Board of Appeals (LUBA) on the ground that the city's dedication requirements [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 7] were not related to the proposed development, and, therefore, those requirements constituted an uncompensated taking of their property under the Fifth Amendment. In evaluating the federal taking claim, LUBA assumed that the city's findings about the impacts of the proposed development were supported by substantial evidence. Dolan v. Tigard, LUBA 91-161 (Jan. 7, 1992), reprinted at App. to Pet. for Cert. D-15, n. 9. Given the undisputed fact that the proposed larger building and paved parking area would increase the amount of impervious surfaces and the runoff into Fanno Creek, LUBA concluded that "there is a `reasonable relationship' between the proposed development and the requirement to dedicate land along Fanno Creek for a greenway." Id., at D-16. With respect to the pedestrian/bicycle pathway, LUBA noted the Commission's finding that a significantly larger retail sales building and parking lot would attract larger numbers of customers and employees and their vehicles. It again found a "reasonable relationship" between alleviating the impacts of increased traffic from the development and facilitating the provision of a pedestrian/bicycle pathway as an alternative means of transportation. Ibid.The Oregon Court of Appeals affirmed, rejecting petitioner's contention that, in Nollan v. California Coastal Comm'n, , we had abandoned the "reasonable relationship" test in favor of a stricter "essential nexus" test. 113 Ore. App. 162, 832 P.2d 853 (1992). The Oregon Supreme Court affirmed. 317 Ore. 110, 854 P.2d 437 (1993). The court also disagreed with petitioner's contention that the Nollan Court abandoned the "reasonably related" test. Id., at 118, 854 P.2d at, 442. Instead, the court read Nollan to mean that an "exaction is reasonably related to an impact if the exaction serves the same purpose that a denial of the permit would serve." Id., at 120, 854 P.2d, at 443. The court decided that both the pedestrian/bicycle [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 8] pathway condition and the storm drainage dedication had an essential nexus to the development of the proposed site. Id., at 121, 854 P.2d, at 443. Therefore, the court found the conditions to be reasonably related to the impact of the expansion of petitioner's business. Ibid.4 We granted certiorari___ (1993), because of an alleged conflict between the Oregon Supreme Court's decision and our decision in Nollan, supra.IIThe Takings Clause of the Fifth Amendment of the United States Constitution, made applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chicago, provides: "[N]or shall private property be taken for public use, without just compensation."5 One of the [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 9] principal purposes of the Takings Clause is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, . Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred. Nollan, supra, at 831. Such public access would deprive petitioner of the right to exclude others, "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Kaiser Aetna v. United States, .On the other side of the ledger, the authority of state and local governments to engage in land use planning has been sustained against constitutional challenge as long ago as our decision in Euclid v. Ambler Realty Co.. "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." Pennsylvania Coal Co. v. Mahon. A land use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not "den[y] an owner economically viable use of his land." Agins v. Tiburon, .6 The sort of land use regulations discussed in the cases just cited, however, differ in two relevant particulars [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 10] from the present case. First, they involved essentially legislative determinations classifying entire areas of the city, whereas here, the city made an adjudicative decision to condition petitioner's application for a building permit on an individual parcel. Second, the conditions imposed were not simply a limitation on the use petitioner might make of her own parcel, but a requirement that she deed portions of the property to the city. In Nollan, supra, we held that governmental authority to exact such a condition was circumscribed by the Fifth and Fourteenth Amendments. Under the well settled doctrine of "unconstitutional conditions," the government may not require a person to give up a constitutional right - here the right to receive just compensation when property is taken for a public use - in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. See Perry v. Sindermann, ; Pickering v. Board of Ed. of Township High School Dist., .Petitioner contends that the city has forced her to choose between the building permit and her right under the Fifth Amendment to just compensation for the public easements. Petitioner does not quarrel with the city's authority to exact some forms of dedication as a condition for the grant of a building permit, but challenges the showing made by the city to justify these exactions. She argues that the city has identified "no special benefits" conferred on her, and has not identified any "special quantifiable burdens" created by her new store that would justify the particular dedications required from her which are not required from the public at large.IIIIn evaluating petitioner's claim, we must first determine whether the "essential nexus" exists between the [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 11] "legitimate state interest" and the permit condition exacted by the city. Nollan, 483 U.S., at 837. If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development. We were not required to reach this question in Nollan, because we concluded that the connection did not meet even the loosest standard. 483 U.S., at 838. Here, however, we must decide this question.AWe addressed the essential nexus question in Nollan. The California Coastal Commission demanded a lateral public easement across the Nollan's beachfront lot in exchange for a permit to demolish an existing bungalow and replace it with a three-bedroom house. 483 U.S., at 828. The public easement was designed to connect two public beaches that were separated by the Nollan's property. The Coastal Commission had asserted that the public easement condition was imposed to promote the legitimate state interest of diminishing the "blockage of the view of the ocean" caused by construction of the larger house.We agreed that the Coastal Commission's concern with protecting visual access to the ocean constituted a legitimate public interest. Id., at 835. We also agreed that the permit condition would have been constitutional "even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere." Id., at 836. We resolved, however, that the Coastal Commission's regulatory authority was set completely adrift from its constitutional moorings when it claimed that a nexus existed between visual access to the ocean and a permit condition requiring lateral public access along the Nollan's beachfront lot. Id., at 837. How enhancing the public's ability to "traverse to and [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 12] along the shorefront" served the same governmental purpose of "visual access to the ocean" from the roadway was beyond our ability to countenance. The absence of a nexus left the Coastal Commission in the position of simply trying to obtain an easement through gimmickry, which converted a valid regulation of land use into "an out-and-out plan of extortion." Ibid. quoting J.E.D. Associates, Inc. v. Atkinson, 121 N.H. 581, 584, 432 A.2d 12, 14-15 (1981).No such gimmicks are associated with the permit conditions imposed by the city in this case. Undoubtedly, the prevention of flooding along Fanno Creek and the reduction of traffic congestion in the Central Business District qualify as the type of legitimate public purposes we have upheld. Agins, supra, at 260-262. It seems equally obvious that a nexus exists between preventing flooding along Fanno Creek and limiting development within the creek's 100-year floodplain. Petitioner proposes to double the size of her retail store and to pave her now-gravel parking lot, thereby expanding the impervious surface on the property and increasing the amount of stormwater run-off into Fanno Creek.The same may be said for the city's attempt to reduce traffic congestion by providing for alternative means of transportation. In theory, a pedestrian/bicycle pathway provides a useful alternative means of transportation for workers and shoppers: "Pedestrians and bicyclists occupying dedicated spaces for walking and/or bicycling ... remove potential vehicles from streets, resulting in an overall improvement in total transportation system flow." A. Nelson, Public Provision of Pedestrian and Bicycle Access Ways: Public Policy Rationale and the Nature of Private Benefits 11, Center for Planning Development, Georgia Institute of Technology, Working Paper Series (Jan. 1994). See also Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, 105 Stat. 1914; (recognizing pedestrian and bicycle [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 13] facilities as necessary components of any strategy to reduce traffic congestion).BThe second part of our analysis requires us to determine whether the degree of the exactions demanded by the city's permit conditions bear the required relationship to the projected impact of petitioner's proposed development. Nollan, supra, at 834, quoting Penn Central, ("`[A] use restriction may constitute a taking if not reasonably necessary to the effectuation of a substantial government purpose'"). Here the Oregon Supreme Court deferred to what it termed the "city's unchallenged factual findings" supporting the dedication conditions and found them to be reasonably related to the impact of the expansion of petitioner's business. 317 Ore., at 120-121, 854 P.2d, at 443.The city required that petitioner dedicate "to the city as Greenway all portions of the site that fall within the existing 100-year floodplain [of Fanno Creek] ... and all property 15 feet above [the floodplain] boundary." In addition, the city demanded that the retail store be designed so as not to intrude into the greenway area. The city relies on the Commission's rather tentative findings that increased stormwater flow from petitioner's property "can only add to the public need to manage the [floodplain] for drainage purposes" to support its conclusion that the "requirement of dedication of the floodplain area on the site is related to the applicant's plan to intensify development on the site." City of Tigard Planning Commission Final Order No. 91-09 PC, App. to Pet. for Cert. G37.The city made the following specific findings relevant to the pedestrian/bicycle pathway:"In addition, the proposed expanded use of this site is anticipated to generate additional vehicular traffic [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 14] thereby increasing congestion on nearby collector and arterial streets. Creation of a convenient, safe pedestrian/bicycle pathway system as an alternative means of transportation could offset some of the traffic demand on these nearby streets and lessen the increase in traffic congestion." Id., at 24. The question for us is whether these findings are constitutionally sufficient to justify the conditions imposed by the city on petitioner's building permit. Since state courts have been dealing with this question a good deal longer than we have, we turn to representative decisions made by them.In some States, very generalized statements as to the necessary connection between the required dedication and the proposed development seem to suffice. See, e.g., Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P.2d 182 (1964); Jenad, Inc. v. Scarsdale, 18 N.Y.2d 78, 218 N.E.2d 673 (1966). We think this standard is too lax to adequately protect petitioner's right to just compensation if her property is taken for a public purpose.Other state courts require a very exacting correspondence, described as the "specifi[c] and uniquely attributable" test. The Supreme Court of Illinois first developed this test in Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill.2d 375, 380, 176 N.E.2d 799, 802 (1961).7 Under this standard, if the local government cannot demonstrate that its exaction is directly proportional [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 15] to the specifically created need, the exaction becomes "a veiled exercise of the power of eminent domain and a confiscation of private property behind the defense of police regulations." Id., at 381, 176 N.E.2d, at 802. We do not think the Federal Constitution requires such exacting scrutiny, given the nature of the interests involved.A number of state courts have taken an intermediate position, requiring the municipality to show a "reasonable relationship" between the required dedication and the impact of the proposed development. Typical is the Supreme Court of Nebraska's opinion in Simpson v. North Platte, 206 Neb. 240, 245, 292 N.W.2d 297, 301 (1980), where that court stated: "The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking property simply because at that particular moment the landowner is asking the city for some license or permit." Thus, the court held that a city may not require a property owner to dedicate private property for some future public use as a condition of obtaining a building permit when such future use is not "occasioned by the construction sought to be permitted." Id., at 248, 292 N.W.2d, at 302.Some form of the reasonable relationship test has been adopted in many other jurisdictions. See, e.g., Jordan v. Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442 (1965); Collis v. Bloomington, 310 Minn. 5, 246 N.W.2d 19 (1976) (requiring a showing of a reasonable relationship between the planned subdivision and the municipality's need for land); College Station v. Turtle Rock [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 16] Corp., 680 S.W.2d 802, 807 (Tex. 1984); Call v. West Jordan, 606 P.2d 217, 220 (Utah 1979) (affirming use of the reasonable relation test). Despite any semantical differences, general agreement exists among the courts "that the dedication should have some reasonable relationship to the needs created by the [development]." Ibid. See generally, Morosoff, Take My Beach Please!: Nollan v. California Coastal Commission and a Rational-Nexus Constitutional Analysis of Development Exactions, 69 B.U.L.Rev. 823 (1989); see also Parks v. Watson, 716 F.2d 646, 651-653 (CA9 1983).We think the "reasonable relationship" test adopted by a majority of the state courts is closer to the federal constitutional norm than either of those previously discussed. But we do not adopt it as such, partly because the term "reasonable relationship" seems confusingly similar to the term "rational basis" which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment. We think a term such as "rough proportionality" best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.8 [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 17] JUSTICE STEVENS' dissent relies upon a law review article for the proposition that the city's conditional demands for part of petitioner's property are "a species of business regulation that heretofore warranted a strong presumption of constitutional validity." Post, at 7. But simply denominating a governmental measure as a "business regulation" does not immunize it from constitutional challenge on the grounds that it violates a provision of the Bill of Rights. In Marshall v. Barlow's, Inc., , we held that a statute authorizing a warrantless search of business premises in order to detect OSHA violations violated the Fourth Amendment. See also Air Pollution Variance Board of Colo. v. Western Alfalfa Corp., ; New York v. Burger, . And in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N.Y., , we held that an order of the New York Public Service Commission, designed to cut down the use of electricity because of a fuel shortage, violated the First Amendment insofar as it prohibited advertising by a utility company to promote the use of electricity. We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances. We turn now to analysis of whether the findings relied upon by the city here, first with respect to the floodplain easement, and second with respect to the pedestrian/bicycle path, satisfied these requirements. [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 18] It is axiomatic that increasing the amount of impervious surface will increase the quantity and rate of stormwater flow from petitioner's property. Record, Doc. No. F, ch. 4, p. 4-29. Therefore, keeping the floodplain open and free from development would likely confine the pressures on Fanno Creek created by petitioner's development. In fact, because petitioner's property lies within the Central Business District, the Community Development Code already required that petitioner leave 15% of it as open space and the undeveloped floodplain would have nearly satisfied that requirement. App. to Pet. for Cert. G16-G17. But the city demanded more - it not only wanted petitioner not to build in the floodplain, but it also wanted petitioner's property along Fanno Creek for its Greenway system. The city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control.The difference to petitioner, of course, is the loss of her ability to exclude others. As we have noted, this right to exclude others is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Kaiser Aetna, 444 U.S., at 176. It is difficult to see why recreational visitors trampling along petitioner's floodplain easement are sufficiently related to the city's legitimate interest in reducing flooding problems along Fanno Creek, and the city has not attempted to make any individualized determination to support this part of its request.The city contends that recreational easement along the Greenway is only ancillary to the city's chief purpose in controlling flood hazards. It further asserts that, unlike the residential property at issue in Nollan, petitioner's property is commercial in character and therefore, her right to exclude others is compromised. Brief for Respondent 41, quoting United States v. Orito, ("`The Constitution extends special safeguards to the privacy of the home'"). The city [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 19] maintains that "[t]here is nothing to suggest that preventing [petitioner] from prohibiting [the easements] will unreasonably impair the value of [her] property as a [retail store]." PruneYard Shopping Center v. Robins, .Admittedly, petitioner wants to build a bigger store to attract members of the public to her property. She also wants, however, to be able to control the time and manner in which they enter. The recreational easement on the Greenway is different in character from the exercise of state-protected rights of free expression and petition that we permitted in PruneYard. In PruneYard, we held that a major private shopping center that attracted more than 25,000 daily patrons had to provide access to persons exercising their state constitutional rights to distribute pamphlets and ask passersby to sign their petitions. Id., at 85. We based our decision, in part, on the fact that the shopping center "may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions." Id., at 83. By contrast, the city wants to impose a permanent recreational easement upon petitioner's property that borders Fanno Creek. Petitioner would lose all rights to regulate the time in which the public entered onto the Greenway, regardless of any interference it might pose with her retail store. Her right to exclude would not be regulated, it would be eviscerated.If petitioner's proposed development had somehow encroached on existing greenway space in the city, it would have been reasonable to require petitioner to provide some alternative greenway space for the public either on her property or elsewhere. See Nollan, 483 U.S., at 836 ("Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 20] assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end"). But that is not the case here. We conclude that the findings upon which the city relies do not show the required reasonable relationship between the floodplain easement and the petitioner's proposed new building.With respect to the pedestrian/bicycle pathway, we have no doubt that the city was correct in finding that the larger retail sales facility proposed by petitioner will increase traffic on the streets of the Central Business District. The city estimates that the proposed development would generate roughly 435 additional trips per day.9 Dedications for streets, sidewalks, and other public ways are generally reasonable exactions to avoid excessive congestion from a proposed property use. But, on the record before us, the city has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by the petitioner's development reasonably relate to the city's requirement for a dedication of the pedestrian/bicycle pathway easement. The city simply found that the creation of the pathway "could offset some of the traffic demand ... and lessen the increase in traffic congestion."10 [ DOLAN v. CITY OF TIGARD, ___ U.S. ___ (1994), 21] As Justice Peterson of the Supreme Court of Oregon explained in his dissenting opinion, however, "[t]he findings of fact that the bicycle pathway system "could offset some of the traffic demand" is a far cry from a finding that the bicycle pathway system will, or is likely to, offset some of the traffic demand." 317 Ore., at 127, 854 P.2d, at 447 (emphasis in original). No precise mathematical calculation is required, but the city must make some effort to quantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated.IVCities have long engaged in the commendable task of land use planning, made necessary by increasing urbanization particularly in metropolitan areas such as Portland. The city's goals of reducing flooding hazards and traffic congestion, and providing for public greenways, are laudable, but there are outer limits to how this may be done. "A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Pennsylvania Coal, 260 U.S., at 416.The judgment of the Supreme Court of Oregon is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.
0	Certiorari granted; vacated and remanded.John G. Thevos for respondent.PER CURIAM.The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of Bruton v. United States, .MR. JUSTICE BLACK dissents.MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissent for reasons stated in MR. JUSTICE WHITE'S dissenting opinion in Bruton v. United States, .
3	The State of New York recognizes the marriage of New York residents Edith Windsor and Thea Spyer, who wed in Ontario, Canada, in 2007. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses, but was barred from doing so by §3 of the federal Defense of Marriage Act (DOMA), which amended the Dictionary Act — a law providing rules of construction for over 1,000 federal laws and the whole realm of federal regulations — to define "marriage" and "spouse" as excluding same-sex partners. Windsor paid $363,053 in estate taxes and sought a refund, which the Internal Revenue Service denied. Windsor brought this refund suit, contending that DOMA violates the principles of equal protection incorporated in the Fifth Amendment. While the suit was pending, the Attorney General notified the Speaker of the House of Representatives that the Department of Justice would no longer defend §3's constitutionality. In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend §3's constitutionality. The District Court permitted the intervention. On the merits, the court ruled against the United States, finding §3 unconstitutional and ordering the Treasury to refund Windsor's tax with interest. The Second Circuit affirmed. The United States has not complied with the judgment.Held: 1. This Court has jurisdiction to consider the merits of the case. This case clearly presented a concrete disagreement between opposing parties that was suitable for judicial resolution in the District Court, but the Executive's decision not to defend §3's constitutionality in court while continuing to deny refunds and assess deficiencies introduces a complication. Given the Government's concession, amicus contends, once the District Court ordered the refund, the case should have ended and the appeal been dismissed. But this argument elides the distinction between Article III's jurisdictional requirements and the prudential limits on its exercise, which are "essentially matters of judicial self-governance." Warth v. Seldin, 422 U. S. 490, 500. Here, the United States retains a stake sufficient to support Article III jurisdiction on appeal and in this Court. The refund it was ordered to pay Windsor is "a real and immediate economic injury," Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587, 599, even if the Executive disagrees with §3 of DOMA. Windsor's ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. Cf. INS v. Chadha, 462 U. S. 919. Prudential considerations, however, demand that there be "concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U. S. 186, 204. Unlike Article III requirements — which must be satisfied by the parties before judicial consideration is appropriate — prudential factors that counsel against hearing this case are subject to "countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power." Warth, supra, at 500-501. One such consideration is the extent to which adversarial presentation of the issues is ensured by the participation of amici curiae prepared to defend with vigor the legislative act's constitutionality. See Chadha, supra, at 940. Here, BLAG's substantial adversarial argument for §3's constitutionality satisfies prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. This conclusion does not mean that it is appropriate for the Executive as a routine exercise to challenge statutes in court instead of making the case to Congress for amendment or repeal. But this case is not routine, and BLAG's capable defense ensures that the prudential issues do not cloud the merits question, which is of immediate importance to the Federal Government and to hundreds of thousands of persons. Pp. 5-13. 2. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Pp. 13-26. (a) By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. Assessing the validity of that intervention requires discussing the historical and traditional extent of state power and authority over marriage. Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1, "regulation of domestic relations" is "an area that has long been regarded as a virtually exclusive province of the States," Sosna v. Iowa, 419 U. S. 393, 404. The significance of state responsibilities for the definition and regulation of marriage dates to the Nation's beginning; for "when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States," Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383-384. Marriage laws may vary from State to State, but they are consistent within each State. DOMA rejects this long-established precept. The State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. But the Federal Government uses the state-defined class for the opposite purpose — to impose restrictions and disabilities. The question is whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. New York's actions were a proper exercise of its sovereign authority. They reflect both the community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. Pp. 13-20. (b) By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution's guarantee of equality "must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot" justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534-535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA's avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. DOMA's history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. BLAG's arguments are just as candid about the congressional purpose. DOMA's operation in practice confirms this purpose. It frustrates New York's objective of eliminating inequality by writing inequality into the entire United States Code. DOMA's principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. Pp. 20-26.699 F. 3d 169, affirmed. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, and in which Roberts, C. J., joined as to Part I. Alito, J., filed a dissenting opinion, in which Thomas, J., joined as to Parts II and III.Opinion of the Court 570 U. S. ____ (2013)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 12-307UNITED STATES, PETITIONER v. EDITH SCHLAINWINDSOR, in her capacity as executor of theESTATE OF THEA CLARA SPYER, et al.on writ of certiorari to the united states court of appeals for the second circuit[June 26, 2013] Justice Kennedy delivered the opinion of the Court. Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of "spouse" as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor's favor.I In 1996, as some States were beginning to consider the concept of same-sex marriage, see, e.g., Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993), and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA), 110 Stat. 2419. DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C. Section 3 is at issue here. It amends the Dictionary Act in Title 1, §7, of the United States Code to provide a federal definition of "marriage" and "spouse." Section 3 of DOMA provides as follows: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." 1 U. S. C. §7. The definitional provision does not by its terms forbid States from enacting laws permitting same-sex marriages or civil unions or providing state benefits to residents in that status. The enactment's comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. See GAO, D. Shah, Defense of Marriage Act: Update to Prior Report 1 (GAO-04-353R, 2004). Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term relationship. Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993. Concerned about Spyer's health, the couple made the 2007 trip to Canada for their marriage, but they continued to reside in New York City. The State of New York deems their Ontario marriage to be a valid one. See 699 F. 3d 169, 177-178 (CA2 2012). Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA denies federal recognition to same-sex spouses, Windsor did not qualify for the marital exemption from the federal estate tax, which excludes from taxation "any interest in property which passes or has passed from the decedent to his surviving spouse." 26 U. S. C. §2056(a). Windsor paid $363,053 in estate taxes and sought a refund. The Internal Revenue Service denied the refund, concluding that, under DOMA, Windsor was not a "surviving spouse." Windsor commenced this refund suit in the United States District Court for the Southern District of New York. She contended that DOMA violates the guarantee of equal protection, as applied to the Federal Government through the Fifth Amendment. While the tax refund suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives, pursuant to 28 U. S. C. §530D, that the Department of Justice would no longer defend the constitutionality of DOMA's §3. Noting that "the Department has previously defended DOMA against . . . challenges involving legally married same-sex couples," App. 184, the Attorney General informed Congress that "the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny." Id., at 191. The Department of Justice has submitted many §530D letters over the years refusing to defend laws it deems unconstitutional, when, for instance, a federal court has rejected the Government's defense of a statute and has issued a judgment against it. This case is unusual, however, because the §530D letter was not preceded by an adverse judgment. The letter instead reflected the Executive's own conclusion, relying on a definition still being debated and considered in the courts, that heightened equal protection scrutiny should apply to laws that classify on the basis of sexual orientation. Although "the President . . . instructed the Department not to defend the statute in Windsor," he also decided "that Section 3 will continue to be enforced by the Executive Branch" and that the United States had an "interest in providing Congress a full and fair opportunity to participate in the litigation of those cases." Id., at 191-193. The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to "recogniz[e] the judiciary as the final arbiter of the constitutional claims raised." Id., at 192. In response to the notice from the Attorney General, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend the constitutionality of §3 of DOMA. The Department of Justice did not oppose limited intervention by BLAG. The District Court denied BLAG's motion to enter the suit as of right, on the rationale that the United States already was represented by the Department of Justice. The District Court, however, did grant intervention by BLAG as an interested party. See Fed. Rule Civ. Proc. 24(a)(2). On the merits of the tax refund suit, the District Court ruled against the United States. It held that §3 of DOMA is unconstitutional and ordered the Treasury to refund the tax with interest. Both the Justice Department and BLAG filed notices of appeal, and the Solicitor General filed a petition for certiorari before judgment. Before this Court acted on the petition, the Court of Appeals for the Second Circuit affirmed the District Court's judgment. It applied heightened scrutiny to classifications based on sexual orientation, as both the Department and Windsor had urged. The United States has not complied with the judgment. Windsor has not received her refund, and the Executive Branch continues to enforce §3 of DOMA. In granting certiorari on the question of the constitutionality of §3 of DOMA, the Court requested argument on two additional questions: whether the United States' agreement with Windsor's legal position precludes further review and whether BLAG has standing to appeal the case. All parties agree that the Court has jurisdiction to decide this case; and, with the case in that framework, the Court appointed Professor Vicki Jackson as amicus curiae to argue the position that the Court lacks jurisdiction to hear the dispute. 568 U. S. ___ (2012). She has ably discharged her duties. In an unrelated case, the United States Court of Appeals for the First Circuit has also held §3 of DOMA to be unconstitutional. A petition for certiorari has been filed in that case. Pet. for Cert. in Bipartisan Legal Advisory Group v. Gill, O. T. 2012, No. 12-13.II It is appropriate to begin by addressing whether either the Government or BLAG, or both of them, were entitled to appeal to the Court of Appeals and later to seek certiorari and appear as parties here. There is no dispute that when this case was in the District Court it presented a concrete disagreement between opposing parties, a dispute suitable for judicial resolution. "[A] taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer." Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587, 599 (2007) (plurality opinion) (emphasis deleted). Windsor suffered a redressable injury when she was required to pay estate taxes from which, in her view, she was exempt but for the alleged invalidity of §3 of DOMA. The decision of the Executive not to defend the constitutionality of §3 in court while continuing to deny refunds and to assess deficiencies does introduce a complication. Even though the Executive's current position was announced before the District Court entered its judgment, the Government's agreement with Windsor's position would not have deprived the District Court of jurisdiction to entertain and resolve the refund suit; for her injury (failure to obtain a refund allegedly required by law) was concrete, persisting, and unredressed. The Government's position — agreeing with Windsor's legal contention but refusing to give it effect — meant that there was a justiciable controversy between the parties, despite what the claimant would find to be an inconsistency in that stance. Windsor, the Government, BLAG, and the amicus appear to agree upon that point. The disagreement is over the standing of the parties, or aspiring parties, to take an appeal in the Court of Appeals and to appear as parties in further proceedings in this Court. The amicus' position is that, given the Government's concession that §3 is unconstitutional, once the District Court ordered the refund the case should have ended; and the amicus argues the Court of Appeals should have dismissed the appeal. The amicus submits that once the President agreed with Windsor's legal position and the District Court issued its judgment, the parties were no longer adverse. From this standpoint the United States was a prevailing party below, just as Windsor was. Accordingly, the amicus reasons, it is inappropriate for this Court to grant certiorari and proceed to rule on the merits; for the United States seeks no redress from the judgment entered against it. This position, however, elides the distinction between two principles: the jurisdictional requirements of Article III and the prudential limits on its exercise. See Warth v. Seldin, 422 U. S. 490, 498 (1975). The latter are "essentially matters of judicial self-governance." Id., at 500. The Court has kept these two strands separate: "Article III standing, which enforces the Constitution's case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 559-562 (1992); and prudential standing, which embodies 'judicially self-imposed limits on the exercise of federal jurisdiction,' Allen [v. Wright,] 468 U. S. [737,] 751 [(1984)]." Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 11-12 (2004). The requirements of Article III standing are familiar:"First, the plaintiff must have suffered an 'injury in fact'--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not "conjectural or hypothetical." ' Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be 'fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.' Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.' " Lujan, supra, at 560-561 (footnote and citations omitted).Rules of prudential standing, by contrast, are more flexible "rule[s] . . . of federal appellate practice," Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980), designed to protect the courts from "decid[ing] abstract questions of wide public significance even [when] other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights." Warth, supra, at 500. In this case the United States retains a stake sufficient to support Article III jurisdiction on appeal and in proceedings before this Court. The judgment in question orders the United States to pay Windsor the refund she seeks. An order directing the Treasury to pay money is "a real and immediate economic injury," Hein, 551 U. S., at 599, indeed as real and immediate as an order directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court's order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with §3 of DOMA, which results in Windsor's liability for the tax. Windsor's ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court's ruling. This Court confronted a comparable case in INS v. Chadha, 462 U. S. 919 (1983). A statute by its terms allowed one House of Congress to order the Immigration and Naturalization Service (INS) to deport the respondent Chadha. There, as here, the Executive determined that the statute was unconstitutional, and "the INS presented the Executive's views on the constitutionality of the House action to the Court of Appeals." Id., at 930. The INS, however, continued to abide by the statute, and "the INS brief to the Court of Appeals did not alter the agency's decision to comply with the House action ordering deportation of Chadha." Ibid. This Court held "that the INS was sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take," ibid., regardless of whether the agency welcomed the judgment. The necessity of a "case or controversy" to satisfy Article III was defined as a requirement that the Court's " 'decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold [the statute], the INS will execute its order and deport him.' " Id., at 939-940 (quoting Chadha v. INS, 634 F. 2d 408, 419 (CA9 1980)). This conclusion was not dictum. It was a necessary predicate to the Court's holding that "prior to Congress' intervention, there was adequate Art. III adverseness." 462 U. S., at 939. The holdings of cases are instructive, and the words of Chadha make clear its holding that the refusal of the Executive to provide the relief sought suffices to preserve a justiciable dispute as required by Article III. In short, even where "the Government largely agree[s] with the opposing party on the merits of the controversy," there is sufficient adverseness and an "adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party." Id., at 940, n. 12. It is true that "[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it." Roper, supra, at 333, see also Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 8) ("As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so"). But this rule "does not have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted . . . at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III." Roper, supra, at 333-334. While these principles suffice to show that this case presents a justiciable controversy under Article III, the prudential problems inherent in the Executive's unusual position require some further discussion. The Executive's agreement with Windsor's legal argument raises the risk that instead of a " 'real, earnest and vital controversy,' " the Court faces a "friendly, non-adversary, proceeding . . . [in which] 'a party beaten in the legislature [seeks to] transfer to the courts an inquiry as to the constitutionality of the legislative act.' " Ashwander v. TVA, 297 U. S. 288, 346 (1936) (Brandeis, J., concurring) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892)). Even when Article III permits the exercise of federal jurisdiction, prudential considerations demand that the Court insist upon "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U. S. 186, 204 (1962). There are, of course, reasons to hear a case and issue a ruling even when one party is reluctant to prevail in its position. Unlike Article III requirements — which must be satisfied by the parties before judicial consideration is appropriate — the relevant prudential factors that counsel against hearing this case are subject to "countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power." Warth, 422 U. S., at 500-501. One consideration is the extent to which adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor the constitutionality of the legislative act. With respect to this prudential aspect of standing as well, the Chadha Court encountered a similar situation. It noted that "there may be prudential, as opposed to Art. III, concerns about sanctioning the adjudication of [this case] in the absence of any participant supporting the validity of [the statute]. The Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress." 462 U. S., at 940. Chadha was not an anomaly in this respect. The Court adopts the practice of entertaining arguments made by an amicus when the Solicitor General confesses error with respect to a judgment below, even if the confession is in effect an admission that an Act of Congress is unconstitutional. See, e.g., Dickerson v. United States, 530 U. S. 428 (2000). In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of §3 of DOMA. BLAG's sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA's sweep involving over 1,000 federal statutes and a myriad of federal regulations. For instance, the opinion of the Court of Appeals for the First Circuit, addressing the validity of DOMA in a case involving regulations of the Department of Health and Human Services, likely would be vacated with instructions to dismiss, its ruling and guidance also then erased. See Massachusetts v. United States Dept. of Health and Human Servs., 682 F. 3d 1 (CA1 2012). Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent. That numerical prediction may not be certain, but it is certain that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. True, the very extent of DOMA's mandate means that at some point a case likely would arise without the prudential concerns raised here; but the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved. In these unusual and urgent circumstances, the very term "prudential" counsels that it is a proper exercise of the Court's responsibility to take jurisdiction. For these reasons, the prudential and Article III requirements are met here; and, as a consequence, the Court need not decide whether BLAG would have standing to challenge the District Court's ruling and its affirmance in the Court of Appeals on BLAG's own authority. The Court's conclusion that this petition may be heard on the merits does not imply that no difficulties would ensue if this were a common practice in ordinary cases. The Executive's failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma. On the one hand, as noted, the Government's agreement with Windsor raises questions about the propriety of entertaining a suit in which it seeks affirmance of an order invalidating a federal law and ordering the United States to pay money. On the other hand, if the Executive's agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court's primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the President's. This would undermine the clear dictate of the separation-of-powers principle that "when an Act of Congress is alleged to conflict with the Constitution, '[i]t is emphatically the province and duty of the judicial department to say what the law is.' " Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress' enactment solely on its own initiative and without any determination from the Court. The Court's jurisdictional holding, it must be underscored, does not mean the arguments for dismissing this dispute on prudential grounds lack substance. Yet the difficulty the Executive faces should be acknowledged. When the Executive makes a principled determination that a statute is unconstitutional, it faces a difficult choice. Still, there is no suggestion here that it is appropriate for the Executive as a matter of course to challenge statutes in the judicial forum rather than making the case to Congress for their amendment or repeal. The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise. But this case is not routine. And the capable defense of the law by BLAG ensures that these prudential issues do not cloud the merits question, which is one of immediate importance to the Federal Government and to hundreds of thousands of persons. These circumstances support the Court's decision to proceed to the merits.III When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right. After waiting some years, in 2007 they traveled to Ontario to be married there. It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion. Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed elsewhere; and then it later amended its own marriage laws to permit same-sex marriage. New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons. After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against samesex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. See Marriage Equality Act, 2011 N. Y. Laws 749 (codified at N. Y. Dom. Rel. Law Ann. §§10-a, 10-b, 13 (West 2013)). Against this background of lawful same-sex marriage in some States, the design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges. Just this Term the Court upheld the authority of the Congress to pre-empt state laws, allowing a former spouse to retain life insurance proceeds under a federal program that gave her priority, because of formal beneficiary designation rules, over the wife by a second marriage who survived the husband. Hillman v. Maretta, 569 U. S. ___ (2013); see also Ridgway v. Ridgway, 454 U. S. 46 (1981); Wissner v. Wissner, 338 U. S. 655 (1950). This is one example of the general principle that when the Federal Government acts in the exercise of its own proper authority, it has a wide choice of the mechanisms and means to adopt. See McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). Congress has the power both to ensure efficiency in the administration of its programs and to choose what larger goals and policies to pursue. Other precedents involving congressional statutes which affect marriages and family status further illustrate this point. In addressing the interaction of state domestic relations and federal immigration law Congress determined that marriages "entered into for the purpose of procuring an alien's admission [to the United States] as an immigrant" will not qualify the noncitizen for that status, even if the noncitizen's marriage is valid and proper for state-law purposes. 8 U. S. C. §1186a(b)(1) (2006 ed. and Supp. V). And in establishing income-based criteria for Social Security benefits, Congress decided that although state law would determine in general who qualifies as an applicant's spouse, common-law marriages also should be recognized, regardless of any particular State's view on these relationships. 42 U. S. C. §1382c(d)(2). Though these discrete examples establish the constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy, DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003); An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples, 2009 Conn. Pub. Acts no. 09-13; Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009); Vt. Stat. Ann., Tit. 15, §8 (2010); N. H. Rev. Stat. Ann. §457:1-a (West Supp. 2012); Religious Freedom and Civil Marriage Equality Amendment Act of 2009, 57 D. C. Reg. 27 (Dec. 18, 2009); N. Y. Dom. Rel. Law Ann. §10-a (West Supp. 2013); Wash. Rev. Code §26.04.010 (2012); Citizen Initiative, SameSex Marriage, Question 1 (Me. 2012) (results online at http: / / w w w.maine.gov/sos/cec/elec/2012/tab - ref-2012.html (all Internet sources as visited June 18, 2013, and available in Clerk of Court's case file)); Md. Fam. Law Code Ann. §2-201 (Lexis 2012); An Act to Amend Title 13 of the Delaware Code Relating to Domestic Relations to Provide for Same-Gender Civil Marriage and to Convert Existing Civil Unions to Civil Marriages, 79 Del. Laws ch. 19 (2013); An act relating to marriage; providing for civil marriage between two persons; providing for exemptions and protections based on religious association, 2013 Minn. Laws ch. 74; An Act Relating to Domestic Relations — Persons Eligible to Marry, 2013 R. I. Laws ch. 4. In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, "regulation of domestic relations" is "an area that has long been regarded as a virtually exclusive province of the States." Sosna v. Iowa, 419 U. S. 393, 404 (1975). The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U. S. 287, 298 (1942) ("Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders"). The definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the "[p]rotection of offspring, property interests, and the enforcement of marital responsibilities." Ibid. "[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce." Haddock v. Haddock, 201 U. S. 562, 575 (1906); see also In re Burrus, 136 U. S. 586, 593-594 (1890) ("The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States"). Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. In De Sylva v. Ballentine, 351 U. S. 570 (1956), for example, the Court held that, "[t]o decide who is the widow or widower of a deceased author, or who are his executors or next of kin," under the Copyright Act "requires a reference to the law of the State which created those legal relationships" because "there is no federal law of domestic relations." Id., at 580. In order to respect this principle, the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction. See Ankenbrandt v. Richards, 504 U. S. 689, 703 (1992). Federal courts will not hear divorce and custody cases even if they arise in diversity because of "the virtually exclusive primacy . . . of the States in the regulation of domestic relations." Id., at 714 (Blackmun, J., concurring in judgment). The significance of state responsibilities for the definition and regulation of marriage dates to the Nation's beginning; for "when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States." Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383-384 (1930). Marriage laws vary in some respects from State to State. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Compare Vt. Stat. Ann., Tit. 18, §5142 (2012), with N. H. Rev. Stat. Ann. §457:4 (West Supp. 2012). Likewise the permissible degree of consanguinity can vary (most States permit first cousins to marry, but a handful — such as Iowa and Washington, see Iowa Code §595.19 (2009); Wash. Rev. Code §26.04.020 (2012)--prohibit the practice). But these rules are in every event consistent within each State. Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. " '[D]is-criminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.' " Romer v. Evans, 517 U. S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32, 37-38 (1928)). The Federal Government uses this state-defined class for the opposite purpose — to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. In acting first to recognize and then to allow same-sex marriages, New York was responding "to the initiative of those who [sought] a voice in shaping the destiny of their own times." Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9). These actions were without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitu-tion intended. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other. The States' interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form "but one element in a personal bond that is more enduring." Lawrence v. Texas, 539 U. S. 558, 567 (2003). By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.IV DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution's guarantee of equality "must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot" justify disparate treatment of that group. Depart- ment of Agriculture v. Moreno, 413 U. S. 528, 534-535 (1973). In determining whether a law is motived by an improper animus or purpose, " '[d]iscriminations of an unusual character' " especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State's classifications have in the daily lives and customs of its people. DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that "it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the 'Defense of Marriage Act.' The effort to redefine 'marriage' to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage." H. R. Rep. No. 104-664, pp. 12-13 (1996). The House concluded that DOMA expresses "both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality." Id., at 16 (footnote deleted). The stated purpose of the law was to promote an "interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws." Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage. The arguments put forward by BLAG are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married. As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted. The congressional goal was "to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws." Massachusetts, 682 F. 3d, at 12-13. The Act's demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. This raises a most serious question under the Constitution's Fifth Amendment. DOMA's operation in practice confirms this purpose. When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code. The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans' benefits. DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. See 5 U. S. C. §§8901(5), 8905. It deprives them of the Bankruptcy Code's special protections for domestic-support obligations. See 11 U. S. C. §§101(14A), 507(a)(1)(A), 523(a)(5), 523(a)(15). It forces them to follow a complicated procedure to file their state and federal taxes jointly. Technical Bulletin TB-55, 2010 Vt. Tax LEXIS 6 (Oct. 7, 2010); Brief for Federalism Scholars as Amici Curiae 34. It prohibits them from being buried together in veterans' cemeteries. National Cemetery Administration Directive 3210/1, p. 37 (June 4, 2008). For certain married couples, DOMA's unequal effects are even more serious. The federal penal code makes it a crime to "assaul[t], kidna[p], or murde[r] . . . a member of the immediate family" of "a United States official, a United States judge, [or] a Federal law enforcement officer," 18 U. S. C. §115(a)(1)(A), with the intent to influence or retaliate against that official, §115(a)(1). Although a "spouse" qualifies as a member of the officer's "immediate family," §115(c)(2), DOMA makes this protection inapplicable to same-sex spouses. DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers' same-sex spouses. See 26 U. S. C. §106; Treas. Reg. §1.106-1, 26 CFR §1.106-1 (2012); IRS Private Letter Ruling 9850011 (Sept. 10, 1998). And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. See Social Security Administration, Social Security Survivors Benefits 5 (2012) (benefits available to a surviving spouse caring for the couple's child), online at http://www.ssa.gov/pubs/EN-05-10084.pdf. DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force. For instance, because it is expected that spouses will support each other as they pursue educational opportunities, federal law takes into consideration a spouse's income in calculating a student's federal financial aid eligibility. See 20 U. S. C. §1087nn(b). Same-sex married couples are exempt from this requirement. The same is true with respect to federal ethics rules. Federal executive and agency officials are prohibited from "participat[ing] personally and substantially" in matters as to which they or their spouses have a financial interest. 18 U. S. C. §208(a). A similar statute prohibits Senators, Senate employees, and their spouses from accepting high-value gifts from certain sources, see 2 U. S. C. §31-2(a)(1), and another mandates detailed financial disclosures by numerous high-ranking officials and their spouses. See 5 U. S. C. App. §§102(a), (e). Under DOMA, however, these Government-integrity rules do not apply to same-sex spouses.* * * The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment. What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499-500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217-218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved. The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. The judgment of the Court of Appeals for the Second Circuit is affirmed.It is so ordered.Roberts, C. J., dissenting 570 U. S. ____ (2013)No. 12-307UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA SPYER, et al.on writ of certiorari to the united states court of appeals for the second circuit[June 26, 2013] Chief Justice Roberts, dissenting. I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below. On the merits of the constitutional dispute the Court decides to decide, I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability amply justified Congress's decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world. Post, at 19-20 (dissenting opinion). The majority sees a more sinister motive, pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past. That is true, of course, but none of those prior state-by-state variations had involved differences over something — as the majority puts it--"thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization." Ante, at 13. That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising — and hardly enough to support a conclusion that the "principal purpose," ante, at 22, of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing. At least without some more convincing evidence that the Act's principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry. But while I disagree with the result to which the majority's analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their "historic and essential authority to define the marital relation," ante, at 18, may continue to utilize the traditional definition of marriage. The majority goes out of its way to make this explicit in the penultimate sentence of its opinion. It states that "[t]his opinion and its holding are confined to those lawful marriages," ante, at 26 — referring to same-sex marriages that a State has already recognized as a result of the local "community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality." Ante, at 20. Justice Scalia believes this is a " 'bald, unreasoned disclaime[r].' " Post, at 22. In my view, though, the disclaimer is a logical and necessary consequence of the argument the majority has chosen to adopt. The dominant theme of the majority opinion is that the Federal Government's intrusion into an area "central to state domestic relations law applicable to its residents and citizens" is sufficiently "unusual" to set off alarm bells. Ante, at 17, 20. I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism. The majority extensively chronicles DOMA's departure from the normal allocation of responsibility between State and Federal Governments, emphasizing that DOMA "rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State." Ante, at 18. But there is no such departure when one State adopts or keeps a definition of marriage that differs from that of its neighbor, for it is entirely expected that state definitions would "vary, subject to constitutional guarantees, from one State to the next." Ibid. Thus, while "[t]he State's power in defining the marital relation is of central relevance" to the majority's decision to strike down DOMA here, ibid., that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA's constitutionality in this case. See ante, at 19. It is not just this central feature of the majority's analysis that is unique to DOMA, but many considerations on the periphery as well. For example, the majority focuses on the legislative history and title of this particular Act, ante, at 21; those statute-specific considerations will, of course, be irrelevant in future cases about different statutes. The majority emphasizes that DOMA was a "systemwide enactment with no identified connection to any particular area of federal law," but a State's definition of marriage "is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the '[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.' " Ante, at 22, 17. And the federal decision undermined (in the majority's view) the "dignity [already] conferred by the States in the exercise of their sovereign power," ante, at 21, whereas a State's decision whether to expand the definition of marriage from its traditional contours involves no similar concern. We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, is not before us in this case, and we hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry, ante, p. ___. I write only to highlight the limits of the majority's holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us — DOMA's constitutionality — but also a question that all agree, and the Court explicitly acknowledges, is not at issue.Scalia, J., dissenting 570 U. S. ____ (2013)No. 12-307UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA SPYER, et al.on writ of certiorari to the united states court of appeals for the second circuit[June 26, 2013] Justice Scalia, with whom Justice Thomas joins, and with whom The Chief Justice joins as to Part I, dissenting. This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.IA The Court is eager — hungry — to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives. They gave judges, in Article III, only the "judicial Power," a power to decide not abstract questions but real, concrete "Cases" and "Controversies." Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here? The answer lies at the heart of the jurisdictional portion of today's opinion, where a single sentence lays bare the majority's vision of our role. The Court says that we have the power to decide this case because if we did not, then our "primary role in determining the constitutionality of a law" (at least one that "has inflicted real injury on a plaintiff") would "become only secondary to the President's." Ante, at 12. But wait, the reader wonders — Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we "undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is." Ibid. (internal quotation marks and brackets omitted). That is jaw-dropping. It is an assertion of judicial supremacy over the people's Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere "primary" in its role. This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of "primary" power, and so created branches of government that would be "perfectly co-ordinate by the terms of their common commission," none of which branches could "pretend to an exclusive or superior right of settling the boundaries between their respective powers." The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today's majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of "greater intrinsic value" or "stamped with the authority of more enlightened patrons of liberty" than a government of separate and coordinate powers. Id., No. 47, at 301. For this reason we are quite forbidden to say what the law is whenever (as today's opinion asserts) " 'an Act of Congress is alleged to conflict with the Constitution.' " Ante, at 12. We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The "judicial Power" is not, as the majority believes, the power " 'to say what the law is,' " ibid., giving the Supreme Court the "primary role in determining the constitutionality of laws." The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons. Sometimes (though not always) the parties before the court disagree not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law — in which event (and only in which event) it becomes the " 'province and duty of the judicial department to say what the law is.' " Ante, at 12. In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the "primary role" of this Court, it is not a separate, free-standing role at all. We perform that role incidentally — by accident, as it were — when that is necessary to resolve the dispute before us. Then, and only then, does it become " 'the province and duty of the judicial department to say what the law is.' " That is why, in 1793, we politely declined the Washington Administration's request to "say what the law is" on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486-489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit. See Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974); United States v. Richardson, 418 U. S. 166, 179 (1974). As Justice Brandeis put it, we cannot "pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding"; absent a " 'real, earnest and vital controversy between individuals,' " we have neither any work to do nor any power to do it. Ashwander v. TVA, 297 U. S. 288, 346 (1936) (concurring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892)). Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). That is completely absent here. Windsor's injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General's brief on the merits reads: "For the foregoing reasons, the judgment of the court of appeals should be affirmed." Brief for United States (merits) 54 (emphasis added). That will not cure the Government's injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner's brief seeking an affirmance of the judgment against it.1 What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgment of the District Court for the Southern District of New York, the suit should have ended there. The further proceedings have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States. We have never before agreed to speak — to "say what the law is"--where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question's answer. The United States reluctantly conceded that at oral argument. See Tr. of Oral Arg. 19-20. The closest we have ever come to what the Court blesses today was our opinion in INS v. Chadha, 462 U. S. 919 (1983). But in that case, two parties to the litigation disagreed with the position of the United States and with the court below: the House and Senate, which had intervened in the case. Because Chadha concerned the validity of a mode of congressional action — the one-house legislative veto — the House and Senate were threatened with destruction of what they claimed to be one of their institutional powers. The Executive choosing not to defend that power,2 we permitted the House and Senate to intervene. Nothing like that is present here. To be sure, the Court in Chadha said that statutory aggrieved-party status was "not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional." Id., at 930-931. But in a footnote to that statement, the Court acknowledged Article III's separate requirement of a "justiciable case or controversy," and stated that this requirement was satisfied "because of the presence of the two Houses of Congress as adverse parties." Id., at 931, n. 6. Later in its opinion, the Chadha Court remarked that the United States' announced intention to enforce the statute also sufficed to permit judicial review, even absent congressional participation. Id., at 939. That remark is true, as a description of the judicial review conducted in the Court of Appeals, where the Houses of Congress had not inter vened. (The case originated in the Court of Appeals, since it sought review of agency action under 8 U. S. C. §1105a(a) (1976 ed.).) There, absent a judgment setting aside the INS order, Chadha faced deportation. This passage of our opinion seems to be addressing that initial standing in the Court of Appeals, as indicated by its quotation from the lower court's opinion, 462 U. S., at 939-940. But if it was addressing standing to pursue the appeal, the remark was both the purest dictum (as congressional intervention at that point made the required adverseness "beyond doubt," id., at 939), and quite incorrect. When a private party has a judicial decree safely in hand to prevent his injury, additional judicial action requires that a party injured by the decree seek to undo it. In Chadha, the intervening House and Senate fulfilled that requirement. Here no one does. The majority's discussion of the requirements of Article III bears no resemblance to our jurisprudence. It accuses the amicus (appointed to argue against our jurisdiction) of "elid[ing] the distinction between . . . the jurisdictional requirements of Article III and the prudential limits on its exercise." Ante, at 6. It then proceeds to call the requirement of adverseness a "prudential" aspect of standing. Of standing. That is incomprehensible. A plaintiff (or appellant) can have all the standing in the world — satisfying all three standing requirements of Lujan that the majority so carefully quotes, ante, at 7 — and yet no Article III controversy may be before the court. Article III requires not just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the complaint. It is not the amicus that has done the eliding of distinctions, but the majority, calling the quite separate Article III requirement of adverseness between the parties an element (which it then pronounces a "prudential" element) of standing. The question here is not whether, as the majority puts it, "the United States retains a stake sufficient to support Article III jurisdiction," ibid. the question is whether there is any controversy (which requires contradiction) between the United States and Ms. Windsor. There is not. I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothing more than a "prudential" aspect of the sole Article III requirement of standing. (Relegating a jurisdictional requirement to "prudential" status is a wondrous device, enabling courts to ignore the requirement whenever they believe it "prudent"--which is to say, a good idea.) Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but completely opposite distortion of the principles limiting our jurisdiction. The Court's notorious opinion in Flast v. Cohen, 392 U. S. 83, 98-101 (1968), held that standing was merely an element (which it pronounced to be a "prudential" element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live with the chaos created by this one. The authorities the majority cites fall miles short of supporting the counterintuitive notion that an Article III "controversy" can exist without disagreement between the parties. In Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326 (1980), the District Court had entered judgment in the individual plaintiff's favor based on the defendant bank's offer to pay the full amount claimed. The plaintiff, however, sought to appeal the District Court's denial of class certification under Federal Rule of Civil Procedure 23. There was a continuing dispute between the parties concerning the issue raised on appeal. The same is true of the other case cited by the majority, Camreta v. Greene, 563 U. S. ___ (2011). There the District Court found that the defendant state officers had violated the Fourth Amendment, but rendered judgment in their favor because they were entitled to official immunity, application of the Fourth Amendment to their conduct not having been clear at the time of violation. The officers sought to appeal the holding of Fourth Amendment violation, which would circumscribe their future conduct; the plaintiff continued to insist that a Fourth Amendment violation had occurred. The "prudential" discretion to which both those cases refer was the discretion to deny an appeal even when a live controversy exists — not the discretion to grant one when it does not. The majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below. And that is because the existence of a controversy is not a "prudential" requirement that we have invented, but an essential element of an Article III case or controversy. The majority's notion that a case between friendly parties can be entertained so long as "adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor" the other side of the issue, ante, at 10, effects a breathtaking revolution in our Article III jurisprudence. It may be argued that if what we say is true some Presidential determinations that statutes are unconstitutional will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that the statute is unconstitutional. Where the Executive is enforcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitutionality of the law, the litigation should end in an order or a consent decree enjoining enforcement. This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen (more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitutional, see Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2, 1994)--in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive's determination of unconstitutionality would have escaped this Court's desire to blurt out its view of the law. The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written. Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with. Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance. The majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch 137, 177 (1803) that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Ante, at 12 (internal quotation marks omitted). But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is — much less that its responsibility in that regard is a "primary" one. The very next sentence of Chief Justice Marshall's opinion makes the crucial qualification that today's majority ignores: "Those who apply the rule to particular cases, must of necessity expound and interpret that rule." 1 Cranch, at 177 (emphasis added). Only when a "particular case" is before us — that is, a controversy that it is our business to resolve under Article III — do we have the province and duty to pronounce the law. For the views of our early Court more precisely addressing the question before us here, the majority ought instead to have consulted the opinion of Chief Justice Taney in Lord v. Veazie, 8 How. 251 (1850):"The objection in the case before us is . . . that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be. "A judgment entered under such circumstances, and for such purposes, is a mere form. The whole proceeding was in contempt of the court, and highly reprehensible . . . . A judgment in form, thus procured, in the eye of the law is no judgment of the court. It is a nullity, and no writ of error will lie upon it. This writ is, therefore, dismissed." Id., at 255-256.There is, in the words of Marbury, no "necessity [to] expound and interpret" the law in this case; just a desire to place this Court at the center of the Nation's life. 1 Cranch, at 177.B A few words in response to the theory of jurisdiction set forth in Justice Alito's dissent: Though less far reaching in its consequences than the majority's conversion of constitutionally required adverseness into a discretionary element of standing, the theory of that dissent similarly elevates the Court to the "primary" determiner of constitutional questions involving the separation of powers, and, to boot, increases the power of the most dangerous branch: the "legislative department," which by its nature "draw[s] all power into its impetuous vortex." The Federalist, No. 48, at 309 (J. Madison). Heretofore in our national history, the President's failure to "take Care that the Laws be faithfully executed," U. S. Const., Art. II, §3, could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure. Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws.3 This would lay to rest Tocqueville's praise of our judicial system as one which "intimately bind[s] the case made for the law with the case made for one man," one in which legislation is "no longer exposed to the daily aggression of the parties," and in which "[t]he political question that [the judge] must resolve is linked to the interest" of private litigants. A. de Tocqueville, Democracy in America 97 (H. Mansfield & D. Winthrop eds. 2000). That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress's liking. Justice Alito's notion of standing will likewise enormously shrink the area to which "judicial censure, exercised by the courts on legislation, cannot extend," ibid. For example, a bare majority of both Houses could bring into court the assertion that the Executive's implementation of welfare programs is too generous — a failure that no other litigant would have standing to complain about. Moreover, as we indicated in Raines v. Byrd, 521 U. S. 811, 828 (1997), if Congress can sue the Executive for the erroneous application of the law that "injures" its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that "injures" the Executive's power to administer — or perhaps for its protracted failure to act on one of his nominations. The opportunities for dragging the courts into disputes hitherto left for political resolution are endless. Justice Alito's dissent is correct that Raines did not formally decide this issue, but its reasoning does. The opinion spends three pages discussing famous, decades-long disputes between the President and Congress — regarding congressional power to forbid the Presidential removal of executive officers, regarding the legislative veto, regarding congressional appointment of executive officers, and regarding the pocket veto — that would surely have been promptly resolved by a Congress-vs.-the-President lawsuit if the impairment of a branch's powers alone conferred standing to commence litigation. But it does not, and never has; the "enormous power that the judiciary would acquire" from the ability to adjudicate such suits "would have made a mockery of [Hamilton's] quotation of Montesquieu to the effect that 'of the three powers above mentioned . . . the JUDICIARY is next to nothing.' " Barnes v. Kline, 759 F. 2d 21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The Federalist No. 78 (A. Hamilton)). To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what "[a]mbition . . . counteract[ing] ambition," The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit — from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says "enforce the Act" quite like ". . . or you will have money for little else.") But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution's entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court's decree, just as he did not faithfully implement Congress's statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.II For the reasons above, I think that this Court has, and the Court of Appeals had, no power to decide this suit. We should vacate the decision below and remand to the Court of Appeals for the Second Circuit, with instructions to dismiss the appeal. Given that the majority has volunteered its view of the merits, however, I proceed to discuss that as well.A There are many remarkable things about the majority's merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations — initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that "it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution," and that "[t]he State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism" because "the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import." Ante, at 18. But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of "the usual tradition of recognizing and accepting state definitions of marriage" continue. See, e.g., ante, at 20. What to make of this? The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of "marriage" in federal statutes is unsupported by any of the Federal Government's enumerated powers,4 nonetheless needs some rhetorical basis to support its pretense that today's prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing. Equally perplexing are the opinion's references to "the Constitution's guarantee of equality." Ibid. Near the end of the opinion, we are told that although the "equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved"--what can that mean?--"the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does." Ante, at 25. The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today's holding. But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v. Sharpe, 347 U. S. 497 (1954), Department of Agriculture v. Moreno, 413 U. S. 528 (1973), and Romer v. Evans, 517 U. S. 620 (1996)--all of which are equal-protection cases.5 And those three cases are the only authorities that the Court cites in Part IV about the Constitution's meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the "moral and sexual choices" of same-sex couples, ante, at 23. Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives (merits) 24-28 (no), with Brief for Respondent Windsor (merits) 17-31 and Brief for United States (merits) 18-36 (yes); and compare 699 F. 3d 169, 180-185 (CA2 2012) (yes), with id., at 208-211 (Straub, J., dissenting in part and concurring in part) (no). In accord with my previously expressed skepticism about the Court's "tiers of scrutiny" approach, I would review this classification only for its rationality. See United States v. Virginia, 518 U. S. 515, 567-570 (1996) (Scalia, J., dissenting). As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification " 'must be upheld . . . if there is any reasonably conceivable state of facts' " that could justify it). The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as "a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution," ante, at 25; that it violates "basic due process" principles, ante, at 20; and that it inflicts an "injury and indignity" of a kind that denies "an essential part of the liberty protected by the Fifth Amendment," ante, at 19. The majority never utters the dread words "substantive due process," perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean. Yet the opinion does not argue that same-sex marriage is "deeply rooted in this Nation's history and tradition," Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997), a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of " 'ordered liberty.' " Id., at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)). Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court's nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a " 'bare . . . desire to harm' " couples in same-sex marriages. Ante, at 20. It is this proposition with which I will therefore engage.B As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (Scalia, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol. However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid — indeed, downright boring — justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court's conclusion that only those with hateful hearts could have voted "aye" on this Act. And more importantly, they serve to make the contents of the legislators' hearts quite irrelevant: "It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U. S. 367, 383 (1968). Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law's opponents and any panel of like-minded federal judges) can be characterized as mean-spirited. The majority concludes that the only motive for this Act was the "bare . . . desire to harm a politically unpopular group." Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court's scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578 (1987)), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite — affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the "arguments put forward" by the Act's defenders, and does not even trouble to paraphrase or describe them. See ante, at 21. I imagine that this is because it is harder to maintain the illusion of the Act's supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them. To choose just one of these defenders' arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not "recognize as valid any marriage of parties of the same sex." Ala. Code §30-1-19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State's law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State's choice-of-law rules? If so, which State's? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision. Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circumstance. When Congress provided (for example) that a special estate-tax exemption would exist for spouses, this exemption reached only opposite-sex spouses — those being the only sort that were recognized in any State at the time of DOMA's passage. When it became clear that changes in state law might one day alter that balance, DOMA's definitional section was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do so on its own. That is not animus — just stabilizing prudence. Congress has hardly demonstrated itself unwilling to make such further, revising judgments upon due deliberation. See, e.g., Don't Ask, Don't Tell Repeal Act of 2010, 124 Stat. 3515. The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers — or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice — with the "purpose" (ante, at 25) "to disparage and to injure" same-sex couples. It says that the motivation for DOMA was to "demean," ibid.; to "impose inequality," ante, at 22; to "impose . . . a stigma," ante, at 21; to deny people "equal dignity," ibid.; to brand gay people as "unworthy," ante, at 23; and to "humiliat[e]" their children, ibid. (emphasis added). I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to "disparage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence — indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.* * * The penultimate sentence of the majority's opinion is a naked declaration that "[t]his opinion and its holding are confined" to those couples "joined in same-sex marriages made lawful by the State." Ante, at 26, 25. I have heard such "bald, unreasoned disclaimer[s]" before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with "whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Id., at 578. Now we are told that DOMA is invalid because it "demeans the couple, whose moral and sexual choices the Constitution protects," ante, at 23 — with an accompanying citation of Lawrence. It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with. I do not mean to suggest disagreement with The Chief Justice's view, ante, p. 2-4 (dissenting opinion), that lower federal courts and state courts can distinguish today's case when the issue before them is state denial of marital status to same-sex couples — or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away. In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion. As I have said, the real rationale of today's opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by " 'bare . . . desire to harm' " couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today's opinion ante, at 22:"DOMA's This state law's principal effect is to identify a subset of state-sanctioned marriages constitution- ally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA this state law contrives to deprive some couples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities."Or try this passage, from ante, at 22-23:"[DOMA] This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, . . . ."Or this, from ante, at 23 — which does not even require alteration, except as to the invented number:"And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."Similarly transposable passages — deliberately transposable, I think — abound. In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the "personhood and dignity" which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures' irrational and hateful failure to acknowledge that "personhood and dignity" in the first place. Ante, at 26. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court's declaration that there is "no legitimate purpose" served by such a law, and will claim that the traditional definition has "the purpose and effect to disparage and to injure" the "personhood and dignity" of same-sex couples, see ante, at 25, 26. The majority's limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society's debate over marriage — a debate that can seem in need of our clumsy "help" only to a member of this institution. As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA's passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices — in other words, democracy. Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that "[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State") (approved by a popular vote, 61% to 39% on May 8, 2012),6 are offset by victories in other places for others, see Maryland Question 6 (establishing "that Maryland's civil marriage laws allow gay and lesbian couples to obtain a civil marriage license") (approved by a popular vote, 52% to 48%, on November 6, 2012).7 Even in a sin- gle State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting "the State of Maine to issue marriage licenses to same-sex couples") (approved by a popular vote, 53% to 47%, on November 6, 2012)8 with Maine Question 1 (rejecting "the new law that lets same-sex couples marry") (approved by a popular vote, 53% to 47%, on November 3, 2009).9 In the majority's telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one's political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today's Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.Alito, J., dissenting 570 U. S. ____ (2013)No. 12-307UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA SPYER, et al.on writ of certiorari to the united states court of appeals for the second circuit[June 26, 2013] Justice Alito, with whom Justice Thomas joins as to Parts II and III, dissenting. Our Nation is engaged in a heated debate about same-sex marriage. That debate is, at bottom, about the nature of the institution of marriage. Respondent Edith Windsor, supported by the United States, asks this Court to intervene in that debate, and although she couches her argument in different terms, what she seeks is a holding that enshrines in the Constitution a particular understanding of marriage under which the sex of the partners makes no difference. The Constitution, however, does not dictate that choice. It leaves the choice to the people, acting through their elected representatives at both the federal and state levels. I would therefore hold that Congress did not violate Windsor's constitutional rights by enacting §3 of the Defense of Marriage Act (DOMA), 110 Stat. 2419, which defines the meaning of marriage under federal statutes that either confer upon married persons certain federal benefits or impose upon them certain federal obligations.I I turn first to the question of standing. In my view, the United States clearly is not a proper petitioner in this case. The United States does not ask us to overturn the judgment of the court below or to alter that judgment in any way. Quite to the contrary, the United States argues emphatically in favor of the correctness of that judgment. We have never before reviewed a decision at the sole behest of a party that took such a position, and to do so would be to render an advisory opinion, in violation of Article III's dictates. For the reasons given in Justice Scalia's dissent, I do not find the Court's arguments to the contrary to be persuasive. Whether the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) has standing to petition is a much more difficult question. It is also a significantly closer question than whether the intervenors in Hol- lingsworth v. Perry, ante, p. ___ --which the Court also decides today — have standing to appeal. It is remarkable that the Court has simultaneously decided that the United States, which "receive[d] all that [it] ha[d] sought" below, Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980), is a proper petitioner in this case but that the intervenors in Hollingsworth, who represent the party that lost in the lower court, are not. In my view, both the Hollingsworth intervenors and BLAG have standing.1 A party invoking the Court's authority has a sufficient stake to permit it to appeal when it has " 'suffered an injury in fact' that is caused by 'the conduct complained of' and that 'will be redressed by a favorable decision.' " Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 5) (quoting Lujan v. Defenders of Wildlife). In the present case, the House of Representatives, which has authorized BLAG to represent its interests in this matter,2 suffered just such an injury. In INS v. Chadha, 462 U. S. 919 (1983), the Court held that the two Houses of Congress were "proper parties" to file a petition in defense of the constitutionality of the one-house veto statute, id., at 930, n. 5 (internal quotation marks omitted). Accordingly, the Court granted and decided petitions by both the Senate and the House, in addition to the Executive's petition. Id., at 919, n. . That the two Houses had standing to petition is not surprising: The Court of Appeals' decision in Chadha, by holding the one-house veto to be unconstitutional, had limited Congress' power to legislate. In discussing Article III standing, the Court suggested that Congress suffered a similar injury whenever federal legislation it had passed was struck down, noting that it had "long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional." Id., at 940. The United States attempts to distinguish Chadha on the ground that it "involved an unusual statute that vested the House and the Senate themselves each with special procedural rights — namely, the right effectively to veto Executive action." Brief for United States (jurisdiction) 36. But that is a distinction without a difference: just as the Court of Appeals decision that the Chadha Court affirmed impaired Congress' power by striking down the one-house veto, so the Second Circuit's decision here impairs Congress' legislative power by striking down an Act of Congress. The United States has not explained why the fact that the impairment at issue in Chadha was "special" or "procedural" has any relevance to whether Congress suffered an injury. Indeed, because legislating is Congress' central function, any impairment of that function is a more grievous injury than the impairment of a procedural add-on. The Court's decision in Coleman v. Miller, 307 U. S. 433 (1939), bolsters this conclusion. In Coleman, we held that a group of state senators had standing to challenge a lower court decision approving the procedures used to ratify an amendment to the Federal Constitution. We reasoned that the senators' votes — which would otherwise have carried the day — were nullified by that action. See id., at 438 ("Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes"); id., at 446 ("[W]e find no departure from principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision"). By striking down §3 of DOMA as unconstitutional, the Second Circuit effectively "held for naught" an Act of Congress. Just as the state-senator-petitioners in Coleman were necessary parties to the amendment's ratification, the House of Representatives was a necessary party to DOMA's passage; indeed, the House's vote would have been sufficient to prevent DOMA's repeal if the Court had not chosen to execute that repeal judicially. Both the United States and the Court-appointed amicus err in arguing that Raines v. Byrd, is to the contrary. In that case, the Court held that Members of Congress who had voted "nay" to the Line Item Veto Act did not have standing to challenge that statute in federal court. Raines is inapposite for two reasons. First, Raines dealt with individual Members of Congress and specifically pointed to the individual Members' lack of institutional endorsement as a sign of their standing problem: "We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit." Id., at 829; see also ibid., n. 10 (citing cases to the effect that "members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take" (internal quotation marks omitted)). Second, the Members in Raines — unlike the state senators in Coleman — were not the pivotal figures whose votes would have caused the Act to fail absent some challenged action. Indeed, it is telling that Raines characterized Coleman as standing "for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified." 521 U. S., at 823. Here, by contrast, passage by the House was needed for DOMA to become law. U. S. Const., Art. I, §7 (bicameralism and presentment requirements for legislation). I appreciate the argument that the Constitution confers on the President alone the authority to defend federal law in litigation, but in my view, as I have explained, that argument is contrary to the Court's holding in Chadha, and it is certainly contrary to the Chadha Court's endorsement of the principle that "Congress is the proper party to defend the validity of a statute" when the Executive refuses to do so on constitutional grounds. 462 U. S., at 940. See also 2 U. S. C. §288h(7) (Senate Legal Counsel shall defend the constitutionality of Acts of Congress when placed in issue).3 Accordingly, in the narrow category of cases in which a court strikes down an Act of Congress and the Executive declines to defend the Act, Congress both has standing to defend the undefended statute and is a proper party to do so.II Windsor and the United States argue that §3 of DOMA violates the equal protection principles that the Court has found in the Fifth Amendment's Due Process Clause. See Brief for Respondent Windsor (merits) 17-62; Brief for United States (merits) 16-54; cf. Bolling v. Sharpe, 347 U. S. 497 (1954). The Court rests its holding on related arguments. See ante, at 24-25. Same-sex marriage presents a highly emotional and important question of public policy — but not a difficult question of constitutional law. The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue. The Court has sometimes found the Due Process Clauses to have a substantive component that guarantees liberties beyond the absence of physical restraint. And the Court's holding that "DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution," ante, at 25, suggests that substantive due process may partially underlie the Court's decision today. But it is well established that any "substantive" component to the Due Process Clause protects only "those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition,' " Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997); Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) (referring to fundamental rights as those that are so "rooted in the traditions and conscience of our people as to be ranked as fundamental"), as well as " 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.' " Glucksberg, supra, at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325-326 (1937)). It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation's history and tradition. In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.4 What Windsor and the United States seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility. The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage — for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage — have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time. We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.5 There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. See, e.g., S. Girgis, R. Anderson, & R. George, What is Marriage? Man and Woman: A Defense 53-58 (2012); Finnis, Marriage: A Basic and Exigent Good, 91 The Monist 388, 398 (2008).6 Others think that recognition of same-sex marriage will fortify a now-shaky institution. See, e.g., A. Sullivan, Virtually Normal: An Argument About Homosexuality 202-203 (1996); J. Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America 94 (2004). At present, no one — including social scientists, philosophers, and historians — can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.III Perhaps because they cannot show that same-sex marriage is a fundamental right under our Constitution, Windsor and the United States couch their arguments in equal protection terms. They argue that §3 of DOMA discriminates on the basis of sexual orientation, that classifications based on sexual orientation should trigger a form of "heightened" scrutiny, and that §3 cannot survive such scrutiny. They further maintain that the governmental interests that §3 purports to serve are not sufficiently important and that it has not been adequately shown that §3 serves those interests very well. The Court's holding, too, seems to rest on "the equal protection guarantee of the Fourteenth Amendment," ante, at 25 — although the Court is careful not to adopt most of Windsor's and the United States' argument. In my view, the approach that Windsor and the United States advocate is misguided. Our equal protection framework, upon which Windsor and the United States rely, is a judicial construct that provides a useful mechanism for analyzing a certain universe of equal protection cases. But that framework is ill suited for use in evaluating the constitutionality of laws based on the traditional understanding of marriage, which fundamentally turn on what marriage is. Underlying our equal protection jurisprudence is the central notion that "[a] classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' " Reed v. Reed, 404 U. S. 71, 76 (1971) (quoting F. S. Royter Guano Co. v. Virginia, 253 U. S. 412, 415 (1920)). The modern tiers of scrutiny — on which Windsor and the United States rely so heavily — are a heuristic to help judges determine when classifications have that "fair and substantial relation to the object of the legislation." Reed, supra, at 76. So, for example, those classifications subject to strict scrutiny — i.e., classifications that must be "narrowly tailored" to achieve a "compelling" government interest, Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007) (internal quotation marks omitted)--are those that are "so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 440 (1985); cf. id., at 452-453 (Stevens, J., concurring) ("It would be utterly irrational to limit the franchise on the basis of height or weight; it is equally invalid to limit it on the basis of skin color. None of these attributes has any bearing at all on the citizen's willingness or ability to exercise that civil right"). In contrast, those characteristics subject to so-called intermediate scrutiny — i.e., those classifications that must be " 'substantially related' " to the achievement of "important governmental objective[s]," United States v. Virginia, 518 U. S. 515, 524 (1996); id., at 567 (Scalia, J., dissenting)--are those that are sometimes relevant considerations to be taken into account by legislators, but "generally provid[e] no sensible ground for different treatment," Cleburne, supra, at 440. For example, the Court has held that statutory rape laws that criminalize sexual intercourse with a woman under the age of 18 years, but place no similar liability on partners of underage men, are grounded in the very real distinction that "young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse." Michael M. v. Superior Court, Sonoma Cty., 450 U. S. 464, 471 (1981) (plurality opnion). The plurality reasoned that "[o]nly women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity." Ibid. In other contexts, however, the Court has found that classifications based on gender are "arbitrary," Reed, supra, at 76, and based on "outmoded notions of the relative capabilities of men and women," Cleburne, supra, at 441, as when a State provides that a man must always be preferred to an equally qualified woman when both seek to administer the estate of a deceased party, see Reed, supra, at 76-77. Finally, so-called rational-basis review applies to classifications based on "distinguishing characteristics relevant to interests the State has the authority to implement." Cleburne, supra, at 441. We have long recognized that "the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantages to various groups or persons." Romer v. Evans, 517 U. S. 620, 631 (1996). As a result, in rational-basis cases, where the court does not view the classification at issue as "inherently suspect," Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 218 (1995) (internal quotation marks omitted), "the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued." Cleburne, supra, at 441-442. In asking the Court to determine that §3 of DOMA is subject to and violates heightened scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools. By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage. The first and older view, which I will call the "traditional" or "conjugal" view, sees marriage as an intrinsically opposite-sex institution. BLAG notes that virtually every culture, including many not influenced by the Abrahamic religions, has limited marriage to people of the opposite sex. Brief for Respondent BLAG (merits) 2 (citing Hernandez v. Robles, 7 N. Y. 3d 338, 361, 855 N. E. 2d 1, 8 (2006) ("Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex")). And BLAG attempts to explain this phenomenon by arguing that the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing. Brief for Respondent BLAG 44-46, 49. Others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so. See, e.g., Girgis, Anderson, & George, What is Marriage? Man and Woman: A Defense, at 23-28. While modern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship. The other, newer view is what I will call the "consent-based" vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment — marked by strong emotional attachment and sexual attraction — between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank discrimination. The Constitution does not codify either of these views of marriage (although I suspect it would have been hard at the time of the adoption of the Constitution or the Fifth Amendment to find Americans who did not take the traditional view for granted). The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned. Yet, Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore.7 Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence. Legislatures, however, have little choice but to decide between the two views. We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. See, e.g., Rust v. Sullivan, 500 U. S. 173, 192 (1991) ("[T]he government 'may make a value judgment favoring childbirth over abortion' " (quoting Maher v. Rue, 432 U. S. 464, 474 (1977))). Accordingly, both Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage. And given the size of government and the degree to which it now regulates daily life, it seems unlikely that either Congress or the States could maintain complete neutrality even if they tried assiduously to do so. Rather than fully embracing the arguments made by Windsor and the United States, the Court strikes down §3 of DOMA as a classification not properly supported by its objectives. The Court reaches this conclusion in part because it believes that §3 encroaches upon the States' sovereign prerogative to define marriage. See ante, at 21-22 ("As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted. The congressional goal was 'to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws' " (quoting Massachusetts v. United States Dept. of Health and Human Servs., 682 F. 3d 1, 12-13 (CA1 2012))). Indeed, the Court's ultimate conclusion is that DOMA falls afoul of the Fifth Amendment because it "singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty" and "imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper." Ante, at 25 (emphasis added). To the extent that the Court takes the position that the question of same-sex marriage should be resolved primarily at the state level, I wholeheartedly agree. I hope that the Court will ultimately permit the people of each State to decide this question for themselves. Unless the Court is willing to allow this to occur, the whiffs of federalism in the today's opinion of the Court will soon be scattered to the wind. In any event, §3 of DOMA, in my view, does not encroach on the prerogatives of the States, assuming of course that the many federal statutes affected by DOMA have not already done so. Section 3 does not prevent any State from recognizing same-sex marriage or from extending to same-sex couples any right, privilege, benefit, or obligation stemming from state law. All that §3 does is to define a class of persons to whom federal law extends certain special benefits and upon whom federal law imposes certain special burdens. In these provisions, Congress used marital status as a way of defining this class — in part, I assume, because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment. Assuming that Congress has the power under the Constitution to enact the laws affected by §3, Congress has the power to define the category of persons to whom those laws apply. * * For these reasons, I would hold that §3 of DOMA does not violate the Fifth Amendment. I respectfully dissent.FOOTNOTESFootnote 1 For an even more advanced scavenger hunt, one might search the annals of Anglo-American law for another "Motion to Dismiss" like the one the United States filed in District Court: It argued that the court should agree "with Plaintiff and the United States" and "not dismiss" the complaint. (Emphasis mine.) Then, having gotten exactly what it asked for, the United States promptly appealed.Footnote 2 There the Justice Department's refusal to defend the legislation was in accord with its longstanding (and entirely reasonable) practice of declining to defend legislation that in its view infringes upon Presidential powers. There is no justification for the Justice Department's abandoning the law in the present case. The majority opinion makes a point of scolding the President for his "failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions," ante, at 12. But the rebuke is tongue-in-cheek, for the majority gladly gives the President what he wants. Contrary to all precedent, it decides this case (and even decides it the way the President wishes) despite his abandonment of the defense and the consequent absence of a case or controversy.Footnote 3 Justice Alito attempts to limit his argument by claiming that Congress is injured (and can therefore appeal) when its statute is held unconstitutional without Presidential defense, but is not injured when its statute is held unconstitutional despite Presidential defense. I do not understand that line. The injury to Congress is the same whether the President has defended the statute or not. And if the injury is threatened, why should Congress not be able to participate in the suit from the beginning, just as the President can? And if having a statute declared unconstitutional (and therefore inoperative) by a court is an injury, why is it not an injury when a statute is declared unconstitutional by the President and rendered inoperative by his consequent failure to enforce it? Or when the President simply declines to enforce it without opining on its constitutionality? If it is the inoperativeness that constitutes the injury — the "impairment of [the legislative] function," as Justice Alito puts it, post, at 4 — it should make no difference which of the other two branches inflicts it, and whether the Constitution is the pretext. A principled and predictable system of jurisprudence cannot rest upon a shifting concept of injury, designed to support standing when we would like it. If this Court agreed with Justice Alito's distinction, its opinion in Raines v. Byrd, 521 U. S. 811 (1997), which involved an original suit by Members of Congress challenging an assertedly unconstitutional law, would have been written quite differently; and Justice Alito's distinguishing of that case on grounds quite irrelevant to his theory of standing would have been unnecessary.Footnote 4 Such a suggestion would be impossible, given the Federal Government's long history of making pronouncements regarding marriage — for example, conditioning Utah's entry into the Union upon its prohibition of polygamy. See Act of July 16, 1894, ch. 138, §3, 28 Stat. 108 ("The constitution [of Utah]" must provide "perfect toleration of religious sentiment," "Provided, That polygamous or plural marriages are forever prohibited").Footnote 5 Since the Equal Protection Clause technically applies only against the States, see U. S. Const., Amdt. 14, Bolling and Moreno, dealing with federal action, relied upon "the equal protection component of the Due Process Clause of the Fifth Amendment," Moreno, 413 U. S., at 533.Footnote 6 North Carolina State Board of Elections, Official Results: Primary Election of May 8, 2012, Constitutional Amendment.Footnote 7 Maryland State Board of Elections, Official 2012 Presidential General Election Results for All State Questions, Question 06. Footnote 8 Maine Bureau of Elections, Nov. 3, 2009, Referendum Tabulation (Question 1).Footnote 9 Maine Bureau of Elections, Nov. 6, 2012, Referendum Election Tabulations (Question 1).FOOTNOTESFootnote 1 Our precedents make clear that, in order to support our jurisdiction, BLAG must demonstrate that it had Article III standing in its own right, quite apart from its status as an intervenor. See Diamond v. Charles ("Although intervenors are considered parties entitled, among other things, to seek review by this Court, an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III" (citation omitted)); Arizonans for Official English v. Arizona ("Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess a direct stake in the outcome" (internal quotation marks omitted)); id., at 65 ("An intervenor cannot step into the shoes of the original party unless the intervenor independently fulfills the requirements of Article III" (internal quotation marks omitted)).Footnote 2 H. Res. 5, 113th Cong., 1st Sess., §4(a)(1)(B) (2013) ("[BLAG] continues to speak for, and articulates the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States").Footnote 3 Buckley v. Valeo, 424 U. S. 1 (1976), is not to the contrary. The Court's statements there concerned enforcement, not defense. Footnote 4 Curry-Sumner, A Patchwork of Partnerships: Comparative Overview of Registration Schemes in Europe, in Legal Recognition of Same-Sex Partnerships 71, 72 (K. Boele-Woelki & A. Fuchs eds., rev. 2d ed., 2012).Footnote 5 As sociologists have documented, it sometimes takes decades to doc-ument the effects of social changes — like the sharp rise in divorce rates following the advent of no-fault divorce — on children and society. See generally J. Wallerstein, J. Lewis, & S. Blakeslee, The Unexpected Legacy of Divorce: The 25 Year Landmark Study (2000).Footnote 6 Among those holding that position, some deplore and some applaud this predicted development. Compare, e.g., Wardle, "Multiply and Replenish": Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J. L. & Pub. Pol'y 771, 799 (2001) ("Culturally, the legalization of same-sex marriage would send a message that would undermine the social boundaries relating to marriage and family relations. The confusion of social roles linked with marriage and parenting would be tremendous, and the message of 'anything goes' in the way of sexual behavior, procreation, and parenthood would wreak its greatest havoc among groups of vulnerable individuals who most need the encouragement of bright line laws and clear social mores concerning procreative responsibility") and Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L. J. 33, 58 (2005) ("If the idea of marriage really does matter — if society really does need a social institution that manages opposite-sex attractions in the interests of children and society — then taking an already weakened social institution, subjecting it to radical new redefinitions, and hoping that there are no consequences is probably neither a wise nor a compassionate idea"), with Brownworth, Something Borrowed, Something Blue: Is Marriage Right for Queers? in I Do/I Don't: Queers on Marriage 53, 58-59 (G. Wharton & I. Phillips eds. 2004) (Former President George W. "Bush is correct . . . when he states that allowing same-sex couples to marry will weaken the institution of marriage. It most certainly will do so, and that will make marriage a far better concept than it previously has been") and Willis, Can Marriage Be Saved? A Forum, The Nation, p. 16 (2004) (celebrating the fact that "conferring the legitimacy of marriage on homosexual relations will introduce an implicit revolt against the institution into its very heart").Footnote 7 The degree to which this question is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry, ante, p. ___. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make "findings of fact" on such questions as why marriage came to be, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) ("Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family"), what marriage is, id., at 961 (finding of fact no. 34) ("Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents"), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55) ("Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages").At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09-2292 VRW (ND Cal.), pp. 3038-3039. And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge's findings — including those on major philosophical questions and predictions about the future — unless they are "clearly erroneous." See Brief for Constitutional Law and Civil Procedure Professors as Amici Curiae in Hollingsworth v. Perry, O. T. 2012, No. 12-144, pp. 2-3 ("[T]he district court's factual findings are compelling and should be given significant weight"); id., at 25 ("Under any standard of review, this Court should credit and adopt the trial court's findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts"). Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.
5	Petitioners, minority shareholders of respondent Electric Auto-Lite Co., brought this action derivatively and on behalf of minority shareholders as a class to set aside a merger of Auto-Lite and the Mergenthaler Linotype Co. (which before the merger owned over half of Auto-Lite's stock). Petitioners charged that the proxy solicitation for the merger by Auto-Lite's management was materially misleading and violated 14 (a) of the Securities Exchange Act of 1934 and Rule 14a-9 thereunder in that the merger was recommended to Auto-Lite's shareholders by that company's directors without their disclosing that they were all nominees of and controlled by Mergenthaler. The District Court on petitioners' motion for summary judgment ruled that the claimed defect in the proxy statement was a material omission, and after a hearing concluded that without the votes of minority stockholders approval of the merger could not have been achieved and that a causal relationship had thus been shown between the finding of a 14 (a) violation and the alleged injury to petitioners. The court referred the case to a master to consider appropriate relief. On interlocutory appeal, the Court of Appeals affirmed the conclusion that the proxy statement was materially deficient but held that the granting of summary judgment with respect to causation was erroneous and that it was necessary to resolve at trial whether there was a causal relationship between the deficiency in the proxy statement and the merger. Finding that causation could not be directly established because of the impracticalities of determining how many votes were affected, the court ruled that the issue was to be determined by proof of fairness of the merger; and if the respondents could prove fairness it could be concluded that a sufficient number of shareholders would have approved the merger regardless of the misrepresentation. Held: 1. Fairness of the merger terms does not constitute a defense to a private action for violation of 14 (a) of the Act complaining of materially misleading solicitation of proxies that authorized a corporate merger. Pp. 381-385. (a) Permitting liability to be foreclosed on the basis of a finding that the merger was fair would contravene the purpose of 14 (a) by bypassing the stockholders. Pp. 381-382. (b) Imposing on small shareholders the burden of rebutting the corporation's evidence of fairness would discourage them from the private enforcement of proxy rules that "provides a necessary supplement to Commission action." J. I. Case Co. v. Borak, . Pp. 382-383. (c) The evidence submitted at the hearing as to the causal relationship between the proxy material and the merger was sufficient to establish petitioners' cause of action. P. 383. (d) Where, as here, there was proof that the misstatement or omission in the proxy statement was material, this showing that the defect might have been considered important in shaping the shareholders' vote is sufficient without proof, which the Court of Appeals erroneously held was necessary, that its effect was decisive. Pp. 384-385. 2. In devising retrospective relief for violation of the proxy rules the federal courts should be guided by the principles of equity. Pp. 386-389. (a) The fairness of the merger may be a relevant consideration in determining the appropriate relief, and the merger should be set aside only if a court of equity concludes from all the circumstances that it would be equitable to do so. Pp. 386-388. (b) Damages should be recoverable here only to the extent that they can be proved. Pp. 388-389. 3. Petitioners, who have established a violation of the securities laws by their corporation and its officials, are entitled to an interim award of litigation expenses and reasonable attorneys' fees incurred in proving the violation, since the expenses petitioners incurred were for the benefit of the corporation and the other stockholders. The Court does not decide the further question of reimbursement for litigation expenses incurred in any ensuing proceedings. Pp. 389-397. 403 F.2d 429, vacated and remanded.Arnold I. Shure argued the cause for petitioners. With him on the briefs were Robert A. Sprecher, Edward N. Gadsby, and Mozart G. Ratner. Albert E. Jenner, Jr., argued the cause for respondents. With him on the brief were Jerold S. Solovy and John G. Stifler.Solicitor General Griswold, Lawrence G. Wallace, Philip A. Loomis, Jr., David Ferber, and Meyer Eisenberg filed a brief for the United States as amicus curiae.MR. JUSTICE HARLAN delivered the opinion of the Court.This case requires us to consider a basic aspect of the implied private right of action for violation of 14 (a) of the Securities Exchange Act of 1934,1 recognized by this Court in J. I. Case Co. v. Borak, . As in Borak the asserted wrong is that a corporate merger was accomplished through the use of a proxy statement that was materially false or misleading. The question with which we deal is what causal relationship must be shown between such a statement and the merger to establish a cause of action based on the violation of the Act. I Petitioners were shareholders of the Electric Auto-Lite Company until 1963, when it was merged into Mergenthaler Linotype Company. They brought suit on the day before the shareholders' meeting at which the vote was to take place on the merger, against Auto-Lite, Mergenthaler, and a third company, American Manufacturing Company, Inc. The complaint sought an injunction against the voting by Auto-Lite's management of all proxies obtained by means of an allegedly misleading proxy solicitation; however, it did not seek a temporary restraining order, and the voting went ahead as scheduled the following day. Several months later petitioners filed an amended complaint, seeking to have the merger set aside and to obtain such other relief as might be proper.In Count II of the amended complaint, which is the only count before us,2 petitioners predicated jurisdiction on 27 of the 1934 Act, 15 U.S.C. 78aa. They alleged that the proxy statement sent out by the Auto-Lite management to solicit shareholders' votes in favor of the merger was misleading, in violation of 14 (a) of the Act and SEC Rule 14a-9 thereunder. (17 CFR 240.14a-9.) Petitioners recited that before the merger Mergenthaler owned over 50% of the outstanding shares of Auto-Lite common stock, and had been in control of Auto-Lite for two years. American Manufacturing in turn owned about one-third of the outstanding shares of Mergenthaler, and for two years had been in voting control of Mergenthaler and, through it, of Auto-Lite. Petitioners charged that in light of these circumstances the proxy statement was misleading in that it told Auto-Lite shareholders that their board of directors recommended approval of the merger without also informing them that all 11 of Auto-Lite's directors were nominees of Mergenthaler and were under the "control and domination of Mergenthaler." Petitioners asserted the right to complain of this alleged violation both derivatively on behalf of Auto-Lite and as representatives of the class of all its minority shareholders.On petitioners' motion for summary judgment with respect to Count II, the District Court for the Northern District of Illinois ruled as a matter of law that the claimed defect in the proxy statement was, in light of the circumstances in which the statement was made, a material omission. The District Court concluded, from its reading of the Borak opinion, that it had to hold a hearing on the issue whether there was "a causal connection between the finding that there has been a violation of the disclosure requirements of 14 (a) and the alleged injury to the plaintiffs" before it could consider what remedies would be appropriate. (Unreported opinion dated February 14, 1966.)After holding such a hearing, the court found that under the terms of the merger agreement, an affirmative vote of two-thirds of the Auto-Lite shares was required for approval of the merger, and that the respondent companies owned and controlled about 54% of the outstanding shares. Therefore, to obtain authorization of the merger, respondents had to secure the approval of a substantial number of the minority shareholders. At the stockholders' meeting, approximately 950,000 shares, out of 1,160,000 shares outstanding, were voted in favor of the merger. This included 317,000 votes obtained by proxy from the minority shareholders, votes that were "necessary and indispensable to the approval of the merger." The District Court concluded that a causal relationship had thus been shown, and it granted an interlocutory judgment in favor of petitioners on the issue of liability, referring the case to a master for consideration of appropriate relief. (Unreported findings and conclusions dated Sept. 26, 1967; opinion reported at 281 F. Supp. 826 (1967)).The District Court made the certification required by 28 U.S.C. 1292 (b), and respondents took an interlocutory appeal to the Court of Appeals for the Seventh Circuit.3 That court affirmed the District Court's conclusion that the proxy statement was materially deficient, but reversed on the question of causation. The court acknowledged that, if an injunction had been sought a sufficient time before the stockholders' meeting, "corrective measures would have been appropriate." 403 F.2d 429, 435 (1968). However, since this suit was brought too late for preventive action, the courts had to determine "whether the misleading statement and omission caused the submission of sufficient proxies," as a prerequisite to a determination of liability under the Act. If the respondents could show, "by a preponderance of probabilities, that the merger would have received a sufficient vote even if the proxy statement had not been misleading in the respect found," petitioners would be entitled to no relief of any kind. Id., at 436.The Court of Appeals acknowledged that this test corresponds to the common-law fraud test of whether the injured party relied on the misrepresentation. However, rightly concluding that "[r]eliance by thousands of individuals, as here, can scarcely be inquired into" (id., at 436 n. 10), the court ruled that the issue was to be determined by proof of the fairness of the terms of the merger. If respondents could show that the merger had merit and was fair to the minority shareholders, the trial court would be justified in concluding that a sufficient number of shareholders would have approved the merger had there been no deficiency in the proxy statement. In that case respondents would be entitled to a judgment in their favor.Claiming that the Court of Appeals has construed this Court's decision in Borak in a manner that frustrates the statute's policy of enforcement through private litigation, the petitioners then sought review in this Court. We granted certiorari, , believing that resolution of this basic issue should be made at this stage of the litigation and not postponed until after a trial under the Court of Appeals' decision.4 II As we stressed in Borak, 14 (a) stemmed from a congressional belief that "[f]air corporate suffrage is an important right that should attach to every equity security bought on a public exchange." H. R. Rep. No. 1383, 73d Cong., 2d Sess., 13. The provision was intended to promote "the free exercise of the voting rights of stockholders" by ensuring that proxies would be solicited with "explanation to the stockholder of the real nature of the questions for which authority to cast his vote is sought." Id., at 14; S. Rep. No. 792, 73d Cong., 2d Sess., 12; see 377 U.S., at 431. The decision below, by permitting all liability to be foreclosed on the basis of a finding that the merger was fair, would allow the stockholders to be bypassed, at least where the only legal challenge to the merger is a suit for retrospective relief after the meeting has been held. A judicial appraisal of the merger's merits could be substituted for the actual and informed vote of the stockholders. The result would be to insulate from private redress an entire category of proxy violations - those relating to matters other than the terms of the merger. Even outrageous misrepresentations in a proxy solicitation, if they did not relate to the terms of the transaction, would give rise to no cause of action under 14 (a). Particularly if carried over to enforcement actions by the Securities and Exchange Commission itself, such a result would subvert the congressional purpose of ensuring full and fair disclosure to shareholders.Further, recognition of the fairness of the merger as a complete defense would confront small shareholders with an additional obstacle to making a successful challenge to a proposal recommended through a defective proxy statement. The risk that they would be unable to rebut the corporation's evidence of the fairness of the proposal, and thus to establish their cause of action, would be bound to discourage such shareholders from the private enforcement of the proxy rules that "provides a necessary supplement to Commission action." J. I. Case Co. v. Borak, 377 U.S., at 432.5 Such a frustration of the congressional policy is not required by anything in the wording of the statute or in our opinion in the Borak case. Section 14 (a) declares it "unlawful" to solicit proxies in contravention of Commission rules, and SEC Rule 14a-9 prohibits solicitations "containing any statement which ... is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading ... ." Use of a solicitation that is materially misleading is itself a violation of law, as the Court of Appeals recognized in stating that injunctive relief would be available to remedy such a defect if sought prior to the stockholders' meeting. In Borak, which came to this Court on a dismissal of the complaint, the Court limited its inquiry to whether a violation of 14 (a) gives rise to "a federal cause of action for rescission or damages," 377 U.S., at 428. Referring to the argument made by petitioners there "that the merger can be dissolved only if it was fraudulent or non-beneficial, issues upon which the proxy material would not bear," the Court stated: "But the causal relationship of the proxy material and the merger are questions of fact to be resolved at trial, not here. We therefore do not discuss this point further." Id., at 431. In the present case there has been a hearing specifically directed to the causation problem. The question before the Court is whether the facts found on the basis of that hearing are sufficient in law to establish petitioners' cause of action, and we conclude that they are. Where the misstatement or omission in a proxy statement has been shown to be "material," as it was found to be here, that determination itself indubitably embodies a conclusion that the defect was of such a character that it might have been considered important by a reasonable shareholder who was in the process of deciding how to vote.6 This requirement that the defect have a significant propensity to affect the voting process is found in the express terms of Rule 14a-9, and it adequately serves the purpose of ensuring that a cause of action cannot be established by proof of a defect so trivial, or so unrelated to the transaction for which approval is sought, that correction of the defect or imposition of liability would not further the interests protected by 14 (a).There is no need to supplement this requirement, as did the Court of Appeals, with a requirement of proof of whether the defect actually had a decisive effect on the voting. Where there has been a finding of materiality, a shareholder has made a sufficient showing of causal relationship between the violation and the injury for which he seeks redress if, as here, he proves that the proxy solicitation itself, rather than the particular defect in the solicitation materials, was an essential link in the accomplishment of the transaction. This objective test will avoid the impracticalities of determining how many votes were affected, and, by resolving doubts in favor of those the statute is designed to protect, will effectuate the congressional policy of ensuring that the shareholders are able to make an informed choice when they are consulted on corporate transactions. Cf. Union Pac. R. Co. v. Chicago & N. W. R. Co., 226 F. Supp. 400, 411 (D.C. N. D. Ill. 1964); 2 L. Loss, Securities Regulation 962 n. 411 (2d ed. 1961); 5 id., at 2929-2930 (Supp. 1969).7 III Our conclusion that petitioners have established their case by showing that proxies necessary to approval of the merger were obtained by means of a materially misleading solicitation implies nothing about the form of relief to which they may be entitled. We held in Borak that upon finding a violation the courts were "to be alert to provide such remedies as are necessary to make effective the congressional purpose," noting specifically that such remedies are not to be limited to prospective relief. 377 U.S., at 433, 434. In devising retrospective relief for violation of the proxy rules, the federal courts should consider the same factors that would govern the relief granted for any similar illegality or fraud. One important factor may be the fairness of the terms of the merger. Possible forms of relief will include setting aside the merger or granting other equitable relief, but, as the Court of Appeals below noted, nothing in the statutory policy "requires the court to unscramble a corporate transaction merely because a violation occurred." 403 F.2d, at 436. In selecting a remedy the lower courts should exercise "`the sound discretion which guides the determinations of courts of equity,'" keeping in mind the role of equity as "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, , quoting from Meredith v. Winter Haven, .We do not read 29 (b) of the Act,8 which declares contracts made in violation of the Act or a rule thereunder "void ... as regards the rights of" the violator and knowing successors in interest, as requiring that the merger be set aside simply because the merger agreement is a "void" contract. This language establishes that the guilty party is precluded from enforcing the contract against an unwilling innocent party,9 but it does not compel the conclusion that the contract is a nullity, creating no enforceable rights even in a party innocent of the violation. The lower federal courts have read 29 (b), which has counterparts in the Holding Company Act, the Investment Company Act, and the Investment Advisers Act,10 as rendering the contract merely voidable at the option of the innocent party. See, e. g., Greater Iowa Corp. v. McLendon, 378 F.2d 783, 792 (C. A. 8th Cir. 1967); Royal Air Properties, Inc. v. Smith, 312 F.2d 210, 213 (C. A. 9th Cir. 1962); Bankers Life & Cas. Co. v. Bellanca Corp., 288 F.2d 784, 787 (C. A. 7th Cir. 1961); Kaminsky v. Abrams, 281 F. Supp. 501, 507 (D.C. S. D. N. Y. 1968); Maher v. J. R. Williston & Beane, Inc., 280 F. Supp. 133, 138-139 (D.C. S. D. N. Y. 1967); cf. Green v. Brown, 276 F. Supp. 753, 757 (D.C. S. D. N. Y. 1967), remanded on other grounds, 398 F.2d 1006 (C. A. 2d Cir. 1968) (Investment Company Act). See also 5 Loss, supra, at 2925-2926 (Supp. 1969); 6 id., at 3866. This interpretation is eminently sensible. The interests of the victim are sufficiently protected by giving him the right to rescind; to regard the contract as void where he has not invoked that right would only create the possibility of hardships to him or others without necessarily advancing the statutory policy of disclosure.The United States, as amicus curiae, points out that as representatives of the minority shareholders, petitioners are not parties to the merger agreement and thus do not enjoy a statutory right under 29 (b) to set it aside.11 Furthermore, while they do have a derivative right to invoke Auto-Lite's status as a party to the agreement, a determination of what relief should be granted in Auto-Lite's name must hinge on whether setting aside the merger would be in the best interests of the shareholders as a whole. In short, in the context of a suit such as this one, 29 (b) leaves the matter of relief where it would be under Borak without specific statutory language - the merger should be set aside only if a court of equity concludes, from all the circumstances, that it would be equitable to do so. Cf. SEC v. National Securities, Inc., , 463-464 (1969).Monetary relief will, of course, also be a possibility. Where the defect in the proxy solicitation relates to the specific terms of the merger, the district court might appropriately order an accounting to ensure that the shareholders receive the value that was represented as coming to them. On the other hand, where, as here, the misleading aspect of the solicitation did not relate to terms of the merger, monetary relief might be afforded to the shareholders only if the merger resulted in a reduction of the earnings or earnings potential of their holdings. In short, damages should be recoverable only to the extent that they can be shown. If commingling of the assets and operations of the merged companies makes it impossible to establish direct injury from the merger, relief might be predicated on a determination of the fairness of the terms of the merger at the time it was approved. These questions, of course, are for decision in the first instance by the District Court on remand, and our singling out of some of the possibilities is not intended to exclude others. IV Although the question of relief must await further proceedings in the District Court, our conclusion that petitioners have established their cause of action indicates that the Court of Appeals should have affirmed the partial summary judgment on the issue of liability.12 The result would have been not only that respondents, rather than petitioners, would have borne the costs of the appeal, but also, we think, that petitioners would have been entitled to an interim award of litigation expenses and reasonable attorneys' fees. Cf. Highway Truck Drivers Local 107 v. Cohen, 220 F. Supp. 735 (D.C. E. D. Pa. 1963). We agree with the position taken by petitioners, and by the United States as amicus, that petitioners, who have established a violation of the securities laws by their corporation and its officials, should be reimbursed by the corporation or its survivor for the costs of establishing the violation.13 The absence of express statutory authorization for an award of attorneys' fees in a suit under 14 (a) does not preclude such an award in cases of this type. In a suit by stockholders to recover short-swing profits for their corporation under 16 (b) of the 1934 Act, the Court of Appeals for the Second Circuit has awarded attorneys' fees despite the lack of any provision for them in 16 (b), "on the theory that the corporation which has received the benefit of the attorney's services should pay the reasonable value thereof." Smolowe v. Delendo Corp., 136 F.2d 231, 241 (C. A. 2d Cir. 1943). The court held that Congress' inclusion in 9 (e) and 18 (a) of the Act of express provisions for recovery of attorneys' fees in certain other types of suits14 "does not impinge [upon] the result we reach in the absence of statute, for those sections merely enforce an additional penalty against the wrongdoer." Ibid.We agree with the Second Circuit that the specific provisions in 9 (e) and 18 (a) should not be read as denying to the courts the power to award counsel fees in suits under other sections of the Act when circumstances make such an award appropriate, any more than the express creation by those sections of private liabilities negates the possibility of an implied right of action under 14 (a). The remedial provisions of the 1934 Act are far different from those of the Lanham Act, 35, 60 Stat. 439, 15 U.S.C. 1117, which have been held to preclude an award of attorneys' fees in a suit for trademark infringement. Fleischmann Corp. v. Maier Brewing Co., . Since Congress in the Lanham Act had "meticulously detailed the remedies available to a plaintiff who proves that his valid trademark has been infringed," the Court in Fleischmann concluded that the express remedial provisions were intended "to mark the boundaries of the power to award monetary relief in cases arising under the Act." 386 U.S., at 719, 721. By contrast, we cannot fairly infer from the Securities Exchange Act of 1934 a purpose to circumscribe the courts' power to grant appropriate remedies. Cf. Bakery Workers Union v. RatnerApp. D.C. 269, 274-275, 335 F.2d 691, 696-697 (1964). The Act makes no provision for private recovery for a violation of 14 (a), other than the declaration of "voidness" in 29 (b), leaving the courts with the task, faced by this Court in Borak, of deciding whether a private right of action should be implied. The courts must similarly determine whether the special circumstances exist that would justify an award of attorneys' fees, including reasonable expenses of litigation other than statutory costs.15 While the general American rule is that attorneys' fees are not ordinarily recoverable as costs, both the courts and Congress have developed exceptions to this rule for situations in which overriding considerations indicate the need for such a recovery.16 A primary judge-created exception has been to award expenses where a plaintiff has successfully maintained a suit, usually on behalf of a class, that benefits a group of others in the same manner as himself. See Fleischmann Corp. v. Maier Brewing Co., 386 U.S., at 718-719. To allow the others to obtain full benefit from the plaintiff's efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff's expense. This suit presents such a situation. The dissemination of misleading proxy solicitations was a "deceit practiced on the stockholders as a group," J. I. Case Co. v. Borak, 377 U.S., at 432, and the expenses of petitioners' lawsuit have been incurred for the benefit of the corporation and the other shareholders.The fact that this suit has not yet produced, and may never produce, a monetary recovery from which the fees could be paid does not preclude an award based on this rationale. Although the earliest cases recognizing a right to reimbursement involved litigation that had produced or preserved a "common fund" for the benefit of a group, nothing in these cases indicates that the suit must actually bring money into the court as a prerequisite to the court's power to order reimbursement of expenses.17 "[T]he foundation for the historic practice of granting reimbursement for the costs of litigation other than the conventional taxable costs is part of the original authority of the chancellor to do equity in a particular situation." Sprague v. Ticonic Nat. Bank, . This Court in Sprague upheld the District Court's power to grant reimbursement for a plaintiff's litigation expenses even though she had sued only on her own behalf and not for a class, because her success would have a stare decisis effect entitling others to recover out of specific assets of the same defendant. Although those others were not parties before the court, they could be forced to contribute to the costs of the suit by an order reimbursing the plaintiff from the defendant's assets out of which their recoveries later would have to come. The Court observed that "the absence of an avowed class suit or the creation of a fund, as it were, through stare decisis rather than through a decree - hardly touch[es] the power of equity in doing justice as between a party and the beneficiaries of his litigation." Id., at 167.Other cases have departed further from the traditional metes and bounds of the doctrine, to permit reimbursement in cases where the litigation has conferred a substantial benefit on the members of an ascertainable class, and where the court's jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them. This development has been most pronounced in shareholders' derivative actions, where the courts increasingly have recognized that the expenses incurred by one shareholder in the vindication of a corporate right of action can be spread among all shareholders through an award against the corporation, regardless of whether an actual money recovery has been obtained in the corporation's favor.18 For example, awards have been sustained in suits by stockholders complaining that shares of their corporation had been issued wrongfully for an inadequate consideration.19 A successful suit of this type, resulting in cancellation of the shares, does not bring a fund into court or add to the assets of the corporation, but it does benefit the holders of the remaining shares by enhancing their value. Similarly, holders of voting trust certificates have been allowed reimbursement of their expenses from the corporation where they succeeded in terminating the voting trust and obtaining for all certificate holders the right to vote their shares.20 In these cases there was a "common fund" only in the sense that the court's jurisdiction over the corporation as nominal defendant made it possible to assess fees against all of the shareholders through an award against the corporation.21 In many of these instances the benefit conferred is capable of expression in monetary terms, if only by estimating the increase in market value of the shares attributable to the successful litigation. However, an increasing number of lower courts have acknowledged that a corporation may receive a "substantial benefit" from a derivative suit, justifying an award of counsel fees, regardless of whether the benefit is pecuniary in nature.22 A leading case is Bosch v. Meeker Cooperative Light & Power Assn., 257 Minn. 362, 101 N. W. 2d 423 (1960), in which a stockholder was reimbursed for his expenses in obtaining a judicial declaration that the election of certain of the corporation's directors was invalid. The Supreme Court of Minnesota stated:"Where an action by a stockholder results in a substantial benefit to a corporation he should recover his costs and expenses... . [A] substantial benefit must be something more than technical in its consequence and be one that accomplishes a result which corrects or prevents an abuse which would be prejudicial to the rights and interests of the corporation or affect the enjoyment or protection of an essential right to the stockholder's interest." Id., at 366-367, 101 N. W. 2d, at 426-427. In many suits under 14 (a), particularly where the violation does not relate to the terms of the transaction for which proxies are solicited, it may be impossible to assign monetary value to the benefit. Nevertheless, the stress placed by Congress on the importance of fair and informed corporate suffrage leads to the conclusion that, in vindicating the statutory policy, petitioners have rendered a substantial service to the corporation and its shareholders. Cf. Bakery Workers Union v. RatnerApp. D.C. 269, 274, 335 F.2d 691, 696 (1964). Whether petitioners are successful in showing a need for significant relief may be a factor in determining whether a further award should later be made. But regardless of the relief granted, private stockholders' actions of this sort "involve corporate therapeutics,"23 and furnish a benefit to all shareholders by providing an important means of enforcement of the proxy statute.24 To award attorneys' fees in such a suit to a plaintiff who has succeeded in establishing a cause of action is not to saddle the unsuccessful party with the expenses but to impose them on the class that has benefited from them and that would have had to pay them had it brought the suit.For the foregoing reasons we conclude that the judgment of the Court of Appeals should be vacated and the case remanded to that court for further proceedings consistent with this opinion. It is so ordered.
2	An injunction issued by a state court, prohibiting, as the unlawful solicitation of litigation and the unauthorized practice of law, a labor union from advising injured members or their dependents to obtain legal assistance before settling claims and recommending specific lawyers to handle such claims, infringes rights guaranteed by the First and Fourteenth Amendments. NAACP v. Button, , followed. Judgment and decree vacated, and case remandedBeecher E. Stallard and John J. Naughton argued the cause for petitioner. With them on the briefs were Edward B. Henslee and Arnold Elkind.Aubrey R. Bowles, Jr. argued the cause for respondent. With him on the brief was Aubrey R. Bowles III.Wayland B. Cedarquist, Holcombe H. Perry, Warren H. Resh and Earl Sneed filed a brief for the American Bar Association, as amicus curiae, urging affirmance.MR. JUSTICE BLACK delivered the opinion of the Court.The Virginia State Bar brought this suit in the Chancery Court of the City of Richmond, Virginia, against the Brotherhood of Railroad Trainmen, an investigator employed by the Brotherhood, and an attorney designated its "Regional Counsel," to enjoin them from carrying on activities which, the Bar charged, constituted the solicitation of legal business and the unauthorized practice of law in Virginia.1 It was conceded that in order to assist the prosecution of claims by injured railroad workers or by the families of workers killed on the job the Brotherhood maintains in Virginia and throughout the country a Department of Legal Counsel which recommends to Brotherhood members and their families the names of lawyers whom the Brotherhood believes to be honest and competent. Finding that the Brotherhood's plan resulted in "channeling all, or substantially all," the workers' claims to lawyers chosen by the Department of Legal Counsel, the court issued an injunction against the Brotherhood's carrying out its plan in Virginia. The Supreme Court of Appeals of Virginia affirmed summarily over objections that the injunction abridges the Brotherhood's rights under the First and Fourteenth Amendments, which guarantee freedom of speech, petition and assembly. We granted certiorari to consider this constitutional question in the light of our recent decision in NAACP v. Button, .2 .The Brotherhood's plan is not a new one. Its roots go back to 1883, when the Brotherhood was founded as a fraternal and mutual benefit society to promote the welfare of the trainmen and "to protect their families by the exercise of benevolence, very needful in a calling so hazardous as ours ... ."3 Railroad work at that time was indeed dangerous. In 1888 the odds against a railroad brakeman's dying a natural death were almost four to one;4 the average life expectancy of a switchman in 1893 was seven years.5 It was quite natural, therefore, that railroad workers combined their strength and efforts in the Brotherhood in order to provide insurance and financial assistance to sick and injured members and to seek safer working conditions. The Trainmen and other railroad Brotherhoods were the moving forces that brought about the passage of the Safety Appliance Act6 in 1893 to make railroad work less dangerous; they also supported passage of the Federal Employers' Liability Act7 of 1908 to provide for recovery of damages for injured railroad workers and their families by doing away with harsh and technical common-law rules which sometimes made recovery difficult or even impossible. It soon became apparent to the railroad workers, however, that simply having these federal statutes on the books was not enough to assure that the workers would receive the full benefit of the compensatory damages Congress intended they should have. Injured workers or their families often fell prey on the one hand to persuasive claims adjusters eager to gain a quick and cheap settlement for their railroad employers, or on the other to lawyers either not competent to try these lawsuits against the able and experienced railroad counsel or too willing to settle a case for a quick dollar.It was to protect against these obvious hazards to the injured man or his widow that the workers through their Brotherhood set up their Legal Aid Department, since renamed Department of Legal Counsel, the basic activities of which the court below has enjoined. Under their plan the United States was divided into sixteen regions and the Brotherhood selected, on the advice of local lawyers and federal and state judges, a lawyer or firm in each region with a reputation for honesty and skill in representing plaintiffs in railroad personal injury litigation. When a worker was injured or killed, the secretary of his local lodge would go to him or to his widow or children and recommend that the claim not be settled without first seeing a lawyer, and that in the Brotherhood's judgment the best lawyer to consult was the counsel selected by it for that area.8 There is a dispute between the parties as to the exact meaning of the decree rendered below, but the Brotherhood in this Court objects specifically to the provisions which enjoin it"... from holding out lawyers selected by it as the only approved lawyers to aid the members or their families; ... or in any other manner soliciting or encouraging such legal employment of the selected lawyers; ... and from doing any act or combination of acts, and from formulating and putting into practice any plan, pattern or design, the result of which is to channel legal employment to any particular lawyer or group of lawyers ... ."9 The Brotherhood admits that it advises injured members and their dependents to obtain legal advice before making settlement of their claims and that it recommends particular attorneys to handle such claims. The result of the plan, the Brotherhood admits, is to channel legal employment to the particular lawyers approved by the Brotherhood as legally and morally competent to handle injury claims for members and their families. It is the injunction against this particular practice which the Brotherhood, on behalf of its members, contends denies them rights guaranteed by the First and Fourteenth Amendments. We agree with this contention.It cannot be seriously doubted that the First Amendment's guarantees of free speech, petition and assembly give railroad workers the right to gather together for the lawful purpose of helping and advising one another in asserting the rights Congress gave them in the Safety Appliance Act and the Federal Employers' Liability Act, statutory rights which would be vain and futile if the workers could not talk together freely as to the best course to follow. The right of members to consult with each other in a fraternal organization necessarily includes the right to select a spokesman from their number who could be expected to give the wisest counsel. That is the role played by the members who carry out the legal aid program. And the right of the workers personally or through a special department of their Brotherhood to advise concerning the need for legal assistance - and, most importantly, what lawyer a member could confidently rely on - is an inseparable part of this constitutionally guaranteed right to assist and advise each other.Virginia undoubtedly has broad powers to regulate the practice of law within its borders;10 but we have had occasion in the past to recognize that in regulating the practice of law a State cannot ignore the rights of individuals secured by the Constitution.11 For as we said in NAACP v. Button, supra, 371 U.S., at 429, "a State cannot foreclose the exercise of constitutional rights by mere labels." Here what Virginia has sought to halt is not a commercialization of the legal profession which might threaten the moral and ethical fabric of the administration of justice. It is not "ambulance chasing." The railroad workers, by recommending competent lawyers to each other, obviously are not themselves engaging in the practice of law, nor are they or the lawyers whom they select parties to any soliciting of business. It is interesting to note that in Great Britain unions do not simply recommend lawyers to members in need of advice; they retain counsel, paid by the union, to represent members in personal lawsuits,12 a practice similar to that which we upheld in NAACP v. Button, supra.A State could not, by invoking the power to regulate the professional conduct of attorneys, infringe in any way the right of individuals and the public to be fairly represented in lawsuits authorized by Congress to effectuate a basic public interest. Laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries, cf. Gideon v. Wainwright, , and for them to associate together to help one another to preserve and enforce rights granted them under federal laws cannot be condemned as a threat to legal ethics.13 The State can no more keep these workers from using their cooperative plan to advise one another than it could use more direct means to bar them from resorting to the courts to vindicate their legal rights. The right to petition the courts cannot be so handicapped.Only last Term we had occasion to consider an earlier attempt by Virginia to enjoin the National Association for the Advancement of Colored People from advising prospective litigants to seek the assistance of particular attorneys. In fact, in that case, unlike this one, the attorneys were actually employed by the association which recommended them, and recommendations were made even to nonmembers. NAACP v. Button, supra. We held that "although the petitioner has amply shown that its activities fall within the First Amendment's protections, the State has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from petitioner's activities, which can justify the broad prohibitions which it has imposed." 371 U.S., at 444.14 In the present case the State again has failed to show any appreciable public interest in preventing the Brotherhood from carrying out its plan to recommend the lawyers it selects to represent injured workers. The Brotherhood's activities fall just as clearly within the protection of the First Amendment. And the Constitution protects the associational rights of the members of the union precisely as it does those of the NAACP.We hold that the First and Fourteenth Amendments protect the right of the members through their Brotherhood to maintain and carry out their plan for advising workers who are injured to obtain legal advice and for recommending specific lawyers. Since the part of the decree to which the Brotherhood objects infringes those rights, it cannot stand; and to the extent any other part of the decree forbids these activities it too must fall. And, of course, lawyers accepting employment under this constitutionally protected plan have a like protection which the State cannot abridge.The judgment and decree are vacated and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.MR. JUSTICE STEWART took no part in the disposition of this case.
3	Counsel of RecordFor Petitioners Hamdi, et al.:Frank W. Dunham, Jr. Federal Public Defender Alexandria, VA For Respondents Rumsfeld, et al.:Theodore Olson Solicitor General of the United States Washington, DC After Congress passed a resolution — the Authorization for Use of Military Force (AUMF)--empowering the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Petitioner Hamdi, an American citizen whom the Government has classified as an "enemy combatant" for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S. C. Hamdi's father filed this habeas petition on his behalf under 28 U. S. C. §2241, alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. Although the petition did not elaborate on the factual circumstances of Hamdi's capture and detention, his father has asserted in other documents in the record that Hamdi went to Afghanistan to do "relief work" less than two months before September 11 and could not have received military training. The Government attached to its response to the petition a declaration from Michael Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration alleges various details regarding Hamdi's trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S allies, and his subsequent surrender of an assault rifle. The District Court found that the Mobbs Declaration, standing alone, did not support Hamdi's detention and ordered the Government to turn over numerous materials for in camera review. The Fourth Circuit reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper. Concluding that the factual averments in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the habeas petition dismissed. The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U. S. C. §4001(a)--which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress"-- the AUMF's "necessary and appropriate force" language provided the authorization for Hamdi's detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention's legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure. Held: The judgment is vacated, and the case is remanded. Justice O'Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Pp. 14-15. Justice Souter, joined by Justice Ginsburg, concluded that Hamdi's detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Pp. 2-3, 15. O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which Ginsburg, J., joined. Scalia, J., filed a dissenting opinion, in which Stevens, J., joined. Thomas, J., filed a dissenting opinion.YASER ESAM HAMDI and ESAM FOUAD HAMDI, asnext friend of YASER ESAM HAMDI, PETITION-ERS v. DONALD H. RUMSFELD, SECRETARYOF DEFENSE, et al.on writ of certiorari to the united states court of appeals for the fourth circuit[June 28, 2004] Justice O'Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice Breyer join. At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an "enemy combatant" and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.I On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One week later, in response to these "acts of treacherous violence," Congress passed a resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Authorization for Use of Military Force ("the AUMF"), 115 Stat. 224. Soon thereafter, the President ordered United States Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it. This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an "enemy combatant," and that this status justifies holding him in the United States indefinitely — without formal charges or proceedings — unless and until it makes the determination that access to counsel or further process is warranted. In June 2002, Hamdi's father, Esam Fouad Hamdi, filed the present petition for a writ of habeas corpus under 28 U. S. C. §2241 in the Eastern District of Virginia, naming as petitioners his son and himself as next friend. The elder Hamdi alleges in the petition that he has had no contact with his son since the Government took custody of him in 2001, and that the Government has held his son "without access to legal counsel or notice of any charges pending against him." App. 103, 104. The petition contends that Hamdi's detention was not legally authorized. Id., at 105. It argues that, "[a]s an American citizen, ... Hamdi enjoys the full protections of the Constitution," and that Hamdi's detention in the United States without charges, access to an impartial tribunal, or assistance of counsel "violated and continue[s] to violate the Fifth and Fourteenth Amendments to the United States Constitution." Id., at 107. The habeas petition asks that the court, among other things, (1) appoint counsel for Hamdi; (2) order respondents to cease interrogating him; (3) declare that he is being held in violation of the Fifth and Fourteenth Amendments; (4) "[t]o the extent Respondents contest any material factual allegations in this Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of their allegations"; and (5) order that Hamdi be released from his "unlawful custody." Id., at 108-109. Although his habeas petition provides no details with regard to the factual circumstances surrounding his son's capture and detention, Hamdi's father has asserted in documents found elsewhere in the record that his son went to Afghanistan to do "relief work," and that he had been in that country less than two months before September 11, 2001, and could not have received military training. Id., at 188-189. The 20-year-old was traveling on his own for the first time, his father says, and "[b]ecause of his lack of experience, he was trapped in Afghanistan once that military campaign began." Id., at 188-189. The District Court found that Hamdi's father was a proper next friend, appointed the federal public defender as counsel for the petitioners, and ordered that counsel be given access to Hamdi. Id., at 113-116. The United States Court of Appeals for the Fourth Circuit reversed that order, holding that the District Court had failed to extend appropriate deference to the Government's security and intelligence interests. 296 F. 3d 278, 279, 283 (2002). It directed the District Court to consider "the most cautious procedures first," id., at 284, and to conduct a deferential inquiry into Hamdi's status, id., at 283. It opined that "if Hamdi is indeed an 'enemy combatant' who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one." Ibid. On remand, the Government filed a response and a motion to dismiss the petition. It attached to its response a declaration from one Michael Mobbs (hereinafter "Mobbs Declaration"), who identified himself as Special Advisor to the Under Secretary of Defense for Policy. Mobbs indicated that in this position, he has been "substantially involved with matters related to the detention of enemy combatants in the current war against the al Qaeda terrorists and those who support and harbor them (including the Taliban)." App. 148. He expressed his "familiar[ity]" with Department of Defense and United States military policies and procedures applicable to the detention, control, and transfer of al Qaeda and Taliban personnel, and declared that "[b]ased upon my review of relevant records and reports, I am also familiar with the facts and circumstances related to the capture of ... Hamdi and his detention by U. S. military forces." Ibid. Mobbs then set forth what remains the sole evidentiary support that the Government has provided to the courts for Hamdi's detention. The declaration states that Hamdi "traveled to Afghanistan" in July or August 2001, and that he thereafter "affiliated with a Taliban military unit and received weapons training." Ibid. It asserts that Hamdi "remained with his Taliban unit following the attacks of September 11" and that, during the time when Northern Alliance forces were "engaged in battle with the Taliban," "Hamdi's Taliban unit surrendered" to those forces, after which he "surrender[ed] his Kalishnikov assault rifle" to them. Id., at 148-149. The Mobbs Declaration also states that, because al Qaeda and the Taliban "were and are hostile forces engaged in armed conflict with the armed forces of the United States," "individuals associated with" those groups "were and continue to be enemy combatants." Id., at 149. Mobbs states that Hamdi was labeled an enemy combatant "[b]ased upon his interviews and in light of his association with the Taliban." Ibid. According to the declaration, a series of "U. S. military screening team[s]" determined that Hamdi met "the criteria for enemy combatants," and "a subsequent interview of Hamdi has confirmed that he surrendered and gave his firearm to Northern Alliance forces, which supports his classification as an enemy combatant." Id., at 149-150. After the Government submitted this declaration, the Fourth Circuit directed the District Court to proceed in accordance with its earlier ruling and, specifically, to " 'consider the sufficiency of the Mobbs Declaration as an independent matter before proceeding further.' " 316 F. 3d at 450, 462 (2003). The District Court found that the Mobbs Declaration fell "far short" of supporting Hamdi's detention. App. 292. It criticized the generic and hearsay nature of the affidavit, calling it "little more than the government's 'say-so.' " Id., at 298. It ordered the Government to turn over numerous materials for in camera review, including copies of all of Hamdi's statements and the notes taken from interviews with him that related to his reasons for going to Afghanistan and his activities therein; a list of all interrogators who had questioned Hamdi and their names and addresses; statements by members of the Northern Alliance regarding Hamdi's surrender and capture; a list of the dates and locations of his capture and subsequent detentions; and the names and titles of the United States Government officials who made the determinations that Hamdi was an enemy combatant and that he should be moved to a naval brig. Id., at 185-186. The court indicated that all of these materials were necessary for "meaningful judicial review" of whether Hamdi's detention was legally authorized and whether Hamdi had received sufficient process to satisfy the Due Process Clause of the Constitution and relevant treaties or military regulations. Id., at 291-292. The Government sought to appeal the production order, and the District Court certified the question of whether the Mobbs Declaration, " 'standing alone, is sufficient as a matter of law to allow meaningful judicial review of [Hamdi's] classification as an enemy combatant.' " 316 F. 3d, at 462. The Fourth Circuit reversed, but did not squarely answer the certified question. It instead stressed that, because it was "undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict," no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper. Id., at 459. Concluding that the factual averments in the Mobbs Declaration, "if accurate," provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi pursuant to the President's war powers, it ordered the habeas petition dismissed. Id., at 473. The Fourth Circuit emphasized that the "vital purposes" of the detention of uncharged enemy combatants — preventing those combatants from rejoining the enemy while relieving the military of the burden of litigating the circumstances of wartime captures halfway around the globe — were interests "directly derived from the war powers of Articles I and II." Id., at 465-466. In that court's view, because "Article III contains nothing analogous to the specific powers of war so carefully enumerated in Articles I and II," id., at 463, separation of powers principles prohibited a federal court from "delv[ing] further into Hamdi's status and capture," id., at 473. Accordingly, the District Court's more vigorous inquiry "went far beyond the acceptable scope of review." Ibid. On the more global question of whether legal authorization exists for the detention of citizen enemy combatants at all, the Fourth Circuit rejected Hamdi's arguments that 18 U. S. C. §4001(a) and Article 5 of the Geneva Convention rendered any such detentions unlawful. The court expressed doubt as to Hamdi's argument that §4001(a), which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress," required express congressional authorization of detentions of this sort. But it held that, in any event, such authorization was found in the post-September 11 Authorization for Use of Military Force. 316 F. 3d, at 467. Because "capturing and detaining enemy combatants is an inherent part of warfare," the court held, "the 'necessary and appropriate force' referenced in the congressional resolution necessarily includes the capture and detention of any and all hostile forces arrayed against our troops." Ibid.; see also id., at 467-468 (noting that Congress, in 10 U. S. C. §956(5), had specifically authorized the expenditure of funds for keeping prisoners of war and persons whose status was determined "to be similar to prisoners of war," and concluding that this appropriation measure also demonstrated that Congress had "authorized [these individuals'] detention in the first instance"). The court likewise rejected Hamdi's Geneva Convention claim, concluding that the convention is not self-executing and that, even if it were, it would not preclude the Executive from detaining Hamdi until the cessation of hostilities. 316 F. 3d, at 468-469. Finally, the Fourth Circuit rejected Hamdi's contention that its legal analyses with regard to the authorization for the detention scheme and the process to which he was constitutionally entitled should be altered by the fact that he is an American citizen detained on American soil. Relying on Ex parte Quirin, 317 U. S. 1 (1942), the court emphasized that "[o]ne who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such." 316 F.3d, at 475. "The privilege of citizenship," the court held, "entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the war powers of the political branches. At least where it is undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there." Ibid. The Fourth Circuit denied rehearing en banc, 337 F. 3d 335 (2003), and we granted certiorari. 540 U. S. __ (2004). We now vacate the judgment below and remand.II The threshold question before us is whether the Executive has the authority to detain citizens who qualify as "enemy combatants." There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the "enemy combatant" that it is seeking to detain is an individual who, it alleges, was " 'part of or supporting forces hostile to the United States or coalition partners' " in Afghanistan and who " 'engaged in an armed conflict against the United States' " there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized. The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF. Our analysis on that point, set forth below, substantially overlaps with our analysis of Hamdi's principal argument for the illegality of his detention. He posits that his detention is forbidden by 18 U. S. C. §4001(a). Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Congress passed §4001(a) in 1971 as part of a bill to repeal the Emergency Detention Act of 1950, 50 U. S. C. §811 et seq., which provided procedures for executive detention, during times of emergency, of individuals deemed likely to engage in espionage or sabotage. Congress was particularly concerned about the possibility that the Act could be used to reprise the Japanese internment camps of World War II. H. R. Rep. No. 92-116 (1971); id., at 4 ("The concentration camp implications of the legislation render it abhorrent"). The Government again presses two alternative positions. First, it argues that §4001(a), in light of its legislative history and its location in Title 18, applies only to "the control of civilian prisons and related detentions," not to military detentions. Brief for Respondents 21. Second, it maintains that §4001(a) is satisfied, because Hamdi is being detained "pursuant to an Act of Congress"--the AUMF. Id., at 21-22. Again, because we conclude that the Government's second assertion is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)'s requirement that a detention be "pursuant to an Act of Congress" (assuming, without deciding, that §4001(a) applies to military detentions). The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use. The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002) ("[C]aptivity in war is 'neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war' " (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int'l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) ("The time has long passed when 'no quarter' was the rule on the battlefield ... . It is now recognized that 'Captivity is neither a punishment nor an act of vengeance,' but 'merely a temporary detention which is devoid of all penal character.' ... 'A prisoner of war is no convict; his imprisonment is a simple war measure.' " (citations omitted); cf. In re Territo, 156 F. 2d 142, 145 (CA9 1946) ("The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released" (footnotes omitted)). There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." Id., at 37-38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30-31. See also Lieber Code, &para ;153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (contemplating, in code binding the Union Army during the Civil War, that "captured rebels" would be treated "as prisoners of war"). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States," Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict. In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that "the detention of enemy combatants during World War II was just as 'indefinite' while that war was being fought." Id., at 16. We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the "war on terror," although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life. It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 ("Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities"). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817 (as soon as possible after "conclusion of peace"); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat. 2301("conclusion of peace" (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat. 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Praust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int'l L. J. 503, 510-511 (2003) (prisoners of war "can be detained during an armed conflict, but the detaining country must release and repatriate them 'without delay after the cessation of active hostilities,' unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences" (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 T. I .A. S., at 3384, 3392, 3406, 3418)). Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html (as visited June 8, 2004, and available in the Clerk of Court's case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF. Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government's authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court's repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.1 Moreover, as Justice Scalia acknowledges, the Court in Ex parte Quirin, 317 U. S. 1 (1942), dismissed the language of Milligan that the petitioners had suggested prevented them from being subject to military process. Post, at 17-18 (dissenting opinion). Clear in this rejection was a disavowal of the New York State cases cited in Milligan, 4 Wall., at 128-129, on which Justice Scalia relies. See id., at 128-129. Both Smith v. Shaw, 12 Johns. 257 (N. Y. 1815), and M'Connell v. Hampton, 12 Johns. 234 (N. Y. 1815), were civil suits for false imprisonment. Even accepting that these cases once could have been viewed as standing for the sweeping proposition for which Justice Scalia cites them — that the military does not have authority to try an American citizen accused of spying against his country during wartime — Quirin makes undeniably clear that this is not the law today. Haupt, like the citizens in Smith and M'Connell, was accused of being a spy. The Court in Quirin found him "subject to trial and punishment by [a] military tribunal[ ]" for those acts, and held that his citizenship did not change this result. 317 U. S., at 31, 37-38. Quirin was a unanimous opinion. It both postdates and clarifies Milligan, providing us with the most apposite precedent that we have on the question of whether citizens may be detained in such circumstances. Brushing aside such precedent — particularly when doing so gives rise to a host of new questions never dealt with by this Court — is unjustified and unwise. To the extent that Justice Scalia accepts the precedential value of Quirin, he argues that it cannot guide our inquiry here because "[i]n Quirin it was uncontested that the petitioners were members of enemy forces," while Hamdi challenges his classification as an enemy combatant. Post, at 19. But it is unclear why, in the paradigm outlined by Justice Scalia, such a concession should have any relevance. Justice Scalia envisions a system in which the only options are congressional suspension of the writ of habeas corpus or prosecution for treason or some other crime. Post, at 1. He does not explain how his historical analysis supports the addition of a third option — detention under some other process after concession of enemy-combatant status — or why a concession should carry any different effect than proof of enemy-combatant status in a proceeding that comports with due process. To be clear, our opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant; whether that is established by concession or by some other process that verifies this fact with sufficient certainty seems beside the point. Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone. Justice Scalia refers to only one case involving this factual scenario — a case in which a United States citizen-POW (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo, 156 F. 2d, at 148. Justice Scalia's treatment of that case — in a footnote — suffers from the same defect as does his treatment of Quirin: Because Justice Scalia finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner "conceded" enemy combatant status is beside the point. See supra, at 15-16. Justice Scalia can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U. S. territory) cannot be detained outside the criminal process. Moreover, Justice Scalia presumably would come to a different result if Hamdi had been kept in Afghanistan or even Guantanamo Bay. See post, at 25 (Scalia, J., dissenting). This creates a perverse incentive. Military authorities faced with the stark choice of submitting to the full-blown criminal process or releasing a suspected enemy combatant captured on the battlefield will simply keep citizen-detainees abroad. Indeed, the Government transferred Hamdi from Guantanamo Bay to the United States naval brig only after it learned that he might be an American citizen. It is not at all clear why that should make a determinative constitutional difference.III Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status. Hamdi argues that he is owed a meaningful and timely hearing and that "extra-judicial detention [that] begins and ends with the submission of an affidavit based on third-hand hearsay" does not comport with the Fifth and Fourteenth Amendments. Brief for Petitioners 16. The Government counters that any more process than was provided below would be both unworkable and "constitutionally intolerable." Brief for Respondents 46. Our resolution of this dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural contours of that mechanism in this instance.A Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U. S. Const., Art. I, §9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e.g., Act of Mar. 3, 1863, ch. 81, §1, 12 Stat. 755; Act of April 20, 1871, ch. 22, §4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. See INS v. St. Cyr, 533 U. S. 289, 301 (2001). All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U. S. C. §2241. Brief for Respondents 12. Further, all agree that §2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review. Most notably, §2243 provides that "the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts," and §2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories. The simple outline of §2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process. The Government recognizes the basic procedural protections required by the habeas statute, Id., at 37-38, but asks us to hold that, given both the flexibility of the habeas mechanism and the circumstances presented in this case, the presentation of the Mobbs Declaration to the habeas court completed the required factual development. It suggests two separate reasons for its position that no further process is due.B First, the Government urges the adoption of the Fourth Circuit's holding below — that because it is "undisputed" that Hamdi's seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected. As the dissenters from the denial of rehearing en banc noted, the circumstances surrounding Hamdi's seizure cannot in any way be characterized as "undisputed," as "those circumstances are neither conceded in fact, nor susceptible to concession in law, because Hamdi has not been permitted to speak for himself or even through counsel as to those circumstances." 337 F. 3d 335, 357 (CA4 2003) (Luttig, J., dissenting from denial of rehearing en banc); see also id., at 371-372 (Motz, J., dissenting from denial of rehearing en banc). Further, the "facts" that constitute the alleged concession are insufficient to support Hamdi's detention. Under the definition of enemy combatant that we accept today as falling within the scope of Congress' authorization, Hamdi would need to be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States" to justify his detention in the United States for the duration of the relevant conflict. Brief for Respondents 3. The habeas petition states only that "[w]hen seized by the United States Government, Mr. Hamdi resided in Afghanistan." App. 104. An assertion that one resided in a country in which combat operations are taking place is not a concession that one was "captured in a zone of active combat operations in a foreign theater of war," 316 F. 3d, at 459 (emphasis added), and certainly is not a concession that one was "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States." Accordingly, we reject any argument that Hamdi has made concessions that eliminate any right to further process.C The Government's second argument requires closer consideration. This is the argument that further factual exploration is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the Government's most extreme rendition of this argument, "[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict" ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. Brief for Respondents 26. At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential "some evidence" standard. Id., at 34 ("Under the some evidence standard, the focus is exclusively on the factual basis supplied by the Executive to support its own determination" (citing Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445, 455-457 (1985) (explaining that the some evidence standard "does not require" a "weighing of the evidence," but rather calls for assessing "whether there is any evidence in the record that could support the conclusion")). Under this review, a court would assume the accuracy of the Government's articulated basis for Hamdi's detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one. Brief for Respondents 36; see also 316 F. 3d, at 473-474 (declining to address whether the "some evidence" standard should govern the adjudication of such claims, but noting that "[t]he factual averments in the [Mobbs] affidavit, if accurate, are sufficient to confirm" the legality of Hamdi's detention). In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive's asserted justifications for that detention have basis in fact and warrant in law. See, e.g., Zadvydas v. Davis, 533 U. S. 678, 690 (2001); Addington v. Texas, 441 U. S. 418, 425-427 (1979). He argues that the Fourth Circuit inappropriately "ceded power to the Executive during wartime to define the conduct for which a citizen may be detained, judge whether that citizen has engaged in the proscribed conduct, and imprison that citizen indefinitely," Brief for Petitioners 21, and that due process demands that he receive a hearing in which he may challenge the Mobbs Declaration and adduce his own counter evidence. The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be "meaningful judicial review." App. 291. Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right. The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not "deprived of life, liberty, or property, without due process of law," U. S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge, 424 U. S. 319 (1976). See, e.g., Heller v. Doe, 509 U. S. 312, 330-331 (1993); Zinermon v. Burch, 494 U. S. 113, 127-128 (1990); United States v. Salerno, 481 U. S. 739, 746 (1987); Schall v. Martin, 467 U. S. 253, 274-275 (1984); Addington v. Texas, supra, at 425. Mathews dictates that the process due in any given instance is determined by weighing "the private interest that will be affected by the official action" against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process. 424 U. S., at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of "the risk of an erroneous deprivation" of the private interest if the process were reduced and the "probable value, if any, of additional or substitute safeguards." Ibid. We take each of these steps in turn.1 It is beyond question that substantial interests lie on both sides of the scale in this case. Hamdi's "private interest ... affected by the official action," ibid., is the most elemental of liberty interests — the interest in being free from physical detention by one's own government. Foucha v. Louisiana, 504 U. S. 71, 80 (1992) ("Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action"); see also Parham v. J. R., 442 U. S. 584, 600 (1979) (noting the "substantial liberty interest in not being confined unnecessarily"). "In our society liberty is the norm," and detention without trial "is the carefully limited exception." Salerno, supra, at 755. "We have always been careful not to 'minimize the importance and fundamental nature' of the individual's right to liberty," Foucha, supra, at 80 (quoting Salerno, supra, at 750), and we will not do so today. Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior, for "[i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection," Jones v. United States, 463 U. S. 354, 361 (1983) (emphasis added; internal quotation marks omitted), and at this stage in the Mathews calculus, we consider the interest of the erroneously detained individual. Carey v. Piphus, 435 U. S. 247, 259 (1978) ("Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property"); see also id., at 266 (noting "the importance to organized society that procedural due process be observed," and emphasizing that "the right to procedural due process is 'absolute' in the sense that it does not depend upon the merits of a claimant's substantive assertions"). Indeed, as amicus briefs from media and relief organizations emphasize, the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process here is very real. See Brief for AmeriCares et al. as Amici Curiae 13-22 (noting ways in which "[t]he nature of humanitarian relief work and journalism present a significant risk of mistaken military detentions"). Moreover, as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. See Ex parte Milligan, 4 Wall., at 125 ("[The Founders] knew — the history of the world told them — the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen"). Because we live in a society in which "[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty," O'Connor v. Donaldson, 422 U. S. 563, 575 (1975), our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee or the organizations with which he is alleged to have associated. We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.2 On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States. As discussed above, supra, at 10, the law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities. Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them. Department of Navy v. Egan, 484 U. S. 518, 530 (1988) (noting the reluctance of the courts "to intrude upon the authority of the Executive in military and national security affairs"); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 587 (1952) (acknowledging "broad powers in military commanders engaged in day-to-day fighting in a theater of war"). The Government also argues at some length that its interests in reducing the process available to alleged enemy combatants are heightened by the practical difficulties that would accompany a system of trial-like process. In its view, military officers who are engaged in the serious work of waging battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. Brief for Respondents 46-49. To the extent that these burdens are triggered by heightened procedures, they are properly taken into account in our due process analysis.3 Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164-165 (1963) ("The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action"); see also United States v. Robel, 389 U. S. 258, 264 (1967) ("It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile"). With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, "the risk of erroneous deprivation" of a detainee's liberty interest is unacceptably high under the Government's proposed rule, while some of the "additional or substitute procedural safeguards" suggested by the District Court are unwarranted in light of their limited "probable value" and the burdens they may impose on the military in such cases. Mathews, 424 U. S., at 335. We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 542 (1985) ("An essential principle of due process is that a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case' " (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 617 (1993) ("due process requires a 'neutral and detached judge in the first instance' " (quoting Ward v. Monroeville, 409 U. S. 57, 61-62 (1972)). "For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' " Fuentes v. Shevin, 407 U. S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U. S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded. At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. In the words of Mathews, process of this sort would sufficiently address the "risk of erroneous deprivation" of a detainee's liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government. 424 U. S., at 335.2 We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Brief for Respondents 3-4. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one. Likewise, arguments that military officers ought not have to wage war under the threat of litigation lose much of their steam when factual disputes at enemy-combatant hearings are limited to the alleged combatant's acts. This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States. While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States, 323 U. S. 214, 233-234 (1944) (Murphy, J., dissenting) ("[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled"); Sterling v. Constantin, 287 U. S. 378, 401 (1932) ("What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicialquestions"). In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully theGovernment's case and to be heard by an impartialadjudicator.D In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 488 U. S. 361, 380 (1989) (it was "the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty"); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426 (1934) (The war power "is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties"). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. See St. Cyr, 533 U. S., at 301 ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest"). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process. Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed "some evidence" standard is inadequate. Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. As the Government itself has recognized, we have utilized the "some evidence" standard in the past as a standard of review, not as a standard of proof. Brief for Respondents 35. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding — one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. See, e.g., St. Cyr, supra; Hill, 472 U. S., at 455-457. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive's factual assertions before a neutral decisionmaker. Today we are faced only with such a case. Aside from unspecified "screening" processes, Brief for Respondents 3-4, and military interrogations in which the Government suggests Hamdi could have contested his classification, Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. Compare Brief for Respondents 42-43 (discussing the "secure interrogation environment," and noting that military interrogations require a controlled "interrogation dynamic" and "a relationship of trust and dependency" and are "a critical source" of "timely and effective intelligence") with Concrete Pipe, 273 U. S. 510, 522 (1927). Plainly, the "process" Hamdi has received is not that to which he is entitled under the Due Process Clause. There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, §1-6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government's case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case such as this may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government's return. We anticipate that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.IV Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.* * * The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the case is remanded for further proceedings.It is so ordered.YASER ESAM HAMDI and ESAM FOUAD HAMDI, asnext friend of YASER ESAM HAMDI, PETITION-ERS v. DONALD H. RUMSFELD, SECRETARYOF DEFENSE, et al.on writ of certiorari to the united states court of appeals for the fourth circuit[June 28, 2004] Justice Scalia, with whom Justice Stevens joins, dissenting. Petitioner, a presumed American citizen, has been imprisoned without charge or hearing in the Norfolk and Charleston Naval Brigs for more than two years, on the allegation that he is an enemy combatant who bore arms against his country for the Taliban. His father claims to the contrary, that he is an inexperienced aid worker caught in the wrong place at the wrong time. This case brings into conflict the competing demands of national security and our citizens' constitutional right to personal liberty. Although I share the Court's evident unease asit seeks to reconcile the two, I do not agree with itsresolution. Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.I The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive. Blackstone stated this principle clearly: "Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities. ... To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. ... "To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, ... that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him." 1 W. Blackstone, Commentaries on the Laws of England 132-133 (1765) (hereinafter Blackstone).These words were well known to the Founders. Hamilton quoted from this very passage in The Federalist No. 84, p. 444 (G. Carey & J. McClellan eds. 2001). The two ideas central to Blackstone's understanding — due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned — found expression in the Constitution's Due Process and Suspension Clauses. See Amdt. 5; Art. I, §9, cl. 2. The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. See, e.g., 2 & 3 Phil. & M., c. 10 (1555); 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1833) (hereinafter Story) (equating "due process of law" with "due presentment or indictment, and being brought in to answer thereto by due process of the common law"). The Due Process Clause "in effect affirms the right of trial according to the process and proceedings of the common law." Ibid. See also T. Cooley, General Principles of Constitutional Law 224 (1880) ("When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before thepunishment can be inflicted" (internal quotation marks omitted)). To be sure, certain types of permissible noncriminal detention — that is, those not dependent upon the contention that the citizen had committed a criminal act — did not require the protections of criminal procedure. However, these fell into a limited number of well-recognized exceptions — civil commitment of the mentally ill, for example, and temporary detention in quarantine of the infectious. See Opinion on the Writ of Habeas Corpus, 97 Eng. Rep. 29, 36-37 (H. L. 1758) (Wilmot, J.). It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing. Cf. Kansas v. Hendricks, 521 U. S. 346, 358 (1997) ("A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment"). These due process rights have historically been vindicated by the writ of habeas corpus. In England before the founding, the writ developed into a tool for challenging executive confinement. It was not always effective. For example, in Darnel's Case, 3 How. St. Tr. 1 (K. B. 1627), King Charles I detained without charge several individuals for failing to assist England's war against France and Spain. The prisoners sought writs of habeas corpus, arguing that without specific charges, "imprisonment shall not continue on for a time, but for ever; and the subjects of this kingdom may be restrained of their liberties perpetually." Id., at 8. The Attorney General replied that the Crown's interest in protecting the realm justified imprisonment in "a matter of state ... not ripe nor timely" for the ordinary process of accusation and trial. Id., at 37. The court denied relief, producing widespread outrage, and Parliament responded with the Petition of Right, accepted by the King in 1628, which expressly prohibited imprisonment without formal charges, see 3 Car. 1, c. 1, §§5, 10. The struggle between subject and Crown continued, and culminated in the Habeas Corpus Act of 1679, 31 Car. 2, c. 2, described by Blackstone as a "second magna charta, and stable bulwark of our liberties." 1 Blackstone 133. The Act governed all persons "committed or detained ... for any crime." §3. In cases other than felony or treason plainly expressed in the warrant of commitment, the Act required release upon appropriate sureties (unless the commitment was for a nonbailable offense). Ibid. Where the commitment was for felony or high treason, the Act did not require immediate release, but instead required the Crown to commence criminal proceedings within a specified time. §7. If the prisoner was not "indicted some Time in the next Term," the judge was "required ... to set at Liberty the Prisoner upon Bail" unless the King was unable to produce his witnesses. Ibid. Able or no, if the prisoner was not brought to trial by the next succeeding term, the Act provided that "he shall be discharged from his Imprisonment." Ibid. English courts sat four terms per year, see 3 Blackstone 275-277, so the practical effect of this provision was that imprisonment without indictment or trial for felony or high treason under §7 would not exceed approximately three to six months. The writ of habeas corpus was preserved in the Constitution — the only common-law writ to be explicitly mentioned. See Art. I, §9, cl. 2. Hamilton lauded "the establishment of the writ of habeas corpus" in his Federalist defense as a means to protect against "the practice of arbitrary imprisonments ... in all ages, [one of] the favourite and most formidable instruments of tyranny." The Federalist No. 84, supra, at 444. Indeed, availability of the writ under the new Constitution (along with the requirement of trial by jury in criminal cases, see Art. III, §2, cl. 3) was his basis for arguing that additional, explicit procedural protections were unnecessary. See The Federalist No. 83, at 433.II The allegations here, of course, are no ordinary accusations of criminal activity. Yaser Esam Hamdi has been imprisoned because the Government believes he participated in the waging of war against the United States. The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime.A Justice O'Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. Ante, at 10-11. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process. As early as 1350, England's Statute of Treasons made it a crime to "levy War against our Lord the King in his Realm, or be adherent to the King's Enemies in his Realm, giving to them Aid and Comfort, in the Realm, or elsewhere." 25 Edw. 3, Stat. 5, c. 2. In his 1762 Discourse on High Treason, Sir Michael Foster explained: "With regard to Natural-born Subjects there can be no Doubt. They owe Allegiance to the Crown at all Times and in all Places. ... . . "The joining with Rebels in an Act of Rebellion, or with Enemies in Acts of Hostility, will make a Man a Traitor: in the one Case within the Clause of Levying War, in the other within that of Adhering to the King's enemies.... . . "States in Actual Hostility with Us, though no War be solemnly Declared, are Enemies within the meaning of the Act. And therefore in an Indictment on the Clause of Adhering to the King's Enemies, it is sufficient to Aver that the Prince or State Adhered to is an Enemy, without shewing any War Proclaimed... . And if the Subject of a Foreign Prince in Amity with Us, invadeth the Kingdom without Commission from his Sovereign, He is an Enemy. And a Subject of England adhering to Him is a Traitor within this Clause of the Act." A Report of Some Proceedings on the Commission ... for the Trial of the Rebels in the Year 1746 in the County of Surry, and of Other Crown Cases, Introduction, §1, p. 183; Ch. 2, §8, p. 216; §12, p. 219.Subjects accused of levying war against the King were routinely prosecuted for treason. E.g., Harding's Case, 2 Ventris 315, 86 Eng. Rep. 461 (K. B. 1690); Trial of Parkyns, 13 How. St. Tr. 63 (K. B. 1696); Trial of Vaughan, 13 How. St. Tr. 485 (K. B. 1696); Trial of Downie, 24 How. St. Tr. 1 (1794). The Founders inherited the understanding that a citizen's levying war against the Government was to be punished criminally. The Constitution provides: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort"; and establishes a heightened proof requirement (two witnesses) in order to "convic[t]" of that offense. Art. III, §3, cl. 1. In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not. For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court. See United States v. Fricke, 259 F. 673 (SDNY 1919); United States v. Robinson, 259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected to military process. See United States ex rel. Wessels v. McDonald, 265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs of Ex parte Quirin, 317 U. S. 1 (1942), received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process. See Haupt v. United States, 330 U. S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80-84 (2003); see also Cramer v. United States, 325 U. S. 1 (1945). The modern treason statute is 18 U. S. C. §2381; it basically tracks the language of the constitutional provision. Other provisions of Title 18 criminalize various acts of warmaking and adherence to the enemy. See, e.g., §32 (destruction of aircraft or aircraft facilities), §2332a (use of weapons of mass destruction), §2332b (acts of terrorism transcending national boundaries), §2339A (providing material support to terrorists), §2339B (providing material support to certain terrorist organizations), §2382 (misprision of treason), §2383 (rebellion or insurrection), §2384 (seditious conspiracy), §2390 (enlistment to serve in armed hostility against the United States). See also 31 CFR §595.204 (2003) (prohibiting the "making or receiving of any contribution of funds, goods, or services" to terrorists); 50 U. S. C. §1705(b) (criminalizing violations of 31 CFR §595.204). The only citizen other than Hamdi known to be imprisoned in connection with military hostilities in Afghanistan against the United States was subjected to criminal process and convicted upon a guilty plea. See United States v. Lindh, 212 F. Supp. 2d 541 (ED Va. 2002) (denying motions for dismissal); Seelye, N. Y. Times, Oct. 5, 2002, p. A1, col. 5.B There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods. Blackstone explained:"And yet sometimes, when the state is in real danger, even this [i.e., executive detention] may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing... . In like manner this experiment ought only to be tried in case of extreme emergency; and in these the nation parts with it[s] liberty for a while, in order to preserve it for ever." 1 Blackstone 132.Where the Executive has not pursued the usual course of charge, committal, and conviction, it has historically secured the Legislature's explicit approval of a suspension. In England, Parliament on numerous occasions passed temporary suspensions in times of threatened invasion or rebellion. E.g., 1 W. & M., c. 7 (1688) (threatened return of James II); 7 & 8 Will. 3, c. 11 (1696) (same); 17 Geo. 2, c. 6 (1744) (threatened French invasion); 19 Geo. 2, c. 1 (1746) (threatened rebellion in Scotland); 17 Geo. 3, c. 9 (1777) (the American Revolution). Not long after Massachusetts had adopted a clause in its constitution explicitly providing for habeas corpus, see Mass. Const. pt. 2, ch. 6, art. VII (1780), reprinted in 3 Federal and State Constitutions, Colonial Charters and Other Organic Laws 1888, 1910 (F. Thorpe ed. 1909), it suspended the writ in order to deal with Shay's Rebellion, see Act for Suspending the Privilege of the Writ of Habeas Corpus, ch. 10, 1786 Mass. Acts 510. Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151-152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln's unauthorized suspension); 3 Story §1336, at 208-209. The Suspension Clause was by design a safety valve, the Constitution's only "express provision for exercise of extraordinary authority because of a crisis," Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 650 (1952) (Jackson, J., concurring). Very early in the Nation's history, President Jefferson unsuccessfully sought a suspension of habeas corpus to deal with Aaron Burr's conspiracy to overthrow the Government. See 16 Annals of Congress 402-425 (1807). During the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, see Act of Mar. 3, 1863, 12 Stat. 755, to the relief of those many who thought President Lincoln's unauthorized proclamations of suspension (e.g., Proclamation No. 1, 13 Stat. 730 (1862)) unconstitutional. Later Presidential proclamations of suspension relied upon the congressional authorization, e.g., Proclamation No. 7, 13 Stat. 734 (1863). During Reconstruction, Congress passed the Ku Klux Klan Act, which included a provision authorizing suspension of the writ, invoked by President Grant in quelling a rebellion in nine South Carolina counties. See Act of Apr. 20, 1871, ch. 22, §4, 17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7 Compilation of the Messages and Papers of the Presidents 136-138 (J. Richardson ed. 1899) (hereinafter Messages and Papers); id., at 138-139. Two later Acts of Congress provided broad suspension authority to governors of U. S. possessions. The Philippine Civil Government Act of 1902 provided that the Governor of the Philippines could suspend the writ in case of rebellion, insurrection, or invasion. Act of July 1, 1902, ch. 1369, §5, 32 Stat. 691. In 1905 the writ was suspended for nine months by proclamation of the Governor. See Fisher v. Baker, 203 U. S. 174, 179-181 (1906). The Hawaiian Organic Act of 1900 likewise provided that the Governor of Hawaii could suspend the writ in case of rebellion or invasion (or threat thereof). Ch. 339, §67, 31 Stat. 153.III Of course the extensive historical evidence of criminal convictions and habeas suspensions does not necessarily refute the Government's position in this case. When the writ is suspended, the Government is entirely free from judicial oversight. It does not claim such total liberation here, but argues that it need only produce what it calls "some evidence" to satisfy a habeas court that a detained individual is an enemy combatant. See Brief for Respondents 34. Even if suspension of the writ on the one hand, and committal for criminal charges on the other hand, have been the only traditional means of dealing with citizens who levied war against their own country, it is theoretically possible that the Constitution does not require a choice between these alternatives. I believe, however, that substantial evidence does refute that possibility. First, the text of the 1679 Habeas Corpus Act makes clear that indefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ. In the United States, this Act was read as "enforc[ing] the common law," Ex parte Watkins, 3 Pet. 193, 202 (1830), and shaped the early understanding of the scope of the writ. As noted above, see supra, at 5, §7 of the Act specifically addressed those committed for high treason, and provided a remedy if they were not indicted and tried by the second succeeding court term. That remedy was not a bobtailed judicial inquiry into whether there were reasonable grounds to believe the prisoner had taken up arms against the King. Rather, if the prisoner was not indicted and tried within the prescribed time, "he shall be discharged from his Imprisonment." 31 Car. 2, c. 2, §7. The Act does not contain any exception for wartime. That omission is conspicuous, since §7 explicitly addresses the offense of "High Treason," which often involved offenses of a military nature. See cases cited supra, at 7. Writings from the founding generation also suggest that, without exception, the only constitutional alternatives are to charge the crime or suspend the writ. In 1788, Thomas Jefferson wrote to James Madison questioning the need for a Suspension Clause in cases of rebellion in the proposed Constitution. His letter illustrates the constraints under which the Founders understood themselves to operate:"Why suspend the Hab. corp. in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime. Of course the judge will remand them. If the publick safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies; let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages." 13 Papers of Thomas Jefferson 442 (July 31, 1788) (J. Boyd ed. 1956).A similar view was reflected in the 1807 House debates over suspension during the armed uprising that came to be known as Burr's conspiracy:"With regard to those persons who may be implicated in the conspiracy, if the writ of habeas corpus be not suspended, what will be the consequence? When apprehended, they will be brought before a court of justice, who will decide whether there is any evidence that will justify their commitment for farther prosecution. From the communication of the Executive, it appeared there was sufficient evidence to authorize their commitment. Several months would elapse before their final trial, which would give time to collect evidence, and if this shall be sufficient, they will not fail to receive the punishment merited by their crimes, and inflicted by the laws of their country." 16 Annals of Congress, at 405 (remarks of Rep. Burwell). The absence of military authority to imprison citizens indefinitely in wartime — whether or not a probability of treason had been established by means less than jury trial — was confirmed by three cases decided during and immediately after the War of 1812. In the first, In re Stacy, 10 Johns. 328 (N. Y. 1813), a citizen was taken into military custody on suspicion that he was "carrying provisions and giving information to the enemy." Id., at 330 (emphasis deleted). Stacy petitioned for a writ of habeas corpus, and, after the defendant custodian attempted to avoid complying, Chief Justice Kent ordered attachment against him. Kent noted that the military was "without any color of authority in any military tribunal to try a citizen for that crime" and that it was "holding him in the closest confinement, and contemning the civil authority of the state." Id., at 333-334. Two other cases, later cited with approval by this Court in Ex parte Milligan, 4 Wall. 2, 128-129 (1866), upheld verdicts for false imprisonment against military officers. In Smith v. Shaw, 12 Johns. 257 (N. Y. 1815), the court affirmed an award of damages for detention of a citizen on suspicion that he was, among other things, "an enemy's spy in time of war." Id., at 265. The court held that "[n]one of the offences charged against Shaw were cognizable by a court-martial, except that which related to his being a spy; and if he was an American citizen, he could not be charged with such an offence. He might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy." Ibid. "If the defendant was justifiable in doing what he did, every citizen of the United States would, in time of war, be equally exposed to a like exercise of military power and authority." Id., at 266. Finally, in M'Connell v. Hampton, 12 Johns. 234 (N. Y. 1815), a jury awarded $9,000 for false imprisonment after a military officer confined a citizen on charges of treason; the judges on appeal did not question the verdict but found the damages excessive, in part because "it does not appear that [the defendant] ... knew [the plaintiff] was a citizen." Id., at 238 (Spencer, J.). See generally Wuerth, The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War, 98 Nw. U. L. Rev. (forthcoming 2004) (available in Clerk of Court's case file). President Lincoln, when he purported to suspend habeas corpus without congressional authorization during the Civil War, apparently did not doubt that suspension was required if the prisoner was to be held without criminal trial. In his famous message to Congress on July 4, 1861, he argued only that he could suspend the writ, not that even without suspension, his imprisonment of citizens without criminal trial was permitted. See Special Session Message, 6 Messages and Papers 20-31. Further evidence comes from this Court's decision in Ex parte Milligan, supra. There, the Court issued the writ to an American citizen who had been tried by military commission for offenses that included conspiring to overthrow the Government, seize munitions, and liberate prisoners of war. Id., at 6-7. The Court rejected in no uncertain terms the Government's assertion that military jurisdiction was proper "under the 'laws and usages of war,' " id., at 121: "It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed." Ibid.1Milligan is not exactly this case, of course, since the petitioner was threatened with death, not merely imprisonment. But the reasoning and conclusion of Milligan logically cover the present case. The Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent the war, it would have no such authority. But if the law of war cannot be applied to citizens where courts are open, then Hamdi's imprisonment without criminal trial is no less unlawful than Milligan's trial by military tribunal. Milligan responded to the argument, repeated by the Government in this case, that it is dangerous to leave suspected traitors at large in time of war:"If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he 'conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection,' the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended." Id., at 122.Thus, criminal process was viewed as the primary means — and the only means absent congressional action suspending the writ — not only to punish traitors, but to incapacitate them. The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U. S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:"It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.IV The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts. It places primary reliance upon Ex parte Quirin, 317 U. S. 1 (1942), a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Hans Haupt, was a U. S. citizen. The case was not this Court's finest hour. The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded, see id., at 18-19, unnumbered note; a week later the Government carried out the commission's death sentence upon six saboteurs, including Haupt. The Court eventually explained its reasoning in a written opinion issued several months later. Only three paragraphs of the Court's lengthy opinion dealt with the particular circumstances of Haupt's case. See id., at 37-38, 45-46. The Government argued that Haupt, like the other petitioners, could be tried by military commission under the laws of war. In agreeing with that contention, Quirin purported to interpret the language of Milligan quoted above (the law of war "can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed") in the following manner:"Elsewhere in its opinion ... the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war ... ." 317 U. S., at 45.In my view this seeks to revise Milligan rather than describe it. Milligan had involved (among other issues) two separate questions: (1) whether the military trial of Milligan was justified by the laws of war, and if not (2) whether the President's suspension of the writ, pursuant to congressional authorization, prevented the issuance of habeas corpus. The Court's categorical language about the law of war's inapplicability to citizens where the courts are open (with no exception mentioned for citizens who were prisoners of war) was contained in its discussion of the first point. See 4 Wall., at 121. The factors pertaining to whether Milligan could reasonably be considered a belligerent and prisoner of war, while mentioned earlier in the opinion, see id., at 118, were made relevant and brought to bear in the Court's later discussion, see id., at 131, of whether Milligan came within the statutory provision that effectively made an exception to Congress's authorized suspension of the writ for (as the Court described it) "all parties, not prisoners of war, resident in their respective jurisdictions, ... who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired," id., at 116. Milligan thus understood was in accord with the traditional law of habeas corpus I have described: Though treason often occurred in wartime, there was, absent provision for special treatment in a congressional suspension of the writ, no exception to the right to trial by jury for citizens who could be called "belligerents" or "prisoners of war."2 But even if Quirin gave a correct description of Milligan, or made an irrevocable revision of it, Quirin would still not justify denial of the writ here. In Quirin it was uncontested that the petitioners were members of enemy forces. They were "admitted enemy invaders," 317 U. S., at 47 (emphasis added), and it was "undisputed" that they had landed in the United States in service of German forces, id., at 20. The specific holding of the Court was only that, "upon the conceded facts," the petitioners were "plainly within [the] boundaries" of military jurisdiction, id., at 46 (emphasis added).3 But where those jurisdictional facts are not conceded — where the petitioner insists that he is not a belligerent — Quirin left the pre-existing law in place: Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.4V It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today's opinion prescribes under the Due Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But there is a world of difference between the people's representatives' determining the need for that suspension (and prescribing the conditions for it), and this Court's doing so. The plurality finds justification for Hamdi's imprisonment in the Authorization for Use of Military Force, 115 Stat. 224, which provides:"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." §2(a).This is not remotely a congressional suspension of the writ, and no one claims that it is. Contrary to the plurality's view, I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988); with the clarity necessary to comport with cases such as Ex parte Endo, 323 U. S. 283, 300 (1944), and Duncan v. Kahanamoku, 327 U. S. 304, 314-316, 324 (1946); or with the clarity necessary to overcome the statutory prescription that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." 18 U. S. C. §4001(a).5 But even if it did, I would not permit it to overcome Hamdi's entitlement to habeas corpus relief. The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed. It should not be thought, however, that the plurality's evisceration of the Suspension Clause augments, principally, the power of Congress. As usual, the major effect of its constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate. It "weigh[s] the private interest ... against the Government's asserted interest," ante, at 22 (internal quotation marks omitted), and — just as though writing a new Constitution — comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a "neutral" military officer rather than judge and jury. See ante, at 26-27. It claims authority to engage in this sort of "judicious balancing" from Mathews v. Eldridge, 424 U. S. 319 (1976), a case involving ... the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer. Having distorted the Suspension Clause, the plurality finishes up by transmogrifying the Great Writ — disposing of the present habeas petition by remanding for the District Court to "engag[e] in a factfinding process that is both prudent and incremental," ante, at 32. "In the absence of [the Executive's prior provision of procedures that satisfy due process], ... a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved." Ante, at 31-32. This judicial remediation of executive default is unheard of. The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal. See Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody"); 1 Blackstone 132-133. It is not the habeas court's function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him. There is a certain harmony of approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its making up for the Executive's failure to apply what it says are needed procedures — an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches' actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.VI Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different. Cf. Johnson v. Eisentrager, 339 U. S. 763, 769-771 (1950); Reid v. Covert, 354 U. S. 1, 74-75 (1957) (Harlan, J., concurring in result); Rasul v. Bush, ante, at 15-17 (Scalia, J., dissenting). Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation. See, e.g., County of Riverside v. McLaughlin, 500 U. S. 44 (1991) (brief detention pending judicial determination after warrantless arrest); United States v. Salerno, 481 U. S. 739 (1987) (pretrial detention under the Bail Reform Act). The Government has been notably successful in securing conviction, and hence long-term custody or execution, of those who have waged war against the state. I frankly do not know whether these tools are sufficient to meet the Government's security needs, including the need to obtain intelligence through interrogation. It is far beyond my competence, or the Court's competence, to determine that. But it is not beyond Congress's. If the situation demands it, the Executive can ask Congress to authorize suspension of the writ — which can be made subject to whatever conditions Congress deems appropriate, including even the procedural novelties invented by the plurality today. To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an "invasion," and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court. See 3 Story §1336, at 208-209.6 If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court. * * The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared,"is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free." The Federalist No. 8, p. 33.The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it. Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis — that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.YASER ESAM HAMDI and ESAM FOUAD HAMDI, asnext friend of YASER ESAM HAMDI, PETITION-ERS v. DONALD H. RUMSFELD, SECRETARYOF DEFENSE, et al.on writ of certiorari to the united states court of appeals for the fourth circuit[June 28, 2004] Justice Thomas, dissenting. The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners' habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U. S. 319 (1976). I do not think that the Federal Government's war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government's compelling interests and for our own institutional inability to weigh competing concerns correctly. I respectfully dissent.I "It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U. S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 509 (1964)). The national security, after all, is the primary responsibility and purpose of the Federal Government. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 662 (1952) (Clark, J., concurring in judgment); The Federalist No. 23, pp. 146-147 (J. Cooke ed. 1961) (A. Hamilton) ("The principle purposes to be answered by Union are these — The common defence of the members — the preservation of the public peace as well against internal convulsions as external attacks"). But because the Founders understood that they could not foresee the myriad potential threats to national security that might later arise, they chose to create a Federal Government that necessarily possesses sufficient power to handle any threat to the security of the Nation. The power to protect the Nation"ought to exist without limitation ... [b]ecause it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed." Id., at 147.See also The Federalist Nos. 34 and 41. The Founders intended that the President have primary responsibility — along with the necessary power — to protect the national security and to conduct the Nation's foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains. "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." The Federalist No. 70, p. 471 (A. Hamilton). The principle "ingredien[t]" for "energy in the executive" is "unity." Id., at 472. This is because "[d]ecision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number." Ibid. These structural advantages are most important in the national-security and foreign-affairs contexts. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The Federalist No. 74, p. 500 (A. Hamilton). Also for these reasons, John Marshall explained that "[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." 10 Annals of Cong. 613 (1800); see id., at 613-614. To this end, the Constitution vests in the President "[t]he executive Power," Art. II, §1, provides that he "shall be Commander in Chief of the" armed forces, §2, and places in him the power to recognize foreign governments, §3. This Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and that this authority carries with it broad discretion."If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority... . Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance ... is a question to be decided by him." Prize Cases, 2 Black 635, 668, 670 (1863).The Court has acknowledged that the President has the authority to "employ [the Nation's Armed Forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy." Fleming v. Page, 9 How. 603, 615 (1850). With respect to foreign affairs as well, the Court has recognized the President's independent authority and need to be free from interference. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936) (explaining that the President "has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results"); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948). Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive. I cannot improve on Justice Jackson's words, speaking for the Court:"The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Ibid.Several points, made forcefully by Justice Jackson, are worth emphasizing. First, with respect to certain decisions relating to national security and foreign affairs, the courts simply lack the relevant information and expertise to second-guess determinations made by the President based on information properly withheld. Second, even if the courts could compel the Executive to produce the necessary information, such decisions are simply not amenable to judicial determination because "[t]hey are delicate, complex, and involve large elements of prophecy." Ibid. Third, the Court in Chicago & Southern Air Lines and elsewhere has correctly recognized the primacy of the political branches in the foreign-affairs and national-security contexts. For these institutional reasons and because "Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act," it should come as no surprise that "[s]uch failure of Congress ... does not, 'especially ... in the areas of foreign policy and national security,' imply 'congressional disapproval' of action taken by the Executive." Dames & Moore v. Regan, 453 U. S. 654, 678 (1981) (quoting Agee, 453 U. S., at 291). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply — and the Judicial Branch should not infer — that Congress intended to deprive him of particular powers not specifically enumerated. See Dames & Moore, 453 U. S., at 678. As far as the courts are concerned, "the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to 'invite' 'measures on independent presidential responsibility.' " Ibid. (quoting Youngstown, 343 U. S., at 637 (Jackson, J., concurring)). Finally, and again for the same reasons, where "the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress[, and i]n such a case the executive action 'would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.' " Dames & Moore, supra, at 668 (quoting Youngstown, supra, at 637 (Jackson, J., concurring)). That is why the Court has explained, in a case analogous to this one, that "the detention[,] ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger[, is] not to be set aside by the courts without the clear conviction that [it is] in conflict with the Constitution or laws of Congress constitutionally enacted." Ex parte Quirin, 317 U. S. 1, 25 (1942). See also Ex parte Milligan, 4 Wall. 2, 133 (1866) (Chase, C. J., concurring in judgment) (stating that a sentence imposed by a military commission "must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress"). This deference extends to the President's determination of all the factual predicates necessary to conclude that a given action is appropriate. See Quirin, supra, at 25 ("We are not here concerned with any question of the guilt or innocence of petitioners"). See also Hirabayashi v. United States, 320 U. S. 81, 93 (1943); Prize Cases, 2 Black, at 670; Martin v. Mott, 12 Wheat. 19, 29-30 (1827). To be sure, the Court has at times held, in specific circumstances, that the military acted beyond its warmaking authority. But these cases are distinguishable in important ways. In Ex parte Endo, 323 U. S. 283 (1944), the Court held unlawful the detention of an admittedly law-abiding and loyal American of Japanese ancestry. It did so because the Government's asserted reason for the detention had nothing to do with the congressional and executive authorities upon which the Government relied. Those authorities permitted detention for the purpose of preventing espionage and sabotage and thus could not be pressed into service for detaining a loyal citizen. See id., at 301-302. Further, the Court "stress[ed] the silence ... of the [relevant] Act and the Executive Orders." Id., at 301 (emphasis added); see also id., at 301-304. The Court sensibly held that the Government could not detain a loyal citizen pursuant to executive and congressional authorities that could not conceivably be implicated given the Government's factual allegations. And in Youngstown, Justice Jackson emphasized that "Congress ha[d] not left seizure of private property an open field but ha[d] covered it by three statutory policies inconsistent with th[e] seizure." 343 U. S., at 639 (concurring opinion). See also Milligan, supra, at 134 (Chase, C. J., concurring in judgment) (noting that the Government failed to comply with statute directly on point). I acknowledge that the question whether Hamdi's executive detention is lawful is a question properly resolved by the Judicial Branch, though the question comes to the Court with the strongest presumptions in favor of the Government. The plurality agrees that Hamdi's detention is lawful if he is an enemy combatant. But the question whether Hamdi is actually an enemy combatant is "of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Chicago & Southern Air Lines, 333 U. S., at 111. That is, although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, see, e.g., Ex parte Endo, supra, we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is committed to other branches.1 In the words of then-Judge Scalia:"In Old Testament days, when judges ruled the people of Israel and led them into battle, a court professing the belief that it could order a halt to a military operation in foreign lands might not have been a startling phenomenon. But in modern times, and in a country where such governmental functions have been committed to elected delegates of the people, such an assertion of jurisdiction is extraordinary. The [C]ourt's decision today reflects a willingness to extend judicial power into areas where we do not know, and have no way of finding out, what serious harm we may be doing." Ramirez de Arellano v. Weinberger, 745 F. 2d 1500, 1550-1551 (CADC 1984) (en banc) (dissenting opinion) (footnote omitted).See also id., at 1551, n. 1 (noting that "[e]ven the ancient Israelites eventually realized the shortcomings of judicial commanders-in-chief"). The decision whether someone is an enemy combatant is, no doubt, "delicate, complex, and involv[es] large elements of prophecy," Chicago & Southern Air Lines, supra, at 111, which, incidentally might in part explain why "the Government has never provided any court with the full criteria that it uses in classifying individuals as such," ante, at 8. See also infra, at 18-20 (discussing other military decisions).II "The war power of the national government is 'the power to wage war successfully.' " Lichter v. United States, 334 U. S. 742, 767, n. 9 (1948) (quoting Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238). It follows that this power "is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict," In re Yamashita, 327 U. S. 1, 12 (1946); see also Stewart v. Kahn, 11 Wall. 493, 507 (1871), and quite obviously includes the ability to detain those (even United States citizens) who fight against our troops or those of our allies, see, e.g., Quirin, 327 U. S. 304, 313-314 (1946); W. Winthrop, Military Law and Precedents 788 (2d ed. 1920); W. Whiting, War Powers Under the Constitution of the United States 167 (43d ed. 1871); id., at 44-46 (noting that Civil War "rebels" may be treated as foreign belligerents); see also ante, at 10-12. Although the President very well may have inherent authority to detain those arrayed against our troops, I agree with the plurality that we need not decide that question because Congress has authorized the President to do so. See ante, at 9. The Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorizes the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" of September 11, 2001. Indeed, the Court has previously concluded that language materially identical to the AUMF authorizes the Executive to "make the ordinary use of the soldiers ... ; that he may kill persons who resist and, of course, that he may use the milder measure of seizing [and detaining] the bodies of those whom he considers to stand in the way of restoring peace." Moyer v. Peabody, 212 U. S. 78, 84 (1909). The plurality, however, qualifies its recognition of the President's authority to detain enemy combatants in the war on terrorism in ways that are at odds with our precedent. Thus, the plurality relies primarily on Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364, for the proposition that "[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities." Ante, at 12-13. It then appears to limit the President's authority to detain by requiring that the record establis[h] that United States troops are still involved in active combat in Afghanistan because, in that case, detention would be "part of the exercise of 'necessary and appropriate force.' " Ante, at 14. But I do not believe that we may diminish the Federal Government's war powers by reference to a treaty and certainly not to a treaty that does not apply. See n. 6, infra. Further, we are bound by the political branches' determination that the United States is at war. See, e.g., Ludecke v. Watkins, 335 U. S. 160, 167-170 (1948); Prize Cases, 2 Black, at 670; Mott, 12 Wheat., at 30. And, in any case, the power to detain does not end with the cessation of formal hostilities. See, e.g., Madsen v. Kinsella, 343 U. S. 341, 360 (1952); Johnson v. Eisentrager, 339 U. S. 763, 786 (1950); cf. Moyer, supra, at 85. Accordingly, the President's action here is "supported by the strongest of presumptions and the widest latitude of judicial interpretation." Dames & Moore, 453 U. S., at 668 (internal quotation marks omitted).2 The question becomes whether the Federal Government (rather than the President acting alone) has power to detain Hamdi as an enemy combatant. More precisely, we must determine whether the Government may detain Hamdi given the procedures that were used.III I agree with the plurality that the Federal Government has power to detain those that the Executive Branch determines to be enemy combatants. See ante, at 10. But I do not think that the plurality has adequately explained the breadth of the President's authority to detain enemy combatants, an authority that includes making virtually conclusive factual findings. In my view, the structural considerations discussed above, as recognized in our precedent, demonstrate that we lack the capacity and responsibility to second-guess this determination. This makes complete sense once the process that is due Hamdi is made clear. As an initial matter, it is possible that the Due Process Clause requires only "that our Government must proceed according to the 'law of the land'--that is, according to written constitutional and statutory provisions." In re Winship, 397 U. S. 358, 382 (1970) (Black, J., dissenting). I need not go this far today because the Court has already explained the nature of due process in this context. In a case strikingly similar to this one, the Court addressed a Governor's authority to detain for an extended period a person the executive believed to be responsible, in part, for a local insurrection. Justice Holmes wrote for a unanimous Court:"When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. This was admitted with regard to killing men in the actual clash of arms, and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm." Moyer, 212 U. S., at 85 (citation omitted; emphasis added).The Court answered Moyer's claim that he had been denied due process by emphasizing that"it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation. Thus summary proceedings suffice for taxes, and executive decisions for exclusion from the country... . Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power." Id., at 84-85 (citations omitted).In this context, due process requires nothing more than a good-faith executive determination.3 To be clear: The Court has held that an executive, acting pursuant to statutory and constitutional authority may, consistent with the Due Process Clause, unilaterally decide to detain an individual if the executive deems this necessary for the public safety even if he is mistaken. Moyer is not an exceptional case. In Luther v. Borden, 7 How. 1 (1849), the Court discussed the President's constitutional and statutory authority, in response to a request from a state legislature or executive, " 'to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress [an] insurrection.' " Id., at 43 (quoting Act of Feb. 28, 1795). The Court explained that courts could not review the President's decision to recognize one of the competing legislatures or executives. See 7 How., at 43. If a court could second-guess this determination, "it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States." Ibid. "If the judicial power extends so far," the Court concluded, "the guarantee contained in the Constitution of the United States [referring to Art. IV, §4] is a guarantee of anarchy, and not of order." Ibid. The Court clearly contemplated that the President had authority to detain as he deemed necessary, and such detentions evidently comported with the Due Process Clause as long as the President correctly decided to call forth the militia, a question the Court said it could not review. The Court also addressed the natural concern that placing "this power in the President is dangerous to liberty, and may be abused." Id., at 44. The Court noted that "[a]ll power may be abused if placed in unworthy hands," and explained that "it would be difficult ... to point out any other hands in which this power would be more safe, and at the same time equally effectual." Ibid. Putting that aside, the Court emphasized that this power "is conferred upon him by the Constitution and laws of the United States, and must therefore be respected and enforced in its judicial tribunals." Ibid. Finally, the Court explained that if the President abused this power "it would be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it." Id., at 45. Almost 140 years later, in United States v. Salerno, the Court explained that the Due Process Clause "lays down [no] categorical imperative." The Court continued:"We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous." Ibid.The Court cited Ludecke v. Watkins, for this latter proposition even though Ludecke actually involved detention of enemy aliens. See also Selective Draft Law Cases, 245 U. S. 366 (1918); Jacobson v. Massachusetts, 197 U. S. 11, 27-29 (1905) (upholding legislated mass vaccinations and approving of forced quarantines of Americans even if they show no signs of illness); cf. Kansas v. Hendricks, 521 U. S. 346 (1997); Juragua Iron Co. v. United States, 212 U. S. 297 (1909). The Government's asserted authority to detain an individual that the President has determined to be an enemy combatant, at least while hostilities continue, comports with the Due Process Clause. As these cases also show, the Executive's decision that a detention is necessary to protect the public need not and should not be subjected to judicial second-guessing. Indeed, at least in the context of enemy-combatant determinations, this would defeat the unity, secrecy, and dispatch that the Founders believed to be so important to the warmaking function. See Part I, supra. I therefore cannot agree with Justice Scalia's conclusion that the Government must choose between using standard criminal processes and suspending the writ. See ante, at 26 (dissenting opinion). Justice Scalia relies heavily upon Ex parte Milligan, 4 Wall. 2 (1866), see ante, at 14-16, 17-20, and three cases decided by New York state courts in the wake of the War of 1812, see ante, at 13-14. I admit that Milligan supports his position. But because the Executive Branch there, unlike here, did not follow a specific statutory mechanism provided by Congress, the Court did not need to reach the broader question of Congress' power, and its discussion on this point was arguably dicta, see 4 Wall., at 122, as four Justices believed, see id., at 132, 134-136 (Chase, C. J., joined by Wayne, Swayne, and Miller, JJ., concurring in judgment). More importantly, the Court referred frequently and pervasively to the criminal nature of the proceedings instituted against Milligan. In fact, this feature serves to distinguish the state cases as well. See In re Stacy, 10 Johns. 328, 334 (N. Y. 1813) ("A military commander is here assuming criminal jurisdiction over a private citizen" (emphasis added)); Smith v. Shaw, 12 Johns. 257, 265 (N. Y. 1815) (Shaw "might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy" (emphasis added)); M'Connell v. Hampton, 12 Johns. 234 (N. Y. 1815) (same for treason). Although I do acknowledge that the reasoning of these cases might apply beyond criminal punishment, the punishment-nonpunishment distinction harmonizes all of the precedent. And, subsequent cases have at least implicitly distinguished Milligan in just this way. See, e.g., Moyer, 212 U. S., at 84-85 ("Such arrests are not necessarily for punishment, but are by way of precaution"). Finally, Quirin overruled Milligan to the extent that those cases are inconsistent. See Quirin, 317 U. S., at 45 (limiting Milligan to its facts). Because the Government does not detain Hamdi in order to punish him, as the plurality acknowledges, see ante, at 10-11, Milligan and the New York cases do not control. Justice Scalia also finds support in a letter Thomas Jefferson wrote to James Madison. See ante, at 12. I agree that this provides some evidence for his position. But I think this plainly insufficient to rebut the authorities upon which I have relied. In any event, I do not believe that Justice Scalia's evidence leads to the necessary "clear conviction that [the detention is] in conflict with the Constitution or laws of Congress constitutionally enacted," Quirin, supra, at 25, to justify nullifying the President's wartime action. Finally, Justice Scalia's position raises an additional concern. Justice Scalia apparently does not disagree that the Federal Government has all power necessary to protect the Nation. If criminal processes do not suffice, however, Justice Scalia would require Congress to suspend the writ. See ante, at 26. But the fact that the writ may not be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it," Art. I, §9, cl. 2, poses two related problems. First, this condition might not obtain here or during many other emergencies during which this detention authority might be necessary. Congress would then have to choose between acting unconstitutionally4 and depriving the President of the tools he needs to protect the Nation. Second, I do not see how suspension would make constitutional otherwise unconstitutional detentions ordered by the President. It simply removes a remedy. Justice Scalia's position might therefore require one or both of the political branches to act unconstitutionally in order to protect the Nation. But the power to protect the Nation must be the power to do so lawfully. Accordingly, I conclude that the Government's detention of Hamdi as an enemy combatant does not violate the Constitution. By detaining Hamdi, the President, in the prosecution of a war and authorized by Congress, has acted well within his authority. Hamdi thereby received all the process to which he was due under the circumstances. I therefore believe that this is no occasion to balance the competing interests, as the plurality unconvincingly attempts to do.IV Although I do not agree with the plurality that the balancing approach of Mathews v. Eldridge, 424 U. S. 319 (1976), is the appropriate analytical tool with which to analyze this case,5 I cannot help but explain that the plurality misapplies its chosen framework, one that if applied correctly would probably lead to the result I have reached. The plurality devotes two paragraphs to its discussion of the Government's interest, though much of those two paragraphs explain why the Government's concerns are misplaced. See ante, at 24-25. But: "It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Agee, 453 U. S., at 307 (quoting Aptheker, 378 U. S., at 509). In Moyer, the Court recognized the paramount importance of the Governor's interest in the tranquility of a Colorado town. At issue here is the far more significant interest of the security of the Nation. The Government seeks to further that interest by detaining an enemy soldier not only to prevent him from rejoining the ongoing fight. Rather, as the Government explains, detention can serve to gather critical intelligence regarding the intentions and capabilities of our adversaries, a function that the Government avers has become all the more important in the war on terrorism. See Brief for Respondents 15; App. 347-351. Additional process, the Government explains, will destroy the intelligence gathering function. Brief for Respondents 43-45. It also does seem quite likely that, under the process envisioned by the plurality, various military officials will have to take time to litigate this matter. And though the plurality does not say so, a meaningful ability to challenge the Government's factual allegations will probably require the Government to divulge highly classified information to the purported enemy combatant, who might then upon release return to the fight armed with our most closely held secrets. The plurality manages to avoid these problems by discounting or entirely ignoring them. After spending a few sentences putatively describing the Government's interests, the plurality simply assures the Government that the alleged burdens "are properly taken into account in our due process analysis." Ante, at 25. The plurality also announces that "the risk of erroneous deprivation of a detainee's liberty interest is unacceptably high under the Government's proposed rule." Ante, at 26 (internal quotation marks omitted). But there is no particular reason to believe that the federal courts have the relevant information and expertise to make this judgment. And for the reasons discussed in Part I, supra, there is every reason to think that courts cannot and should not make thesedecisions. The plurality next opines that "[w]e think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts." Ante, at 27. Apparently by limiting hearings "to the alleged combatant's acts," such hearings "meddl[e] little, if at all, in the strategy or conduct of war." Ante, at 28. Of course, the meaning of the combatant's acts may become clear only after quite invasive and extensive inquiry. And again, the federal courts are simply not situated to make these judgments. Ultimately, the plurality's dismissive treatment of the Government's asserted interests arises from its apparent belief that enemy-combatant determinations are not part of "the actual prosecution of a war," ibid., or one of the "central functions of warmaking," ante, at 27. This seems wrong: Taking and holding enemy combatants is a quintessential aspect of the prosecution of war. See, e.g., ante, at 10-11; Quirin, 317 U. S., at 28. Moreover, this highlights serious difficulties in applying the plurality's balancing approach here. First, in the war context, we know neither the strength of the Government's interests nor the costs of imposing additional process. Second, it is at least difficult to explain why the result should be different for other military operations that the plurality would ostensibly recognize as "central functions of warmaking." As the plurality recounts:"Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner." Ante, at 26 (internal quotation marks omitted).See also ibid. ("notice" of the Government's factual assertions and "a fair opportunity to rebut [those] assertions before a neutral decisionmaker" are essential elements of due process). Because a decision to bomb a particular target might extinguish life interests, the plurality's analysis seems to require notice to potential targets. To take one more example, in November 2002, a Central Intelligence Agency (CIA) Predator drone fired a Hellfire missile at a vehicle in Yemen carrying an al Qaeda leader, a citizen of the United States, and four others. See Priest, CIA Killed U. S. Citizen In Yemen Missile Strike, Washington Post, Nov. 8, 2002, p. A1. It is not clear whether the CIA knew that an American was in the vehicle. But the plurality's due process would seem to require notice and opportunity to respond here as well. Cf. Tennessee v. Garner, 471 U. S. 1 (1985). I offer these examples not because I think the plurality would demand additional process in these situations but because it clearly would not. The result here should be the same. I realize that many military operations are, in some sense, necessary. But many, if not most, are merely expedient, and I see no principled distinction between the military operation the plurality condemns today (the holding of an enemy combatant based on the process given Hamdi) from a variety of other military operations. In truth, I doubt that there is any sensible, bright-line distinction. It could be argued that bombings and missile strikes are an inherent part of war, and as long as our forces do not violate the laws of war, it is of no constitutional moment that civilians might be killed. But this does not serve to distinguish this case because it is also consistent with the laws of war to detain enemy combatants exactly as the Government has detained Hamdi.6 This, in fact, bolsters my argument in Part III to the extent that the laws of war show that the power to detain is part of a sovereign's war powers. Undeniably, Hamdi has been deprived of a serious interest, one actually protected by the Due Process Clause. Against this, however, is the Government's overriding interest in protecting the Nation. If a deprivation of liberty can be justified by the need to protect a town, the protection of the Nation, a fortiori, justifies it. I acknowledge that under the plurality's approach, it might, at times, be appropriate to give detainees access to counsel and notice of the factual basis for the Government's determination. See ante, at 25-27. But properly accounting for the Government's interests also requires concluding that access to counsel and to the factual basis would not always be warranted. Though common sense suffices, the Government thoroughly explains that counsel would often destroy the intelligence gathering function. See Brief for Respondents 42-43. See also App. 347-351 (affidavit of Col. D. Woolfolk). Equally obvious is the Government's interest in not fighting the war in its own courts, see, e.g., Johnson v. Eisentrager, 484 U. S. 518, 527 (1988) (President's "authority to classify and control access to information bearing on national security and to determine" who gets access "flows primarily from [the Commander-in-Chief Clause] and exists quite apart from any explicit congressional grant"); Agee, 453 U. S., at 307 (upholding revocation of former CIA employee's passport in large part by reference to the Government's need "to protect the secrecy of [its] foreign intelligence operations").7 * * For these reasons, I would affirm the judgment of the Court of Appeals.YASER ESAM HAMDI and ESAM FOUAD HAMDI, asnext friend of YASER ESAM HAMDI, PETITION-ERS v. DONALD H. RUMSFELD, SECRETARYOF DEFENSE, et al.on writ of certiorari to the united states court of appeals for the fourth circuit[June 28, 2004] Justice Souter, with whom Justice Ginsburg joins, concurring in part, dissenting in part, and concurring in the judgment. According to Yaser Hamdi's petition for writ of habeas corpus, brought on his behalf by his father, the Government of the United States is detaining him, an American citizen on American soil, with the explanation that he was seized on the field of battle in Afghanistan, having been on the enemy side. It is undisputed that the Government has not charged him with espionage, treason, or any other crime under domestic law. It is likewise undisputed that for one year and nine months, on the basis of an Executive designation of Hamdi as an "enemy combatant," the Government denied him the right to send or receive any communication beyond the prison where he was held and, in particular, denied him access to counsel to represent him.1 The Government asserts a right to hold Hamdi under these conditions indefinitely, that is, until the Government determines that the United States is no longer threatened by the terrorism exemplified in the attacks of September 11, 2001. In these proceedings on Hamdi's petition, he seeks to challenge the facts claimed by the Government as the basis for holding him as an enemy combatant. And in this Court he presses the distinct argument that the Government's claim, even if true, would not implicate any authority for holding him that would satisfy 18 U. S. C. §4001(a) (Non-Detention Act), which bars imprisonmentor detention of a citizen "except pursuant to an Act of Congress." The Government responds that Hamdi's incommunicado imprisonment as an enemy combatant seized on the field of battle falls within the President's power as Commander in Chief under the laws and usages of war, and is in any event authorized by two statutes. Accordingly, the Government contends that Hamdi has no basis for any challenge by petition for habeas except to his own status as an enemy combatant; and even that challenge may go no further than to enquire whether "some evidence" supports Hamdi's designation, see Brief for Respondents 34-36; if there is "some evidence," Hamdi should remain locked up at the discretion of the Executive. At the argument of this case, in fact, the Government went further and suggested that as long as a prisoner could challenge his enemy combatant designation when responding to interrogation during incommunicado detention he was accorded sufficient process to support his designation as an enemy combatant. See Tr. of Oral Arg. 40; id., at 42 ("[H]e has an opportunity to explain it in his own words" "[d]uring interrogation"). Since on either view judicial enquiry so limited would be virtually worthless as a way to contest detention, the Government's concession of jurisdiction to hear Hamdi's habeas claim is more theoretical than practical, leaving the assertion of Executive authority close to unconditional. The plurality rejects any such limit on the exercise of habeas jurisdiction and so far I agree with its opinion. The plurality does, however, accept the Government's position that if Hamdi's designation as an enemy combatant is correct, his detention (at least as to some period) is authorized by an Act of Congress as required by §4001(a), that is, by the Authorization for Use of Military Force, 115 Stat. 224 (hereinafter Force Resolution). Ante, at 9-14. Here, I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released.I The Government's first response to Hamdi's claim that holding him violates §4001(a), prohibiting detention of citizens "except pursuant to an Act of Congress," is that the statute does not even apply to military wartime detentions, being beyond the sphere of domestic criminal law. Next, the Government says that even if that statute does apply, two Acts of Congress provide the authority §4001(a) demands: a general authorization to the Department of Defense to pay for detaining "prisoners of war" and "similar" persons, 10 U. S. C. §956(5), and the Force Resolution, passed after the attacks of 2001. At the same time, the Government argues that in detaining Hamdi in the manner described, the President is in any event acting as Commander in Chief under Article II of the Constitution, which brings with it the right to invoke authority under the accepted customary rules for waging war. On the record in front of us, the Government has not made out a case on any theory.II The threshold issue is how broadly or narrowly to read the Non-Detention Act, the tone of which is severe: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Should the severity of the Act be relieved when the Government's stated factual justification for incommunicado detention is a war on terrorism, so that the Government may be said to act "pursuant" to congressional terms that fall short of explicit authority to imprison individuals? With one possible though important qualification, see infra, at 10-11, the answer has to be no. For a number of reasons, the prohibition within §4001(a) has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government. First, the circumstances in which the Act was adopted point the way to this interpretation. The provision superseded a cold-war statute, the Emergency Detention Act of 1950 (formerly 50 U. S. C. §811 et seq. (1970 ed.)), which had authorized the Attorney General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. That statute was repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry; Congress meant to preclude another episode like the one described in Korematsu v. United States, 323 U. S. 214 (1944). See H. R. Rep. No. 92-116, pp. 2, 4-5 (1971). While Congress might simply have struck the 1950 statute, in considering the repealer the point was made that the existing statute provided some express procedural protection, without which the Executive would seem to be subject to no statutory limits protecting individual liberty. See id., at 5 (mere repeal "might leave citizens subject to arbitrary executive action, with no clear demarcation of the limits of executive authority"); 117 Cong. Rec. 31544 (1971) (Emergency Detention Act "remains as the only existing barrier against the future exercise of executive power which resulted in" the Japanese internment); cf. id., at 31548 (in the absence of further procedural provisions, even §4001(a) "will virtually leave us stripped naked against the great power ... which the President has"). It was in these circumstances that a proposed limit on Executive action was expanded to the inclusive scope of §4001(a) as enacted. The fact that Congress intended to guard against a repetition of the World War II internments when it repealed the 1950 statute and gave us §4001(a) provides a powerful reason to think that §4001(a) was meant to require clear congressional authorization before any citizen can be placed in a cell. It is not merely that the legislative history shows that §4001(a) was thought necessary in anticipation of times just like the present, in which the safety of the country is threatened. To appreciate what is most significant, one must only recall that the internments of the 1940's were accomplished by Executive action. Although an Act of Congress ratified and confirmed an Executive order authorizing the military to exclude individuals from defined areas and to accommodate those it might remove, see Ex parte Endo, 323 U. S. 283, 285-288 (1944), the statute said nothing whatever about the detention of those who might be removed, id., at 300-301; internment camps were creatures of the Executive, and confinement in them rested on assertion of Executive authority, see id., at 287-293. When, therefore, Congress repealed the 1950 Act and adopted §4001(a) for the purpose of avoiding another Korematsu, it intended to preclude reliance on vague congressional authority (for example, providing "accommodations" for those subject to removal) as authority for detention or imprisonment at the discretion of the Executive (maintaining detention camps of American citizens, for example). In requiring that any Executive detention be "pursuant to an Act of Congress," then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment. Second, when Congress passed §4001(a) it was acting in light of an interpretive regime that subjected enactments limiting liberty in wartime to the requirement of a clear statement and it presumably intended §4001(a) to be read accordingly. This need for clarity was unmistakably expressed in Ex parte Endo, supra, decided the same day as Korematsu. Endo began with a petition for habeas corpus by an interned citizen claiming to be loyal and law-abiding and thus "unlawfully detained." 323 U. S., at 294. The petitioner was held entitled to habeas relief in an opinion that set out this principle for scrutinizing wartime statutes in derogation of customary liberty:"In interpreting a wartime measure we must assume that [its] purpose was to allow for the greatest possible accommodation between ... liberties and the exigencies of war. We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used." Id., at 300.Congress's understanding of the need for clear authority before citizens are kept detained is itself therefore clear, and §4001(a) must be read to have teeth in its demand for congressional authorization. Finally, even if history had spared us the cautionary example of the internments in World War II, even if there had been no Korematsu, and Endo had set out no principle of statutory interpretation, there would be a compelling reason to read §4001(a) to demand manifest authority to detain before detention is authorized. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that "the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights." The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.III Under this principle of reading §4001(a) robustly to require a clear statement of authorization to detain, none of the Government's arguments suffices to justify Hamdi's detention.A First, there is the argument that §4001(a) does not even apply to wartime military detentions, a position resting on the placement of §4001(a) in Title 18 of the United States Code, the gathering of federal criminal law. The text of the statute does not, however, so limit its reach, and the legislative history of the provision shows its placement in Title 18 was not meant to render the statute more restricted than its terms. The draft of what is now §4001(a) as contained in the original bill prohibited only imprisonment unauthorized by Title 18. See H. R. Rep. No. 92-116, at 4. In response to the Department of Justice's objection that the original draft seemed to assume wrongly that all provisions for the detention of convicted persons would be contained in Title 18, the provision was amended by replacing a reference to that title with the reference to an "Act of Congress." Id., at 3. The Committee on the Judiciary, discussing this change, stated that "[limiting] detention of citizens ... to situations in which ... an Act of Congres[s] exists" would "assure that no detention camps can be established without at least the acquiescence of the Congress." Id., at 5. See also supra, at 4-6. This understanding, that the amended bill would sweep beyond imprisonment for crime and apply to Executive detention in furtherance of wartime security, was emphasized in an extended debate. Representative Ichord, chairman of the House Internal Security Committee and an opponent of the bill, feared that the redrafted statute would "deprive the President of his emergency powers and his most effective means of coping with sabotage and espionage agents in war-related crises." 117 Cong. Rec., at 31542. Representative Railsback, the bill's sponsor, spoke of the bill in absolute terms: "[I]n order to prohibit arbitrary executive action, [the bill] assures that no detention of citizens can be undertaken by the Executive without the prior consent of Congress." Id., at 31551. This legislative history indicates that Congress was aware that §4001(a) would limit the Executive's power to detain citizens in wartime to protect national security, and it is fair to say that the prohibition was thus intended to extend not only to the exercise of power to vindicate the interests underlying domestic criminal law, but to statutorily unauthorized detention by the Executive for reasons of security in wartime, just as Hamdi claims.2B Next, there is the Government's claim, accepted by the Court, that the terms of the Force Resolution are adequate to authorize detention of an enemy combatant under the circumstances described,3 a claim the Government fails to support sufficiently to satisfy §4001(a) as read to require a clear statement of authority to detain. Since the Force Resolution was adopted one week after the attacks of September 11, 2001, it naturally speaks with some generality, but its focus is clear, and that is on the use of military power. It is fairly read to authorize the use of armies and weapons, whether against other armies or individual terrorists. But, like the statute discussed in Endo, it never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit. See, e.g., 18 U. S. C. §2339A (material support for various terrorist acts); §2339B (material support to a foreign terrorist organization); §2332a (use of a weapon of mass destruction, including conspiracy and attempt); §2332b(a)(1) (acts of terrorism "transcending national boundaries," including threats, conspiracy, and attempt); 18 U. S. C. A. §2339C (Supp. 2004) (financing of certain terrorist acts); see also 18 U. S. C. §3142(e) (pretrial detention). See generally Brief for Janet Reno et al. as Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, pp. 14-19, and n. 17 (listing the tools available to the Executive to fight terrorism even without the power the Government claims here); Brief for Louis Henkin et al. as Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, p. 23, n. 27.4C Even so, there is one argument for treating the Force Resolution as sufficiently clear to authorize detention of a citizen consistently with §4001(a). Assuming the argument to be sound, however, the Government is in no position to claim its advantage. Because the Force Resolution authorizes the use of military force in acts of war by the United States, the argument goes, it is reasonably clear that the military and its Commander in Chief are authorized to deal with enemy belligerents according to the treaties and customs known collectively as the laws of war. Brief for Respondents 20-22; see ante, at 9-14 (accepting this argument). Accordingly, the United States may detain captured enemies, and Ex parte Quirin, 317 U. S. 1 (1942), may perhaps be claimed for the proposition that the American citizenship of such a captive does not as such limit the Government's power to deal with him under the usages of war. Id., at 31, 37-38. Thus, the Government here repeatedly argues that Hamdi's detention amounts to nothing more than customary detention of a captive taken on the field of battle: if the usages of war are fairly authorized by the Force Resolution, Hamdi's detention is authorized for purposes of §4001(a). There is no need, however, to address the merits of such an argument in all possible circumstances. For now it is enough to recognize that the Government's stated legal position in its campaign against the Taliban (among whom Hamdi was allegedly captured) is apparently at odds withits claim here to be acting in accordance with custo-mary law of war and hence to be within the terms ofthe Force Resolution in its detention of Hamdi. In a statement of its legal position cited in its brief, theGovernment says that "the Geneva Convention appliesto the Taliban detainees." Office of the White House Press Secretary, Fact Sheet, Status of Detainees at Guantanamo (Feb. 7, 2002), www.whitehouse.gov/news/releases/2002/02/20020207-13.html (as visited June 18, 2004, and available in Clerk of Court's case file) (hereinafter White House Press Release) (cited in Brief for Respondents 24, n. 9). Hamdi presumably is such a detainee, since according to the Government's own account, he was taken bearing arms on the Taliban side of a field of battle in Afghanistan. He would therefore seem to qualify for treatment as a prisoner of war under the Third Geneva Convention, to which the United States is a party. Article 4 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S. No. 3364. By holding him incommunicado, however, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status. See Brief for Respondents 24; White House Press Release. This treatment appears to be a violation of the Geneva Convention provision that even in cases of doubt, captives are entitled to be treated as prisoners of war "until such time as their status has been determined by a competent tribunal." Art. 5, 6 U. S. T., at 3324. The Government answers that the President's determination that Taliban detainees do not qualify as prisoners of war is conclusive as to Hamdi's status and removes any doubt that would trigger application of the Convention's tribunal requirement. See Brief for Respondents 24. But reliance on this categorical pronouncement to settle doubt is apparently at odds with the military regulation, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Reg. 190-8, §§1-5, 1-6 (1997), adopted to implement the Geneva Convention, and setting out a detailed procedure for a military tribunal to determine an individual's status. See, e.g., id., §1-6 ("A competent tribunal shall be composed of three commissioned officers"; a "written record shall be made of proceedings"; "[p]roceedings shall be open" with certain exceptions; "[p]ersons whose status is to be determined shall be advised of their rights at the beginning of their hearings," "allowed to attend all open sessions," "allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal," and to "have a right to testify"; and a tribunal shall determine status by a "[p]reponderance of evidence"). One of the types of doubt these tribunals are meant to settle is whether a given individual may be, as Hamdi says he is, an "[i]nnocent civilian who should be immediately returned to his home or released." Id., 1-6e(10)(c). The regulation, jointly promulgated by the Headquarters of the Departments of the Army, Navy, Air Force, and Marine Corps, provides that "[p]ersons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed." Id., §1-6g. The regulation also incorporates the Geneva Convention's presumption that in cases of doubt, "persons shall enjoy the protection of the ... Convention until such time as their status has been determined by a competent tribunal." Id., §1-6a. Thus, there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority. Whether, or to what degree, the Government is in fact violating the Geneva Convention and is thus acting outside the customary usages of war are not matters I can resolve at this point. What I can say, though, is that the Government has not made out its claim that in detaining Hamdi in the manner described, it is acting in accord with the laws of war authorized to be applied against citizens by the Force Resolution. I conclude accordingly that the Government has failed to support the position that the Force Resolution authorizes the described detention of Hamdi for purposes of §4001(a). It is worth adding a further reason for requiring the Government to bear the burden of clearly justifying its claim to be exercising recognized war powers before declaring §4001(a) satisfied. Thirty-eight days after adopting the Force Resolution, Congress passed the statute entitled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), 115 Stat. 272; that Act authorized the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings, 8 U. S. C. §1226a(a)(5) (2000 ed., Supp. I). It is very difficult to believe that the same Congress that carefully circumscribed Executive power over alien terrorists on home soil would not have meant to require the Government to justify clearlyits detention of an American citizen held on home soil incommunicado.D Since the Government has given no reason either to deflect the application of §4001(a) or to hold it to be satisfied, I need to go no further; the Government hints of a constitutional challenge to the statute, but it presents none here. I will, however, stray across the line between statutory and constitutional territory just far enough to note the weakness of the Government's mixed claim of inherent, extrastatutory authority under a combination of Article II of the Constitution and the usages of war. It is in fact in this connection that the Government developed its argument that the exercise of war powers justifies the detention, and what I have just said about its inadequacy applies here as well. Beyond that, it is instructive to recall Justice Jackson's observation that the President is not Commander in Chief of the country, only of the military. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 643-644 (1952) (concurring opinion); see also id., at 637-638 (Presidential authority is "at its lowest ebb" where the President acts contrary to congressional will). There may be room for one qualification to Justice Jackson's statement, however: in a moment of genuine emergency, when the Government must act with no time for deliberation, the Executive may be able to detain a citizen if there is reason to fear he is an imminent threat to the safety of the Nation and its people (though I doubt there is any want of statutory authority, see supra, at 9-10). This case, however, does not present that question, because an emergency power of necessity must at least be limited by the emergency; Hamdi has been locked up for over two years. Cf. Ex parte Milligan, 4 Wall. 2, 127 (1866) (martial law justified only by "actual and present" necessity as in a genuine invasion that closes civilian courts). Whether insisting on the careful scrutiny of emergency claims or on a vigorous reading of §4001(a), we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons' insistence, confined executive power by "the law of the land."IV Because I find Hamdi's detention forbidden by §4001(a) and unauthorized by the Force Resolution, I would not reach any questions of what process he may be due in litigating disputed issues in a proceeding under the habeas statute or prior to the habeas enquiry itself. For me, it suffices that the Government has failed to justify holding him in the absence of a further Act of Congress, criminal charges, a showing that the detention conforms to the laws of war, or a demonstration that §4001(a) is unconstitutional. I would therefore vacate the judgment of the Court of Appeals and remand for proceedings consistent with this view. Since this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight members of the Court rejecting the Government's position calls for me to join with the plurality in ordering remand on terms closest to those I would impose. See Screws v. United States, 325 U. S. 91, 134 (1945) (Rutledge, J., concurring in result). Although I think litigation of Hamdi's status as an enemy combatant is unnecessary, the terms of the plurality's remand will allow Hamdi to offer evidence that he is not an enemy combatant, and he should at the least have the benefit of that opportunity. It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality's resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality's determinations (given the plurality's view of the Force Resolution) that someone in Hamdi's position is entitled at a minimum to notice of the Government's claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decision maker, see ante, at 26; nor, of course, could I disagree with the plurality's affirmation of Hamdi's right to counsel, see ante, at 32-33. On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on Hamdi, see ante, at 27, or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas, see ante, at 31-32. Subject to these qualifications, I join with the plurality in a judgment of the Court vacating the Fourth Circuit's judgment and remanding the case.FOOTNOTESFootnote 1 Here the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant. The legal category of enemy combatant has not been elaborated upon in great detail. The permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them.Footnote 2 Because we hold that Hamdi is constitutionally entitled to the process described above, we need not address at this time whether any treaty guarantees him similar access to a tribunal for a determination of his status.FOOTNOTESFootnote 1 As I shall discuss presently, see infra, at 17-19, the Court purported to limit this language in Ex parte Quirin, 317 U. S. 1, 45 (1942). Whatever Quirin's effect on Milligan's precedential value, however, it cannot undermine its value as an indicator of original meaning. Cf. Reid v. Covert, 354 U. S. 1, 30 (1957) (plurality opinion) (Milligan remains "one of the great landmarks in this Court's history").Footnote 2 Without bothering to respond to this analysis, the plurality states that Milligan "turned in large part" upon the defendant's lack of prisoner-of-war status, and that the Milligan Court explicitly and repeatedly said so. See ante, at 14. Neither is true. To the extent, however, that prisoner-of-war status was relevant in Milligan, it was only because prisoners of war received different statutory treatment under the conditional suspension then in effect.Footnote 3 The only two Court of Appeals cases from World War II cited by the Government in which citizens were detained without trial likewise involved petitioners who were conceded to have been members of enemy forces. See In re Territo, 156 F. 2d 142, 143-145 (CA9 1946); Colepaugh v. Looney, 235 F. 2d 429, 432 (CA10 1956). The plurality complains that Territo is the only case I have identified in which "a United States citizen [was] captured in a foreign combat zone," ante, at 16. Indeed it is; such cases must surely be rare. But given the constitutional tradition I have described, the burden is not upon me to find cases in which the writ was granted to citizens in this country who had been captured on foreign battlefields; it is upon those who would carve out an exception for such citizens (as the plurality's complaint suggests it would) to find a single case (other than one where enemy status was admitted) in which habeas was denied.Footnote 4 The plurality's assertion that Quirin somehow "clarifies" Milligan, ante, at 15, is simply false. As I discuss supra, at 17-19, the Quirin Court propounded a mistaken understanding of Milligan; but nonetheless its holding was limited to "the case presented by the present record," and to "the conceded facts," and thus avoided conflict with the earlier case. See 317 U. S., at 45-46 (emphasis added). The plurality, ignoring this expressed limitation, thinks it "beside the point" whether belligerency is conceded or found "by some other process" (not necessarily a jury trial) "that verifies this fact with sufficient certainty." Ante, at 16. But the whole point of the procedural guarantees in the Bill of Rights is to limit the methods by which the Government can determine facts that the citizen disputes and on which the citizen's liberty depends. The plurality's claim that Quirin's one-paragraph discussion of Milligan provides a "[c]lear ... disavowal" of two false imprisonment cases from the War of 1812, ante, at 15, thus defies logic; unlike the plaintiffs in those cases, Haupt was concededly a member of an enemy force. The Government also cites Moyer v. Peabody, 212 U. S. 78 (1909), a suit for damages against the Governor of Colorado, for violation of due process in detaining the alleged ringleader of a rebellion quelled by the state militia after the Governor's declaration of a state of insurrection and (he contended) suspension of the writ "as incident thereto." Ex parte Moyer, 35 Colo. 154, 157, 91 P. 738, 740 (1905). But the holding of Moyer v. Peabody (even assuming it is transferable from state-militia detention after state suspension to federal standing-army detention without suspension) is simply that "[s]o long as such arrests [were] made in good faith and in the honest belief that they [were] needed in order to head the insurrection off," 212 U. S., at 85, an action in damages could not lie. This "good-faith" analysis is a forebear of our modern doctrine of qualified immunity. Cf. Scheuer v. Rhodes, 416 U. S. 232, 247-248 (1974) (understanding Moyer in this way). Moreover, the detention at issue in Moyer lasted about two and a half months, see 212 U. S., at 85, roughly the length of time permissible under the 1679 Habeas Corpus Act, see supra, at 4-5. In addition to Moyer v. Peabody, Justice Thomas relies upon Luther v. Borden, 7 How. 1 (1849), a case in which the state legislature had imposed martial law — a step even more drastic than suspension of the writ. See post, at 13-14 (dissenting opinion). But martial law has not been imposed here, and in any case is limited to "the theatre of active military operations, where war really prevails," and where therefore the courts are closed. Ex parte Milligan, 4 Wall. 2, 127 (1866); see also id., at 129-130 (distinguishing Luther).Footnote 5 The plurality rejects any need for "specific language of detention" on the ground that detention of alleged combatants is a "fundamental incident of waging war." Ante, at 12. Its authorities do not support that holding in the context of the present case. Some are irrelevant because they do not address the detention of American citizens. E.g., Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002). The plurality's assertion that detentions of citizen and alien combatants are equally authorized has no basis in law or common sense. Citizens and noncitizens, even if equally dangerous, are not similarly situated. See, e.g., Milligan, supra; Johnson v. Eisentrager, 339 U. S. 763 (1950); Rev. Stat. 4067, 50 U. S. C. §21 (Alien Enemy Act). That captivity may be consistent with the principles of international law does not prove that it also complies with the restrictions that the Constitution places on the American Government's treatment of its own citizens. Of the authorities cited by the plurality that do deal with detention of citizens, Quirin and Territo have already been discussed and rejected. See supra, at 19-20, and n. 3. The remaining authorities pertain to U. S. detention of citizens during the Civil War, and are irrelevant for two reasons: (1) the Lieber Code was issued following a congressional authorization of suspension of the writ, see Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 246; Act of Mar. 3, 1863, 12 Stat. 755, §§1, 2; and (2) citizens of the Confederacy, while citizens of the United States, were also regarded as citizens of a hostile power.Footnote 6 Justice Thomas worries that the constitutional conditions for suspension of the writ will not exist "during many ... emergencies during which ... detention authority might be necessary," post, at 16. It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met.FOOTNOTESFootnote 1 Although I have emphasized national-security concerns, the President's foreign-affairs responsibilities are also squarely implicated by this case. The Government avers that Northern Alliance forces captured Hamdi, and the District Court demanded that the Government turn over information relating to statements made by members of the Northern Alliance. See 316 F. 3d 450, 462 (CA4 2003).Footnote 2 It could be argued that the habeas statutes are evidence of congressional intent that enemy combatants are entitled to challenge the factual basis for the Government's determination. See, e.g., 28 U. S. C. §§2243, 2246. But factual development is needed only to the extent necessary to resolve the legal challenge to the detention. See, e.g., Walker v. Johnston, 312 U. S. 275, 284 (1941).Footnote 3 Indeed, it is not even clear that the Court required good faith. See Moyer, 212 U. S., at 85 ("It is not alleged that [the Governor's] judgment was not honest, if that be material, or that [Moyer] was detained after fears of the insurrection were at an end").Footnote 4 I agree with Justice Scalia that this Court could not review Congress' decision to suspend the writ. See ante, at 26.Footnote 5 Evidently, neither do the parties, who do not cite Mathews even once.Footnote 6 Hamdi's detention comports with the laws of war, including the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364. See Brief for Respondents 22-24.Footnote 7 These observations cast still more doubt on the appropriateness and usefulness of Mathews v. Eldridge, 424 U. S. 319 (1976), in this context. It is, for example, difficult to see how the plurality can insist that Hamdi unquestionably has the right to access to counsel in connection with the proceedings on remand, when new information could become available to the Government showing that such access would pose a grave risk to national security. In that event, would the Government need to hold a hearing before depriving Hamdi of his newly acquired right to counsel even if that hearing would itself pose a grave threat?FOOTNOTESFootnote 1 The Government has since February 2004 permitted Hamdi to consult with counsel as a matter of policy, but does not concede that it has an obligation to allow this. Brief for Respondents 9, 39-46.Footnote 2 Nor is it possible to distinguish between civilian and military authority to detain based on the congressional object of avoiding another Korematsu v. United States, 323 U. S. 214 (1944). See Brief for Respondents 21 (arguing that military detentions are exempt). Although a civilian agency authorized by Executive order ran the detention camps, the relocation and detention of American citizens was ordered by the military under authority of the President as Commander in Chief. See Ex parte Endo, 323 U. S. 283, 285-288 (1944). The World War II internment was thus ordered under the same Presidential power invoked here and the intent to bar a repetition goes to the action taken and authority claimed here.Footnote 3 As noted, supra, at 3, the Government argues that a required Act of Congress is to be found in a statutory authorization to spend money appropriated for the care of prisoners of war and of other, similar prisoners, 10 U. S. C. §956(5). It is enough to say that this statute is an authorization to spend money if there are prisoners, not an authorization to imprison anyone to provide the occasion for spending money.Footnote 4Even a brief examination of the reported cases in which the Government has chosen to proceed criminally against those who aided the Taliban shows the Government has found no shortage of offenses to allege. See United States v. Lindh, 212 F. Supp. 2d 541, 547 (ED Va. 2002); United States v. Khan, 309 F. Supp. 2d 789, 796 (ED Va. 2004).
8	This Court has no jurisdiction under 28 U.S.C. 1253 over an appeal from a three-judge District Court's order enjoining appellants from prosecuting appellee theater operator on the felony charge that his motion picture projector used to exhibit an allegedly obscene film was a "criminal instrument" under 16.01 of the Texas Penal Code. The ground for the injunction was not that 16.01 was unconstitutional but that the local officials had acted in bad faith and unconstitutionally in using that statute (which the District Court found could "by no stretch of the imagination" be read as applying) as a pretext for forcing appellee to stop exhibiting the film, without any design to convict him on the felony charge. Since a three-judge court was therefore not required, the appeal should have been taken to the Court of Appeals. 404 F. Supp. 33, vacated and remanded.PER CURIAM.This is an appeal under 28 U.S.C. 1253 from an order of a three-judge District Court enjoining the appellants from prosecuting the appellee on the felony charge that his motion picture projector is a "criminal instrument" under 16.01 of the Texas Penal Code.1 Since no substantial question about the constitutionality of 16.01 has been raised, we dismiss the appeal for want of jurisdiction in this Court.2 The facts of this case are relatively simple. The appellee, Richard Dexter, ran the Fiesta Theatre in San Antonio, Tex., which in June and July 1974 was exhibiting the film "Deep Throat." On three3 separate occasions, an officer of the San Antonio police force paid for admission, entered the theater, and viewed the film. The officer, on each occasion, then wrote out a "Motion for Adversary Hearing" to determine whether there was probable cause to seize the film for violating the Texas obscenity laws. Each time, a magistrate held a short "hearing" in the lobby of the theater, at which he heard the testimony of the police officer, then viewed the film. Each time, the magistrate then issued a warrant to seize the film and to seize the projector as a "criminal instrument" under 16.01 of the Texas Penal Code. Appellee was then arrested and charged with "commercial obscenity" in violation of Texas Penal Code, 43.23, and "use of a criminal instrument" in violation of 16.01. The charge of commercial obscenity is a Class B misdemeanor, carrying a fine not to exceed $1,000, confinement not to exceed 180 days, or both.4 Appellee did not, according to the trial court, pursue any complaint about these charges in the federal court. He was brought to trial on these charges in the state courts and they are not in issue here. His challenge, rather, was against the prosecutor's charging him with violations of the criminal instruments statute for his possession of ordinary 16-mm. movie projectors. Violation of that statute is a third-degree felony, and carries a penalty of from 2 to 10 years' confinement and a fine not to exceed $5,000.5 Although the felony complaints were lodged and appellee was forced to post some $31,000 in bonds, these charges were never presented to the grand jury.6 A "criminal instrument," for purposes of the Texas statute, is anything "specially designed, made, or adapted for the commission of an offense."7 From an examination of the "clear language of the statute" and from an examination of the unofficial "practice commentary" to the statute, the District Court concluded that "[b]y no stretch of the imagination could this statute be used to cover the plaintiff's actions or the possession of an ordinary portable 16 millimeter motion picture projector with removable interchangeable reels."8 From its conclusion as to the obvious inapplicability of the statute, and from the prosecutor's failure to present the charges to the grand jury, the District Court found that "[c]harging the plaintiff with a 16.01 violation ... cannot have been undertaken with any design to actually convict the plaintiff of the crime... . Such a blatant use of an inappropriate statute, which bootstrapped the misdemeanor offense into a felony was effective in requiring that bail for a felony offense be set, not once but several times. The authorities could not believe, however, that Dexter would ultimately be convicted."9 Appellants present several contentions regarding the jurisdiction of the District Court and the correctness of its decision. We do not reach these questions, however, as we have concluded that we have no jurisdiction to consider this case on direct appeal. Jurisdiction is predicated on 28 U.S.C. 1253, granting the right of direct appeal from an order "granting an ... injunction in any civil action ... required by any Act of Congress to be heard and determined by a district court of three judges." Title 28 U.S.C. 2281 provides that "[a]n ... injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute ... shall not be granted ... upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges ... ." Under this statute a three-judge court is required if "a complaint seeks to enjoin a state statute on substantial grounds of federal unconstitutionality, ... even though nonconstitutional grounds of attack are also alleged ... ." Florida Lime Growers v. Jacobsen, . However, in this case the District Court ruled that the actions of the appellants were not taken in the enforcement of the statute and thus no serious question about the constitutionality of the statute was presented.As noted above, the District Court found that the felony "criminal instruments" charges were made in bad faith and without any design actually to convict appellee on those charges. Rather, the felony charges were made as part of a pattern of harassment by the San Antonio police designed to force appellee to stop exhibiting "Deep Throat." But the arrests and the charges were not made in any attempt to enforce 16.01.10 Nor was the injunction granted on the ground that 16.01 was unconstitutional; rather, it was granted on the ground that the local officials had acted unconstitutionally in using that statute as a pretext for arrest and the setting of felony bonds when they knew that the statute was inapplicable and that no conviction could ever be obtained. Since no substantial question concerning the constitutionality of 16.01 was presented to the District Court, a three-judge court was not required.11 Cf. Bailey v. Patterson, .A somewhat better argument might be made that the prosecutor's actions were part of an effort to enforce the commercial obscenity statute, albeit in a somewhat irregular manner. However, it could not be contended that the District Court grounded its injunction in any way on the unconstitutionality of the commercial obscenity statute; the constitutionality of that statute was not even considered in this case.12 Since a three-judge court was not required in this case, the appeal should have been taken to the Court of Appeals for the Fifth Circuit. Since the time for appeal may have passed, we vacate the judgment and remand to the District Court so that it may enter a fresh decree from which a timely appeal can, if desired, be taken. Gonzalez v. Automatic Employees Credit Union, ; Moody v. Flowers, . It is so ordered.
11	A tax lien of the United States under 3670 of the Internal Revenue Code held entitled to priority over a landlord's distress lien under South Carolina law, where the distress lien was obtained (but not perfected) after the federal tax lien had attached but before notice thereof had been filed. Pp. 218-221. (a) Section 3672 affords no protection to the holder of a distress lien, such as that here involved. P. 220. (b) Whether the distress lien was perfected at the time the lien of the United States was filed is a question of federal law. P. 220. (c) The distress lien in this case was not perfected in the federal sense at the time the liens of the United States were filed. P. 220. (d) The landlord in this case was not a "purchaser" within the meaning of 3672 of the Internal Revenue Code, and the tax lien of the United States was not invalid as to him under that section. Pp. 220-221. 224 S. C. 233, 78 S. E. 2d 277, reversed.John R. Benney argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack, A. F. Prescott and Fred E. Youngman.J. D. Todd, Jr. argued the cause and filed a brief for respondents.MR. JUSTICE MINTON delivered the opinion of the Court.This case involves the relative priority of a landlord's distress for rent under the laws of South Carolina and a lien for unpaid taxes due the United States. The landlord, herein referred to as respondent, on April 7, 1952, filed in the Court of Common Pleas for Greenville County, South Carolina, an affidavit setting forth that Dan Tassey, Inc., was indebted to him for rent and requesting a distress warrant which issued. The master's report shows only that the landlord for past due rent "proceeded on the 7th day of April, 1952 to distress upon the assets of said corporation for said rent in arrears." The record does not disclose what was actually done in the distress proceedings. South Carolina Code Annotated, 1952, 41-151, provides when the affidavit of a landlord is filed the magistrate may issue his distress warrant naming the amount due with costs and deliver the warrant to an officer for service. The officer shall forthwith demand payment ( 41-153), and if not paid, he shall distrain sufficient property on the rented premises to pay the amount, giving a list of property distrained together with a copy of the distress warrant to the tenant. The distress must be reasonable as to amount of property distrained, on penalty of action for damages ( 41-158, 41-159). The tenant has five days in which to put up bond and free the property from the lien of distraint ( 41-160).The next day, April 8, 1952, a receiver was appointed for the corporate taxpayer-tenant as an insolvent. All of the assets of the corporation passed to the receiver, who sold them and realized therefrom the fund over which this contest is waged.For nonpayment of taxes due, the Collector of Internal Revenue received the proper assessment lists in his office on March 19, 1951, May 24, 1951, August 29, 1951, December 3, 1951, February 23, 1952, and February 28, 1952, and notice of these liens thereafter was filed in the proper office in Greenville County, South Carolina, on April 10, 1952. Section 3671 of the Internal Revenue Code provides that the lien for such unpaid taxes attaches when the assessment lists are received by the Collector. Therefore, long before the landlord obtained a distress warrant the Government's liens for taxes had attached.The Supreme Court of South Carolina held that, since the distress warrant was perfected before the receiver was appointed, the landlord's distress lien was superior to the United States' priority created by 3466, Revised Statutes, 31 U.S.C. 191. 224 S. C. 233, 78 S. E. 2d 277. We granted certiorari. . However, we find it unnecessary to pass upon the effect of that section. We hold that the Government must prevail because of its liens under 3670, Internal Revenue Code.The landlord had a lien other than a mortgage, pledge, or judgment lien. As to all other liens, such as the distress lien in the instant case, 3672 of the Internal Revenue Code affords no protection. United States v. Security Trust Co., (concurring opinion). Cf. United States v. Gilbert Associates, Inc., . Moreover, the distress lien was not perfected in the federal sense at the time the Government's liens were filed. Such perfection is, of course, a matter of federal law. United States v. Waddill Co., ; Illinois v. Campbell, . The five-day period specified by 41-160 of the South Carolina Code had not elapsed. During this time the tenant-taxpayer could have reacquired any interest the landlord may have had in his property by posting bond as provided by the Code. Therefore, such a lien was only a caveat of a more perfect lien to come, as we have so often held in other cases. United States v. Security Trust Co., supra; United States v. Gilbert Associates, Inc., supra; United States v. Waddill Co., supra, at 357-359; New York v. Maclay, .It was decided in the trial court and argued here that the landlord was a purchaser within the meaning of 3672 of the Internal Revenue Code and, therefore, that the Government lien was invalid as to him. A purchaser within the meaning of 3672 usually means one who acquires title for a valuable consideration in the manner of vendor and vendee. Obviously, the landlord was not a purchaser.The judgment is Reversed.
8	Where it appears that the running of the limitations period might have been the trial court's independent ground for denying appellants' mineral rights claim, so that any decision of this Court on whether the tax-sale notice provisions of state law met federal due process requirements would be advisory and beyond the Court's jurisdiction, the court below should consider whether appellants preserved the right to challenge the trial court's determination that the statute of limitations bars their claim, and whether under state law it does so irrespective of the constitutional adequacy of the tax-sale notice provisions. 502 P.2d 1265, vacated and remanded.William J. Legg argued the cause and filed briefs for appellants.Joe S. Rolston III argued the cause and filed a brief for appellees.PER CURIAM.In this case we noted probable jurisdiction, , in order to consider whether the published notice provisions of the then-applicable Oklahoma tax-sale statutes, Okla. Stat., Tit. 68, 382 and 432b (1951), comported with due process of law guaranteed by the Fourteenth Amendment.1 See Mullane v. Central Hanover Bank & Trust Co., . This was the only issue addressed by the appellate courts of Oklahoma2 and by the parties in the Jurisdictional Statement and the papers responsive thereto filed with this Court.After oral argument and upon our review of the record, it now appears that there might have been an independent and, possibly, an unchallenged ground for the judgment of the state trial court, viz., the running of the Oklahoma period of limitation for adverse claims.3 If that should prove to be the case, any decision by this Court would be advisory and beyond our jurisdiction. Murdock v. City of Memphis, 20 Wall. 590, 636 (1875).The judgment of the Supreme Court of Oklahoma is therefore vacated and the case is remanded to that court to consider whether the appellants preserved the right to challenge the trial court's determination that the State's statute of limitations is a bar to their mineral rights claim, and, if so, whether, under state law, the statute of limitations independently bars appellants' claim, irrespective of the constitutional adequacy of the tax-sale notice provisions of 382 and 432b.4 Cf. Walker v. Hoffman, 405 P.2d 57 (Okla. 1965). It is so ordered.
8	Pursuant to its authority under the Securities Investor Protection Act (SIPA), respondent Securities Investor Protection Corporation (SIPC) sought, and received, judicial decrees to protect the customers of two of its member broker-dealers. After trustees were appointed to liquidate the broker-dealers' businesses, SIPC and the trustees filed this suit, alleging, among other things, that petitioner Holmes and others had conspired in a fraudulent stock manipulation scheme that disabled the broker-dealers from meeting obligations to customers; that this conduct triggered SIPC's statutory duty to advance funds to reimburse the customers; that the conspirators had violated the Securities Exchange Act of 1934 and regulations promulgated thereunder; and that their acts amounted to a "pattern of racketeering activity" within the meaning of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962, 1961(1), and (5), so as to entitle the plaintiffs to recover treble damages, 1964(c). The District Court entered summary judgment for Holmes on the RICO claims, ruling, inter alia, that SIPC did not meet the "purchaser-seller" requirement for standing under RICO. The Court of Appeals held the finding of no standing to be error and, for this and other reasons, reversed and remanded.Held: SIPC has demonstrated no right to sue Holmes under 1964(c). Pp. 265-276. (a) A plaintiff's right to sue under 1964(c) - which specifies that "[a]ny person injured ... by reason of a violation of [ 1962] may sue therefor ... and ... recover threefold the damages he sustains ... " - requires a showing that the defendant's violation was the proximate cause of the plaintiff's injury. Section 1964(c) was modeled on 4 of the Clayton Act, which was itself based on 7 of the Sherman Act, see Associated General Contractors of Cal., Inc. v. Carpenters, , and both antitrust sections had been interpreted to incorporate common law principles of proximate causation, see, e.g., id., at 533-534, and n. 29, 536, n. 33. It must be assumed that the Congress which enacted 1964(c) intended its words to have the same meaning that courts had already given them. Cf. id., at 534. Although 1964(c)'s language can be read to require only factual, "but for," causation, this construction is hardly compelled, and the very unlikelihood that Congress meant to allow all factually injured plaintiffs to recover persuades this Court that RICO should not get such an expansive reading. Pp. 265-268. (b) As used herein, "proximate cause" requires some direct relation between the injury asserted and the injurious conduct alleged. For a variety of reasons, see id., at 540-544, such directness of relationship is one of the essential elements of Clayton Act causation. Pp. 268-270. (c) SIPC's claim that it is entitled to recover on the ground that it is subrogated to the rights of the broker-dealers' customers who did not purchase manipulated securities fails cause the conspirators' conduct did not proximately cause those customers' injury. Even assuming, arguendo, that SIPC may stand in the shoes of such customers, the link is too remote between the stock manipulation alleged, which directly injured the broker-dealers by rendering them insolvent, and the nonpurchasing customers' losses, which are purely contingent on the broker-dealers' inability to pay customers' claims. The facts of this case demonstrate that the reasons supporting adoption of the Clayton Act direct injury limitation, see ibid., apply with equal force to 1964(c) suits. First, if the nonpurchasing customers were allowed to sue, the district court would first need to determine the extent to which their inability to collect from the broker-dealers was the result of the alleged conspiracy, as opposed to, e.g., the broker-dealers' poor business practices or their failures to anticipate financial market developments. Second, assuming that an appropriate assessment of factual causation could be made out, the court would then have to find some way to apportion the possible respective recoveries by the broker-dealers and the customers, who would otherwise each be entitled to recover the full treble damages. Finally, the law would be shouldering these difficulties despite the fact that the directly injured broker-dealers could be counted on to bring suit for the law's vindication, as they have in fact done in the persons of their SIPA trustees. Indeed, the insolvency of the victim directly injured adds a further concern to those already expressed in Associated General Contractors, since a suit by an indirectly injured victim could be an attempt to circumvent the relative priority its claim would have in the directly injured victim's liquidation proceedings. This analysis is not deflected by the congressional admonition that RICO be liberally construed to effectuate its remedial purposes, since allowing suits by those injured only indirectly would open the door to massive and complex damages litigation, which would not only burden the courts but also undermine the effectiveness of treble damages suits. Id., at 545. Thus, SIPC must await the outcome of the trustees' suit and may share according to the priority SIPA gives its claim if the trustees recover from Holmes. Pp. 270-275. (d) SIPC's claim that it is entitled to recover under a SIPA provision, 15 U.S.C. 78eee(d), fails because, on its face, that section simply qualifies SIPC as a proper party in interest in any "matter arising in a liquidation proceeding" as to which it "shall be deemed to have intervened," and gives SIPC no independent right to sue Holmes for money damages. P. 275-276. (e) This Court declines to decide whether every RICO plaintiff who sues under 1964(c) and claims securities fraud as a predicate offense must have purchased or sold a security. In light of the foregoing, discussion of that issue is unnecessary to resolve this case. Nor will leaving the question unanswered deprive the lower courts of much-needed guidance. A review of those courts' conflicting cases shows that all could have been resolved on proximate causation grounds, and that none involved litigants like those in Blue Chip Stamps v. Manor Drug Stores, , who decided to forgo securities transactions in reliance on misrepresentations. P. 276. 908 F.2d 1461 (CA 9 1990), reversed and remanded.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, KENNEDY, and THOMAS, JJ., joined, and in all but Part IV of which WHITE, STEVENS, and O'CONNOR, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which WHITE and STEVENS, JJ., joined, post, p. 276. SCALIA, J., filed an opinion concurring in the judgment, post, p. 286.Jack I. Samet argued the cause for petitioner. With him on the briefs were Jovina R. Hargis and Stephen K. Lubega.G. Robert Blakey argued the cause for respondents. With him on the brief for respondent Securities Investor Protection Corporation were Stephen C. Taylor, Mark Riera, Theodore H. Focht, and Kevin H. Bell.* [Footnote *] Briefs of amici curiae urging reversal were filed for the American Institute of Certified Public Accountants by Louis A. Craco and John J. Halloran, Jr.; and for Arthur Andersen & Co. et al. by Kathryn A. Oberly, Carl D. Liggio, Jon N. Ekdahl, Harris J. Amhowitz, Howard J. Krongard, Leonard P. Novello, and Eldon Olson.Kevin P. Roddy and William S. Lerach filed a brief for the National Association of Securities and Commercial Law Attorneys (NASCAT) as amicus curiae urging affirmance. JUSTICE SOUTER delivered the opinion of the Court.Respondent Securities Investor Protection Corporation (SIPC) alleges that petitioner Robert G. Holmes, Jr., conspired in a stock manipulation scheme that disabled two broker-dealers from meeting obligations to customers, thus triggering SIPC's statutory duty to advance funds to reimburse the customers. The issue is whether SIPC can recover from Holmes under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961-1968 (1988 ed. and Supp. II). We hold that it cannot.IAThe Securities Investor Protection Act, of 1970 (SIPA), 84 Stat. 1636, as amended, 15 U.S.C. 78aaa-78lll, authorized the formation of SIPC, a private nonprofit corporation, 78ccc(a)(1), of which most broker-dealers registered under 15(b) of the Securities Exchange Act of 1934, 780(b), are required to be "members," 78ccc(a)(2)(A). Whenever SIPC determines that a member "has failed or is in danger of failing to meet its obligations to customers," and finds certain other statutory conditions satisfied, it may ask for a "protective decree" in federal district court. 78eee(a)(3). Once a court finds grounds for granting such a petition, 78eee(b)(1), it must appoint a trustee charged with liquidating the member's business, 78eee(b)(3).After returning all securities registered in specific customers' names, 78fff-2(c)(2); 78fff(a)(1)(A); 78lll(3), the trustee must pool securities not so registered together with cash found in customers' accounts and divide this pool ratably to satisfy customers' claims, 78fff-2(b); 78fff(a)(1)(B).1 To the extent the pool of customer property is inadequate, SIPC must advance up to $500,000 per customer2 to the trustee for use in satisfying those claims. 78fff-3(a).3 BOn July 24, 1981, SIPC sought a decree from the United States District Court for the Southern District of Florida to protect the customers of First State Securities Corporation (FSSC), a broker-dealer and SIPC member. Three days later, it petitioned the United States District Court for the Central District of California, seeking to protect the customers of Joseph Sebag, Inc. (Sebag), also a broker-dealer and SIPC member. Each court issued the requested decree and appointed a trustee, who proceeded to liquidate the broker-dealer.Two years later, SIPC and the two trustees brought this suit in the United States District Court for the Central District of California, accusing some 75 defendants of conspiracy in a fraudulent scheme leading to the demise of FSSC and Sebag. Insofar as they are relevant here, the allegations were that, from 1964 through July 1981, the defendants manipulated stock of six companies by making unduly optimistic statements about their prospects and by continually selling small numbers of shares to create the appearance of a liquid market; that the broker-dealers bought substantial amounts of the stock with their own funds; that the market's perception of the fraud in July, 1981, sent the stocks plummeting; and that this decline caused the broker-dealers' financial difficulties, resulting in their eventual liquidation and SIPC's advance of nearly $13 million to cover their customers' claims. The complaint described Holmes' participation in the scheme by alleging that he made false statements about the prospects of one of the six companies, Aero Systems, Inc., of which he was an officer, director, and major shareholder; and that, over an extended period, he sold small amounts of stock in one of the other six companies, the Bunnington Corporation, to simulate a liquid market. The conspirators were said to have violated 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. 78j(b), Securities and Exchange Commission SEC (l) Rule 105, 17 CFR 240.105 (1991), and the mail and wire fraud statutes, 18 U.S.C. 1341, 1343 (1988 ed., Supp. II). Finally, the complaint concluded that their acts amounted to a "pattern of racketeering activity" within the meaning of the RICO statute, 18 U.S.C. 1962, 1961(1), and (5) (1988 ed. and Supp. II), so as to entitle the plaintiffs to recover treble damages, 1964(c).After some five years of litigation over other issues,4 the District Court entered summary judgment for Holmes on the RICO claims, ruling that SIPC "does not meet the `purchaser-seller' requirements for standing to assert RICO claims which are predicated upon violation of Section 10(b) and Rule 105," App. to Pet. for Cert. 45a,5 and that neither SIPC nor the trustees had satisfied the "proximate cause requirement under RICO," id., at 39a; see id., at 37a. Although SIPC's claims against many other defendants remained pending, the District Court under Federal Rule of Civil Procedure 54(b) entered a partial judgment for Holmes, immediately appealable. SIPC and the trustees appealed.The United States Court of Appeals for the Ninth Circuit reversed and remanded after rejecting both of the District Court's grounds. Securities Investor Protection Corporation v. Vigman, 908 F.2d 1461 (1990). The Court of Appeals held first that, whereas a purchase or sale of a security is necessary for entitlement to sue on the implied right of action recognized under 10(b) and Rule 105, see Blue Chip Stamps v. Manor Drug Stores, , the cause of action expressly provided by 1964(c) of RICO imposes no such requirement limiting SIPC's standing, 908 F.2d, at 1465-1467. Second, the appeals court held the finding of no proximate cause to be error, the result of a mistaken focus on the causal relation between SIPC's injury and the acts of Holmes alone; since Holmes could be held responsible for the acts of all his coconspirators, the Court of Appeals explained, the District Court should have looked to the causal relation between SIPC's injury and the acts of all conspirators. Id., at 1467-1469.6 Holmes' ensuing petition to this Court for certiorari presented two issues, whether SIPC had a right to sue under RICO,7 and whether Holmes could be held responsible for the actions of his coconspirators. We granted the petition on the former issue alone, , and now reverse.8 IIARICO's provision for civil actions reads that "[a]ny 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). This language can, of course, be read to mean that a plaintiff is injured "by reason of" a RICO violation, and therefore may recover, simply on showing that the defendant violated 1962,9 the plaintiff was injured, and the defendant's violation was a "but for" cause of plaintiff's injury. Cf. Associated General Contractors of Cal., Inc. v. Carpenters, . This construction is hardly compelled, however, and the very unlikelihood that Congress meant to allow all factually injured plaintiffs to recover10 persuades us that RICO should not get such an expansive reading.11 Not even SIPC seriously argues otherwise.12 The key to the better interpretation lies in some statutory history. We have repeatedly observed, see Agency Holding Corp. v. Malley-Duff & Associates, Inc., ; Shearson/American Express Inc. v. McMahon, ; Sedima, S.P.R.L. v. Imrex Co., , that Congress modeled 1964(c) on the civil action provision of the federal antitrust laws, 4 of the Clayton Act, which reads in relevant part that: "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S.C. 15. In Associated General Contractors, supra, we discussed how Congress enacted 4 in 1914 with language borrowed from 7 of the Sherman Act, passed 24 years earlier.13 Before 1914, lower federal courts had read 7 to incorporate common law principles of proximate causation, 459 U.S., at 533-534, and n. 29 (citing Loeb v. Eastman Kodak Co., 183 F. 704 (CA3 1910); Ames v. American Telephone & Telegraph Co., 166 F. 820 (CC 1909)), and we reasoned, as many lower federal courts had done before us, see Associated General Contractors, supra, 459 U.S., at 536, n. 33 (citing cases),14 that congressional use of the 7 language in 4 presumably carried the intention to adopt "the judicial gloss that avoided a simple literal interpretation," 459 U.S., at 534. Thus, we held that a plaintiff's right to sue under 4 required a showing only not that the defendant's violation was a "but for" cause of his injury, but was the proximate cause as well.The reasoning applies just as readily to 1964(c). We may fairly credit the 91st Congress, which enacted RICO, with knowing the interpretation federal courts had given the words earlier Congresses had used first in 7 of the Sherman Act, and later in the Clayton Act's 4. See Cannon v. University of Chicago, . It used the same words, and we can only assume it intended them to have the same meaning that courts had already given them. See, e.g., Oscar Mayer & Co. v. Evans, ; Northcross v. Memphis Bd. of Ed., . Proximate cause is thus required.BHere we use "proximate cause" to label generically the judicial tools used to limit a person's responsibility for the consequences of that person's own acts. At bottom, the notion of proximate cause reflects "ideas of what justice demands, or of what is administratively possible and convenient." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 41, p. 264 (5th ed. 1984). Accordingly, among the many shapes this concept took at common law, see Associated General Contractors, supra, supra, at 532-533, was a demand for some direct relation between the injury asserted and the injurious conduct alleged. Thus, a plaintiff who complained of harm flowing merely from the misfortunes visited upon a third person by the defendant's acts was generally said to stand at too remote a distance to recover. See, e.g., 1 J. Sutherland, Law of Damages 55-56 (1882).Although such directness of relationship is not the sole requirement of Clayton Act causation,15 it has been one of its central elements, Associated General Contractors, 459 U.S., at 540, for a variety of reasons. First, the less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiff's damages attributable to the violation, as distinct from other, independent, factors. Id., at 542-543. Second, quite apart from problems of proving factual causation, recognizing claims of the indirectly injured would force courts to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the violative acts, to obviate the risk of multiple recoveries. Id., at 543-544; Blue Shield of Virginia v. McCready, 457 U.S., at 473-475; Hawaii v. Standard Oil Co. of Calif., . And, finally, the need to grapple with these problems is simply unjustified by the general interest in deterring injurious conduct, since directly injured victims can generally be counted on to vindicate the law as private attorneys general, without any of the problems attendant upon suits by plaintiffs injured more remotely. Associated General Contractors, supra, at 541-542.We will point out in Part III-A below that the facts of the instant case show how these reasons apply with equal force to suits under 1964(c).IIIAs we understand SIPC's argument, it claims entitlement to recover, first, because it is subrogated to the rights of those customers of the broker-dealers who did not purchase manipulated securities, and, second, because a SIPA provision gives it an independent right to sue. The first claim fails because the conspirators' conduct did not proximately cause the nonpurchasing customers' injury, the second because the provision relied on gives SIPC no right to sue for damages.AAs a threshold matter, SIPC's theory of subrogation is fraught with unanswered questions. In suing Holmes, SIPC does not rest its claimed subrogation to the rights of the broker-dealers' customers on any provision of SIPA. See Brief for Respondent 38, and n. 181. SIPC assumes that SIPA provides for subrogation to the customers' claims against the failed broker-dealers, see 15 U.S.C. 78fff-3(a), 78fff-4(c); see also 78fff-2(c)(1)(C); see generally Mistakin v. Peat, Marwick, Mitchell & Co., 744 F.Supp. 531, 556-557 (S.D. N.Y. 1990), but not against third parties like Holmes. As against him, SIPC relies rather on "common law rights of subrogation" for what it describes as "its money paid to customers for customer claims against third parties." Brief for Respondent 38 (footnote omitted). At oral argument in this Court, SIPC narrowed its subrogation argument to cover only the rights of customers who never purchased manipulated securities. Tr. of Oral Arg. 29.16 But SIPC stops there, leaving us to guess at the nature of the "common law rights of subrogation" that it claims, and failing to tell us whether they derive from federal or state common law, or, if the latter, from common law of which State.17 Nor does SIPC explain why it declines to assert the rights of customers who bought manipulated securities.18 It is not these questions, however, that stymie SIPC's subrogation claim, for even assuming, arguendo, that it may stand in the shoes of nonpurchasing customers, the link is too remote between the stock manipulation alleged and the customers' harm, being purely contingent on the harm suffered by the broker-dealers. That is, the conspirators have allegedly injured these customers only insofar as the stock manipulation first injured the broker-dealers and left them without the wherewithal to pay customers' claims. Although the customers' claims are senior (in recourse to "customer property") to those of the broker-dealers' general creditors, see 78fff-2(c)(1), the causes of their respective injuries are the same: the broker-dealers simply cannot pay their bills, and only that intervening insolvency connects the conspirators' acts to the losses suffered by the nonpurchasing customers and general creditors.As we said, however, in Associated General Contractors, quoting Justice Holmes, "`The general tendency of the law, in regard to damages at least, is not to go beyond the first step.'" 459 U.S., at 534 (quoting Southern Pacific Co. v. Darnell-Taenzer Lumber Co., ),19 and the reasons that supported conforming Clayton Act causation to the general tendency apply just as readily to the present facts, underscoring the obvious congressional adoption of the Clayton Act direct injury limitation among the requirements of 1964(c).20 If the nonpurchasing customers were allowed to sue, the district court would first need to determine the extent to which their inability to collect from the broker-dealers was the result of the alleged conspiracy to manipulate, as opposed to, say, the broker-dealers' poor business practices or their failures to anticipate developments in the financial markets. Assuming that an appropriate assessment of factual causation could be made out, the district court would then have to find some way to apportion the possible respective recoveries by the broker-dealers and the customers, who would otherwise each be entitled to recover the full treble damages. Finally, the law would be shouldering these difficulties despite the fact that those directly injured, the broker-dealers, could be counted on to bring suit for the law's vindication. As noted above, the broker-dealers have in fact sued in this case, in the persons of their SIPA trustees appointed on account of their insolvency.21 Indeed, the insolvency of the victim directly injured adds a further concern to those already expressed, since a suit by an indirectly injured victim could be an attempt to circumvent the relative priority its claim would have in the directly injured victim's liquidation proceedings. See Mid-State Fertilizer Co. v. Exchange National Bank of Chicago, 877 F.2d 1333, 1336 (CA7 1989).As against the force of these considerations of history and policy, SIPC's reliance on the congressional admonition that RICO be "liberally construed to effectuate its remedial purposes," 904(a), 84 Stat. 947, does not deflect our analysis. There is, for that matter, nothing illiberal in our construction: we hold not that RICO cannot serve to right the conspirators' wrongs, but merely that the nonpurchasing customers, or SIPC in their stead, are not proper plaintiffs. Indeed, we fear that RICO's remedial purposes would more probably be hobbled than helped by SIPC's version of liberal construction: allowing suits by those injured only indirectly would open the door to "massive and complex damages litigation[, which would] not only burde[n] the courts, but [would] also undermin[e] the effectiveness of treble damages suits." Associated General Contractors, 459 U.S., at 545.In sum, subrogation to the rights of the manipulation conspiracy's secondary victims does, and should, run afoul of proximate causation standards, and SIPC must wait on the outcome of the trustees' suit. If they recover from Holmes, SIPC may share according to the priority SIPA gives its claim. See 15 U.S.C. 78fff-2(c).BSIPC also claims a statutory entitlement to pursue Holmes for funds advanced to the trustees for administering the liquidation proceedings. See Tr. of Oral Arg. 30. Its theory here apparently is not one of subrogation, to which the statute makes no reference in connection with SIPC's obligation to make such advances. See 15 U.S.C. 78fff-3(b)(2).22 SIPC relies instead, see Brief for Respondent 37, and n. 180, on this SIPA provision: SIPC participation - SIPC shall be deemed to be a party in interest as to all matters arising in a liquidation proceeding, with the right to be heard on all such matters, and shall be deemed to have intervened with respect to all such matters with the same force and effect as if a petition for such purpose had been allowed by the court. 15 U.S.C. 78eee(d). The language is inapposite to the issue here, however. On its face, it simply qualifies SIPC as a proper party in interest in any "matter arising in a liquidation proceeding" as to which it "shall be deemed to have intervened." By extending a right to be heard in a "matter" pending between other parties, however, the statute says nothing about the conditions necessary for SIPC's recovery as a plaintiff. How the provision could be read, either alone or with 1964(c), to give SIPC a right to sue Holmes for money damages simply eludes us.IVPetitioner urges us to go further and decide whether every RICO plaintiff who sues under 1964(c) and claims securities fraud as a predicate offense must have purchased or sold a security, an issue on which the Circuits appear divided.23 We decline to do so. Given what we have said in Parts II and III, our discussion of the issue would be unnecessary to the resolution of this case. Nor do we think that leaving this question unanswered will deprive the lower courts of much-needed guidance. A review of the conflicting cases shows that all could have been resolved on proximate causation grounds, and that none involved litigants like those in Blue Chip Stamps v. Manor Drug Stores, , persons who had decided to forgo securities transactions in reliance on misrepresentations. Thus, we think it inopportune to resolve the issue today.VWe hold that, because the alleged conspiracy to manipulate did not proximately cause the injury claimed, SIPC's allegations and the record before us fail to make out a right to sue petitioner under 1964(c). We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.
8	In 1975, both respondents pleaded guilty in unrelated Illinois state-court prosecutions for burglary, an offense punishable at that time by imprisonment for an indeterminate term of years and a mandatory 3-year parole term. Neither respondent, during his plea acceptance hearing, was informed that his negotiated sentence included the mandatory parole term. Each respondent completed his prison sentence, was released on parole, and was then reincarcerated for parole violation. While in custody, each filed petitions for federal habeas corpus, which were consolidated in the District Court, alleging that the failure of the trial courts to advise them of the mandatory parole requirement before accepting their guilty pleas deprived them of due process of law. The District Court found for respondents and, in accordance with the relief requested by them, merely ordered their release through "specific performance" of the plea bargains rather than nullifying the guilty pleas and allowing them to plead anew. After a remand from the Court of Appeals based on a question as to exhaustion of state remedies, the District Court ultimately again entered judgment for respondents. Since they had already been discharged from custody, the court simply entered an order "declaring void the mandatory parole term[s]." The Court of Appeals affirmed.Held: Respondents' claims for relief are moot. Assuming that the failure to advise respondents of the mandatory parole requirement rendered their guilty pleas void, they could have sought to have their convictions set aside and to plead anew, and this case would not then be moot. Such relief would free them from all consequences flowing from their convictions as well as subject them to reconviction with a possibly greater sentence, thus preserving a live controversy to determine whether a constitutional violation had occurred and whether respondents were entitled to the relief sought. However, by seeking "specific enforcement" of the plea agreement by elimination of the mandatory parole term from their sentences, respondents instead elected to attack only their sentences and to remedy the alleged constitutional violation by removing the consequence that gave rise to the constitutional harm. Since their parole terms have now expired, they are no longer subject to any direct restraint as a result of the parole terms, and the case is moot. Neither the doctrine that an attack on a criminal conviction is not rendered moot by the fact that the underlying sentence has expired, nor the doctrine that a case is not moot where it is "capable of repetition, yet evading review," is applicable here. Pp. 630-634. 633 F.2d 71, vacated.STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 634.Michael B. Weinstein, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the briefs were Tyrone C. Fahner, Attorney General, and Herbert L. Caplan and Melbourn A. Noel, Jr., Assistant Attorneys General.Martha A. Mills, by appointment of the Court, , argued the cause and filed a brief for respondents.JUSTICE STEVENS delivered the opinion of the Court.In 1975, respondents pleaded guilty in Illinois state court to a charge of burglary, an offense punishable at that time by imprisonment for an indeterminate term of years and a mandatory 3-year parole term. We granted certiorari to consider whether the failure of the trial court to advise respondents of that mandatory parole requirement before accepting their guilty pleas deprived them of due process of law. We are unable to reach that question, however, because we find that respondents' claims for relief are moot.IOn March 11, 1975, respondent Lawrence Williams appeared in Illinois state court and pleaded guilty to a single count of burglary. Before accepting the guilty plea, the trial judge elicited Williams' understanding of the terms of a plea agreement, in which his attorney and the prosecutor had agreed that Williams would receive an indeterminate sentence of from one to two years in prison in exchange for pleading guilty. The judge informed Williams that he would impose the bargained sentence, and advised him of both the nature of the charge against him and the constitutional rights that he would waive by pleading guilty. After the prosecutor established a factual basis for the plea, Williams indicated that he understood his rights and wished to plead guilty.At the time that Williams pleaded guilty, Illinois law required every indeterminate sentence for certain felonies, including burglary, to include a special parole term in addition to the term of imprisonment.1 During the plea acceptance hearing, neither the trial judge, the prosecutor, nor defense counsel informed Williams that his negotiated sentence included a mandatory parole term of three years.Williams was discharged from prison on May 20, 1976, and released on parole. On March 3, 1977, he was arrested for reasons that do not appear in the record and, on March 16, 1977, he was returned to prison as a parole violator. While in custody, Williams filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. He alleged that he "was not informed" that a mandatory parole term had attached to his sentence until two months before his discharge from prison and that "his present incarceration is therefore in violation of the Due Process Clause of the 14th Amendment to the U.S. Constitution." App. 12. Williams' petition did not ask the federal court to set aside his conviction and allow him to plead anew. It requested an order "freeing him from the present control" of the Warden and from "all future liability" under his original sentence.2 On January 4, 1978, the District Court found that Williams' guilty plea had been induced unfairly in violation of the Due Process Clause of the Fourteenth Amendment and ordered Williams released from custody. United States ex rel. Williams v. Morris, 447 F. Supp. 95 (1978). The court expressly "opted for specific performance" of the plea bargain "rather than nullification of the guilty plea." Id., at 101. The relief granted was precisely what Williams had requested.Williams was not, however, immediately released from custody. The District Court entered a stay to give the State an opportunity to file a motion for reconsideration. Before that stay was lifted, Williams was released from prison on a special 6-month "supervisory release term." The District Court subsequently denied the State's motion to reconsider and the State appealed.3 While that appeal was pending, Williams' 6-month release term expired and he was released from the custody of the Illinois Department of Corrections.The facts concerning respondent Southall are similar. Pursuant to a plea bargain with the prosecutor that was accepted in advance by an Illinois trial court, Southall pleaded guilty to a single charge of burglary and was sentenced to prison for a minimum period of one year and a maximum period not to exceed three years. The transcript of the plea acceptance proceeding contains no statement by the prosecutor, Southall's public defender, or the trial judge that the bargained and imposed sentence included the mandatory 3-year parole term. Like respondent Williams, Southall completed his sentence, was released on parole, and later declared a parole violator.4 While reincarcerated, he filed a petition for habeas corpus in federal court, seeking his "immediate release." App. 65.5 His case was consolidated in the District Court with that of respondent Williams.The District Court found "Southall's situation to be factually indistinguishable from Williams'." 447 F. Supp., at 102. The court thus granted Southall's petition for a writ of habeas corpus. The State filed an appeal from that decision, but discharged Southall in compliance with the decision of the District Court.6 The Court of Appeals reversed on the ground that respondents had failed to exhaust an available state remedy. 594 F.2d 614 (CA7 1979). Before reaching that decision, however, the court requested the parties to submit supplemental briefs on the issue of mootness. The court concluded that the cases were not moot. It noted that Southall's mandatory parole term extended beyond the date of its decision and thus could be reinstated. While Williams' parole term had expired, the court concluded that the controversy was still alive because "there remain collateral consequences which might have lingering effects since [Williams was] found guilty of [a] violatio[n] of the mandatory parole"; that violation "would remain upon [his] recor[d] with various possible adverse consequences." Id., at 615.7 Moreover, the court found the issue to be capable of repetition, yet evading review; "[i]t is obvious that because of the short terms often remaining in the mandatory parole terms that the same issue may be expected to be raised as to other petitioners similarly situated with doubtful expectations of resolution." Ibid.After the Court of Appeals had rendered its decision, respondent Southall was discharged from the custody of the Illinois Department of Corrections.8 On remand, the District Court concluded that, as a result of an intervening decision of the Illinois Supreme Court, exhaustion of state remedies would be futile. 483 F. Supp. 775 (1980). The court again entered judgment for respondents; since they had already been released from custody, the court simply entered an order "declaring void the mandatory parole terms." App. 39. The Court of Appeals affirmed that decision, 633 F.2d 71 (1980), and we granted the State's petition for certiorari. Sub nom. Franzen v. Williams, .IIRespondents claim that their constitutional rights were violated when the trial court accepted their guilty pleas without informing them of the mandatory parole requirement. Assuming, for the sake of argument, that the court's failure to advise respondents of this consequence rendered their guilty pleas void,9 respondents could seek to remedy this error in two quite different ways. They might ask the District Court to set aside their convictions and give them an opportunity to plead anew; in that event, they might either plead not guilty and stand trial or they might try to negotiate a different plea bargain properly armed with the information that any sentence they received would include a special parole term. Alternatively, they could seek relief in the nature of "specific enforcement" of the plea agreement as they understood it; in that event, the elimination of the mandatory parole term from their sentences would remove any possible harmful consequence from the trial court's incomplete advice.If respondents had sought the opportunity to plead anew, this case would not be moot. Such relief would free respondents from all consequences flowing from their convictions, as well as subject them to reconviction with a possibly greater sentence. Cf. North Carolina v. Pearce, . Thus, a live controversy would remain to determine whether a constitutional violation in fact had occurred and whether respondents were entitled to the relief that they sought.10 Since respondents had completed their previously imposed sentences, however, they did not seek the opportunity to plead anew.11 Rather, they sought to remedy the alleged constitutional violation by removing the consequence that gave rise to the constitutional harm. In the course of their attack, that consequence expired of its own accord. Respondents are no longer subject to any direct restraint as a result of the parole term. They may not be imprisoned on the lesser showing needed to establish a parole violation than to prove a criminal offense. Their liberty or freedom of movement is not in any way curtailed by a parole term that has expired.Since respondents elected only to attack their sentences, and since those sentences expired during the course of these proceedings, this case is moot. "Nullification of a conviction may have important benefits for a defendant ... but urging in a habeas corpus proceeding the correction of a sentence already served is another matter." North Carolina v. Rice, .The Court of Appeals, relying on Carafas v. LaVallee, , concluded that respondents' parole violations had sufficient "collateral effects" to warrant an exercise of federal habeas corpus relief. In Carafas we held that an attack on a criminal conviction was not rendered moot by the fact that the underlying sentence had expired. On the basis of New York law, we noted that "[i]n consequence of [the petitioner's] conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror." Id., at 237 (footnotes omitted). These substantial civil penalties were sufficient to ensure that the litigant had "`a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.'" Ibid. (quoting Fiswick v. United States, ). In Sibron v. New York, , we stated that "a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction."The doctrine of Carafas and Sibron is not applicable in this case. No civil disabilities such as those present in Carafas result from a finding that an individual has violated parole.12 At most, certain nonstatutory consequences may occur; employment prospects, or the sentence imposed in a future criminal proceeding, could be affected. Cf. People v. Halterman, 45 Ill. App. 3d 605, 608, 359 N. E. 2d 1223, 1225 (1977).13 The discretionary decisions that are made by an employer or a sentencing judge, however, are not governed by the mere presence or absence of a recorded violation of parole; these decisions may take into consideration, and are more directly influenced by, the underlying conduct that formed the basis for the parole violation. Any disabilities that flow from whatever respondents did to evoke revocation of parole are not removed - or even affected - by a District Court order that simply recites that their parole terms are "void."14 Respondents have never attacked, on either substantive or procedural grounds, the finding that they violated the terms of their parole. Respondent Williams simply sought an order "freeing him from the present control" of the Warden and from "all future liability" under his original sentence; Southall sought his "immediate release" from custody. Through the mere passage of time, respondents have obtained all the relief that they sought. In these circumstances, no live controversy remains.The Court of Appeals also held that this case was not moot because it was "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, . That doctrine, however, is applicable only when there is "a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, ; Murphy v. Hunt, ante, at 482. Respondents are now acutely aware of the fact that a criminal sentence in Illinois will include a special parole term; any future guilty plea will not be open to the same constitutional attack. The possibility that other persons may litigate a similar claim does not save this case from mootness.The judgment of the Court of Appeals is vacated. The case should be dismissed as moot. It is so ordered.
1	Petitioner Reeves, 57, and Joe Oswalt, in his mid-30's, were the supervisors in one of respondent's departments known as the "Hinge Room," which was managed by Russell Caldwell, 45. Reeves' responsibilities included recording the attendance and hours worked by employees under his supervision. In 1995, Caldwell informed Powe Chesnut, the company's director of manufacturing, that Hinge Room production was down because employees were often absent, coming in late, and leaving early. Because the monthly attendance reports did not indicate a problem, Chesnut ordered an audit, which, according to his testimony, revealed numerous timekeeping errors and misrepresentations by Caldwell, Reeves, and Oswalt. Chesnut and other company officials recommended to the company president, Sandra Sanderson, that Reeves and Caldwell be fired, and she complied. Reeves filed this suit, contending that he had been terminated because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA). At trial, respondent contended Reeves had been fired due to his failure to maintain accurate attendance records. Reeves attempted to demonstrate that this explanation was pretext for age discrimination, introducing evidence that he had accurately recorded the attendance and hours of the employees he supervised, and that Chesnut, whom Oswalt described as wielding "absolute power" within the company, had demonstrated age-based animus in his dealings with him. The District Court denied respondent's motions for judgment as a matter of law under Federal Rule of Civil Procedure 50, and the case went to the jury, which returned a verdict for Reeves. The Fifth Circuit reversed. Although recognizing that Reeves may well have offered sufficient evidence for the jury to have found that respondent's explanation was pretextual, the court explained that this did not mean that Reeves had presented sufficient evidence to show that he had been fired because of his age. In finding the evidence insufficient, the court weighed the additional evidence of discrimination introduced by Reeves against other circumstances surrounding his discharge, including that Chesnut's age-based comments were not made in the direct context of Reeves' termination; there was no allegation that the other individuals who recommended his firing were motivated by age; two of those officials were over 50; all three Hinge Room supervisors were accused of inaccurate recordkeeping; and several of respondent's managers were over 50 when Reeves was fired. Held: 1. A plaintiff's prima facie case of discrimination (as defined in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802, and subsequent decisions), combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, may be adequate to sustain a finding of liability for intentional discrimination under the ADEA. In this case, Reeves established a prima facie case and made a substantial showing that respondent's legitimate, nondiscriminatory explanation, i.e., his shoddy recordkeeping, was false. He offered evidence showing that he had properly maintained the attendance records in question and that cast doubt on whether he was responsible for any failure to discipline late and absent employees. In holding that the evidence was insufficient to sustain the jury's verdict, the Fifth Circuit ignored this evidence, as well as the evidence supporting Reeves' prima facie case, and instead confined its review of the evidence favoring Reeves to that showing that Chesnut had directed derogatory, age-based comments at Reeves, and that Chesnut had singled him out for harsher treatment than younger employees. It is therefore apparent that the court believed that only this additional evidence of discrimination was relevant to whether the jury's verdict should stand. In so reasoning, the court misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence. In St. Mary's Honor Center v. Hicks, 509 U. S. 502, 511, the Court stated that, because the factfinder's disbelief of the reasons put forward by the defendant, together with the elements of the prima facie case, may suffice to show intentional discrimination, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it can be quite persuasive. See id., at 517. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. See, e.g., Wright v. West, 505 U. S. 277, 296. Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Cf. Furnco Constr. Corp. v. Waters, 438 U. S. 567, 577. Such a showing by the plaintiff will not always be adequate to sustain a jury's liability finding. Certainly there will be instances where, although the plaintiff has established a prima facie case and introduced sufficient evidence to reject the employer's explanation, no rational factfinder could conclude that discrimination had occurred. This Court need not — and could not — resolve all such circumstances here. In this case, it suffices to say that a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. Pp. 5-14. 2. Respondent was not entitled to judgment as a matter of law under the particular circumstances presented here. Pp. 14-19. (a) Rule 50 requires a court to render judgment as a matter of law when a party has been fully heard on an issue, and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. The standard for judgment as a matter of law under Rule 50 mirrors the standard for summary judgment under Rule 56. Thus, the court must review all of the evidence in the record, cf., e.g., Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 587, drawing all reasonable inferences in favor of the nonmoving party, but making no credibility determinations or weighing any evidence, e.g., Lytle v. Household Mfg., Inc., 494 U. S. 545, 554-555. The latter functions, along with the drawing of legitimate inferences from the facts, are for the jury, not the court. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255. Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. Pp. 14-16. (b) In holding that the record contained insufficient evidence to sustain the jury's verdict, the Fifth Circuit misapplied the standard of review dictated by Rule 50. The court disregarded evidence favorable to Reeves — the evidence supporting his prima facie case and undermining respondent's nondiscriminatory explanation — and failed to draw all reasonable inferences in his favor. For instance, while acknowledging the potentially damning nature of Chesnut's age-related comments, the court discounted them on the ground that they were not made in the direct context of Reeves' termination. And the court discredited Reeves' evidence that Chesnut was the actual decisionmaker by giving weight to the fact that there was no evidence suggesting the other decisionmakers were motivated by age. Moreover, the other evidence on which the court relied — that Caldwell and Oswalt were also cited for poor recordkeeping, and that respondent employed many managers over age 50 — although relevant, is certainly not dispositive. See Furnco, supra, at 580. The ultimate question in every disparate treatment case is whether the plaintiff was the victim of intentional discrimination. Here, the District Court informed the jury that Reeves was required to show by a preponderance of the evidence that his age was a determining and motivating factor in the decision to terminate him. It instructed the jury that, to show respondent's explanation was pretextual, Reeves had to demonstrate that age discrimination, not respondent's explanation, was the real reason for his discharge. Given that Reeves established a prima facie case, introduced enough evidence for the jury to reject respondent's explanation, and produced additional evidence that Chesnut was motivated by age-based animus and was principally responsible for Reeves' firing, there was sufficient evidence for the jury to conclude that respondent had intentionally discriminated. Pp. 16-19.197 F. 3d 688, reversed. O'Connor, J., delivered the opinion for a unanimous Court. Ginsburg, J., filed a concurring opinion.ROGER REEVES, PETITIONER v. SANDERSON PLUMBING PRODUCTS, INC.on writ of certiorari to the united states court of appeals for the fifth circuit[June 12, 2000] Justice O'Connor delivered the opinion of the Court. This case concerns the kind and amount of evidence necessary to sustain a jury's verdict that an employer unlawfully discriminated on the basis of age. Specifically, we must resolve whether a defendant is entitled to judgment as a matter of law when the plaintiff's case consists exclusively of a prima facie case of discrimination and sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory explanation for its action. We must also decide whether the employer was entitled to judgment as a matter of law under the particular circumstances presented here.I In October 1995, petitioner Roger Reeves was 57 years old and had spent 40 years in the employ of respondent, Sanderson Plumbing Products, Inc., a manufacturer of toilet seats and covers. 197 F. 3d 688, 690 (CA5 1999). Petitioner worked in a department known as the "Hinge Room," where he supervised the "regular line." Ibid. Joe Oswalt, in his mid-thirties, supervised the Hinge Room's "special line," and Russell Caldwell, the manager of the Hinge Room and age 45, supervised both petitioner and Oswalt. Ibid. Petitioner's responsibilities included recording the attendance and hours of those under his supervision, and reviewing a weekly report that listed the hours worked by each employee. 3 Record 38-40. In the summer of 1995, Caldwell informed Powe Chesnut, the director of manufacturing and the husband of company president Sandra Sanderson, that "production was down" in the Hinge Room because employees were often absent and were "coming in late and leaving early." 4 id., at 203-204. Because the monthly attendance reports did not indicate a problem, Chesnut ordered an audit of the Hinge Room's timesheets for July, August, and September of that year. 197 F. 3d, at 690. According to Chesnut's testimony, that investigation revealed "numerous timekeeping errors and misrepresentations on the part of Caldwell, Reeves, and Oswalt." Ibid. Following the audit, Chesnut, along with Dana Jester, vice president of human resources, and Tom Whitaker, vice president of operations, recommended to company president Sanderson that petitioner and Caldwell be fired. Id., at 690-691. In October 1995, Sanderson followed the recommendation and discharged both petitioner and Caldwell. Id., at 691. In June 1996, petitioner filed suit in the United States District Court for the Northern District of Mississippi, contending that he had been fired because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq. At trial, respondent contended that it had fired petitioner due to his failure to maintain accurate attendance records, while petitioner attempted to demonstrate that respondent's explanation was pretext for age discrimination. 197 F. 3d, at 692-693. Petitioner introduced evidence that he had accurately recorded the attendance and hours of the employees under his supervision, and that Chesnut, whom Oswalt described as wielding "absolute power" within the company, 3 Record 80, had demonstrated age-based animus in his dealings with petitioner. 197 F. 3d, at 693. During the trial, the District Court twice denied oral motions by respondent for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure, and the case went to the jury. 3 Record 183; 4 id., at 354. The court instructed the jury that "[i]f the plaintiff fails to prove age was a determinative or motivating factor in the decision to terminate him, then your verdict shall be for the defendant." Tr. 7 (Jury Charge) (Sept. 12, 1997). So charged, the jury returned a verdict in favor of petitioner, awarding him $35,000 in compensatory damages, and found that respondent's age discrimination had been "willfu[l]." 197 F. 3d, at 691. The District Court accordingly entered judgment for petitioner in the amount of $70,000, which included $35,000 in liquidated damages based on the jury's finding of willfulness. Ibid. Respondent then renewed its motion for judgment as a matter of law and alternatively moved for a new trial, while petitioner moved for front pay. 2 Record, Doc. Nos. 36, 38. The District Court denied respondent's motions and granted petitioner's, awarding him $28,490.80 in front pay for two years' lost income. 2 id., Doc. Nos. 40, 41. The Court of Appeals for the Fifth Circuit reversed, holding that petitioner had not introduced sufficient evidence to sustain the jury's finding of unlawful discrimination. 197 F. 3d, at 694. After noting respondent's proffered justification for petitioner's discharge, the court acknowledged that petitioner "very well may" have offered sufficient evidence for "a reasonable jury [to] have found that [respondent's] explanation for its employment decision was pretextual." Id., at 693. The court explained, however, that this was "not dispositive" of the ultimate issue — namely, "whether Reeves presented sufficient evidence that his age motivated [respondent's] employment decision." Ibid. Addressing this question, the court weighed petitioner's additional evidence of discrimination against other circumstances surrounding his discharge. See id., at 693-694. Specifically, the court noted that Chesnut's age-based comments "were not made in the direct context of Reeves's termination"; there was no allegation that the two other individuals who had recommended that petitioner be fired (Jester and Whitaker) were motivated by age; two of the decisionmakers involved in petitioner's discharge (Jester and Sanderson) were over the age of 50; all three of the Hinge Room supervisors were accused of inaccurate recordkeeping; and several of respondent's management positions were filled by persons over age 50 when petitioner was fired. Id., at 693-694. On this basis, the court concluded that petitioner had not introduced sufficient evidence for a rational jury to conclude that he had been discharged because of his age. Id., at 694. We granted certiorari, 528 U. S. 985 (1999), to resolve a conflict among the Courts of Appeals as to whether a plaintiff's prima facie case of discrimination (as defined in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973)), combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination. Compare Kline v. TVA, 128 F. 3d 337 (CA6 1997) (prima facie case combined with sufficient evidence to disbelieve employer's explanation always creates jury issue of whether employer intentionally discriminated); Combs v. Plantation Patterns, 106 F. 3d 1519 (CA11 1997) (same), cert. denied, 522 U. S. 1045 (1998); Sheridan v. E. I. DuPont de Nemours & Co., 100 F. 3d 1061 (CA3 1996) (same) (en banc), cert. denied, 521 U. S. 1129 (1997); Gaworski v. ITT Commercial Finance Corp., 17 F. 3d 1104 (CA8) (same), cert. denied, 513 U. S. 946 (1994); Anderson v. Baxter Healthcare Corp., 13 F. 3d 1120 (CA7 1994) (same); Washington v. Garrett, 10 F. 3d 1421 (CA9 1993) (same), with Aka v. Washington Hospital Center, 156 F. 3d 1284 (CADC 1998) (en banc) (plaintiff's discrediting of employer's explanation is entitled to considerable weight, such that plaintiff should not be routinely required to submit evidence over and above proof of pretext), and with Fisher v. Vassar College, 114 F. 3d 1332 (CA2 1997) (en banc) (plaintiff must introduce sufficient evidence for jury to find both that employer's reason was false and that real reasonwas discrimination), cert. denied, 522 U. S. 1075 (1998); Rhodes v. Guiberson Oil Tools, 75 F. 3d 989 (CA5 1996) (same); Theard v. Glaxo, Inc., 47 F. 3d 676 (CA4 1995) (same); Woods v. Friction Materials, Inc., 30 F. 3d 255 (CA1 1994) (same).II Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U. S. C. §623(a)(1). When a plaintiff alleges disparate treatment, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993). That is, the plaintiff's age must have "actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome." Ibid. Recognizing that "the question facing triers of fact in discrimination cases is both sensitive and difficult," and that "[t]here will seldom be `eyewitness' testimony as to the employer's mental processes," Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 716 (1983), the Courts of Appeals, including the Fifth Circuit in this case, have employed some variant of the framework articulated in McDonnell Douglas to analyze ADEA claims that are based principally on circumstantial evidence. See, e.g., Stokes v. Westinghouse Savannah River Co., 206 F. 3d 420, 429 (CA4 2000); Galabya v. New York City Bd. of Ed., 202 F. 3d 636, 639 (CA2 2000); Hall v. Giant Food, Inc., 175 F. 3d 1074, 1077-1078 (CADC 1999); Beaird v. Seagate Technology Inc., 145 F. 3d 1159, 1165 (CA10), cert. denied, 525 U. S. 1054 (1998); Hindman v. Transkrit Corp., 145 F. 3d 986, 990-991 (CA8 1998); Turlington v. Atlanta Gas Light Co., 135 F. 3d 1428, 1432 (CA11), cert. denied, 525 U. S. 962 (1998); Keller v. Orix Credit Alliance, Inc., 130 F. 3d 1101, 1108 (CA3 1997) (en banc); Kaniff v. Allstate Ins. Co., 121 F. 3d 258, 263 (CA7 1997); Ritter v. Hughes Aircraft Co., 58 F. 3d 454, 456-457 (CA9 1995); Bodenheimer v. PPG Industries, Inc., 5 F. 3d 955, 957 (CA5 1993); Mesnick v. General Elec. Co., 950 F. 2d 816, 823 (CA1 1991), cert. denied, 504 U. S. 985 (1992); Ackerman v. Diamond Shamrock Corp., 670 F. 2d 66, 69 (CA6 1982). This Court has not squarely addressed whether the McDonnell Douglas framework, developed to assess claims brought under §703(a)(1) of Title VII of the Civil Rights Act of 1964, 78 Stat. 255, 42 U. S. C. §2000e-2(a)(1), also applies to ADEA actions. Because the parties do not dispute the issue, we shall assume, arguendo, that the McDonnell Douglas framework is fully applicable here. Cf. O'Connor v. Consolidated Coin Caterers Corp., 517 U. S. 308, 311 (1996). McDonnell Douglas and subsequent decisions have "established an allocation of the burden of production and an order for the presentation of proof in ... discriminatory-treatment cases." St. Mary's Honor Center v. Hicks, 509 U. S. 502, 506 (1993). First, the plaintiff must establish a prima facie case of discrimination. Ibid.; Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 252-253 (1981). It is undisputed that petitioner satisfied this burden here: (i) at the time he was fired, he was a member of the class protected by the ADEA ("individuals who are at least 40 years of age," 29 U. S. C. §631(a)), (ii) he was otherwise qualified for the position of Hinge Room supervisor, (iii) he was discharged by respondent, and (iv) respondent successively hired three persons in their thirties to fill petitioner's position. See 197 F. 3d, at 691-692. The burden therefore shifted to respondent to "produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Burdine, supra, at 254. This burden is one of production, not persuasion; it "can involve no credibility assessment." St. Mary's Honor Center, supra, at 509. Respondent met this burden by offering admissible evidence sufficient for the trier of fact to conclude that petitioner was fired because of his failure to maintain accurate attendance records. See 197 F. 3d, at 692. Accordingly, "the McDonnell Douglas framework — with its presumptions and burdens"--disappeared, St. Mary's Honor Center, supra, at 510, and the sole remaining issue was "discrimination vel non," Aikens, supra, at 714. Although intermediate evidentiary burdens shift back and forth under this framework, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U. S., at 253. And in attempting to satisfy this burden, the plaintiff — once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision — must be afforded the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Ibid.; see also St. Mary's Honor Center, supra, at 507-508. That is, the plaintiff may attempt to establish that he was the victim of intentional discrimination "by showing that the employer's proffered explanation is unworthy of credence." Burdine, supra, at 256. Moreover, although the presumption of discrimination "drops out of the picture" once the defendant meets its burden of production, St. Mary's Honor Center, supra, at 511, the trier of fact may still consider the evidence establishing the plaintiff's prima facie case "and inferences properly drawn therefrom ... on the issue of whether the defendant's explanation is pretextual," Burdine, supra, at 255, n. 10. In this case, the evidence supporting respondent's explanation for petitioner's discharge consisted primarily of testimony by Chesnut and Sanderson and documentation of petitioner's alleged "shoddy record keeping." 197 F. 3d, at 692. Chesnut testified that a 1993 audit of Hinge Room operations revealed "a very lax assembly line" where employees were not adhering to general work rules. 4 Record 197-199. As a result of that audit, petitioner was placed on 90 days' probation for unsatisfactory performance. 197 F. 3d, at 690. In 1995, Chesnut ordered another investigation of the Hinge Room, which, according to his testimony, revealed that petitioner was not correctly recording the absences and hours of employees. 4 Record 204-205. Respondent introduced summaries of that investigation documenting several attendance violations by 12 employees under petitioner's supervision, and noting that each should have been disciplined in some manner. See App. 21-24, 30-37; 4 Record 206-208. Chesnut testified that this failure to discipline absent and late employees is "extremely important when you are dealing with a union" because uneven enforcement across departments would keep the company "in grievance and arbitration cases, which are costly, all the time." 4 id., at 206. He and Sanderson also stated that petitioner's errors, by failing to adjust for hours not worked, cost the company overpaid wages. 3 id., at 100, 142, 154; 4 id., at 191-192, 213. Sanderson testified that she accepted the recommendation to discharge petitioner because he had "intentionally falsif[ied] company pay records." 3 id., at 100. Petitioner, however, made a substantial showing that respondent's explanation was false. First, petitioner offered evidence that he had properly maintained the attendance records. Most of the timekeeping errors cited by respondent involved employees who were not marked late but who were recorded as having arrived at the plant at 7 a.m. for the 7 a.m. shift. 3 id., at 118-123; 4 id., at 240-247, 283-285, 291, 293-294. Respondent contended that employees arriving at 7 a.m. could not have been at their workstations by 7 a.m., and therefore must have been late. 3 id., at 119-120; 4 id., at 241, 245. But both petitioner and Oswalt testified that the company's automated timeclock often failed to scan employees' timecards, so that the timesheets would not record any time of arrival. 3 id., at 6, 85; 4 id., at 334-335. On these occasions, petitioner and Oswalt would visually check the workstations and record whether the employees were present at the start of the shift. 3 id., at 6, 85-87; 4 id., at 335. They stated that if an employee arrived promptly but the timesheet contained no time of arrival, they would reconcile the two by marking "7 a.m." as the employee's arrival time, even if the employee actually arrived at the plant earlier. Ibid. On cross-examination, Chesnut acknowledged that the timeclock sometimes malfunctioned, and that if "people were there at their work station[s]" at the start of the shift, the supervisor "would write in seven o'clock." 4 id., at 244. Petitioner also testified that when employees arrived before or stayed after their shifts, he would assign them additional work so they would not be overpaid. See 197 F. 3d, at 693. Petitioner similarly cast doubt on whether he was responsible for any failure to discipline late and absent employees. Petitioner testified that his job only included reviewing the daily and weekly attendance reports, and that disciplinary writeups were based on the monthly reports, which were reviewed by Caldwell. 3 Record 20-22; 4 id., at 335. Sanderson admitted that Caldwell, and not petitioner, was responsible for citing employees for violations of the company's attendance policy. 3 id., at 20-21, 137-138. Further, Chesnut conceded that there had never been a union grievance or employee complaint arising from petitioner's recordkeeping, and that the company had never calculated the amount of overpayments allegedly attributable to petitioner's errors. 4 id., at 267, 301. Petitioner also testified that, on the day he was fired, Chesnut said that his discharge was due to his failure to report as absent one employee, Gina Mae Coley, on two days in September 1995. 3 id., at 23, 70; 4 id., at 335-336. But petitioner explained that he had spent those days in the hospital, and that Caldwell was therefore responsible for any overpayment of Coley. 3 id., at 17, 22. Finally, petitioner stated that on previous occasions that employees were paid for hours they had not worked, the company had simply adjusted those employees' next paychecks to correct the errors. 3 id., at 72-73. Based on this evidence, the Court of Appeals concluded that petitioner "very well may be correct" that "a reasonable jury could have found that [respondent's] explanation for its employment decision was pretextual." 197 F. 3d, at 693. Nonetheless, the court held that this showing, standing alone, was insufficient to sustain the jury's finding of liability: "We must, as an essential final step, determine whether Reeves presented sufficient evidence that his age motivated [respondent's] employment decision." Ibid. And in making this determination, the Court of Appeals ignored the evidence supporting petitioner's prima facie case and challenging respondent's explanation for its decision. See id., at 693-694. The court confined its review of evidence favoring petitioner to that evidenceshowing that Chesnut had directed derogatory, age-based comments at petitioner, and that Chesnut had singled out petitioner for harsher treatment than younger employees. See ibid. It is therefore apparent that the court believed that only this additional evidence of discrimination was relevant to whether the jury's verdict should stand. That is, the Court of Appeals proceeded from the assumption that a prima facie case of discrimination, combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory reason for its decision, is insufficient as a matter of law to sustain a jury's finding of intentional discrimination. In so reasoning, the Court of Appeals misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence. This much is evident from our decision in St. Mary's Honor Center. There we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. 509 U. S., at 511. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason ... is correct." Id., at 524. In other words, "[i]t is not enough ... to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Id., at 519. In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. Specifically, we stated:"The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." Id., at 511.Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. See id., at 517 ("[P]roving the employer's reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination"). In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Wright v. West, 505 U. S. 277, 296 (1992); see also Wilson v. United States, 162 U. S. 613, 620-621 (1896); 2 J. Wigmore, Evidence §278(2), p. 133 (J. Chadbourn rev. ed. 1979). Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Cf. Furnco Constr. Corp. v. Waters, 438 U. S. 567, 577 (1978) ("[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration"). Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. See Aka v. Washington Hospital Center, 156 F. 3d, at 1291-1292; see also Fisher v. Vassar College, 114 F. 3d, at 1338 ("[I]f the circumstances show that the defendant gave the false explanation to conceal something other than discrimination, the inference of discrimination will be weak or nonexistent"). To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50, and we have reiterated that trial courts should not " `treat discrimination differently from other ultimate questions of fact.' " St. Mary's Honor Center, supra, at 524 (quoting Aikens, 460 U. S., at 716). Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law. See infra, at 15-16. For purposes of this case, we need not — and could not — resolve all of the circumstances in which such factors would entitle an employer to judgment as a matter of law. It suffices to say that, because a prima facie case and sufficient evidence to reject the employer's explanation may permit a finding of liability, the Court of Appeals erred in proceeding from the premise that a plaintiff must always introduce additional, independent evidence of discrimination.IIIA The remaining question is whether, despite the Court of Appeals' misconception of petitioner's evidentiary burden, respondent was nonetheless entitled to judgment as a matter of law. Under Rule 50, a court should render judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. Rule Civ. Proc. 50(a); see also Weisgram v. Marley Co., 528 U. S. ___, ___ (2000) (slip op., at 5-7). The Courts of Appeals have articulated differing formulations as to what evidence a court is to consider in ruling on a Rule 50 motion. See Venture Technology, Inc. v. National Fuel Gas Distribution Corp., decided with Schwimmer v. Sony Corp. of America, 459 U. S. 1007, 1009 (1982) (White, J., dissenting from denial of certiorari). Some decisions have stated that review is limited to that evidence favorable to the non-moving party, see, e.g., Aparicio v. Norfolk & Western R. Co., 84 F. 3d 803, 807 (CA6 1996); Simpson v. Skelly Oil Co., 371 F. 2d 563, 566 (CA8 1967), while most have held that review extends to the entire record, drawing all reasonable inferences in favor of the nonmovant, see, e.g., Tate v. Government Employees Ins. Co., 997 F. 2d 1433, 1436 (CA11 1993); Boeing Co. v. Shipman, 411 F. 2d 365, 374 (CA5 1969) (en banc). On closer examination, this conflict seems more semantic than real. Those decisions holding that review under Rule 50 should be limited to evidence favorable to the nonmovant appear to have their genesis in Wilkerson v. McCarthy, 336 U. S. 53 (1949). See 9A C. Wright & A. Miller, Federal Practice and Procedure §2529, pp. 297-301 (2d ed. 1995) (hereinafter Wright & Miller). In Wilkerson, we stated that "in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of" the nonmoving party. 475 U. S. 574, 587 (1986). And the standard for granting summary judgment "mirrors" the standard for judgment as a matter of law, such that "the inquiry under each is the same." Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 250-251 (1986); see also Celotex Corp. v. Catrett, 477 U. S. 317, 323 (1986). It therefore follows that, in entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record. In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Lytle v. Household Mfg., Inc., 494 U. S. 545, 554-555 (1990); Liberty Lobby, Inc., supra, at 254; Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 696, n. 6 (1962). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Liberty Lobby, supra, at 255. Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. See Wright & Miller 299. That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Id., at 300.B Applying this standard here, it is apparent that respondent was not entitled to judgment as a matter of law. In this case, in addition to establishing a prima facie case of discrimination and creating a jury issue as to the falsity of the employer's explanation, petitioner introduced additional evidence that Chesnut was motivated by age-based animus and was principally responsible for petitioner's firing. Petitioner testified that Chesnut had told him that he "was so old [he] must have come over on the Mayflower" and, on one occasion when petitioner was having difficulty starting a machine, that he "was too damn old to do [his] job." 3 Record 26. According to petitioner, Chesnut would regularly "cuss at me and shake his finger in my face." 3 id., at 26-27. Oswalt, roughly 24 years younger than petitioner, corroborated that there was an "obvious difference" in how Chesnut treated them. 3 id., at 82. He stated that, although he and Chesnut "had [their] differences," "it was nothing compared to the way [Chesnut] treated Roger." Ibid. Oswalt explained that Chesnut "tolerated quite a bit" from him even though he "defied" Chesnut "quite often," but that Chesnut treated petitioner "[i]n a manner, as you would ... treat ... a child when ... you're angry with [him]." 3 id., at 82-83. Petitioner also demonstrated that, according to company records, he and Oswalt had nearly identical rates of productivity in 1993. 3 id., at 163-167; 4 id., at 225-226. Yet respondent conducted an efficiency study of only the regular line, supervised by petitioner, and placed only petitioner on probation. 3 id., at 166-167; 4 id., at 229. Chesnut conducted that efficiency study and, after having testified to the contrary on direct examination, acknowledged on cross-examination that he had recommended that petitioner be placed on probation following the study. 4 id., at 197-199, 237. Further, petitioner introduced evidence that Chesnut was the actual decisionmaker behind his firing. Chesnut was married to Sanderson, who made the formal decision to discharge petitioner. 3 id., at 90, 152. Although Sanderson testified that she fired petitioner because he had "intentionally falsif[ied] company pay records," 3 id., at 100, respondent only introduced evidence concerning the inaccuracy of the records, not their falsification. A 1994 letter authored by Chesnut indicated that he berated other company directors, who were supposedly his co-equals, about how to do their jobs. Pl. Exh. 7, 3 Record 108-112. Moreover, Oswalt testified that all of respondent's employees feared Chesnut, and that Chesnut had exercised "absolute power" within the company for "[a]s long as [he] can remember." 3 id., at 80. In holding that the record contained insufficient evidence to sustain the jury's verdict, the Court of Appeals misapplied the standard of review dictated by Rule 50. Again, the court disregarded critical evidence favorable to petitioner — namely, the evidence supporting petitioner's prima facie case and undermining respondent's nondiscriminatory explanation. See 197 F. 3d, at 693-694. The court also failed to draw all reasonable inferences in favor of petitioner. For instance, while acknowledging "the potentially damning nature" of Chesnut's age-related comments, the court discounted them on the ground that they "were not made in the direct context of Reeves's termination." Id., at 693. And the court discredited petitioner's evidence that Chesnut was the actual decisionmaker by giving weight to the fact that there was "no evidence to suggest that any of the other decision makers were motivated by age." Id., at 694. Moreover, the other evidence on which the court relied — that Caldwell and Oswalt were also cited for poor recordkeeping, and that respondent employed many managers over age 50 — although relevant, is certainly not dispositive. See Furnco, 438 U. S., at 580 (evidence that employer's work force was racially balanced, while "not wholly irrelevant," was not "sufficient to conclusively demonstrate that [the employer's] actions were not discriminatorily motivated"). In concluding that these circumstances so overwhelmed the evidence favoring petitioner that no rational trier of fact could have found that petitioner was fired because of his age, the Court of Appeals impermissibly substituted its judgment concerning the weight of the evidence for the jury's. The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination. Given the evidence in the record supporting petitioner, we see no reason to subject the parties to an additional round of litigation before the Court of Appeals rather than to resolve the matter here. The District Court plainly informed the jury that petitioner was required to show "by a preponderance of the evidence that his age was a determining and motivating factor in the decision of [respondent] to terminate him." Tr. 7 (Jury Charge) (Sept. 12, 1997). The court instructed the jury that, to show that respondent's explanation was a pretext for discrimination, petitioner had to demonstrate "1, that the stated reasons were not the real reasons for [petitioner's] discharge; and 2, that age discrimination was the real reason for [petitioner's] discharge." Ibid. (emphasis added). Given that petitioner established a prima facie case of discrimination, introduced enough evidence for the jury to reject respondent's explanation, and produced additional evidence of age-based animus, there was sufficient evidence for the jury to find that respondent had intentionally discriminated. The District Court was therefore correct to submit the case to the jury, and the Court of Appeals erred in overturning its verdict. For these reasons, the judgment of the Court of Appeals is reversed.It is so ordered.ROGER REEVES, PETITIONER v. SANDERSON PLUMBING PRODUCTS, INC.on writ of certiorari to the united states court of appeals for the fifth circuit[June 12, 2000] Justice Ginsburg, concurring. The Court today holds that an employment discrimination plaintiff may survive judgment as a matter of law by submitting two categories of evidence: first, evidence establishing a "prima facie case," as that term is used in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973); and second, evidence from which a rational factfinder could conclude that the employer's proffered explanation for its actions was false. Because the Court of Appeals in this case plainly, and erroneously, required the plaintiff to offer some evidence beyond those two categories, no broader holding is necessary to support reversal. I write separately to note that it may be incumbent on the Court, in an appropriate case, to define more precisely the circumstances in which plaintiffs will be required to submit evidence beyond these two categories in order to survive a motion for judgment as a matter of law. I anticipate that such circumstances will be uncommon. As the Court notes, it is a principle of evidence law that the jury is entitled to treat a party's dishonesty about a material fact as evidence of culpability. Ante, at 12. Under this commonsense principle, evidence suggesting that a defendant accused of illegal discrimination has chosen to give a false explanation for its actions gives rise to a rational inference that the defendant could be masking its actual, illegal motivation. Ibid. Whether the defendant was in fact motivated by discrimination is of course for the finder of fact to decide; that is the lesson of St. Mary's Honor Center v. Hicks, 509 U. S. 502 (1993). But the inference remains — unless it is conclusively demonstrated, by evidence the district court is required to credit on a motion for judgment as a matter of law, see ante, at 15-16, that discrimination could not have been the defendant's true motivation. If such conclusive demonstrations are (as I suspect) atypical, it follows that the ultimate question of liability ordinarily should not be taken from the jury once the plaintiff has introduced the two categories of evidence described above. Because the Court's opinion leaves room for such further elaboration in an appropriate case, I join it in full.
2	Appellants, a civil rights organization and its executive director, brought suit in Federal District Court, in which other individuals later joined, for injunctive and declaratory relief to restrain appellees from prosecuting or threatening to prosecute them under Louisiana's Subversive Activities and Communist Control Law and Communist Propaganda Control Law, which they alleged violated their rights of free expression under the First and Fourteenth Amendments. Appellants contended that the statutes were excessively broad and susceptible of application in violation of those rights, and were being used by appellees in bad faith, not to secure valid convictions, but to deter appellants' civil rights efforts. Appellants alleged and offered to prove the arrest of the individual appellants under the statutes, the raiding of their offices and illegal seizure of their records, with continued threats of prosecution after invalidation by a state court of the arrests and seizure of evidence preceding this action. A three-judge District Court dismissed the complaint for failure to state a claim upon which relief could be granted, also holding that abstention was appropriate pending a possible narrowing construction by the state courts which would avoid unnecessary constitutional adjudication. Thereafter, appellants alleged, the individual appellants were indicted under the Subversive Activities and Communist Control Law. They also claimed that there was no prospect of final state adjudications either under those indictments or under threatened additional prosecutions. Held: 1. The mere possibility of erroneous initial application of constitutional standards by a state court will not ordinarily constitute irreparable injury warranting federal interference with a good-faith prosecution and the adjudication during its course of constitutional defenses. Pp. 484-485. 2. But equitable relief will be granted to prevent a substantial loss or impairment of freedoms of expression resulting from prosecution under an excessively broad statute regulating expression. Pp. 485-489. (a) Defense of a criminal prosecution will not generally assure ample vindication of First Amendment rights. Baggett v. Bullitt. , followed. Pp. 485-486. (b) A chilling effect upon First Amendment rights might result from such prosecution regardless of its prospects of success or failure, as is indicated by appellants' representations of the actions taken under the statutes. Pp. 487-489. 3. The abstention doctrine is inappropriate where a statute is justifiably attacked on its face, or as applied for the purpose of discouraging protected activities. Pp. 489-491. (a) The state court's ultimate interpretation of a statute would be irrelevant to meet the claim that it was being applied to discourage civil rights activities. P. 490. (b) Abstention is inappropriate where a statute regulating speech is properly attacked on its face as being unconstitutionally vague. Pp. 490-491. (c) Appellants are entitled to an injunction where, as here, no readily apparent construction is available to bring the statute within constitutional confines in a single prosecution, and it is not alleged that their conduct would fall within any conceivable narrowing construction. P. 491. (d) The State must assume the burden of securing a permissible narrow construction of the statute in a noncriminal proceeding before it may seek modification of the injunction to permit future prosecutions thereunder. P. 491. 4. The statutory definition of "a subversive organization" in 359 (5) of the Louisiana Subversive Activities and Communist Control Law, incorporated in the offense created by 364 (4), under which two of the individual appellants were indicted, results in an overly broad regulation of speech, invalid for the same reasons as held in Baggett v. Bullitt, supra, which involved a substantially similar definition. Pp. 493-494. 5. Section 364 (7), creating an offense for failure to register as a member of a "Communist Front Organization," under which each of the individual defendants was indicted, is on its face invalid because of its constitutionally impermissible presumption of such status if the organization had been cited as a Communist front by designated federal instrumentalities, there being no requirement in the statute of compliance in the process of such citation with procedural safeguards as demanded by Anti-Fascist Committee v. McGrath, . Pp. 494-496. 6. The District Court shall enjoin prosecution of the pending indictments against the individual appellants, order immediate return of documents seized and prohibit further enforcement of the sections of the Subversive Activities and Communist Control Law here found void on their face. Without abstention, it shall decide what relief appellants may be entitled to on the basis of their attacks on other sections of that statute, their attacks on the Communist Propaganda Control Law, and the remaining issues raised in the complaint. Pp. 497-495. 227 F. Supp. 556, reversed and remanded.Leon Hubert and Arthur Kinoy argued the cause for appellants. With them on the brief were William M. Kunstler, Michael J. Kunstler and A. P. Tureaud.John E. Jackson, Jr., Assistant Attorney General of Louisiana, and Jack N. Rogers argued the cause for appellees. With them on the brief for appellees Pfister et al. were Jack P. F. Gremillion, Attorney General of Louisiana, and Dorothy D. Wolbrettee, Assistant Attorney General. With Mr. Rogers on the brief for appellee Joint Legislative Committee on Un-American Activities was Robert H. Reiter. Mr. Reiter also filed a brief for appellee Davis. Appellee Jim Garrison filed a brief pro se.Briefs of amici curiae, urging reversal, were filed by Jack Greenberg, Derrick A. Bell, Jr., and Jay H. Topkis for the NAACP Legal Defense & Educational Fund; by Louis Lusky and Melvin L. Wulf for the American Civil Liberties Union et al.; and by Ernest Goodman and David Rein for the National Lawyers Guild.MR. JUSTICE BRENNAN delivered the opinion of the Court.Appellants filed a complaint in the District Court for the Eastern District of Louisiana, invoking the Civil Rights Act, Rev. Stat. 1979, 42 U.S.C. 1983 (1958 ed.), and seeking declaratory relief and an injunction restraining appellees - the Governor, police and law enforcement officers, and the Chairman of the Legislative Joint Committee on Un-American Activities in Louisiana - from prosecuting or threatening to prosecute appellants for alleged violations of the Louisiana Subversive Activities and Communist Control Law and the Communist Propaganda Control Law.1 Appellant Southern Conference Educational Fund, Inc. (SCEF), is active in fostering civil rights for Negroes in Louisiana and other States of the South. Appellant Dombrowski is its Executive Director; intervenor Smith, its Treasurer; and intervenor Waltzer, Smith's law partner and an attorney for SCEF. The complaint alleges that the statutes on their face violate the First and Fourteenth Amendment guarantees securing freedom of expression, because overbreadth makes them susceptible of sweeping and improper application abridging those rights. Supported by affidavits and a written offer of proof, the complaint further alleges that the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.A three-judge district court, convened pursuant to 28 U.S.C. 2281 (1958 ed.), dismissed the complaint, one judge dissenting, "for failure to state a claim upon which relief can be granted." 227 F. Supp. 556, 564. The majority were of the view that the allegations, conceded to raise serious constitutional issues, did not present a case of threatened irreparable injury to federal rights which warranted cutting short the normal adjudication of constitutional defenses in the course of state criminal prosecutions; rather, the majority held, this was an appropriate case for abstention, since a possible narrowing construction by the state courts would avoid unnecessary decision of constitutional questions. In accordance with this view the court withdrew its initial determination that the statutes were not unconstitutional on their face. 227 F. Supp., at 562-563. Postponement of consideration of the federal issues until state prosecution and possible review here of adverse state determination was thought to be especially appropriate since the statutes concerned the State's "basic right of self-preservation" and the threatened prosecution was "imbued ... . with an aura of sedition or treason or acts designed to substitute a different form of local government by other than lawful means ..."; federal court interference with enforcement of such statutes "truly ... would be a massive emasculation of the last vestige of the dignity of sovereignty." 227 F. Supp., at 559, 560. We noted probable jurisdiction in order to resolve a seeming conflict with our later decision in Baggett v. Bullitt, , and to settle important questions concerning federal injunctions against state criminal prosecutions threatening constitutionally protected expression. . We reverse.I.In Ex parte Young, , the fountainhead of federal injunctions against state prosecutions, the Court characterized the power and its proper exercise in broad terms: it would be justified where state officers "... threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution ... ." 209 U.S., at 156. Since that decision, however, considerations of federalism have tempered the exercise of equitable power,2 for the Court has recognized that federal interference with a State's good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework. It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this Court, and that the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings. In Douglas v. City of Jeannette, , for example, the Court upheld a district court's refusal to enjoin application of a city ordinance to religious solicitation, even though the ordinance was that very day held unconstitutional as so applied on review of a criminal conviction under it. Murdock v. Pennsylvania, . Since injunctive relief looks to the future, and it was not alleged that Pennsylvania courts and prosecutors would fail to respect the Murdock ruling, the Court found nothing to justify an injunction. And in a variety of other contexts the Court has found no special circumstances to warrant cutting short the normal adjudication of constitutional defenses in the course of a criminal prosecution.3 In such cases it does not appear that the plaintiffs "have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court." Douglas v. City of Jeannette, supra, at 164.But the allegations in this complaint depict a situation in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court's disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e. g., Smith v. California. . When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra, at 379. For "[t]he threat of sanctions may deter ... almost as potently as the actual application of sanctions... ." NAACP v. Button, . Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression - of transcendent value to all society, and not merely to those exercising their rights - might be the loser. Cf. Garrison v. Louisiana, . For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. Alabama, ; NAACP v. Button, supra, at 432-433; cf. Aptheker v. Secretary of State, ; United States v. Raines, . We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of the "... danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application." NAACP v. Button, supra, at 433. If the rule were otherwise, the contours of regulation would have to be hammered out case by case - and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation. Cf. Ex parte Young, supra, at 147-148. By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. See NAACP v. Button, supra, at 432-433; cf. Baggett v. Bullitt, supra, at 378-379; Bush v. Orleans School Board, 194 F. Supp. 182, 185, affirmed sub nom. Tugwell v. Bush, ; Gremillion v. United States, .Appellants' allegations and offers of proof outline the chilling effect on free expression of prosecutions initiated and threatened in this case. Early in October 1963 appellant Dombrowski and intervenors Smith and Waltzer were arrested by Louisiana state and local police and charged with violations of the two statutes. Their offices were raided and their files and records seized.4 Later in October a state judge quashed the arrest warrants as not based on probable cause, and discharged the appellants. Subsequently, the court granted a motion to suppress the seized evidence on the ground that the raid was illegal. Louisiana officials continued, however, to threaten prosecution of the appellants, who thereupon filed this action in November. Shortly after the three-judge court was convened, a grand jury was summoned in the Parish of Orleans to hear evidence looking to indictments of the individual appellants. On appellants' application Judge Wisdom issued a temporary restraining order against prosecutions pending hearing and decision of the case in the District Court. Following a hearing the District Court, over Judge Wisdom's dissent, dissolved the temporary restraining order and, at the same time, handed down an order dismissing the complaint. Thereafter the grand jury returned indictments under the Subversive Activities and Communist Control Law against the individual appellants.5 These events, together with repeated announcements by appellees that the appellant organization is a subversive or Communist-front organization, whose members must register or be prosecuted under the Louisiana statutes. have, appellants allege, frightened off potential members and contributors. Cf. Anti-Fascist Committee v. McGrath, . Seizures of documents and records have paralyzed operations and threatened exposure of the identity of adherents to a locally unpopular cause. See NAACP v. Alabama, . Although the particular seizure has been quashed in the state courts, the continuing threat of prosecution portends further arrests and seizures, some of which may be upheld and all of which will cause the organization inconvenience or worse. In Freedman v. Maryland, ante, p. 51, we struck down a motion picture censorship statute solely because the regulatory scheme did not sufficiently assure exhibitors a prompt judicial resolution of First Amendment claims. The interest in immediate resolution of such claims is surely no less where criminal prosecutions are threatened under statutes allegedly overbroad and seriously inhibiting the exercise of protected freedoms. Not only does the complaint allege far more than an "injury other than that incidental to every criminal proceeding brought lawfully and in good faith," but appellants allege threats to enforce statutory provisions other than those under which indictments have been brought. Since there is no immediate prospect of a final state adjudication as to those other sections - if, indeed, there is any certainty that prosecution of the pending indictments will resolve all constitutional issues presented - a series of state criminal prosecutions will not provide satisfactory resolution of constitutional issues.It follows that the District Court erred in holding that the complaint fails to allege sufficient irreparable injury to justify equitable relief.The District Court also erred in holding that it should abstain pending authoritative interpretation of the statutes in the state courts, which might hold that they did not apply to SCEF, or that they were unconstitutional as applied to SCEF. We hold the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette, statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities.First, appellants have attacked the good faith of the appellees in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellants' civil rights activities. If these allegations state a claim under the Civil Rights Act, 42 U.S.C. 1983, as we believe they do, see Beauregard v. Wingard, 230 F. Supp. 167 (D.C. S. D. Calif. 1964); Bargainer v. Michal, 233 F. Supp. 270 (D.C. N. D. Ohio 1964), the interpretation ultimately put on the statutes by the state courts is irrelevant. For an interpretation rendering the statute inapplicable to SCEF would merely mean that appellants might ultimately prevail in the state courts. It would not alter the impropriety of appellees' invoking the statute in bad faith to impose continuing harassment in order to discourage appellants' activities, as appellees allegedly are doing and plan to continue to do.Second, appellants have challenged the statutes as overly broad and vague regulations of expression. We have already seen that where, as here, prosecutions are actually threatened, this challenge, if not clearly frivolous, will establish the threat of irreparable injury required by traditional doctrines of equity. We believe that in this case the same reasons preclude denial of equitable relief pending an acceptable narrowing construction. In considering whether injunctive relief should be granted, a federal district court should consider a statute as of the time its jurisdiction is invoked, rather than some hypothetical future date. The area of proscribed conduct will be adequately defined and the deterrent effect of the statute contained within constitutional limits only by authoritative constructions sufficiently illuminating the contours of an otherwise vague prohibition. As we observed in Baggett v. Bullitt, supra, at 378, this cannot be satisfactorily done through a series of criminal prosecutions, dealing as they inevitably must with only a narrow portion of the prohibition at any one time, and not contributing materially to articulation of the statutory standard. We believe that those affected by a statute are entitled to be free of the burdens of defending prosecutions, however expeditious, aimed at hammering out the structure of the statute piecemeal, with no likelihood of obviating similar uncertainty for others. Here, no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, and appellants are entitled to an injunction. The State must, if it is to invoke the statutes after injunctive relief has been sought, assume the burden of obtaining a permissible narrow construction in a noncriminal proceeding6 before it may seek modification of the injunction to permit future prosecutions.7 On this view of the "vagueness" doctrine, it is readily apparent that abstention serves no legitimate purpose where a statute regulating speech is properly attacked on its face, and where, as here, the conduct charged in the indictments is not within the reach of an acceptable limiting construction readily to be anticipated as the result of a single criminal prosecution and is not the sort of "hard-core" conduct that would obviously be prohibited under any construction. In these circumstances, to abstain is to subject those affected to the uncertainties and vagaries of criminal prosecution, whereas the reasons for the vagueness doctrine in the area of expression demand no less than freedom from prosecution prior to a construction adequate to save the statute. In such cases, abstention is at war with the purposes of the vagueness doctrine, which demands appropriate federal relief regardless of the prospects for expeditious determination of state criminal prosecutions. Although we hold today that appellants' allegations of threats to prosecute, if upheld. dictate appropriate equitable relief without awaiting declaratory judgments in the state courts, the settled rule of our cases is that district courts retain power to modify injunctions in light of changed circumstances. System Federation v. Wright, ; Chrysler Corp. v. United States, ; United States v. Swift & Co., . Our view of the proper operation of the vagueness doctrine does not preclude district courts from modifying injunctions to permit prosecutions in light of subsequent state court interpretation clarifying the application of a statute to particular conduct.We conclude that on the allegations of the complaint. if true, abstention and the denial of injunctive relief may well result in the denial of any effective safeguards against the loss of protected freedoms of expression, and cannot be justified.II.Each of the individual appellants was indicted for violating 364 (7)8 of the Subversive Activities and Communist Control Law by failing to register as a member of a Communist-front organization. Smith and Waltzer were indicted for failing to register as members "of a Communist front organization known as the National Lawyers Guild, which said organization has been cited by committees and sub-committees of the United States Congress as a Communist front organization ... ." Dombrowski and Smith were indicted for failing to register as members of "a Communist front organization known as the Southern Conference Educational Fund, which said organization is essentially the same as the Southern Conference for Human Welfare, which said Southern Conference for Human Welfare [has] ... been cited by the committees of the United States Congress as a Communist front organization ... ." Dombrowski and Smith were also indicted for violating 364 (4),9 by acting as Executive Director and Treasurer respectively "of a subversive organization, to wit, the Southern Conference Educational Fund, said organization being essentially the same as the Southern Conference for Human Welfare, which said organization has been cited by committees of the United States Congress as a Communist front organization ... ."The statutory definition of "a subversive organization" in 359 (5)10 incorporated in the offense created by 364 (4), is substantially identical to that of the Washington statute which we considered in Baggett v. Bullitt, supra, at 362, 363, n. 1. There the definition was used in a state statute requiring state employees to take an oath as a condition of employment. We held that the definition, as well as the oath based thereon, denied due process because it was unduly vague, uncertain and broad. Where, as here, protected freedoms of expression and association are similarly involved, we see no controlling distinction in the fact that the definition is used to provide a standard of criminality rather than the contents of a test oath. This overly broad statute also creates a "danger zone" within which protected expression may be inhibited. Cf. Speiser v. Randall, . So long as the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one. Even the prospect of ultimate failure of such prosecutions by no means dispels their chilling effect on protected expression. A Quantity of Copies of Books v. Kansas, ; Bantam Books, Inc. v. Sullivan, ; Marcus v. Search Warrant, ; Speiser v. Randall, supra. Since 364 (4) is so intimately bound up with a definition invalid under the reasoning of Baggett v. Bullitt, we hold that it is invalid for the same reasons.We also find the registration requirement of 364 (7) invalid. That section creates an offense of failure to register as a member of a Communist-front organization, and, under 359 (3),11 "the fact that an organization has been officially cited or identified by the Attorney General of the United States, the Subversive Activities Control Board of the United States or any committee or subcommittee of the United States Congress as a ... communist front organization ... shall be considered presumptive evidence of the factual status of any such organization." There is no requirement that the organization be so cited only after compliance with the procedural safeguards demanded by Anti-Fascist Committee v. McGrath, supra.12 A designation resting on such safeguards is a minimum requirement to insure the rationality of the presumptions of the Louisiana statute and, in its absence, the presumptions cast an impermissible burden upon the appellants to show that the organizations are not Communist fronts. "Where the transcendent value of speech is involved, due process certainly requires ... that the State bear the burden of persuasion to show that the appellants engaged in criminal speech." Speiser v. Randall, supra, at 526. It follows that 364 (7), resting on the invalid presumption, is unconstitutional on its face.13 III.The precise terms and scope of the injunctive relief to which appellants are entitled and the identity of the appellees to be enjoined cannot, of course, be determined until after the District Court conducts the hearing on remand. The record suffices, however, to permit this Court to hold that, without the benefit of limiting construction, the statutory provisions on which the indictments are founded are void on their face; until an acceptable limiting construction is obtained, the provisions cannot be applied to the activities of SCEF, whatever they may be. The brief filed in this Court by appellee Garrison, District Attorney of the Parish of Orleans, the official having immediate responsibility for the indictments, concedes the facts concerning the arrests of the individual appellants, their discharge by the local judge, and the indictments of the individual appellants by the grand jury. In view of our decision on the merits, the District Court on remand need decide only the relief to which appellants may be entitled on the basis of their attacks on other sections of that statute and the Communist Propaganda Control Law, and on their allegations that appellees threaten to enforce both statutes solely to discourage appellants from continuing their civil rights activities. On these issues, abstention will be as inappropriate as on the issues we here decide.The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with this opinion. These shall include prompt framing of a decree restraining prosecution of the pending indictments against the individual appellants, ordering immediate return of all papers and documents seized, and prohibiting further acts enforcing the sections of the Subversive Activities and Communist Control Law here found void on their face. In addition, appellants are entitled to expeditious determination, without abstention, of the remaining issues raised in the complaint. It is so ordered.MR. JUSTICE BLACK took no part in the consideration or decision of this case.MR. JUSTICE STEWART took no part in the decision of this case.
0	Petitioner Graham's capital murder conviction and death sentence became final in 1984. After unsuccessfully seeking postconviction relief in the Texas state courts, he filed this habeas corpus action in Federal District Court, alleging, inter alia, that the three "special issues" his sentencing jury was required to answer under the state capital sentencing statute then in existence prevented the jury from giving effect, consistent with the Eighth and Fourteenth Amendments, to mitigating evidence of his youth, unstable family background, and positive character traits. In affirming the District Court's denial of relief, the Court of Appeals reviewed this Court's holdings on the constitutional requirement that a sentencer be permitted to consider and act upon any relevant mitigating evidence put forth by a capital defendant, and then ruled that Graham's jury could give adequate mitigating effect to the evidence in question by way of answering the special issues.Held: Graham's claim is barred because the relief he seeks would require announcement of a new rule of constitutional law, in contravention of the principles set forth in Teague v. Lane, (plurality opinion). Pp. 466-478. (a) A holding that was not "dictated by precedent existing at the time the defendant's conviction became final" constitutes a "new rule," ibid., which, absent the applicability of one of two exceptions, cannot be applied or announced in a case on collateral review, Penry v. Lynaugh, . Thus, the determinative question is whether reasonable jurists hearing Graham's claim in 1984 "would have felt compelled by existing precedent" to rule in his favor. See Saffle v. Parks, . Pp. 466-467. (b) It cannot be said that reasonable jurists hearing Graham's claim in 1984 would have felt that existing precedent "dictated" vacatur of his death sentence within Teague's meaning. To the contrary, the joint opinion of Justices Stewart, Powell, and STEVENS, in Jurek v. Texas, , could reasonably be read as having upheld the constitutionality of the very statutory scheme under which Graham was sentenced, including the so-called "special issues," only after being satisfied that petitioner's mitigating evidence, including his age, would be given constitutionally adequate consideration in the course of the jury's deliberation on the special issues. Moreover, Lockett v. Ohio, (plurality opinion), expressly embraced the Jurek holding, and Eddings v. Oklahoma, , signaled no retreat from that conclusion. Thus, it is likely that reasonable jurists in 1984 would have found that, under these cases, the Texas statute satisfied the commands of the Eighth Amendment: It permitted Graham to place before the jury whatever mitigating evidence he could show, including his age, while focusing the jury's attention upon what that evidence revealed about his capacity for deliberation and prospects for rehabilitation. Nothing in this Court's post-1984 cases, to the extent they are relevant, would undermine this analysis. Even if Penry, supra, upon which Graham chiefly relies, reasonably could be read to suggest that his mitigating evidence was not adequately considered under the Texas procedures, that does not answer the determinative question under Teague. Pp. 467-477. (c) The new rule that Graham seeks would not fall within either of the Teague exceptions. The first exception plainly has no application here, because Graham's rule would neither decriminalize a class of conduct nor prohibit the imposition of capital punishment on a particular class of persons. See Saffle, supra, at 495. The second exception, for watershed rules implicating fundamental fairness and accuracy, is also inapplicable, since denying Graham special jury instructions concerning his mitigating evidence would not seriously diminish the likelihood of obtaining an accurate determination in his sentencing proceeding. See Butler v. McKellar, . Pp. 477-478. 950 F.2d 1009, affirmed.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. THOMAS, J., filed a concurring opinion, post, p. 478. STEVENS, J., filed a dissenting opinion, post, p. 500. SOUTER, J., filed a dissenting opinion, in which BLACKMUN, STEVENS, and O'CONNOR, JJ., joined, post, p. 504.Michael E. Tigar argued the cause for petitioner. With him on the briefs was Jeffrey J. Pokorak.Charles A. Palmer, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Dan Morales, Attorney General, William C. Zapalac, Assistant Attorney General, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Michael P. Hodge, Assistant Attorney General.* [Footnote *] Steven B. Rosenfeld and Allen Cazier filed a brief for Miguel A. Richardson as amicus curiae urging reversal.JUSTICE WHITE delivered the opinion of the Court.In this case, we are asked to decide whether the jury that sentenced petitioner, Gary Graham, to death was able to give effect, consistent with the Eighth and Fourteenth Amendments, to mitigating evidence of Graham's youth, family background, and positive character traits. Because this case comes to us on collateral review, however, we must first decide whether the relief that petitioner seeks would require announcement of a new rule of constitutional law, in contravention of the principles set forth in Teague v. Lane, . Concluding that Graham's claim is barred by Teague, we affirm.IOn the night of May 13, 1981, Graham accosted Bobby Grant Lambert in the parking lot of a Houston, Texas, grocery store and attempted to grab his wallet. When Lambert resisted, Graham drew a pistol and shot him to death. Five months later, a jury rejected Graham's defense of mistaken identity and convicted him of capital murder in violation of Tex. Penal Code Ann. 19.03(a)(2) (1989).At the sentencing phase of Graham's trial, the State offered evidence that Graham's murder of Lambert commenced a week of violent attacks during which the 17-year-old Graham committed a string of robberies, several assaults, and one rape. Graham did not contest this evidence. Rather, in mitigation, the defense offered testimony from Graham's stepfather and grandmother concerning his upbringing and positive character traits. The stepfather, Joe Samby, testified that Graham, who lived and worked with his natural father, typically visited his mother once or twice a week, and was a "real nice, respectable" person. Samby further testified that Graham would pitch in on family chores, and that Graham, himself a father of two young children, would "buy ... clothes for his children and try to give them food."Graham's grandmother, Emma Chron, testified that Graham had lived with her off and on throughout his childhood because his mother had been hospitalized periodically for a "nervous condition." Chron also stated that she had never known Graham to be violent or disrespectful, that he attended church regularly while growing up, and that "[h]e loved the Lord." In closing arguments to the jury, defense counsel depicted Graham's criminal behavior as aberrational, and urged the jury to take Graham's youth into account in deciding his punishment.In accord with the capital sentencing statute then in effect,1 Graham's jury was instructed that it was to answer three "special issues":"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Tex.Code Crim.Proc.Ann., Art. 37.071(b) (Vernon 1981). The jury unanimously answered each of these questions in the affirmative, and the court, as required by the statute, sentenced Graham to death. Art. 37.071(e). The Texas Court of Criminal Appeals affirmed Graham's conviction and sentence in an unpublished opinion.In 1987, Graham unsuccessfully sought postconviction relief in the Texas state courts. The following year, Graham petitioned for a writ of habeas corpus in Federal District Court pursuant to 28 U.S.C. 2254, contending, inter alia, that his sentencing jury had been unable to give effect to his mitigating evidence within the confines of the statutory "special issues." The District Court denied relief and the Court of Appeals for the Fifth Circuit denied Graham's petition for a certificate of probable cause to appeal. Graham v. Lynaugh, 854 F.2d 715 (1988). The Court of Appeals found Graham's claim to be foreclosed by our recent decision in Franklin v. Lynaugh, , which held that a sentencing jury was fully able to consider and give effect to mitigating evidence of a defendant's clean prison disciplinary record by way of answering Texas' special issues. 854 F.2d, at 719-720.While Graham's petition for a writ of certiorari was pending here, the Court announced its decision in Penry v. Lynaugh, , holding that evidence of a defendant's mental retardation and abused childhood could not be given mitigating effect by a jury within the framework of the special issues.2 We then granted Graham's petition, vacated the judgment below, and remanded for reconsideration in light of Penry. Graham v. Lynaugh, . On remand, a divided panel of the Court of Appeals reversed the District Court and vacated Graham's death sentence. 896 F.2d 893 (CA5 1990). On rehearing en banc, the Court of Appeals vacated the panel's decision and reinstated its prior mandate affirming the District Court. 950 F.2d 1009 (1992). The court reviewed our holdings on the constitutional requirement that a sentencer be permitted to consider and act upon any relevant mitigating evidence put forward by a capital defendant, and then rejected Graham's claim on the merits. The court noted that this Court had upheld the Texas capital sentencing statute against a facial attack in Jurek v. Texas, , after acknowledging that "the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors." 950 F.2d, at 1019 (quoting Jurek, supra, at 272). Noting that the petitioner in Jurek had himself proffered mitigating evidence of his young age, employment history, and aid to his family, the Court of Appeals concluded that, "[a]t the very least, Jurek must stand for the proposition that these mitigating factors - relative youth and evidence reflecting good character traits such as steady employment and helping others - are adequately covered by the second special issue'" concerning the defendant's risk of future dangerousness. 950 F.2d, at 1029. "Penry cannot hold otherwise," the court observed, "and at the same time not be a `new rule' for Teague purposes." Ibid. Accordingly, the court ruled that the jury that sentenced Graham could give adequate mitigating effect to his evidence of youth, unstable childhood, and positive character traits by way of answering the Texas special issues.We granted certiorari, , and now affirm.IIABecause this case is before us on Graham's petition for a writ of federal habeas corpus, "we must determine, as a threshold matter, whether granting him the relief he seeks would create a `new rule'" of constitutional law. Penry v. Lynaugh, supra, at 313; see also Teague v. Lane, 489 U.S., at 301 (plurality opinion). "Under Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions." Penry, supra, at 313. This restriction on our review applies to capital cases as it does to those not involving the death penalty. 492 U.S., at 314; Stringer v. Black, ; Sawyer v. Smith, ; Saffle v. Parks, ; Butler v. McKellar, .A holding constitutes a "new rule" within the meaning of Teague if it "breaks new ground," "imposes a new obligation on the States or the Federal Government," or was not "dictated by precedent existing at the time the defendant's conviction became final." Teague, supra, at 301 (emphasis in original). While there can be no dispute that a decision announces a new rule if it expressly overrules a prior decision, "it is more difficult ... to determine whether we announce a new rule when a decision extends the reasoning of our prior cases." Saffle v. Parks, 494 U.S., at 488. Because the leading purpose of federal habeas review is to "ensur[e] that state courts conduct criminal proceedings in accordance with the Constitution as interpreted at the time of th[ose] proceedings," ibid. we have held that "[t]he `new rule' principle ... validates reasonable, good faith interpretations of existing precedents made by state courts." Butler v. McKellar, 494 U.S., at 414. This principle adheres even if those good faith interpretations "are shown to be contrary to later decisions." Ibid. Thus, unless reasonable jurists hearing petitioner's claim at the time his conviction became final "would have felt compelled by existing precedent" to rule in his favor, we are barred from doing so now. Saffle v. Parks, supra, at 488.BPetitioner's conviction and sentence became final on September 10, 1984, when the time for filing a petition for certiorari from the judgment affirming his conviction expired. See Griffith v. Kentucky, , n. 6 (1987). Surveying the legal landscape as it then existed, we conclude that it would have been anything but clear to reasonable jurists in 1984 that petitioner's sentencing proceeding did not comport with the Constitution.1In the years since Furman v. Georgia, , the Court has identified, and struggled to harmonize, two competing commandments of the Eighth Amendment. On one hand, as Furman itself emphasized, States must limit and channel the discretion of judges and juries to ensure that death sentences are not meted out "wantonly" or "freakishly." Id., at 310 (Stewart, J., concurring). On the other, as we have emphasized in subsequent cases, States must confer on the sentencer sufficient discretion to take account of the "character and record of the individual offender and the circumstances of the particular offense" to ensure that "death is the appropriate punishment in a specific case." Woodson v. North Carolina, (plurality opinion of Stewart, Powell, and STEVENS, JJ.).Four years after Furman, and on the same day that Woodson was announced, the Court in Jurek v. Texas, , examined the very statutory scheme under which Graham was sentenced and concluded that it struck an appropriate balance between these constitutional concerns. The Court thus rejected an attack on the entire statutory scheme for imposing the death penalty, and in particular an attack on the so-called "special issues." It is well to set out how the Court arrived at its judgment. The joint opinion of Justices Stewart, Powell, and STEVENS observed that, while Texas had not adopted a list of aggravating circumstances that would justify the imposition of the death penalty, "its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose." Id., at 270. The joint opinion went on to say that, because the constitutionality of a capital sentencing system also requires the sentencing authority to consider mitigating circumstances, and since the Texas statute did not speak of mitigating circumstances, and instead directs only that the jury answer three questions, "the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors." Id., at 272.The joint opinion then recognized that the Texas Court of Criminal Appeals had held:"`In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant, and whether or not, at the time of the commission of the offense, he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.' 522 S.W.2d, at 939-940." Id., at 272-273. Based on this assurance, the opinion characterized the Texas sentencing procedure as follows: "Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that, in considering whether to impose a death sentence, the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death." Id., at 273-274."What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced." Id., at 276. The joint opinion's ultimate conclusion was:"Texas' capital sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be "wantonly" or "freakishly" imposed, it does not violate the Constitution. Furman v. Georgia, 408 U.S., at 310 (STEWART, J., concurring). Idid.. It is plain enough, we think, that the joint opinion could reasonably be read as having arrived at this conclusion only after being satisfied that the mitigating evidence introduced by the defendant, including his age, would be given constitutionally adequate consideration in the course of the jury's deliberation on the three special issues. Three other Justices concurred in the holding that the Texas procedures for imposing the death penalty were constitutional. Id., at 278-279 (WHITE, J., concurring in judgment).Two years after Jurek, in another splintered decision, Lockett v. Ohio, , the Court invalidated an Ohio death penalty statute that prevented the sentencer from considering certain categories of relevant mitigating evidence. In doing so, a plurality of the Court consisting of Chief Justice Burger and Justices Stewart, Powell, and STEVENS stated that the constitutional infirmities in the Ohio statute could "best be understood by comparing it with the statutes upheld in Gregg, Proffitt, and Jurek." Id., at 606. This the plurality proceeded to do, recounting in the process that the Texas statute had been held constitutional in Jurek because it permitted the sentencer to consider whatever mitigating circumstances the defendant could show. Emphasizing that "an individualized [sentencing] decision is essential in capital cases," the plurality concluded: "There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors that may call for a less severe penalty." 438 U.S., at 605. Obviously, the plurality did not believe the Texas statute suffered this infirmity.The plurality's rule was embraced by a majority of the Court four years later in Eddings v. Oklahoma, . There, the Court overturned a death sentence on the ground that the judge who entered it had felt himself bound by state law to disregard mitigating evidence concerning the defendant's troubled youth and emotional disturbance. The Court held that, "[j]ust as the State may not by statute, preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence." Id., at 113-114 (emphasis omitted); see also Hitchcock v. Dugger, ; Skipper v. South Carolina, . The Eddings opinion rested on Lockett, and made no mention of Jurek.We cannot say that reasonable jurists considering petitioner's claim in 1984 would have felt that these cases "dictated" vacatur of petitioner's death sentence. See Teague, 489 U.S., at 301. To the contrary, to most readers at least, these cases reasonably would have been read as upholding the constitutional validity of Texas' capital sentencing scheme, with respect to mitigating evidence and otherwise. Lockett expressly embraced the Jurek holding, and Eddings signaled no retreat from that conclusion. It seems to us that reasonable jurists in 1984 would have found that, under our cases, the Texas statute satisfied the commands of the Eighth Amendment: It permitted petitioner to place before the jury whatever mitigating evidence he could show, including his age, while focusing the jury's attention upon what that evidence revealed about the defendant's capacity for deliberation and prospects for rehabilitation.We find nothing in our more recent cases, to the extent they are relevant, that would undermine this analysis. In 1988, in Franklin v. Lynaugh, , we rejected a claim that the Texas special issues provided an inadequate vehicle for jury consideration of evidence of a defendant's clean prison disciplinary record. There, a plurality of the Court observed that, "[i]n resolving the second Texas Special Issue, the jury was surely free to weigh and evaluate petitioner's disciplinary record as it bore on his "character" - that is, his "character" as measured by his likely future behavior." Id., at 178. Moreover, the plurality found"unavailing petitioner's reliance on this Court's statement in Eddings, 455 U.S., at 114, that the sentencing jury may not be precluded from considering "any relevant mitigating evidence.' This statement leaves unanswered the question: relevant to what? While Lockett, supra, at 604, answers this question at least in part - making it clear that a State cannot take out of the realm of relevant sentencing considerations the questions of the defendant's `character' `record,' or the `circumstances of the offense' - Lockett does not hold that the State has no role in structuring or giving shape to the jury's consideration of these mitigating factors." Id., at 179 (citations omitted). To be sure, JUSTICE O'CONNOR's opinion concurring in the judgment in Franklin expressed "doubts" about the validity of the Texas death penalty statute as that statute might he applied in future cases. Id., at 183. The Justice agreed, however, that the special issues adequately accounted for the mitigating evidence presented in that case. Ibid.This brings us to Penry v. Lynaugh, , upon which petitioner chiefly relies. In that case, the Court overturned a prisoner's death sentence, finding that the Texas special issues provided no genuine opportunity for the jury to give mitigating effect to evidence of his mental retardation and abused childhood. The Court considered these factors to be mitigating because they diminished the defendant's ability "to control his impulses or to evaluate the consequences of his conduct," and therefore reduced his moral culpability. Id., at 322. The Texas special issues permitted the jury to consider this evidence, but not necessarily in a way that would benefit the defendant. Although Penry's evidence of mental impairment and childhood abuse indeed had relevance to the "future dangerousness" inquiry, its relevance was aggravating only. "Penry's mental retardation and history of abuse is thus a two-edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future." Id., at 324. Whatever relevance Penry's evidence may have had to the other two special issues was too tenuous to overcome this aggravating potential. Because it was impossible to give meaningful mitigating effect to Penry's evidence by way of answering the special issues, the Court concluded that Penry was constitutionally entitled to further instructions "informing the jury that it could consider and give effect to [Penry's] evidence ... by declining to impose the death penalty." Id., at 328.We do not read Penry as effecting a sea change in this Court's view of the constitutionality of the former Texas death penalty statute; it does not broadly suggest the invalidity of the special issues framework.3 Indeed, any such reading of Penry would be inconsistent with the Court's conclusion in that case that it was not announcing a "new rule" within the meaning of Teague v. Lane, . See Penry, supra, at 318-319. As we have explained in subsequent cases:"To the extent that Penry's claim was that the Texas system prevented the jury from giving any mitigating effect to the evidence of his mental retardation and abuse in childhood, the decision that the claim did not require the creation of a new rule is not surprising. Lockett and Eddings command that the State must allow the jury to give effect to mitigating evidence in making the sentencing decision; Penry's contention was that Texas barred the jury from so acting. Here, by contrast, there is no contention that the State altogether prevented Parks' jury from considering, weighing, and giving effect to all of the mitigating evidence that Parks put before them; rather, Parks' contention is that the State has unconstitutionally limited the manner in which his mitigating evidence may be considered. As we have concluded above, the former contention would come under the rule of Lockett and Eddings, the latter does not." Saffle v. Parks, 494 U.S., at 491. In our view, the rule that Graham seeks is not commanded by the cases upon which Penry rested. In those cases, the constitutional defect lay in the fact that relevant mitigating evidence was placed beyond the effective reach of the sentencer. In Lockett, Eddings, Skipper, and Hitchcock, the sentencer was precluded from even considering certain types of mitigating evidence. In Penry, the defendant's evidence was placed before the sentencer, but the sentencer had no reliable means of giving mitigating effect to that evidence. In this case, however, Graham's mitigating evidence was not placed beyond the jury's effective reach. Graham indisputably was permitted to place all of his evidence before the jury, and both of Graham's two defense lawyers vigorously urged the jury to answer "no" to the special issues based on this evidence. Most important, the jury plainly could have done so consistent with its instructions. The jury was not forbidden to accept the suggestion of Graham's lawyers that his brief spasm of criminal activity in May, 1981, was properly viewed, in light of his youth, his background, and his character, as an aberration that was not likely to be repeated. Even if Graham's evidence, like Penry's, had significance beyond the scope of the first special issue, it is apparent that Graham's evidence - unlike Penry's - had mitigating relevance to the second special issue concerning his likely future dangerousness. Whereas Penry's evidence compelled an affirmative answer to that inquiry, despite its mitigating significance, Graham's evidence quite readily could have supported a negative answer. This distinction leads us to conclude that neither Penry nor any of its predecessors "dictates" the relief Graham seeks within the meaning required by Teague. See Stringer v. Black, 503 U.S., at 238 (SOUTER, J., dissenting): "The result in a given case is not dictated by precedent if it is "susceptible to debate among reasonable minds," or, put differently, if "reasonable jurists may disagree" (citations omitted).Moreover, we are not convinced that Penry could be extended to cover the sorts of mitigating evidence Graham suggests without a wholesale abandonment of Jurek and perhaps also of Franklin v. Lynaugh. As we have noted, Jurek is reasonably read as holding that the circumstance of youth is given constitutionally adequate consideration in deciding the special issues. We see no reason to regard the circumstances of Graham's family background and positive character traits in a different light. Graham's evidence of transient upbringing and otherwise nonviolent character more closely resembles Jurek's evidence of age, employment history, and familial ties than it does Penry's evidence of mental retardation and harsh physical abuse. As the dissent in Franklin made clear, virtually any mitigating evidence is capable of being viewed as having some bearing on the defendant's "moral culpability" apart from its relevance to the particular concerns embodied in the Texas special issues. See Franklin, 487 U.S., at 190 (STEVENS, J., dissenting). It seems to us, however, that reading Penry as petitioner urges - and thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues - would be to require in all cases that a fourth "special issue" be put to the jury: "`Does any mitigating evidence before you, whether or not relevant to the above [three] questions, lead you to believe that the death penalty should not be imposed?'" The Franklin plurality rejected precisely this contention, finding it irreconcilable with the Court's holding in Jurek, see Franklin, supra, at 180, n. 10, and we affirm that conclusion today. Accepting Graham's submission would unmistakably result in a new rule under Teague. See Saffle v. Parks, supra, 494 U.S., at 412.In sum, even if Penry reasonably could be read to suggest that Graham' mitigating evidence was not adequately considered under the former Texas procedures, that is not the relevant inquiry under Teague. Rather, the determinative question is whether reasonable jurists reading the case law that existed in 1984 could have concluded that Graham's sentencing was not constitutionally infirm. We cannot say that all reasonable jurists would have deemed themselves compelled to accept Graham's claim in 1984. Nor can we say, even with the benefit of the Court's subsequent decision in Penry, that reasonable jurists would be of one mind in ruling on Graham's claim today. The ruling Graham seeks, therefore, would be a "new rule" under Teague.2Having decided that the relief Graham seeks would require announcement of a new rule under Teague, we next consider whether that rule nonetheless would fall within one of the two exceptions recognized in Teague to the "new rule" principle. "The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe, see Teague, 489 U.S., at 311, or addresses a "substantive categorical guarante[e] accorded by the Constitution," such as a rule "prohibiting a certain category of punishment for a class of defendants because of their status or offense." Saffle v. Parks, 494 U.S., at 494 (quoting Penry, 492 U.S., at 329, 330). Plainly, this exception has no application here, because the rule Graham seeks "would neither decriminalize a class of conduct nor prohibit the imposition of capital punishment on a particular class of persons." 494 U.S., at 495. The second exception permits federal courts on collateral review to announce "`watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Ibid. Whatever the precise scope of this exception, it is clearly meant to apply only to a small core of rules requiring "observance of `those procedures that ... are "implicit in the concept of ordered liberty."'" Teague, supra, at 311 (quoting Mackey v. United States, (Harlan, J., concurring in judgments in part and dissenting in part) (in turn quoting Palko v. Connecticut, )); see also Butler v. McKellar, supra, at 416. As the plurality cautioned in Teague, "[b]ecause we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge." 489 U.S., at 313. We do not believe that denying Graham special jury instructions concerning his mitigating evidence of youth, family background, and positive character traits "seriously diminish[ed] the likelihood of obtaining an accurate determination" in his sentencing proceeding. See Butler v. McKellar, supra, at 416. Accordingly, we find the second Teague exception to be inapplicable as well.The judgment of the Court of Appeals is thereforeAffirmed.
8	Petitioner Henderson filed this suit under the Suits in Admiralty Act for injuries he received as a seaman aboard a vessel owned by the United States. He accomplished service on the United States in the manner and within the time allowed by Federal Rule of Civil Procedure 4, which sets an extendable 120-day period for service. Service on the Attorney General occurred 47 days after the complaint was filed, but service on the United States Attorney, though timely under Rule 4's extendable deadline, took 147 days. The United States moved to dismiss the action, arguing that although the time and manner of service satisfied Rule 4's requirements, Henderson had failed to serve process "forthwith" as required by 2 of the Suits in Admiralty Act. The District Court dismissed Henderson's complaint for lack of subject-matter jurisdiction, based on Circuit precedent holding that 2's service "forthwith" requirement conditions the Government's waiver of sovereign immunity and is therefore a jurisdictional prerequisite. The Court of Appeals affirmed.Held: The Suits in Admiralty Act's "forthwith" instruction for service of process has been superseded by Rule 4. Pp. 6-19. (a) Rule 4's regime conflicts irreconcilably with 2's service "forthwith" instruction. The Federal Rules convey a clear message that complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow, but 2's "forthwith" instruction is indicative of a far shorter time. The Government urges that the conflict dissolves if one reads Rule 4 as establishing not an affirmative right to serve a complaint within 120 days, but an outer boundary for timely service. Reading Rule 4 in its historical context, however, leads to the conclusion that the 120-day provision operates as an irreducible allowance. Pp. 6-9. (b) In the Rules Enabling Act, Congress ordered that, in matters of "practice and procedure," 28 U.S.C. 2072(a), the Federal Rules shall Page II govern, and "[a]ll laws in conflict with such rules shall be of no further force or effect," 2072(b). Correspondingly, Federal Rule of Civil Procedure 82 provides that the Rules cannot be construed to extend or limit federal jurisdiction. Section 2 of the Suits in Admiralty Act contains a broad waiver of sovereign immunity in its first sentence, but this does not mean, as the United States asserts, that 2 in its entirety is "jurisdictional." Several of 2's provisions, notably its generous venue and transfer provisions, as well as its service provision, are not sensibly typed "substantive" or "jurisdictional." Instead, they have a distinctly facilitative, "procedural" cast, dealing with case processing, not substantive rights or consent to suit. The service "forthwith" prescription is not made "substantive" or "jurisdictional" by its inclusion along with broad venue choices - in 2. The prescription is best characterized as a rule of procedure, of the kind Rule 4 supersedes. A plaintiff like Henderson, on commencement of an action under the Suits in Admiralty Act, must resort to Rule 4 for instructions on service of process. In that Rule, one finds instructions governing, inter alia, form and issuance of the summons, service of the summons together with the complaint, who may serve process, and proof of service. The Rule also describes how service shall or may be effected on various categories of defendants. It is uncontested that all these prescriptions apply in Suits in Admiralty Act cases, just as they apply in other federal cases. There is no reason why the prescription governing time for service is not, as is the whole of Rule 4, a nonjurisdictional rule governing "practice and procedure" in federal cases, see 28 U.S.C. 2072(a), consistent with the Rules Enabling Act and Rule 82, and rendering provisions like the Suits in Admiralty Act's service "forthwith" requirement "of no further force or effect," 2072(b). Pp. 9-19. 51 F.3d 574, reversed and remanded.GINSBURG, J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion, in which KENNEDY, J., joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined. [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 1] JUSTICE GINSBURG delivered the opinion of the Court.This case concerns the period allowed for service of process in a civil action commenced by a seaman injured aboard a vessel owned by the United States. Recovery in such cases is governed by the Suits in Admiralty Act, 46 U.S.C. App. 741 et seq., which broadly waives the Government's sovereign immunity. See 742 (money judgments); 743 (costs and interest). Rule 4 of the Federal Rules of Civil Procedure allows 120 days to effect service of the summons and timely filed complaint, a period extendable by the court. The Suits in Admiralty Act, however, instructs that service shall be made "forthwith." 742. The question presented is whether the Act's "forthwith" instruction for service of process has been superseded by the Federal Rule.In the Rules Enabling Act, 28 U.S.C. 2071 et seq., Congress ordered that, in matters of "practice and procedure," 2072(a), the Federal Rules shall govern, and "[a]ll laws in conflict with such rules shall be of no further force or effect," 2072(b). We hold that, in actions arising under federal law, commenced in compliance with the governing statute of limitations, the manner and timing of serving process are generally nonjurisdictional matters of "procedure" controlled by the Federal Rules. [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 2] IOn August 27, 1991, petitioner Lloyd Henderson, a merchant mariner, was injured while working aboard a vessel owned and operated by the United States. On April 8, 1993, after exhausting administrative remedies, Henderson filed a seaman's personal injury action against the United States, pursuant to the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U.S.C. App. 741 et seq.1 Under that Act, suits of the kind Henderson commenced "may be brought ... within two years after the cause of action arises." 745. Henderson brought his action well within that time period. He commenced suit, as Federal Rule of Civil Procedure 3 instructs, simply "by filing a complaint with the court."2 Having timely filed his complaint, Henderson attempted to follow the Federal Rules on service. It is undisputed that the following Rules, and nothing in the Suits in Admiralty Act, [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 3] furnished the immediately relevant instructions. Federal Rule of Civil Procedure 4(a) (1988) provided: "Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver the summons to the plaintiff or the plaintiff's attorney, who shall be responsible for prompt service of the summons and a copy of the complaint." Rule 4(b) provided: "The summons shall be signed by the clerk, [and] be under the seal of the court." Rule 4(d) stated: "The summons and complaint shall be served together."3 A series of slips occurred in obtaining the summons required by Rule 4. Henderson's counsel requested the appropriate summons forms and file-stamped copies of the complaint on April 8, 1993, the day he filed Henderson's complaint. But the court clerk did not respond immediately. Counsel eventually obtained the forms on April 21, 1993, and completed and returned them to the clerk. On May 4, counsel received the summons mailed to him from the clerk's office, and on May 19, counsel sent the summons and complaint, by certified mail, to the Attorney General,4 who received them on May 25.Service on the local United States Attorney took longer. On May 25, Henderson's counsel forwarded the summons and complaint, as received from the clerk, to a "constable" with a request to effect service. On June 1, the constable's office returned the documents, informing Henderson's counsel that the summons was not in proper form, because it lacked the court's seal. Counsel thereupon wrote to the court clerk requesting new summons forms with the appropriate court seal. Counsel repeated this request on August 19; ultimately, [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 4] on August 25, Henderson's counsel received the properly sealed summons.Once again, Henderson's counsel requested the constable's service and, on August 30, moved for an extension of time to serve the United States Attorney.5 The court granted the motion, extending the time for service until September 15. The United States Attorney received personal service of the summons and complaint, in proper form, on September 3, 1993.Thus, the Attorney General received the complaint 47 days after Henderson filed suit, and the United States Attorney was personally served 148 days after Henderson commenced the action by filing his complaint with the court. On November 17, 1993, the United States moved to dismiss the action. The grounds for, and disposition of, that motion led to Henderson's petition for certiorari.The United States has never maintained that it lacked notice of Henderson's complaint within the 2-year limitation period prescribed for Suits in Admiralty Act claims. See 46 U.S.C. App. 745; Tr. of Oral Arg. 38-39 (counsel for United States acknowledged that service on Attorney General gave Government actual notice three months before 2-year limitation period ended).6 Nor has the Government asserted any prejudice to the presentation of its defense stemming from the delayed service of the summons and complaint. And the manner and timing of service, it appears beyond debate, satisfied the requirements of Federal Rule of Civil Procedure 4 (titled "Summons" and detailing prescriptions on service of [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 5] process).In support of its motion to dismiss, the United States relied exclusively on 2 of the Suits in Admiralty Act, 46 U.S.C. App. 742, which provides in part:"The libelant [plaintiff] shall forthwith serve a copy of his libel [complaint] on the United States attorney for [the] district [where suit is brought] and mail a copy thereof by registered mail to the Attorney General of the United States." This provision has remained unchanged since its enactment in 1920, 18 years before the Federal Rules of Civil Procedure became effective, and 46 years before admiralty cases were brought within the realm of the Civil Rules. The Government argued that Henderson's failure to serve process "forthwith," as required by 742, deprived the District Court of subject-matter jurisdiction because 742 describes the conditions of the United States' waiver of sovereign immunity.The District Court initially denied the Government's motion, but reconsidered the matter based on an intervening Fifth Circuit decision, United States v. Holmberg, 19 F.3d 1062, cert. denied___ (1994). The court in Holmberg, agreeing with the United States, held that the 742 service "forthwith" requirement "is a condition of the Government's waiver of sovereign immunity and, thus, a jurisdictional prerequisite." 19 F.3d, at 1064. In so ruling, the Holmberg court rejected the argument that service of process under the Suits in Admiralty Act, as in the generality of cases arising and timely-filed under federal law, is a matter of procedure, now governed by the Federal Rules of Civil Procedure.Bound by Holmberg, the District Court dismissed Henderson's complaint for lack of subject-matter jurisdiction, and the Court of Appeals, adhering to Holmberg, affirmed. 51 F.3d 574 (CA5 1995).7 We granted certiorari to resolve disagreement [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 6] among lower courts on the question whether Federal Rule 4, which authorizes an extendable 120-day period for service of process, supersedes the Suits in Admiralty Act provision that service on the United States be made "forthwith."8 IIThe United States first suggests that Rule 4's extendable 120-day time prescription, and the Suits in Admiralty Act's service "forthwith" instruction, can and should be read harmoniously. The Rule 4 time limit for service, Rule 4(j) at the time Henderson's action commenced,9 provided: "(j) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant ... ." Fed. Rule Civ. Proc. 4(j) (1988). Section 2 of the Suits in Admiralty Act, 46 U.S.C. App. 742, prescribes service "forthwith," see supra, at 5, a word [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 7] not precisely defined in the Act or in case law, but indicative of a time far shorter than 120 days. The apparent conflict dissolves, the Government urges, if one reads Rule 4 as establishing not "an affirmative right to serve [a] complaint" within 120 days, but only an outer boundary for timely service. See Brief for United States 14, 18, 26; Tr. of Oral Arg. 28, 30.We reject the Government's view of the time the Federal Rules authorize for service. Reading Rule 4 in its historical context, we conclude that the 120-day provision operates not as an outer limit subject to reduction, but as an irreducible allowance. Prior to 1983, Rule 4 contained no time limit for service. Until the changes installed that year, United States marshals attended to service. The relevant Rule 4 provisions read: "(a) Summons: issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to any other person authorized by Rule 4(c) to serve it... . ... . . "(c) By whom served. Service of process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose ... ." Fed. Rule Civ. Proc. 4(a), (c) (1980). Marshals were expected to effect service expeditiously, and Rule 41(b), providing for dismissal "[f]or failure of the plaintiff to prosecute," could be invoked as a check against unreasonable delay. See 9 C. Wright & A. Miller, Federal Practice and Procedure 2370, pp. 374-376 (2d ed. 1995); 2 J. Moore, Moore's Federal Practice § 4.18, p. 436 (2d ed. 1995).Rule 4 changes made operative in 1983 completed a shift in responsibility for service from the United States marshals to the plaintiff. See Mullenix, Hope Over Experience: Mandatory [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 8] Informal Discovery and the Politics of Rulemaking, 69 N.C. L. Rev. 795, 845 (1991). With marshals no longer available as routine process servers, the Judicial Conference considered a time control necessary; the Conference proposed, and this Court approved, 120 days from the filing of the complaint as the appropriate limit. Congress relaxed the rule change by authorizing an extension of the 120-day period if the party responsible for service showed "good cause." See supra, at 6-7; 128 Cong. Rec. 30931-30932 (1982), reprinted in 28 U.S.C. App., p. 647.Most recently, in 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period "even if there is no good cause shown." See Advisory Committee's Notes on Fed. Rule Civ. Proc. 4, 28 U.S.C. App., p. 654.10 And tellingly, the text of Rule 4 sets out, as "[a] specific instance of good cause," ibid., allowance of "a reasonable time" to "cur[e] the failure to serve multiple officers ... of the United States if the plaintiff has effected service on either the United States attorney or the Attorney General" within the prescribed 120 days. Fed. Rule Civ. Proc. 4(i)(3).The Federal Rules thus convey a clear message: Complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow. Furthermore, the United States acknowledges that, 2 of the Suits in Admiralty Act aside, Rule 4's extendable 120-day time prescription applies to the full range of civil litigation, including cases brought against the United States under the [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 9] Federal Tort Claims Act, 28 U.S.C. 2675, and the Tucker Act, ch. 359, 24 Stat. 505 (1887) (current version 28 U.S.C. 1346, 1491 and other scattered sections of 28 U.S.C.). See Tr. of Oral Arg. 33. We are therefore satisfied that Rule 4's regime conflicts irreconcilably with Suits in Admiralty Act 2's service "forthwith" instruction, and we turn to the dispositive question: Does the Rule supersede the inconsistent statutory direction?IIIThe Rules Enabling Act, 28 U.S.C. 2071 et seq., authorizes the Supreme Court "to prescribe general rules of practice and procedure ... for cases in the United States district courts ... and courts of appeals," 2072(a), and directs: "Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect." 2072(b). Correspondingly, and in confirmation of the understanding and practice under the former Federal Equity Rules, Federal Rule of Civil Procedure 82 provides: "[The Federal Rules of Civil Procedure] shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein." See 1937 Advisory Committee's Notes on Fed. Rule Civ. Proc. 82, 28 U.S.C. App., p. 821 (Rule 82 confirms that the Rules' broad allowance of claim joinder "does not extend federal jurisdiction."); see also Wright & Miller, Federal Practice and Procedure 3141, pp. 210-214.According to the United States, Rule 4 cannot supersede 2 of the Suits in Admiralty Act, 46 U.S.C. App. 742, for the latter is "jurisdictional" and affects "substantive rights" by setting the terms on which the United States waives its sovereign immunity. Henderson, in contrast, characterizes the Suits in Admiralty Act's service "forthwith" instruction as a nonjurisdictional processing rule. Service "forthwith," he urges, forms no part of the immunity waiver or 745's statute [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 10] of limitations, but is simply a direction for the conduct of litigation once the case is timely launched in court - a characteristically "how to" direction in conflict with, and therefore superseded by, Rule 4.Before examining the text of 742 to determine the character of the service "forthwith" provision, we note that the conflict with Rule 4 is of relatively recent vintage. The Suits in Admiralty Act, which allows in personam suits against the United States for maritime torts, was enacted in 1920, 18 years before the advent of the Federal Rules. Furthermore, admiralty cases were processed, from 1845 until 1966, under discrete Admiralty Rules. Even after 1966, the year admiralty cases were brought under the governance of the Federal Rules of Civil Procedure, Rule 4 and the Suits in Admiralty Act service "forthwith" provision could co-exist. Rule 4, as just recounted, originally contained no time prescription, only the direction that, "[u]pon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service," generally to a United States marshal. See supra, at 7-8. It was only in 1983, when plaintiffs were made responsible for service without the aid of the marshal, that the 120-day provision came into force, a provision that rendered Rule 4's time frame irreconcilable with 742's service "forthwith" instruction.Section 2 of the Suits in Admiralty Act, 46 U.S.C. App. 742, captioned "Libel in personam," contains a broad waiver of sovereign immunity in its first sentence: "In cases where if [a vessel owned or operated by the United States] were privately owned or operated ... a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States ... ." Section 3 of the Act, 46 U.S.C. App. 743, although captioned "Procedure in cases of libel in personam," completes the immunity waiver by providing for costs and interest [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 11] on money judgments against the United States.11 See United States v. Bodcaw Co., , n. 3 (1979); Fed. Rule Civ. Proc. 54(d)(1) (absent an authorizing statute, United States is not liable for costs); Library of Congress v. Shaw, (absent an authorizing statute, United States is not liable for interest).The United States asserts that not just the first sentence of 742, but that section in its entirety is "jurisdictional," spelling out the terms and conditions of the Government's waiver of sovereign immunity, in contrast to the next section of the Suits in Admiralty Act, 46 U.S.C. App. 743, which governs "procedure," specifying in its first sentence: "Such suits shall proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties." See Brief for United States 26-27; see also Holmberg, 19 F.3d, at 1064; Libby v. United States, 840 F.2d 818, 820 (CA11 1988) ("The fact that the waiver of sovereign immunity is declared in section 742, while the procedures governing admiralty suits against the United States are specified in section 743, indicates that the requirements contained in section 742 are more than procedural."). The dissent adopts this argument hook, line, and sinker. See post, at 3-4 (finding key to text and structure of the Suits in Admiralty Act in Congress' placement of service requirement in 2 (46 U.S.C. App. 742) rather than 3 (46 U.S.C. App. 743)). But just as 743 is not "purely procedural," for it waives the Sovereign's immunity as to costs and interest, so 742 is not pervasively "jurisdictional."The sentence immediately following 742's broad waiver, and immediately preceding the sentence on service, reads: [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 12] "Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel ... charged with liability is found." This notably generous-to-plaintiffs provision will be recognized instantly as one describing venue choices, not subject-matter jurisdiction. Cf. 28 U.S.C. 1391 ("Venue generally").Section 742's final sentence provides:"Upon application of either party the cause may, in the discretion of the court, be transferred to any other district court of the United States." Cf. 28 U.S.C. 1404 (change of venue to more convenient forum); 1406 (authorizing transfer, rather than dismissal, when venue is improperly laid). Congress simultaneously added to the Suits in Admiralty Act, the Public Vessels Act, and the Federal Tort Claims Act the transfer provision just set out so that "jurisdictional" dismissals could be avoided when plaintiffs commenced suit under the wrong statute. See S. Rep. No. 1894, 86th Cong., 2d Sess., pp. 2-5 (1960); cf. 28 U.S.C. 1631 (authorizing transfer, inter alia, when review of agency action is sought in the wrong federal court). In short, far from reining in "jurisdiction," 742's venue and transfer provisions afford plaintiffs multiple forum choices and spare plaintiffs from dismissal for suing in the wrong place or under the wrong Act.12 Section 742's critical sentence on service reads:"The libelant [plaintiff] shall forthwith serve a copy of his libel [complaint] on the United States attorney for such district and mail a copy thereof by registered mail [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 13] to the Attorney General ... ." Rule 4, as observed at oral argument, see Tr. of Oral Arg. 27-28, provides for dispatch of the summons and complaint to the Attorney General "by registered or certified mail." See supra, at 3, and n. 4. The Government's sovereign-immunity waiver, counsel for the United States agreed, did not depend on registered mail service, the sole form of mailing 742 authorizes; "in this day and age," counsel said, "certified mail would be acceptable." Tr. of Oral Arg. 28-29. But see post, at 7, n. 4 ("jurisdiction in [a Suits in Admiralty Act] suit may turn upon the plaintiff's use of registered mail"). It thus appears that several of 742's provisions are not sensibly typed "substantive" or "jurisdictional." Instead, they have a distinctly facilitative, "procedural" cast. They deal with case processing, not substantive rights or consent to suit.13 If the service "forthwith" prescription is not made "substantive" or "jurisdictional" by its inclusion - along with broad venue choices - in 742, is it a rule of procedure superseded by Rule 4? Before we address that dispositive question, we [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 14] note a preliminary issue. Rule 4(j), which contained the 120-day prescription at the time Henderson filed suit, was not simply prescribed by this Court pursuant to the Rules Enabling Act. See 28 U.S.C. 2074 (rules transmitted by Court to Congress "not later than May 1" become effective "no earlier than December 1" of the same year unless Congress otherwise provides). Instead, the Rule was enacted into law by Congress as part of the Federal Rules of Civil Procedure Amendments Act of 1982, 2, 96 Stat. 2527. See supra, at 8. As the United States acknowledges, however, a Rule made law by Congress supersedes conflicting laws no less than a Rule this Court prescribes. See Brief for United States 16, n. 14 ("We agree with petitioner ... that Section 2072(b) provides the best evidence of congressional intent regarding the proper construction of Rule 4(j) and its interaction with other laws.").Returning to the dispositive question, we need not linger over the answer. What we have so far said, and the further elaboration below, lead securely to this response: Rule 4 governs summons and service in this case in whole and not in part.A plaintiff like Henderson, on commencement of an action under the Suits in Admiralty Act, must immediately resort to Rule 4 for instructions on service of process. See supra, at 3, and nn. 3, 4. In that Rule, one finds instructions governing, inter alia, form and issuance of the summons, service of the summons together with the complaint, who may serve process, and proof of service.14 The Rule also describes how service shall or may be effected on various categories of defendants,15 including, in detail, "the United States, and Its Agencies, Corporations, or Officers."16 All these prescriptions, [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 15] it is uncontested, apply in Suits in Admiralty Act cases, just as they apply in other federal cases. We see no reason why the prescription governing time for service17 is not, as is the whole of Rule 4, a nonjurisdictional rule governing "practice and procedure" in federal cases, see 28 U.S.C. 2072(a), consistent with the Rules Enabling Act and Federal Rule 82, and rendering provisions like the Suits in Admiralty Act's service "forthwith" requirement "of no further force or effect," 2072(b). See Jones & Laughlin Steel, Inc. v. Mon River Towing, Inc., 772 F.2d 62, 66 (CA3 1985) (just as Rule 4 "now governs the method of service of process in admiralty actions, as well as service of process on the United States in all civil cases to which it is a party," so the "congressional enactment of a uniform 120-day period for accomplishing service of process" supersedes inconsistent prior law, in particular, "the Suits in Admiralty Act's requirement of forthwith service"); Kenyon v. United States, 676 F.2d 1229, 1232 (CA9 1981) (Boochever, J., concurring) ("I can [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 16] see no logical reason why there should be a different method of service in this one instance [Suits in Admiralty Act cases] in which the United States is a defendant.").18 Service of process, we have come to understand, is properly regarded as a matter discrete from a court's jurisdiction to adjudicate a controversy of a particular kind,19 or against a particular individual or entity.20 Its essential purpose is [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 17] auxiliary, a purpose distinct from the substantive matters aired in the precedent on which the dissent, wrenching cases from context, extensively relies - who may sue,21 on what claims,22 for what relief,23 within what limitations period.24 Instead, the core function of service is to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections.25 Seeing service in this light, and in view of the uniform system Rule 4 of the Federal Rules of Civil Procedure provides, we are satisfied that the service "forthwith" provision of Suits in Admiralty Act, 46 U.S.C. App. 742, has been displaced by Rule 4, and therefore has no current force or effect. [ HENDERSON v. UNITED STATES, ___ U.S. ___ (1996), 18] * * * For the reasons stated, the judgment of the Court of Appeals affirming the dismissal of Henderson's complaint is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
7	1. Under the Federal Employers' Liability Act, a railroad cannot escape liability for personal injuries negligently inflicted upon an employee by proving that he had obtained his job by making false representations upon which the railroad rightfully relied in hiring him. Pp. 35-46.2. Minneapolis, St. P. & S. Ste. M. R. Co. v. Rock, , must be limited to its precise facts; and, in each case not involving the precise kind of fraud there involved, the terms "employed" and "employee," as used in the Act, must be interpreted according to their ordinary meaning, even though the employee's misrepresentations may have contributed to the injury or even to the accident upon which his claim is based. Pp. 37-46. Reversed and remanded.Sidney S. Sachs argued the cause for petitioner. With him on the briefs was Lewis Jacobs.Joseph M. Sanders argued the cause for respondent. With him on the briefs was Robert B. Claytor.John J. Naughton filed a brief for the Brotherhood of Railroad Trainmen, as amicus curiae, urging reversal.MR. JUSTICE BLACK delivered the opinion of the Court.The Federal Employers' Liability Act1 requires railroads to pay damages for personal injuries negligently inflicted upon their employees. The question this case presents is whether a railroad can escape this statutory liability by proving that an employee so injured had obtained his job by making false representations upon which the railroad rightfully relied in hiring him. Petitioner brought this action in a West Virginia state court seeking damages for personal injuries from the respondent Norfolk & Western Railway Company, for which, as of the date of his alleged injuries, he had worked continuously, except for a one-year interruption, for some six years. By special plea, the railroad set up as a defense the contention that petitioner was not "employed" by it within the meaning of the Act2 and alleged in support of this defense: (1) that petitioner had made false and fraudulent representations in his application for employment with regard to his physical condition and other matters pertinent to his eligibility and capacity to serve as a railroad employee; (2) that petitioner would not have been hired but for these misrepresentations and the fact that they misled the railroad's hiring officials; and (3) that the very physical defects which had been fraudulently concealed from the railroad contributed to the injury upon which petitioner's action is based. Petitioner's demurrer to this plea was overruled and evidence by both parties was presented to a jury. When all the evidence was in, however, the trial court directed the jury to bring in a verdict for the defendant on the ground that the undisputed evidence showed that the railroad had been deceived into hiring petitioner by petitioner's fraudulent misrepresentations as to his health and that these misrepresentations had a "direct causal connection" with the injuries upon which petitioner's action is based.Throughout the proceedings in the trial court, petitioner contended that no verdict should be directed against him on the grounds, among others: (1) that the allegations of fraud set up in the railroad's special plea were not sufficient in law to state a defense under the Act; and (2) that even if the plea were sufficient in law, it rested upon questions of fact which should be submitted to the jury. On writ of error, the West Virginia Supreme Court of Appeals refused to overturn the trial court's action on either of these two grounds. Though we recognized that the case might possibly be disposed of on the second of these grounds, we granted certiorari to consider the important question raised by petitioner's first ground concerning the proper interpretation, scope and application of the Federal Employers' Liability Act.3 The railroad's primary contention, which was accepted as the principal basis of the action of the trial court, is that the sufficiency in law of its fraud defense was established by this Court's decision in Minneapolis, St. Paul & S. Ste. Marie R. Co. v. Rock.4 That case involved the railroad's liability for the negligent injury of one Joe Rock, who had obtained his employment by a whole series of fraudulent misrepresentations. Rock had originally applied for a job in his own name and had been rejected when his physical condition was found to be such that he did not meet the railroad's requirements. Several days later, he reapplied for the same job and, in order to conceal the fact that he had previously been refused employment because of his health, represented himself to be "John Rock," an apparently fictitious name he assumed for the purpose. He next arranged to have one Lenhart pose as "John Rock" and take the railroad's physical examination. When Lenhart passed the physical, the railroad hired Joe Rock on the mistaken belief that he was "John Rock" and that he had Lenhart's physical condition. On this unusual combination of facts, this Court held that Rock could not recover damages against the railroad under the Federal Employers' Liability Act, saying: "Right to recover may not justify or reasonably be rested on a foundation so abhorrent to public policy."5 The railroad here seeks to bring itself within the Rock decision by arguing that Rock established the principle that any false representation which deceives the employer and results in a railroad worker's getting a job he would not otherwise have obtained is sufficient to bar the worker from recovering the damages Congress has provided for railroad workers negligently injured in the honest performance of their duties under the Federal Employers' Liability Act. Although there is some language in the Rock opinion which might lend itself to such an interpretation, we think it plain that no such rule was ever intended. Certainly that was not the contemporaneous understanding of Rock among other courts as is plainly shown by the statements of Judge Nordbye when that interpretation of Rock was urged upon him only one year later at the trial of Minneapolis, St. Paul & S. Ste. Marie R. Co. v. Borum: "It is inconceivable to this court that Justice Butler intended to hold in the Rock case that every fraudulent violation of the rules framed for maintaining a certain standard of safety and efficiency of the employees would render such employment void and deny the defrauding employee any rights under the act. It seems quite clear that any fraud practiced by the plaintiff herein at the most rendered the contract voidable."6 And when the Borum case came here, this Court, although urged to do so, itself refused to extend Rock in any such manner.7 The decision in Borum, considered in the light of the facts there involved, reflects clearly the contemporaneously understood limitations upon the Rock approach and the reluctance of this Court to extend the vague notions of public policy upon which that case rested to new factual situations.Borum, who was forty-nine at the time, wanted a job with a railroad that had, in the interest of promoting safety and efficiency in its operations, adopted a rule against hiring men over forty-five. Knowing this, he told the railroad employment officials that he was only thirty-eight and, by this deliberate misrepresentation, obtained a job he would not otherwise have been given. Although Borum took the railroad's required physical examination, it apparently knew nothing of Borum's deception about his age until some seven years later, after he had lost both of his legs in an accident caused by the railroad's negligence and had filed suit against it for damages under the Federal Employers' Liability Act. Just before trial of this case, a last-minute investigation turned up Borum's real age and the railroad sought to rely upon this fact to escape its liability under the Act. This Court unanimously upheld the Minnesota courts' determination that Borum had a right to recover despite his admittedly fraudulent and material misrepresentation of his age, brushing aside the railroad's attempted reliance upon Rock on the ground "that the facts found, when taken in connection with those shown by uncontradicted evidence, are not sufficient to bring this case within the rule applied in Minneapolis, St. P. & S. S. M. Ry. Co. v. Rock, supra, or the reasons upon which that decision rests."8 In support of this conclusion, the Court in Borum pointed to a number of factual differences with the Rock case. The first mentioned, and apparently the most important of these in the mind of the Court, was the fact that Rock, unlike Borum, had obtained his employment as an "impostor" by presenting himself to the railroad under an assumed name after his initial application in his own name had been rejected. Secondly, the Court pointed to the fact that Rock, again unlike Borum, had never been approved as physically fit for employment by the railroad's examining surgeon. Finally, the Court made reference to the fact that under the railroad's own rules, it could not have discharged Borum for his misrepresentation because more than thirty days had passed since his original provisional employment and the rules made this action final unless changed within that period. But no one of these facts, as the Court recognized, was sufficient to justify a distinction between Rock and Borum based upon an acceptable reconciling principle. In both cases, the worker had been guilty of making a material, false and fraudulent representation without which he would not have been employed. And if such a method of obtaining employment was, as intimated in Rock, to be considered so "abhorrent to public policy" that the normal distinction between "void" and "voidable" contracts was to be ignored,9 the mere existence of a railroad rule limiting the time for discharge without cause could not, of course, have overridden that policy. The Court therefore, as shown above, based its decision upholding Borum's right to recover upon all of the factual distinctions between his case and that of Rock and held merely that Rock would not be extended to cover these new facts.This factual distinction of Rock, though sufficient to show the non-existence of any broad principle that material misrepresentations relied upon by a railroad in hiring bar recovery under the Act, proved completely unsatisfactory to establish affirmatively an intelligible guide by which lower courts could decide what misrepresentations were so "abhorrent to public policy" as to compel a forfeiture of the worker's right to recover under the Federal Employers' Liability Act. And since Borum, the lower federal courts and state courts have been forced to struggle with the baffling problem of how much and what kinds of fraud are sufficiently abhorrent without further guidance from this Court. Consequently, in almost all of such cases, the courts have been faced with a dilemma occasioned by the fact that both parties have been able to argue with considerable force that a decision in their favor is absolutely required by one or the other of the two decisions on the question by this Court. The result in a vast majority of these courts has been an acceptance of Rock as laying down a narrow public policy holding to which Borum establishes the need for courts to make broad exceptions in appropriate cases. And, perhaps not so surprisingly, most cases have been deemed appropriate ones for avoiding the harsh consequences of Rock, with the courts creating new exceptions to allow recovery whenever a case did not fit within one already established.10 Occasionally, as here, a worker has been held to be barred from recovery, but these few cases seem entirely indistinguishable on any significant grounds from the many in which other courts have found or created exceptions.11 In this situation, it seems necessary for this Court, in the interest of the orderly administration of justice, to take a fresh look at this question in an effort to supply an intelligible guide for future decisions. Having done so, we conclude that the Rock case, properly interpreted, lays down no general rule at all. In that case, the Court was confronted with an action by a railroad worker who, though undeniably an employee of the railroad in any practical or legal sense, had obtained his employment in what was deemed to be such an outrageous manner that it seemed to the Court at that time to be "abhorrent to public policy" to permit him to recover under the Act Congress had passed.12 There is no occasion for us here to reconsider the correctness of that decision on the basis of the peculiar combination of facts involved in that case, for no such facts are involved here and, indeed, they may never arise again. We do conclude, however, that Rock must be limited to its precise facts. In the face of the legislative policy embodied in the Federal Employers' Liability Act that a railroad should pay damages to its workers and their families for personal injuries inflicted by the railroad's negligence upon those who perform its duties, considerations of public policy of the general kind relied upon by the Court in Rock cannot be permitted to encroach further upon the special policy expressed by Congress in the Act. To facilitate this congressional policy, the terms "employed" and "employee" as used in the Act must, in all cases not involving the precise kind of fraud involved in Rock, be interpreted according to their ordinary meaning, and the status of employees who become such through other kinds of fraud, although possibly subject to termination through rescission of the contract of employment, must be recognized for purposes of suits under the Act. And this conclusion is not affected by the fact that an employee's misrepresentation may have, as is urged here, contributed to the injury or even to the accident upon which his action is based. This argument, which seems to have gained its popularity primarily as an exception by which the application of Rock could be avoided,13 suggests that a railroad worker may be partially "employed" under the Act - that he may be able to recover for some injuries negligently inflicted upon him by the railroad and not be able to recover for others so inflicted, depending upon the circumstances of each particular injury. Even if this suggestion recommended itself to reason - which, other than as an exception to the broad principle mistakenly drawn from Rock, it plainly does not - we would not be free to accept it. For it finds no support at all in the history, purpose or language of the Act which provides recovery for any "injury or death resulting in whole or in part from the negligence of" the railroad14 and there is no prior authority of this Court which requires or even permits us to disregard or impair this controlling declaration of public policy.15 The petitioner in this case was an employee under the Act and is therefore entitled to recover if he suffered injuries due to the railroad's negligence. It was therefore error to direct a verdict against him on the railroad's plea of fraud. The case is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.
0	Evidence obtained as a result of wiretapping a telephone by state law-enforcement officers pursuant to a state-court warrant authorized by state law, and without participation by federal authorities, is not admissible in a criminal trial in a federal court, where the existence of the intercepted communication is disclosed to the jury in violation of 605 of the Federal Communications Act. Pp. 97-106. 1. Evidence obtained by means forbidden by 605, whether by state or federal agents, is inadmissible in a federal court. Pp. 99-103. (a) Nardone v. United States, , and , followed; Schwartz v. Texas, , distinguished. Pp. 99-103. (b) In this case, 605 was violated, if not earlier, at least upon disclosure to the jury of the existence of the intercepted communication. Pp. 100-101. 2. A different result is not required by the fact that, in this case, the wiretap was placed by state agents acting in accordance with state law. Pp. 103-106. (a) In setting out the prohibition of 605 in plain terms, Congress did not intend to allow state legislation which would contradict that section and the public policy underlying it. Pp. 104-106. 244 F.2d 389, reversed.George J. Todaro argued the cause for petitioner. With him on the brief was Jacob Kossman.John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Rankin, Acting Assistant Attorney General McLean and Beatrice Rosenberg. MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The question presented by petitioner is whether evidence obtained as the result of wiretapping by state law-enforcement officers, without participation by federal authorities, is admissible in a federal court. Petitioner was convicted of the illegal possession and transportation of distilled spirits without tax stamps affixed thereto in violation of 26 U.S.C. 5008 (b) (1), 5642. The New York police, suspecting that petitioner and others were dealing in narcotics in violation of state law, obtained a warrant in accordance with state law1 authorizing them to tap the wires of a bar which petitioner was known to frequent. On May 10, 1956, the police overheard a conversation between petitioner and another in which it was said that "eleven pieces" were to be transported that night at a certain time and to a certain place in New York City. Acting according to this information, the police followed and stopped a car driven by petitioner's brother. No narcotics were found, but hidden in the car were eleven five-gallon cans of alcohol without the tax stamps required by federal law. The brother and the alcohol were turned over to federal authorities and this prosecution followed.At the trial the first government witness, a state police officer, testified to the events leading up to the discovery of the cans of alcohol in an automobile which had been driven by the petitioner and then taken by his brother to the appointed spot. No mention was made of the wiretap on direct examination. However, on cross-examination this witness admitted that the information causing the police to follow the car and intercept it came from a wiretap.2 On redirect examination the prosecutor sought to prove that the wiretap had been authorized by state law. The Government introduced a second police official, who testified substantially as the first, admitting on direct examination that a wiretap had existed and on cross-examination that the discovery of the alcohol was occasioned by knowledge of the contents of the wiretapped conversation. The words of that conversation were not disclosed to the jury although they were disclosed to the trial judge and the defense counsel.3 The record is silent as to whether the prosecutor was told the words of the conversation. However, in our view it is unimportant whether he had this information or not.Petitioner's motion to suppress the evidence was denied and he was convicted. The Court of Appeals for the Second Circuit affirmed, 244 F.2d 389, holding that while the action of the state officials violated Section 605 of the Federal Communications Act, the evidence obtained from the violation was still admissible. We granted certiorari. . Petitioner, relying on this Court's supervisory powers over the federal court system, claims that the admission of the evidence was barred by the Federal Constitution and Section 605. We do not reach the constitutional questions as this case can be determined under the statute.Section 605 states in pertinent part:4 "... no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person ... ."I.In Nardone v. United States, , and , this Court held that evidence obtained from wiretapping by federal agents was inadmissible in federal court. In Schwartz v. Texas, , the same type of evidence was held admissible in a state court where it had been obtained by state agents. The case before us, containing elements from these three cases, forces a choice between the different results reached.The Nardone decisions laid down the underlying premises upon which is based all subsequent consideration of Section 605. The crux of those decisions is that the plain words of the statute created a prohibition against any persons violating the integrity of a system of telephonic communication and that evidence obtained in violation of this prohibition may not be used to secure a federal conviction. Nardone v. United States, . Moreover, as the second Nardone decision asserts, distinctions designed to defeat the plain meaning of the statute will not be countenanced. . We hold that the correct application of the above principle dictates that evidence obtained by means forbidden by Section 605, whether by state or federal agents, is inadmissible in federal court.In this case the statute was violated if not earlier at least upon the disclosure to the jury of the existence of the intercepted communication,5 for Section 605 forbids the divulgence of "the existence, contents, substance, purport, effect, or meaning" of the intercepted message. The effect of that violation in contributing to the conviction here is manifest. The jury were free to speculate that the existence of the communication, the source of the Government's evidence, was further proof of petitioner's criminal activities.6 The prosecutor continued to use evidence now linked to a disclosed wiretap although he had been made aware of its existence and of its obvious significance to his case.7 Respondents argue that the evidence obtained from the disclosed wiretap should have been admissible by referring to Schwartz v. Texas, supra, and by drawing a parallel to the Fourth Amendment. It is urged that as long as the wiretapping occurred without the participation or even knowledge of federal law-enforcement officers, the evidence should be admitted in federal court; the Federal Government, being without fault, should not be handicapped. However, Schwartz v. Texas does not indicate approval of such a proposition. Both a state court and state law-enforcement officers were there involved. The rationale of that case is that despite the plain prohibition of Section 605, due regard to federal-state relations precluded the conclusion that Congress intended to thwart a state rule of evidence in the absence of a clear indication to that effect. In the instant case we are not dealing with a state rule of evidence. Although state agents committed the wiretap, we are presented with a federal conviction brought about in part by a violation of federal law,8 in this case in a federal court.9 Furthermore, confronted as we are by this clear statute, and resting our decision on its provisions, it is neither necessary nor appropriate to discuss by analogy distinctions suggested to be applicable to the Fourth Amendment.10 Section 605 contains an express, absolute prohibition against the divulgence of intercepted communications. Nardone v. United States, . This case is but another example of the use of wiretapping that was so clearly condemned under other circumstances in the second Nardone decision:11 "To forbid the direct use of [these] methods ... but to put no curb on their full indirect use would only invite the very methods deemed `inconsistent with ethical standards and destructive of personal liberty.' What was said in a different context in Silverthorne Lumber Co. v. United States, , is pertinent here: `The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all.'" The above principle has for its purpose enhancement of the proper administration of criminal justice. To impute to the statute anything less would give it "a self-defeating, if not disingenuous purpose."12 Nardone v. United States, .II.As an alternative argument to support the judgment below, respondent urges that the interception and divulgence in this case were no violation of Section 605 because the wiretap was placed by state agents acting in accordance with the law of New York. The Constitution and statutes of the State of New York13 provide that an ex parte order authorizing a wiretap may be issued by judges of a certain rank upon the oath or affirmation of certain officials that there is reasonable ground to believe evidence of a crime may be obtained and which identifies the telephone line and the persons who are to be affected thereby. It is undisputed that an order pursuant to that law was issued in this case and that it was executed according to state law.Respondent does not urge that, constitutionally speaking, Congress is without power to forbid such wiretapping even in the face of a conflicting state law. Cf. Weiss v. United States, . Rather the argument is that Congress has not exercised this power and that Section 605, being general in its terms, should not be deemed to operate to prevent a State from authorizing wiretapping in the exercise of its legitimate police functions. However, we read the Federal Communications Act, and Section 605 in particular, to the contrary.The Federal Communications Act is a comprehensive scheme for the regulation of interstate communication.14 In order to safeguard those interests protected under Section 605, that portion of the statute pertinent to this case applies both to intrastate and to interstate communications. Weiss v. United States, supra. The natural result of respondent's argument is that both interstate and intrastate communication would be removed from the statute's protection because, as this Court noted in Weiss,15 the intercepter cannot discern between the two and will listen to both. Congress did not intend to place the protections so plainly guaranteed in Section 605 in such a vulnerable position. Respondent points to portions of the Act which place some limited authority in the States over the field of interstate communication. The character of these matters, dealing with aspects of the regulation of utility service to the public, is technical in nature16 in contrast to the broader policy considerations motivating Section 605.17 Moreover, the very existence of these grants of authority to the States underscores the conclusion that had Congress intended to allow the States to make exceptions to Section 605, it would have said so. In light of the above considerations, and keeping in mind this comprehensive scheme of interstate regulation and the public policy underlying Section 605 as part of that scheme, we find that Congress, setting out a prohibition in plain terms, did not mean to allow state legislation which would contradict that section and that policy.18 Cf. Pennsylvania v. Nelson, ; Hill v. Florida, ; Hines v. Davidowitz, .19 The judgment is reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion. Reversed.
7	When petitioner Farrey and respondent Sanderfoot divorced, a Wisconsin court awarded each one-half of their marital estate. Among other things, the decree awarded Farrey's interest in the family home and real estate to Sanderfoot and ordered him to make payments to Farrey to equalize their net marital assets. To secure the award, the court granted Farrey a lien against Sanderfoot's real property. Sanderfoot did not pay Farrey, and subsequently filed for bankruptcy, listing the marital home and real estate as exempt homestead property. The Bankruptcy Court denied his motion to avoid Farrey's lien under 11 U.S.C. 522(f)(1) - which provides, inter alia, that a debtor "may avoid the fixing of a [judicial] lien on an interest of the debtor in property" - finding that the lien could not be avoided because it protected Farrey's preexisting interest in the marital property. The District Court reversed, and the Court of Appeals affirmed.Held: 1. Section 522(f)(1) requires a debtor to have possessed an interest to which a lien attached, before it attached, to avoid the fixing of a lien on that interest. The statute does not permit avoidance of any lien on a property, but instead expressly permits avoidance of "the fixing of a lien on an interest of the debtor." A fixing that takes place before the debtor acquires an interest, by definition, is not on the debtor's interest. This reading fully comports with 522(f)'s purpose, which is to protect the debtor's exempt property, and its legislative history, which suggests that Congress primarily intended 522(f)(1) as a device to thwart creditors who, sensing an impending bankruptcy, rush to court to obtain a judgment to defeat the debtor's exemptions. To permit lien avoidance where the debtor at no point possessed the interest without the judicial lien would allow judicial lienholders to be defrauded through the conveyance of an encumbered interest to a prospective debtor. Pp. 295-299. 2. Farrey's lien cannot be avoided under 522(f)(1). The parties agree that, under state law, the divorce decree extinguished their joint tenancy, in which each had an undivided one-half interest, and created new interests in place of the old. Thus, her lien fixed not on Sanderfoot's preexisting interest, but rather on the fee simple interest that he was awarded in the decree that simultaneously granted Farrey her lien. The result is the same even if the decree merely reordered the couple's preexisting interests, since the lien would have fastened only to what had been Farrey's preexisting interest, an interest that Sanderfoot would never have possessed without the lien already having fixed. To permit Sanderfoot to use the Bankruptcy Code to deprive Farrey of protection for her own preexisting homestead interest would neither follow the statute's language nor serve its main goal. Pp. 299-301. 899 F.2d 598, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and MARSHALL, BLACKMUN, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and in all but the penultimate paragraph of Part III of which SCALIA, J., joined. KENNEDY, J., filed a concurring opinion, in which SOUTER, J., joined, post, p. 301.Brady C. Williamson argued the cause for petitioner. With him on the briefs was Charles J. Hertel.Harvey G. Samson argued the cause and filed a brief for respondent.JUSTICE WHITE delivered the opinion of the Court.In this case we consider whether 522(f) of the Bankruptcy Code allows a debtor to avoid the fixing of a lien on a homestead, where the lien is granted to the debtor's former spouse under a divorce decree that extinguishes all previous interests the parties had in the property, and in no event secures more than the value of the nondebtor spouse's former interest. We hold that it does not.IPetitioner Jeanne Farrey and respondent Gerald Sanderfoot were married on August 12, 1966. The couple eventually built a home on 27 acres of land in Hortonville, Wisconsin, where they raised their three children. On September 12, 1986, the Wisconsin Court for Outagamie County entered a bench decision granting a judgment of divorce and property division that resolved all contested issues and terminated the marriage. See Wis. Stat. 767.37(3) (1989-1990). A written decree followed on February 5, 1987.The decision awarded each party one-half of their $60,600.68 marital estate. This division reflected Wisconsin's statutory presumption that the marital estate "be divided equally between the parties." 767.255. The decree granted Sanderfoot sole title to all the real estate and the family house, which was subject to a mortgage and which was valued at $104,000.00, and most of the personal property. For her share, Farrey received the remaining items of personal property and the proceeds from a court-ordered auction of the furniture from the home. The judgment also allocated the couple's liabilities. Under this preliminary calculation of assets and debts, Sanderfoot stood to receive a net award of $59,508.79, while Farrey's award would otherwise have been $1,091.90. To insure that the division of the estate was equal, the court ordered Sanderfoot to pay Farrey $29,208.44, half the difference in the value of their net assets. Sanderfoot was to pay this amount in two installments: half by January 10, 1987, and the remaining half by April 10, 1987. To secure this award, the decree provided that Farrey "shall have a lien against the real estate property of [Sanderfoot] for the total amount of money due her pursuant to this Order of the Court, i.e., $29,208.44, and the lien shall remain attached to the real estate property ... until the total amount of money is paid in full." App. to Pet. for Cert. 57a.Sanderfoot never made the required payments nor complied with any other order of the state court. Instead, on May 4, 1987, he voluntarily filed for Chapter 7 bankruptcy. Sanderfoot listed the marital home and real estate on the schedule of assets with his bankruptcy petition and listed it as exempt homestead property. Exercising his option to invoke the state, rather than the federal, homestead exemption, 11 U.S.C. 522(b)(2)(A), Sanderfoot claimed the property as exempt "to the amount of $40,000" under Wis. Stat. 815.20 (1989-1990).1 He also filed a motion to avoid Farrey's lien under the provision in dispute, 11 U.S.C. 522(f)(1), claiming that Farrey possessed a judicial lien that impaired his homestead exemption. Farrey objected to the motion, claiming that 522(f)(1) could not divest her of her interest in the marital home.2 The Bankruptcy Court denied Sanderfoot's motion, holding that the lien could not be avoided because it protected Farrey's preexisting interest in the marital property. In re Sanderfoot, 83 B.R. 564 (ED Wis. 1988). The District Court reversed, concluding that the lien was avoidable because it "is fixed on an interest of the debtor in the property." In re Sanderfoot, 92 B.R. 802 (ED Wis. 1988).A divided panel of the Court of Appeals affirmed. In re Sanderfoot, 899 F.2d 598 (CA7 1990). The court reasoned that the divorce proceeding dissolved any preexisting interest Farrey had in the homestead and that her new interest, "created in the dissolution order and evidenced by her lien, attached to Mr. Sanderfoot's interest in the property." Id., at 602. Noting that the issue had caused a split among the Courts of Appeals, the court expressly relied on those decisions that it termed more "faithful to the plain language of section 522(f)." Ibid. (citing In re Pederson, 875 F.2d 781 (CA9 1989); Maus v. Maus, 837 F.2d 935 (CA10 1988); Boyd v. Robinson, 741 F.2d 1112, 1115 (CA8 1984) (Ross, J., dissenting))Judge Posner, in dissent, argued that, to avoid a lien under 522(f), a debtor must have an interest in the property at the time the court places the lien on that interest. Judge Posner concluded that, because the same decree that gave the entire property to Sanderfoot simultaneously created the lien in favor of Farrey, the lien did not attach to a preexisting interest of the husband. The dissent's conclusion followed the result, though not the rationale, of Boyd, supra, In re Borman, 886 F.2d 273 (CA10 1989), and In re Donahue, 862 F.2d 259 (CA10 1988).We granted certiorari to resolve the conflict of authority. . We now reverse the Court of Appeals' judgment and remand.IISection 522(f)(1) provides in relevant part: "Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is - "(1) a judicial lien... ." The provision establishes several conditions for a lien to be avoided, only one of which is at issue. See In re Hart, 50 B.R. 956, 960 (Bkrtcy Ct. Nev. 1985). Farrey does not challenge the Court of Appeals' determination that her lien was a judicial lien, 899 F.2d at 603-605, nor do we address that question here. The Court of Appeals also determined that Farrey had waived any challenge as to whether Sanderfoot was otherwise entitled to a homestead exemption under state law, id. at 603, and we agree. See Owen v. Owen, post, p. 305. The sole question presented in this case is whether 522(f)(1) permits Sanderfoot to avoid the fixing of Farrey's lien on the property interest that he obtained in the divorce decree.The key portion of 522(f) states that "the debtor may avoid the fixing of a lien on an interest in ... property." Sanderfoot, following several Courts of Appeals, suggests that this phrase means that a lien may be avoided so long as it is currently fixed on a debtor's interest. Farrey, following Judge Posner's lead, reads the text as permitting the avoidance of a lien only where the lien attached to the debtor's interest at some point after the debtor obtained the interest.We agree with Farrey. No one asserts that the two verbs underlying the provision possess anything other than their standard legal meaning: "avoid" meaning "annul" or "undo," see Black's Law Dictionary 136 (6th ed. 1990); H.R.Rep. No. 95-595, pp. 126-127 (1977), U.S. Code Cong. & Admin. News 1978, p. 5787, and "fix" meaning to "fasten a liability upon," see Black's Law Dictionary, supra, at 637. The statute does not say that the debtor may undo a lien on an interest in property. Rather, the statute expressly states that the debtor may avoid "the fixing" of a lien on the debtor's interest in property. The gerund "fixing" refers to a temporal event. That event - the fastening of a liability - presupposes an object onto which the liability can fasten. The statute defines this preexisting object as "an interest of the debtor in property." Therefore, unless the debtor had the property interest to which the lien attached at some point before the lien attached to that interest, he or she cannot avoid the fixing of the lien under the terms of 522(f)(1).3 This reading fully comports with the provision's purpose and history. See United States v. Ron Pair Enterprises, Inc., . Congress enacted 522(f) with the broad purpose of protecting the debtor's exempt property. See S. Rep. No. 95-989, p. 77 (1978); H.R.Rep. No. 95-595, supra, at 126-127. Ordinarily, liens and other secured interests survive bankruptcy. In particular, it was well settled when 522(f) was enacted that valid liens obtained before bankruptcy could be enforced on exempt property, see Louisville Joint Stock Land Bank v. Radford, , including otherwise exempt homestead property, Long v. Bullard, . Congress generally preserved this principle when it comprehensively revised bankruptcy law with the Bankruptcy Reform Act of 1978, Pub.L. 95-598, 92 Stat. 2587, 11 U.S.C. 522(c)(2)(A)(i). But Congress also revised the law to permit the debtor to avoid the fixing of some liens. See, e.g., 11 U.S.C. 545 (statutory liens).Section 522(f)(1), by its terms, extends this protection to cases involving the fixing of judicial liens onto exempt property. What specific legislative history exists suggests that a principal reason Congress singled out judicial liens was because they are a device commonly used by creditors to defeat the protection bankruptcy law accords exempt property against debts. As the House Report stated:"The first right [ 522(f)(1)] allows the debtor to undo the actions of creditors that bring legal action against the debtor shortly before bankruptcy. Bankruptcy exists to provide relief for an overburdened debtor. If a creditor beats the debtor into court, the debtor is nevertheless entitled to his exemptions. H.R. Rep. No. 95-595, supra, at 126-127. One factor supporting the view that Congress intended 522(f)(1) to thwart a rush to the courthouse is Congress' contemporaneous elimination of 67a of the 1898 Bankruptcy Act, 30 Stat. 564. Prior to its repeal, 67a invalidated any lien obtained on an exempt interest of an insolvent debtor within four months of the bankruptcy filing. The Bankruptcy Reform Act eliminated the insolvency and timing requirements. It is possible that Congress simply decided to leave exemptions exposed despite its longstanding policy against doing so. But given the legislative history's express concern over protecting exemptions, it follows instead that 522(f)(1) was intended as a new device to handle the old provision's job by "giv[ing] the debtor certain rights not available under current law with respect to exempt property." H.R. Rep. No. 95-595, supra, at 126-127.Conversely, the text, history, and purpose of 522(f)(1) also indicate what the provision is not concerned with. It cannot be concerned with liens that fixed on an interest before the debtor acquired that interest. Neither party contends otherwise. Section 522(f)(1) does not state that any fixing of a lien may be avoided; instead, it permits avoidance of the "fixing of a lien on an interest of the debtor." If the fixing took place before the debtor acquired that interest, the "fixing," by definition, was not on the debtor's interest. Nor could the statute apply, given its purpose of preventing a creditor from beating the debtor to the courthouse, since the debtor at no point possessed the interest without the judicial lien. There would be no fixing to avoid, since the lien was already there. To permit lien avoidance in these circumstances, in fact, would be to allow judicial lienholders to be defrauded through the conveyance of an encumbered interest to a prospective debtor. See In re McCormick, 18 B.R. 911, 913-914 (Bkrtcy. Ct. WD Pa. 1982). For these reasons, it is settled that a debtor cannot use 522(f)(1) to avoid a lien on an interest acquired after the lien attached. See, e.g., In re McCormick, supra; In re Stephens, 15 B.R. 485 (Bkrtcy. Ct. WD NC 1981); In re Scott, 12 B.R. 613 (Bkrtcy.Ct. WD Okla. 1981). As before, the critical inquiry remains whether the debtor ever possessed the interest to which the lien fixed, before it fixed. If he or she did not, 522(f)(1) does not permit the debtor to avoid the fixing of the lien on that interest.IIIWe turn to the application of 522(f)(1) to this case.Whether Sanderfoot ever possessed an interest to which the lien fixed, before it fixed, is a question of state law. Farrey contends that, prior to the divorce judgment, she and her husband held title to the real estate in joint tenancy, each possessing an undivided one-half interest. She further asserts that the divorce decree extinguished these previous interests. At the same time and in the same transaction, she concludes, the decree created new interests in place of the old: for Sanderfoot, ownership in fee simple of the house and real estate; for Farrey, various assets and a debt of $29,208.44 secured by a lien on the Sanderfoot's new fee simple interest. Both in his briefs and at oral argument, Sanderfoot agreed on each point. Brief for Respondent 7-8; Tr. of Oral Arg. 39.On the assumption that the parties characterize Wisconsin law correctly, Sanderfoot must lose. Under their view, the lien could not have fixed on Sanderfoot's preexisting undivided half interest, because the divorce decree extinguished it. Instead, the only interest that the lien encumbers is debtor's wholly new fee simple interest. The same decree that awarded Sanderfoot his fee simple interest simultaneously granted the lien to Farrey. As the judgment stated, he acquired the property "free and clear" of any claim "except as expressly provided in this [decree]." App. to Pet. for Cert. 58a). Sanderfoot took the interest and the lien together, as if he had purchased an already encumbered estate from a third party. Since Sanderfoot never possessed his new fee simple interest before the lien "fixed", 522(f)(1) is not available to void the lien.The same result follows even if the divorce decree did not extinguish the couple's preexisting interests, but instead merely reordered them. The parties' current position notwithstanding, it may be that, under Wisconsin law, the divorce decree augmented Sanderfoot's previous interest by adding to it Farrey's prior interest. If the court, in exchange, sought to protect Farrey's previous interest with a lien, 522(f)(1) could be used to undo the encumbrance to the extent the lien fastened to any portion of Sanderfoot's previous surviving interest. This follows because Sanderfoot would have possessed the interest to which that part of the lien fixed, before it fixed. But in this case, the divorce court did not purport to encumber any part of Sanderfoot's previous interest, even on the assumption that state law would deem that interest to have survived. The decree instead transferred Farrey's previous interest to Sanderfoot and, again simultaneously, granted a lien equal to that interest minus the small of amount of personal property she retained. Sanderfoot thus would still be unable to avoid the lien in this case, since it fastened only to what had been Farrey's preexisting interest, and this interest Sanderfoot would never have possessed without the lien's already having fixed.4 The result, on either theory, accords with the provision's main purpose. As noted, the legislative history suggests that Congress primarily intended 522(f)(1) as a device to thwart creditors who, sensing an impending bankruptcy, rush to court to obtain a judgment to defeat the debtor's exemptions. That is not what occurs in a divorce proceeding such as this. Farrey obtained the lien not to defeat Sanderfoot's preexisting interest in the homestead, but to protect her own preexisting interest in the homestead that was fully equal to that of her spouse. The divorce court awarded the lien to secure an obligation the court imposed on the husband in exchange for the court's simultaneous award of the wife's homestead interest to the husband. We agree with Judge Posner that to permit a debtor in these circumstances to use the Code to deprive a spouse of this protection would neither follow the language of the statute nor serve the main goal it was designed to address.IVWe hold that 522(f)(1) of the Bankruptcy Code requires a debtor to have possessed an interest to which a lien attached, before it attached, to avoid the fixing of the lien on that interest. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.
10	A 1945 decree rationing the North Platte River among users in Wyoming, Nebraska, and Colorado enjoins Colorado and Wyoming from diverting or storing water above prescribed amounts on the river's upper reaches; sets priorities among Wyoming canals that divert water for the use of Nebraska irrigators and federal reservoirs; apportions the natural irrigation-season flows of the river's so-called "pivotal reach" between Nebraska and Wyoming; and authorizes any party to apply to amend the decree for further relief. Nebraska v. Wyoming, . Nebraska sought such relief in 1986, alleging that Wyoming was threatening its equitable apportionment, primarily by planning water projects on tributaries that have historically added significant flows to the pivotal reach. After this Court overruled the parties' objections to the Special Master's First and Second Interim Reports, Nebraska v. Wyoming___, Nebraska and Wyoming sought leave to amend their pleadings. The Master's Third Interim Report recommended that Nebraska be allowed to substitute three counts of its Amended Petition and that Wyoming be allowed to substitute three of its proposed counterclaims and four of its proposed cross-claims. Wyoming has filed four exceptions to the Master's recommendations and Nebraska and the United States a single (and largely overlapping) exception each.Held: The exceptions are overruled. Pp. 5-20. (a) The requirement of obtaining leave to file a complaint in an original action serves an important gatekeeping function, and proposed pleading amendments must be scrutinized closely to see whether they would take the litigation beyond what the Court reasonably anticipated when granting leave to file the initial pleadings. As the decree indicates, the litigation here is not restricted Page II solely to enforcement of rights determined in the prior proceedings. However, while the parties may ask for a reweighing of equities and an injunction declaring new rights and responsibilities, they must make a showing of substantial injury to be entitled to relief. The Master duly appreciated these conclusions when considering the proposed amendments to the pleadings. Pp. 5-7. (b) Wyoming takes exception to the Master's recommendation that it be denied leave to file its First Amended Counterclaim and Cross-Claim, which allege that Nebraska and the United States have failed to recognize beneficial use limitations on diversions of canals and that Nebraska has violated the equitable apportionment by demanding natural flow and storage water from sources above Tri-State Dam for use below the dam. However, by seeking to replace a proportionate sharing of the pivotal reach's natural flows with a scheme based on the beneficial use requirement of the pivotal reach irrigators, presumably to Wyoming's advantage, Wyoming in reality is calling for a fundamental modification of the scheme established in 1945, without alleging any change in conditions that would arguably justify so bold a step. Pp. 7-8. (c) The Master's intention to consider a broad array of downstream interests and to hear evidence of injury not only to downstream irrigators, but also to wildlife and wildlife habitat, when passing on Nebraska's request that the decree be modified to enjoin Wyoming's proposed developments on the North Platte's tributaries does not, as Wyoming argues in its exception, run counter to this Court's denial of two of Nebraska's earlier motions to amend. Those earlier claims sought to assign an affirmative obligation to protect wildlife, while, here, the effect on wildlife is but one equity to be balanced in determining whether the decree can be modified. Moreover, Nebraska is seeking not broad new apportionments, but only to have discrete Wyoming developments enjoined. If its environmental claims are speculative, Nebraska will not be able to make the necessary showing of substantial injury. Pp. 9-10. (d) Nebraska's allegations that Wyoming's actions along the Horse Creek tributary threaten serious depletion of return flows, with injury to Nebraska's interests, describe a change in conditions sufficient, if proven, to warrant the injunctive relief sought. Thus, Wyoming's exception to the Master's recommendation that Nebraska be allowed to proceed with its challenge cannot succeed. Pp. 10-11. (e) Nebraska's allegation that Wyoming's increased groundwater pumping threatens substantial depletion of the river's natural flow also describes a change in conditions posing a threat of significant injury. In excepting to the Master's recommendation that the claim go forward, Wyoming asserts that Nebraska's failure to regulate Page III groundwater pumping within its own borders precludes Nebraska from seeking pumping limitations in Wyoming. However, Wyoming alleges no injury to its interests caused by the downstream pumping, and the effect that any such injury would have on the relief Nebraska is seeking is a question for trial. Pp. 11-12. (f) Both the United States and Nebraska take exception to the recommendation that Wyoming's Fourth Amended Cross-Claim - which alleges that federal management of reservoirs has contravened state and federal law as well as contracts governing water supply to individual users - be allowed to proceed. Although the 1945 decree did not apportion storage water, a predicate to that decree was that the United States adhered to beneficial use limitations in administering storage water contracts. Wyoming's assertion that the United States no longer does so, and that this change has caused or permitted significant injury to Wyoming interests, states a serious claim that ought to go forward. This claim arises from the decree, and thus cannot be vindicated in district court litigation between individual contract holders and the United States. Nor is it likely that this proceeding will be overwhelmed by the intervention of individual storage contract holders. Since a State is presumed to speak for its citizens, requests to intervene will be denied absent a showing, unlikely to be made here, of some compelling interest not properly represented by the State. Pp. 12-20. Exceptions overruled.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, GINSBURG, and BREYER, JJ., joined, and in Parts I, II, and III of which THOMAS, J., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part. [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 1] JUSTICE SOUTER delivered the opinion of the Court.Since 1945, a decree of this Court has rationed the North Platte River among users in Wyoming, Nebraska and Colorado. By petition in 1986, Nebraska again brought the matter before us, and we appointed a Special Master to conduct the appropriate proceedings. In his Third Interim Report, on Motions to Amend Pleadings (Sept. 9, 1994), the Master has made recommendations for rulings on requests for leave to amend filed by Nebraska and Wyoming. We now have before us the parties' exceptions to the Master's report, each of which we overrule.IThe North Platte River is a non-navigable stream rising in northern Colorado and flowing through Wyoming into Nebraska, where it joins with the South Platte to form the Platte River. In 1934, Nebraska invoked our original jurisdiction under the Constitution, Art. III, 2, cl. 2, by suing Wyoming for an equitable apportionment of the North Platte. The United States had leave to intervene, Colorado was impleaded as a defendant, and the ensuing litigation culminated in the decision and decree in Nebraska v. Wyoming, (Nebraska I). [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 2] We concluded that the doctrine of prior appropriation should serve as the general "guiding principle" in our allocation of the North Platte's flows, id., at 618, but resisted an inflexible application of that doctrine in rendering four principal rulings. Ibid. First, we enjoined Colorado and Wyoming from diverting or storing water above prescribed amounts, meant to reflect existing uses, on the river's upper reaches. Id., at 621-625, 665-666. Second, we set priorities among Wyoming canals that divert water for the use of Nebraska irrigators and federal reservoirs, also in Wyoming, that store water for Wyoming and Nebraska irrigation districts. Id., at 625-637, 666-667. Third, we apportioned the natural irrigation-season flows in a stretch of river that proved to be the principal focus of the litigation (the "pivotal reach" of 41 miles between the Guernsey Dam in Wyoming and the Tri-State Dam in Nebraska), allocating 75 percent of those flows to Nebraska and 25 percent to Wyoming. Id., at 637-654, 667-669. Finally, we held that any party could apply for amendment of the decree or for further relief. Id., at 671 (Decree Paragraph XIII). With the parties' stipulation, the decree has since been modified once, to account for the construction of the Glendo Dam and Reservoir. Nebraska v. Wyoming, .Nebraska returned to this Court in 1986 seeking additional relief under the decree, alleging that Wyoming was threatening its equitable apportionment, primarily by planning water projects on tributaries that have historically added significant flows to the pivotal reach. We granted Nebraska leave to file its petition, , and allowed Wyoming to file a counterclaim. .Soon thereafter, Wyoming made a global motion for summary judgment, which the Master in his First Interim Report recommended be denied. See First Interim Report of Special Master, O. T. 1988, No. 108 [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 3] Orig. After engaging in discovery, Nebraska, Wyoming, Colorado, and the United States all filed further summary judgment motions. In his Second Interim Report, the Master recommended that we grant the motions of the United States and Nebraska in part, but that we otherwise deny summary relief. See Second Interim Report of Special Master on Motions for Summary Judgment and Renewed Motions for Intervention, O. T. 1991, No. 108 Orig. We overruled the parties' exceptions. Nebraska v. Wyoming___ (1993) (Nebraska II).Nebraska and Wyoming then sought leave to amend their pleadings, and we referred those requests to the Master. The Amended Petition that Nebraska seeks to file contains four counts. Count I alleges that Wyoming is depleting the natural flows of the North Platte and asks for an injunction against constructing storage capacity on the river's tributaries and "permitting unlimited depletion of groundwater that is hydrologically connected to the North Platte River and its tributaries." Third Interim Report App. D-2 to D-7. Count II alleges that the United States is operating the Glendo Reservoir in violation of the decree and seeks an order holding the United States to the decree. Id., at D-7 to D-8. Count III alleges that Wyoming water projects and groundwater development threaten to deplete the Laramie River's contributions to the North Platte, and asks the Court to "specify that the inflows of the Laramie River below Wheatland are a component of the equitable apportionment of the natural flows in the [pivotal] reach, 75% to Nebraska and 25% to Wyoming, and [to] enjoin the State of Wyoming from depleting Nebraska's equitable share of the Laramie River's contribution to the North Platte River ... ." Id., at D-8 to D-12. Count IV seeks an equitable apportionment of the North Platte's non-irrigation season flows. Id., at D-12 to D-16. The Master recommended that we allow Nebraska to [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 4] substitute the first three counts of its Amended Petition for its current petition, but that we deny leave to file Count IV. Neither Nebraska nor the United States has excepted to the Master's recommendation, whereas Wyoming has filed three exceptions, set out in detail below.Wyoming proposes to amend its pleading with four counterclaims and five cross-claims. The First Counterclaim and Cross-Claim allege that Nebraska and the United States have failed to recognize beneficial use limitations on diversions by Nebraska canals, and that Nebraska (with the acquiescence of the United States) has violated the equitable apportionment by demanding natural flow and storage water from sources above Tri-State Dam and diverting them for use below Tri-State Dam. Third Interim Report App. E-3 to E-6, E-8 to E-10. Wyoming's Second and Third Counterclaims and Cross-Claims seek enforcement or modification of Paragraph XVII of the decree, which deals with the operation of the Glendo Reservoir and is also the subject of Count II of Nebraska's Amended Petition. Id., at E-6 to E-7, E-10 to E-11. By its Fourth Counterclaim and Fifth Cross-Claim, Wyoming asks the Court to modify the decree to leave the determination of carriage (or transportation) losses to state officials under state law. Id., at E-7 to E-8, E-12. Finally, Wyoming's Fourth Cross-Claim alleges that the United States has failed to operate its storage reservoirs in accordance with federal and state law and its own storage water contracts, thus upsetting the very basis of the decree's equitable apportionment. Id., at E-11 to E-12.The Master recommended that we allow Wyoming to substitute its Second through Fourth Counterclaims and its Second through Fifth Cross-Claims for its current pleadings, but that we deny leave to file Wyoming's First Counterclaim and Cross-Claim insofar as they seek to impose a beneficial use limitation on Nebraska's diversions of natural flow. The United States and [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 5] Nebraska except to the recommendation to allow Wyoming to file its Fourth Cross-Claim. Wyoming excepts to the Master's recommended disposition of its First Counterclaim and Cross-Claim. In all, then, Wyoming has filed four exceptions to the Master's recommendations and the United States and Nebraska a single (and largely overlapping) exception each.IIWe have found that the solicitude for liberal amendment of pleadings animating the Federal Rules of Civil Procedure, Rule 15(a); Foman v. Davis, , does not suit cases within this Court's original jurisdiction. Ohio v. Kentucky, ; cf. this Court's Rule 17.2. The need for a less complaisant standard follows from our traditional reluctance to exercise original jurisdiction in any but the most serious of circumstances, even where, as in cases between two or more States, our jurisdiction is exclusive. Mississippi v. Louisiana___, ___ (1992) (slip op., at 4) ("`The model case for invocation of this Court's original jurisdiction is a dispute between States of such seriousness that it would amount to casus belli if the States were fully sovereign,'" quoting Texas v. New Mexico, , n. 18 (1983)); New York v. New Jersey ("Before this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one State at the suit of another, the threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence"). Our requirement that leave be obtained before a complaint may be filed in an original action, see this Court's Rule 17.3, serves an important gatekeeping function, and proposed pleading amendments must be scrutinized closely in the first instance to see whether they would take the litigation beyond what we reasonably anticipated when [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 6] we granted leave to file the initial pleadings. See Ohio v. Kentucky, supra, at 644.Accordingly, an understanding of the scope of this litigation as envisioned under the initial pleadings is the critical first step in our consideration of the motions to amend. We have, in fact, already discussed the breadth of the current litigation at some length in reviewing the Special Master's First and Second Interim Reports, Nebraska II, 507 U.S., at ___-___ (slip op., at 4-7), where we concluded that this litigation is not restricted "solely to enforcement of rights determined in the prior proceedings." Id., at ___ (slip op., at 6). To the contrary, we observed that in Paragraph XIII of the decree, we had retained jurisdiction "to modify the decree to answer unresolved questions and to accommodate `change[s] in conditions' - a phrase sufficiently broad to encompass not only changes in water supply, ... but also new development that threatens a party's interests." Id., at ___ (slip op., at 5-6), citing Nebraska I, 325 U.S., at 620. The parties may therefore not only seek to enforce rights established by the decree, but may also ask for "a reweighing of equities and an injunction declaring new rights and responsibilities ... ." Id., at ___ (slip op., at 7). We made it clear, however, that while "Paragraph XIII perhaps eases a [party's] burden of establishing, as an initial matter, that a claim [for modification] is `of that character and dignity which makes the controversy a justiciable one under our original jurisdiction,'" ibid., quoting Nebraska I, supra, at 610, the "[party] still must make a showing of substantial injury to be entitled to relief." Ibid.We think the Master appreciated these conclusions about the scope of this litigation when he assessed the proposed amendments to pleadings to see whether they sought enforcement of the decree or plausibly alleged a change in conditions sufficient to justify its modification. See Third Interim Report 33-36. The parties, of course, [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 7] do not wholly agree with us, as they indicate by their exceptions, to which we turn.IIIAWyoming's First Amended Counterclaim alleges that "Nebraska has circumvented and violated the equitable apportionment by demanding natural flow water for diversion by irrigation canals at and above Tri-State Dam in excess of the beneficial use requirements of the Nebraska lands entitled to water from those canals under the Decree ... ." Third Interim Report App. E-4. Wyoming's First Amended Cross-Claim alleges that the United States "has circumvented and violated the equitable apportionment, and continues to do so, by operating the federal reservoirs to deliver natural flow water for diversion by Nebraska irrigation canals at and above Tri-State Dam in excess of the beneficial use requirements of the lands entitled to water from those canals under the Decree ... ." Id., at E-8. The Master recommended that we deny leave to inject these claims into the litigation, concluding that Wyoming's object is to transform the 1945 apportionment from a proportionate sharing of the natural flows in the pivotal reach to a scheme based on the beneficial use requirements of the pivotal reach irrigators. Third Interim Report 55-64. Wyoming excepts to the recommendation, claiming that its amendments do no more than elaborate on the suggestion made in the counterclaim that we allowed it to file in 1987, that Nebraska irrigators are wasting water diverted in the pivotal reach. But there is more to the amendments than that, and we agree with the Master that Wyoming in reality is calling for a fundamental modification of the settled apportionment scheme established in 1945, without alleging a change in conditions that would arguably justify so bold a step.In Nebraska II we rejected any notion that our 1945 [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 8] decision and decree "impose absolute ceilings on diversions by canals taking in the pivotal reach." 507 U.S., at ___ (slip op., at 17). We found that although the irrigation requirements of the lands served by the canals were calculated in the prior proceedings, those calculations were used to "determin[e] the appropriate apportionment of the pivotal reach, not to impose a cap on the canals' total diversions, either individually or cumulatively." Ibid. This was clearly indicated, we observed, by the fact that "Paragraph V of the decree, which sets forth the apportionment, makes no mention of diversion ceilings and expressly states that Nebraska is free to allocate its share among its canals as it sees fit." Ibid., citing Nebraska, I supra, at 667.These conclusions about our 1945 decision and decree expose the true nature of Wyoming's amended claims. Simply put, Wyoming seeks to replace a simple apportionment scheme with one in which Nebraska's share would be capped at the volume of probable beneficial use, presumably to Wyoming's advantage. Wyoming thus seeks nothing less than relitigation of the "main controversy" of the 1945 litigation, the equitable apportionment of irrigation-season flows in the North Platte's pivotal reach. See id., at 637-638. Under any circumstance, we would be profoundly reluctant to revisit such a central question supposedly resolved 50 years ago, and there can be no temptation to do so here, in the absence of any allegation of a change in conditions that might warrant reexamining the decree's apportionment scheme. Wyoming's first exception is overruled.1 [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 9] BCounts I and III of Nebraska's Amended Petition would have us modify the decree to enjoin proposed developments by Wyoming on the North Platte's tributaries, see Third Interim Report App. D-4 to D-6, D-9 to D-11, on the theory that these will deplete the tributaries' contributions to the mainstem, and hence upset "the equitable balance of the North Platte River established in the Decree." Id., at D-5, D-10. Wyoming's second exception takes issue with the Master's stated intention to consider a broad array of downstream interests in passing on Nebraska's claims, and to hear evidence of injury not only to downstream irrigators, but also to wildlife and wildlife habitat. Third Interim Report 14, 17, 19, 26.Consideration of this evidence, Wyoming argues, would run counter to our denial of two earlier motions to amend filed by Nebraska: its 1988 motion, , by which it expressly sought modification of the decree to make Wyoming and Colorado share the burden of providing instream flows necessary to preserve critical wildlife habitat, and its 1991 motion, see ___, in which it sought an apportionment of nonirrigation season flows. Wyoming also suggests that allegations of injury to wildlife are as yet purely speculative and would be best left to other forums.Wyoming's arguments are not persuasive. To assign [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 10] an affirmative obligation to protect wildlife is one thing; to consider all downstream effects of upstream development when assessing threats to equitable apportionment is quite another. As we have discussed above, Nebraska II makes it clear that modification of the decree (as by enjoining developments on tributaries) will follow only upon a "balancing of equities," 507 U.S., at ___ (slip op., at 6), and that Nebraska will have to make a showing of "substantial injury" before we will grant it such relief, id., at ___ (slip op., at 7). There is no warrant for placing entire categories of evidence beyond Nebraska's reach when it attempts to satisfy this burden, which is far from insignificant.Nor does our resistance to Nebraska's efforts to bring about broad new apportionments (as of nonirrigation season flows) alter this conclusion. Here, Nebraska seeks only to have us enjoin discrete Wyoming developments. If Nebraska is to have a fair opportunity to present its case for our doing so, we do not understand how we can preclude it from setting forth that evidence of environmental injury, or consign it to producing that evidence in some other forum, since this is the only court in which Nebraska can challenge the Wyoming projects. And as for Wyoming's argument that any proof of environmental injury that Nebraska will present will be highly speculative, the point is urged prematurely. Purely speculative harms will not, of course, carry Nebraska's burden of showing substantial injury, but at this stage we certainly have no basis for judging Nebraska's proof, and no justification for denying Nebraska the chance to prove what it can.CWyoming's third exception is to the Master's recommendation to allow Nebraska to proceed with its challenge to Wyoming's actions on Horse Creek, a tributary that flows into the North Platte below the [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 11] Tri-State Dam. In Count I of its Amended Petition, Nebraska alleges that Wyoming is "presently violating and threatens to violate" Nebraska's equitable apportionment "by depleting the natural flows of the North Platte River by such projects as ... reregulating reservoirs and canal linings in the ... Horse Creek Conservancy District." Third Interim Report App. D-5. Nebraska asks for an injunction against Wyoming's depletions of the creek.Wyoming argues that the claim is simply not germane to this case, since Horse Creek feeds into the North Platte below the apportioned reach, the downstream boundary of which is the Tri-State Dam. It is clear, however, that the territorial scope of the case extends downstream of the pivotal reach. In the 1945 decision and decree, we held against apportioning that stretch of river between the Tri-State Dam and Bridgeport, Nebraska, not because it fell outside the geographic confines of the case, but because its needed water was "adequately supplied from return flows and other local sources." Nebraska I, 325 U.S., at 654-655. In so concluding, we had evidence that return flows from Horse Creek provided an average annual contribution of 21,900 acre feet of water to the North Platte during the irrigation season. Third Interim Report 42.Now Nebraska alleges that Wyoming's actions threaten serious depletion of these return flows, with consequent injury to its interests in the region below the Tri-State Dam. These allegations describe a change in conditions sufficient, if proven, to warrant the injunctive relief sought, and Nebraska is accordingly entitled to proceed with its claim. Wyoming's third exception is overruled.DIn Counts I and III of its Amended Petition, Nebraska alleges that increased groundwater pumping within Wyoming threatens substantial depletion of the natural [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 12] flow of the river. This allegation is obviously one of a change in conditions posing a threat of significant injury, and Wyoming concedes that "groundwater pumping in Wyoming can and does in fact deplete surface water flows in the North Platte River," Third Interim Report 38. In excepting nevertheless to the Master's recommendation that we allow the claim to go forward, Wyoming raises Nebraska's failure to regulate groundwater pumping within its own borders, which is said to preclude Nebraska as a matter of equity from seeking limitations on pumping within Wyoming.We fail to see how the mere fact of unregulated pumping within Nebraska can serve to bar Nebraska's claim. Nebraska is the downstream state and claims that Wyoming's pumping hurts it; Wyoming is upstream and has yet to make a showing that Nebraska's pumping hurts it or anyone else. If Wyoming ultimately makes such a showing, it could well affect the relief to which Nebraska is entitled, but that is a question for trial, and does not stop Nebraska from amending its claims at this stage.Wyoming's reliance on two of this Court's prior original cases is, at best, premature. Both cases were decided after trial, see Kansas v. Colorado; Missouri v. Illinois, and while both recognize that relief on the merits may turn on the equities, 206 U.S., at 104-105, 113-114; 200 U.S., at 522, the application of that principle to Nebraska's claim is not, as we have just stated, obvious at this point. We accordingly accept the Master's recommendation, Third Interim Report 41, and overrule Wyoming's fourth exception.IVWyoming's Fourth Amended Cross-Claim seeks declaratory and injunctive relief and is aimed against the United States alone, alleging that federal [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 13] management of reservoirs has contravened state and federal law as well as contracts governing water supply to individual users. Wyoming claims that "the United States has allocated storage water in a manner which (a) upsets the equitable balance on which the apportionment of natural flow was based, (b) results in the allocation of natural flow contrary to the provisions of the Decree ... (c) promotes inefficiency and waste of water contrary to federal and state law, (d) violates the contract rights of the North Platte Project Irrigation Districts and violates the provisions of the Warren Act, 43 U.S.C. 523, ... and (e) exceeds the limitations in the contracts under Warren Act." Third Interim Report App. E-11 to E-12. Wyoming alleges that this mismanagement has made "water shortages ... more frequen[t] and ... more severe, thereby causing injury to Wyoming and its water users." Id., at E-12.The United States and Nebraska except to allowing Wyoming's cross-claim to proceed, for two reasons. They argue, first, that the decree expressly refrained from apportioning storage water, as distinct from natural flow, with the consequence that the violations alleged are not cognizable in an action brought under the decree. Second, they maintain that any claim turning on the United States's failure to comply with individual contracts for the release of storage water ought to be relegated to an action brought by individual contract holders in a federal district court and that, indeed, just such an action is currently pending in Goshen Irrigation District v. United States, No. C89-0161-J (D.Wyo., filed June 23, 1989).The Master addressed both objections. As to the first, he said that "even though the decree did not apportion storage water, it was framed based in part on assumptions about storage water rights and deliveries," and that therefore "Wyoming should have the opportunity to go forward with her claims that the United States has [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 14] violated the law and contracts rights and that such violations have the effect of undermining Wyoming's apportionment." Third Interim Report 70. The Master found the second point "unpersuasive" because "neither Wyoming nor Nebraska [is a party] to the [Goshen] case [brought by the individual contracters], and the federal district court, therefore, does not have jurisdiction to consider whether any violations that may be proven on the part of the United States will have the effect of undermining the 1945 apportionment decree." Id., at 71. We agree with the Master on both counts.The availability of storage water and its distribution under storage contracts was a predicate to the original apportionment decree. Our 1945 opinion expressly recognized the significance of storage water to the lands irrigated by the pivotal reach, noting that over the prior decade storage water was on average over half of the total supply and that over 90 percent of the irrigated lands had storage rights as well as rights to natural flow. Nebraska I, 325 U.S., at 605. We pointed out that Nebraska appropriators in the pivotal reach had "greater storage water rights" than Wyoming appropriators, id., at 645, a fact that helped "tip the scales in favor of the flat percentage system," as against a scheme even more favorable to Nebraska. Ibid.In rejecting Wyoming's original proposal, which was to combine water from storage and natural flow and apportion both by volume among the different users, id., at 621, we anticipated that the storage supply would "be left for distribution in accordance with the contracts which govern it," id., at 631. In doing so, we were clearly aware of the beneficial use limitations that govern federal contracts for storage water. Contracts between the United States and individual water users on the North Platte, we pointed out, had been made and were maintained in compliance with 8 of the Reclamation Act of 1902, 32 Stat. 388, 43 U.S.C. 372, 383, [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 15] which provided that "`the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.'" 325 U.S., at 613. In addition, contracts had been made under the Warren Act, 36 Stat. 925, 43 U.S.C. 523-525, which granted the Secretary of the Interior the further power to contract for the storage and delivery of water available in excess of the requirements of any given project managed under the Reclamation Act. See Nebraska I, supra, at 631, 639-640.Under this system, access to water from storage facilities was only possible by a contract for its use, Nebraska I, 325 U.S., at 640, and apportionment of storage water would have disrupted that system. "If storage water is not segregated, storage water contractors in times of shortage of the total supply will be deprived of the use of a part of the storage supply for which they pay ... [and] those who have not contracted for the storage supply will receive at the expense of those who have contracted for it a substantial increment to the natural flow supply which, as we have seen, has been insufficient to go around." Ibid. Hence, we refrained from apportioning stored water and went no further than capping the total amount of storage in certain dams to protect senior, downstream rights to natural flow. Id., at 630. But although our refusal in 1945 to apportion storage water was driven by a respect for the statutory and contractual regime in place at the time, we surely did not dismiss storage water as immaterial to the proper allocation of the natural flow in the pivotal reach. And while our decree expressly protected those with rights to storage water, it did so on the condition that storage water would continue to be distributed "in accordance with ... lawful contracts ... ." Id., at 669. This is the very condition that Wyoming now seeks to vindicate. [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 16] Wyoming argues that the United States no longer abides by the governing law in administering the storage water contracts. First, it contends that the Government pays no heed to federal law's beneficial use limitations on the disposition of storage water but rather "releas[es] storage water on demand to the canals in the pivotal reach without regard to how the water is used." Brief of Wyoming in Response to Exceptions of Nebraska and United States to Third Interim Report 6 (emphasis omitted) (hereinafter Response Brief). This liberality allegedly harms Wyoming contractees whose storage supply is wasted, as well as junior Wyoming appropriators who are subject to the senior call of the United States to refill the reservoirs and are consequently deprived of the natural flow they would otherwise receive.Second, Wyoming claims that federal policy in drought years encourages contract users to exploit this failure of the Government to police consumption. It points out that in years of insufficient supply, the United States has calculated each water district's average use of storage water in prior years, and then allocated to each district a certain percentage of that average, according to what the overall supply will bear. The United States has then further reduced the allotment of each individual canal within a district by the amount of natural flow delivered to the canal, with the result that in dry years water is distributed under "purely a mass [i.e., fixed volume] allocation that sets a cap on the total diversion of each individual canal." Id., at 8. Wyoming thus contends not only that under this system "in a dry year like 1989 the [United States'] allocation effectively replaces the Court decreed 75/25 apportionment," id., at 9, but that the departure from the norm is needlessly great because the system "encourages individual canals to divert as much water as possible during `non-allocation' years in order to maximize their average diversions [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 17] which will be the measure of their entitlement in a subsequent dry year allocation." Id., at 8, n. 6.If Wyoming were arguing merely that any administration of storage water that takes account of fluctuations in the natural flow received by a contractee violates the decree, we would reject its claim, for we recognized in 1945 that the outstanding Warren Act contracts contained "agree[ments] to deliver water which will, with all the water to which the land is entitled by appropriation or otherwise, aggregate a stated amount." 325 U.S., at 631. Indeed, we set forth an example of just such a contract in our opinion. Id., at 631, n. 17. In asserting, however, that a predicate to the 1945 decree was that the United States adhered to beneficial use limitations in administering storage water contracts, that it no longer does so, and that this change has caused or permitted significant injury to Wyoming interests, Wyoming has said enough to state a serious claim that ought to be allowed to go forward.2 [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 18] Although the claim may well require consideration of individual contracts and compliance with the Reclamation and Warren Acts, it does not follow (as Nebraska and the United States argue) that Wyoming is asserting the private contractors' rights proper, or (as the United States contends) that Wyoming brings suit "`in reality for the benefit of particular individuals,'" Brief for United States in Support of Exception 25, quoting Oklahoma ex rel. Johnson v. Cook, . Wyoming argues only that the cumulative effect of the United States's failure to adhere to the law governing the contracts undermines the operation of the decree, see Response Brief 14-21, and thereby states a claim arising under the decree itself, one by which it seeks to vindicate its "`quasi-sovereign' interests which are `independent of and behind the titles of its citizens, in all the earth and air within its domain.'" Oklahoma v. Cook, supra, at 393, quoting Georgia v. Tennessee Copper Co..It is of no moment that some of the contracts could be made (or are) the subject of litigation between individual contract holders and the United States in federal district court. Wyoming is not a party to any such litigation and, as counsel for the United States acknowledged at oral argument, it is uncertain whether the State would qualify for intervention in the ongoing Goshen litigation under Federal Rule of Civil Procedure 24. See Tr. of Oral Arg. 46. While the uncertainty of intervention is beside the point on the dissent's view, which "see[s] no reason ... why Wyoming could not institute its own action against the United States in [district court]," post, at 5, the dissent nowhere explains how Wyoming would have standing to bring an action under storage water [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 19] contracts to which it is not a party. As we have just said, Wyoming's claim derives not from rights under individual contracts but from the decree, and the decree can be modified only by this Court. Putting aside, then, whether another forum might offer relief that, as a practical matter, would mitigate the alleged ill effects of the national government's contract administration, this is the proper forum for the State's claim, and it makes sense to entertain the claim in the course of adjudicating the broader controversy among Wyoming, Nebraska, and the United States. Cf. United States v. Nevada, (per curiam) (denying motion for leave to file bill of complaint in part because "[t]here is now no controversy between the two States with respect to the ... [r]iver [in question]").Nor do we fear the specter, raised by the United States, of intervention by many individual storage contractors in this proceeding. Ordinarily, in a suit by one state against another subject to the original jurisdiction of this Court, each state "must be deemed to represent all its citizens." Kentucky v. Indiana. A state is presumed to speak in the best interests of those citizens, and requests to intervene by individual contractees may be treated under the general rule that an individual's motion for leave to intervene in this Court will be denied absent a "showing [of] some compelling interest in his own right, apart from his interest in a class with all other citizens and creatures of the state, which interest is not properly represented by the state." New Jersey v. New York, ; cf. Fed. Rule Civ. Proc. 24(a)(2). We have said on many occasions that water disputes among states may be resolved by compact or decree without the participation of individual claimants, who nonetheless are bound by the result reached through representation by their respective States. Nebraska I, 325 U.S., at 627, citing Hinderlider v. La Plata River [ NEBRASKA v. WYOMING, ___ U.S. ___ (1995), 20] & Cherry Creek Ditch Co., ; see also Wyoming v. Colorado. As we view the litigation at the current time, it is unlikely to present occasion for individual storage contract holders to show that their proprietary interests are not adequately represented by their state.Two caveats are nonetheless in order, despite our allowance of Wyoming's cross-claim. Nebraska argues that Wyoming is using its cross-claim as a back door to achieving the mass allocation of natural flows sought in its First Counterclaim and Cross-Claim. This argument will be difficult to assess without further development of the merits, and we can only emphasize at this point that in allowing Wyoming's Fourth Cross-Claim to go forward, we are not, of course, in any way sanctioning the very modification of the decree that we have just ruled out in this proceeding. Second, the parties should not take our allowance of the Fourth Cross-Claim as an opportunity to enquire into every detail of the United States's administration of storage water contracts. The United States's contractual compliance is not, of itself, an appropriate subject of the Special Master's attention, which is properly confined to the effects of contract administration on the operation of the decree. Contractual compliance, as such, is the subject of the Goshen litigation, which we presume will move forward independently of this original action.VFor these reasons, the exceptions to the Special Master's Third Interim Report are overruled. It is so ordered.
11	Held: A cooperative hospital service organization cannot qualify for exemption from federal income taxation as a charitable organization under 501 (c) (3) of the Internal Revenue Code of 1954, but instead may qualify only if it performs one of the services listed in 501 (e) (1) (A). This conclusion is supported both by the principle of statutory construction that a specific statute, here subsection (e), controls over a general provision such as subsection (c) (3), particularly when the two are interrelated and closely positioned, and by the legislative history. Since laundry service was deliberately omitted from the list of services in subsection (e), petitioner, a nonprofit corporation organized to provide laundry services for exempt hospitals and an exempt ambulance service, is not entitled to tax-exempt status. Certiorari granted; 624 F.2d 428, affirmed.PER CURIAM.Petitioner HCSC-Laundry is a Pennsylvania nonprofit corporation. It was organized in 1967 under the law of that Commonwealth "[t]o operate and maintain a hospital laundry and linen supply program for those public hospitals and non-profit hospitals or related health facilities organized and operated exclusively for religious, charitable, scientific, or educational purposes that contract with [it]."1 Petitioner provides laundry and linen service to 15 nonprofit hospitals and to an ambulance service. All these are located in eastern Pennsylvania. Each organization served possesses a certificate of exemption from federal income taxation under 501 (c) (3) of the Internal Revenue Code of 1954, 26 U.S.C. 501 (c) (3).2 Each participating hospital pays petitioner annual membership dues based upon bed capacity. The ambulance service pays no dues. Petitioner's only other income is derived from (a) a charge for laundry and linen service based upon budgeted costs and (b) a charge of 1 1/2 cents per pound of laundry. Budgeted costs include operating expenses, debt retirement, and linen replacement. The amounts charged in excess of costs have been placed in a fund for equipment acquisition and replacement.No part of petitioner's net earnings inures to the benefit of any individual.Petitioner was formed after the Lehigh Valley Health Planning Council determined that a shared, nonprofit, off-premises laundry would best accommodate the requirements of the member hospitals with respect to both quality of service and economies of scale. The Council had investigated various alternatives. It had rejected a joint service concept because no member hospital had sufficient laundry facilities to serve more than itself. A commercial laundry had declined an offer for the laundry business of all the hospitals, and most of the other available commercial laundries were not capable of managing the heavy total volume.Petitioner's laundry plant was built and equipped at a cost of about $2 million. This was financed through loans from local banks, with 15-year contracts from 10 of the hospitals used as collateral. Petitioner employs approximately 125 persons.In 1976, petitioner applied for exemption under 501 (c) (3) from federal income taxation. The Internal Revenue Service denied the exemption application on the grounds that 501 (e)3 of the code was the exclusive provision under which a cooperative hospital service organization could qualify as "an organization organized and operated exclusively for charitable purposes" and therefore exempt. Because subsection (e) (1) (A) does not mention laundry, the Service reasoned that petitioner was not entitled to tax exemption.Petitioner duly filed its federal corporate income tax return for its fiscal year ended June 30, 1976. that return showed taxable income of $123,521 and a tax of $10,395. The tax was paid. Shortly thereafter, petitioner filed a claim for refund of that tax and, when the Internal Revenue Service took no action on the claim within six months, see 26 U.S.C. 6532 (a) (1), petitioner commenced this refund suit in the United States District Court for the Eastern District of Pennsylvania.On stipulated facts and cross-motions for summary judgment, the District Court ruled in favor of petitioner, holding that it was entitled to exemption as an organization described in 501 (c) (3). 473 F. Supp. 250 (1979). The United States Court of Appeals for the Third Circuit, however, reversed. It held that 501 (e) was the exclusive provision under which a cooperative hospital service organization could obtain an income tax exemption, and that the omission of laundry services from 501 (e) (1) (A)'s specific list of activities demonstrated that Congress intended to deny exempt status to cooperative hospital service laundries. 624 F.2d 428 (1980). Because the ruling of the Court of Appeals is in conflict with decisions elsewhere,4 we grant certiorari, and we now affirm.This Court has said: "The starting point in the determination of the scope of `gross income' is the cardinal principle that Congress in creating the income tax intended `to use the full measure of its taxing power.'" Commissioner v. Kowalski, , quoting from Helvering v. Cliford, . See 61 (a) of the Code, 26 U.S.C. 61 (a). Under our system of federal income taxation, therefore, every element of gross income of a person, corporate or individual, is subject to tax unless there is a statute or some rule of law that exempts that person or element.Sections 501 (a) and (c) (3) provide such an exemption, and a complete one, for a corporation fitting the description set forth in subsection (c) (3) and fulfilling the subsection's requirements. But subsection (e) is also a part of 501. And it expressly concerns the tax status of a cooperative hospital service organization. It provides that such an organization is exempt if, among other things, its activities consist of "data processing, purchasing, warehousing, billing and collection, food, clinical, industrial engineering, laboratory, printing, communications, record center, and personnel (including selection, testing, training, and education of personnel) services." Laundry and linen service, so essential to a hospital's operation, is not included in that list and, indeed, is noticeable for its absence. The issue, thus, is whether that omission prohibits petitioner from qualifying under 501 as an organization exempt from taxation. The Government's position is that subsection (e) is controlling and exclusive, and because petitioner does not qualify under it, exemption is not available. Petitioner takes the opposing position that 501 (c) (3) clearly entitles it to the claimed exemption.Without reference to the legislative history, the Government would appear to have the benefit of this skirmish, for it is a basic principle of statutory construction that a specific statute, here subsection (e), controls over a general provision such as subsection (c) (3), particularly when the two are interrelated and closely positioned, both in fact being parts of 501 relating to exemption of organization from tax. See Bulova Watch Co. v. United States, .Additionally, however, the legislative history provides strong and conclusive support for the Government's position. It persuades us that Congress intended subsection (e) to be exclusive and controlling for cooperative hospital service organizations. Prior to the enactment of subsection (e) in 1968, the law as to the tax status of shared hospital service organizations was uncertain. The Internal Revenue Service took the position that if two or more tax-exempt hospitals created an entity to perform commercial services for them, that entity was not entitled to exemption. See Rev. Rul. 54-305, 1954-2 Cum. Bull. 127.5 See also 502, as amended, of the 1954 Code, 26 U.S.C. 502. This position, however, was rejected by the Court of Claims in Hospital Bureau of Standards and Supplies, Inc. v. United States, 141 Ct. Cl. 91, 158 F. Supp. 560 (1958). After expressly noting the uncertainty in the law,6 Congress enacted subsection (e). See Revenue and Expenditure Control Act of 1968, Pub. L. 90-364, 109 (a), 82 Stat. 269.In considering the provisions of the tax adjustment bill of 1968 that ultimately became subsection (e), the Senate sought to include laundry in the list of services that a cooperative hospital service organization could provide and still maintain its tax-exempt status. The Treasury Department supported the Senate amendment. See 114 Cong. Rec. 7516, 8111-8112 (1968). At the urging of commercial interests, however (see Hearings on Certain Committee Amendments to H. R. 10612 before the Senate Committee on Finance, 94th Cong., 2d Sess., 608 (1976)), the Conference Committee would accept only a limited version of the Senate amendment. In recommending the adoption of subsection (e), the managers on the part of the House emphasized that shared hospital service organizations performing laundry services were not entitled to tax-exempt status under the new provision. See H. R. Conf. Rep. No. 1533, 90th Cong., 2d Sess., 43 (1968); Senate Committee on Finance and House Committee on Ways and Means, Revenue and Expenditure Control Act of 1968, Explanation of the Bill H. R. 15414, 90th Cong., 2d Sess., 1, 20 (Comm. Print 1968).Later, in 1976, at the urging of the American Hospital Association, the Senate Committee on Finance proposed an amendment that would have added laundry to the list of services specified in subsection (e) (1) (A). Hearings on H. R. 10612 before the Senate Committee on Finance, 94th Cong., 2d Sess., 2765-2772 (1976); S. Rep. No. 94-938, pt. 2, pp. 76-77 (1976). The amendment, however, was defeated on the floor of the Senate. 122 Cong. Rec. 25915 (1976). In view of all this, it seems to us beyond dispute that subsection (e) (1) (A) of 501, despite the seemingly broad general language of subsection (c) (3), specifies the types of hospital service organizations that are encompassed within the scope of 501 as charitable organizations. Inasmuch as laundry service was deliberately omitted from the statutory list and, indeed, specifically was refused inclusion in that list, it inevitably follows that petitioner is not entitled to tax-exempt status. The Congress easily can change the statute whenever it is so inclined.7 The judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE WHITE dissents and would set the case for plenary consideration.
4	Respondent Landano was convicted in New Jersey state court for murdering a police officer during what may have been a gang-related robbery. In an effort to support his claim in subsequent state court proceedings that the prosecution violated Brady v. Maryland, , by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the Federal Bureau of Investigation (FBI) for information it had compiled in connection with the murder investigation. When the FBI redacted some documents and withheld others, Landano filed this action in the Federal District Court, seeking disclosure of the requested files' contents. The FBI claimed that it withheld the information under Exemption 7(D), which exempts agency records compiled for law enforcement purposes by law enforcement authorities in the course of a criminal investigation if the records' release "could reasonably be expected to disclose" the identity of, or information provided by, a "confidential source." The court held that the FBI had to articulate case-specific reasons for nondisclosure of information given by anyone other than a regular informant, and the Court of Appeals affirmed in relevant part. It held that a source is confidential if there has been an explicit assurance of confidentiality or circumstances from which such an assurance could reasonably be inferred. However, it rejected the Government's argument that a presumption of confidentiality arises whenever any individual or institutional source supplies information to the FBI during a criminal investigation, and declined to rule that a presumption may be based on the particular investigation's subject matter. Rather, it held that, to justify withholding under Exemption 7(D), the Government had to provide detailed explanations relating to each alleged confidential source.Held: 1. The Government is not entitled to a presumption that all sources supplying information to the FBI in the course of a criminal investigation are confidential sources within the meaning of Exemption 7(D). Pp. 171-178. (a) A source should be deemed "confidential" if the source furnished information with the understanding that the FBI would not divulge the communication except to the extent it thought necessary for law enforcement purposes. Contrary to respondent's position, Congress could not have intended to limit the exemption to only those sources who are promised complete anonymity or secrecy, because, at the time an interview is conducted, neither a source nor the FBI ordinarily knows whether a communication will need to be disclosed. Pp. 173-174. (b) Nonetheless, the presumption for which the Government argues in this case is unwarranted, because it does not comport with common sense and probability. During the course of a criminal investigation, the FBI collects diverse information, ranging from the extremely sensitive to the routine, from a variety of individual and institutional sources. While most individual sources may expect confidentiality, the Government offers no explanation, other than administrative ease, why that expectation always should be presumed. The justifications for presuming the confidentiality of all institutional sources are even less persuasive, given the wide variety of information that such sources are asked to give. Considerations of fairness also counsel against the Government's rule. Its presumption is, in practice, all but irrebuttable, because a requester without knowledge about the particular source or the withheld information will very rarely be in a position to offer persuasive evidence that the source had no interest in confidentiality. While Exemption 7(D)'s "could reasonably be expected to" language and this Court's decision in Department of Justice v. Reporters Comm. for Freedom of Press, , may support some inferences of confidentiality, they do not support the presumption that all FBI criminal investigative sources are exempt. Nor does the FOIA's legislative history indicate that Congress intended to create such a rule. Pp. 174-178. 2. Some narrowly defined circumstances can provide a basis for inferring confidentiality. For example, it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential. Similarly, the character of the crime at issue and the source's relation to the crime may be relevant to determining whether a source cooperated with the FBI with an implied assurance of confidentiality. Most people would think that witnesses to a gang-related murder likely would be unwilling to speak to the FBI except under such conditions. The Court of Appeals erred in declining to rely on such circumstances. This more particularized approach is consistent with Congress' intent to provide workable FOIA disclosure rules. And when a document containing confidential source information is requested, it is generally possible to establish the nature of the crime and the source's relation to it. Thus, the requester will have a more realistic opportunity to develop an argument that the circumstances do not support an inference of confidentiality. To the extent that the Government's proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits. Pp. 179-180. 956 F.2d 422 (CA3 1992), vacated and remanded.O'CONNOR, J., delivered the opinion for a unanimous Court. John F. Daly argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Acting Solicitor General Bryson, Edwin S. Kneedler, and Leonard Schaitman. Neil Mullin argued the cause for respondent. With him on the brief were Nancy Erika Smith, Eric R. Neisser, and Alan B. Morrison.JUSTICE O'CONNOR delivered the opinion of the Court.Exemption 7(D) of the Freedom of Information Act, 5 U.S.C. 552 (FOIA), exempts from disclosure agency records "compiled for law enforcement purposes ... by criminal law enforcement authority in the course of a criminal investigation" if release of those records "could reasonably be expected to disclose" the identity of, or information provided by, a "confidential source." 552(b)(7)(D). This case concerns the evidentiary showing that the Government must make to establish that a source is "confidential" within the meaning of Exemption 7(D). We are asked to decide whether the Government is entitled to a presumption that all sources supplying information to the Federal Bureau of Investigation (FBI or Bureau) in the course of a criminal investigation are confidential sources.IRespondent Vincent Landano was convicted in New Jersey state court for murdering Newark, New Jersey, police officer John Snow in the course of a robbery. The crime received considerable media attention. Evidence at trial showed that the robbery had been orchestrated by Victor Forni and a motorcycle gang known as "the Breed." There was testimony that Landano, though not a Breed member, had been recruited for the job. Landano always has maintained that he did not participate in the robbery, and that Forni, not he, killed Officer Snow. He contends that the prosecution withheld material exculpatory evidence in violation of Brady v. Maryland, .Although his efforts to obtain state postconviction and federal habeas relief thus far have proved unsuccessful, see Landano v. Rafferty, 897 F.2d 661 (CA3), cert. denied, ; Landano v. Rafferty, 856 F.2d 569 (CA3 1988), cert. denied, ; State v. Landano, 97 N.J. 620, 483 A.2d 153 (1984), Landano apparently is currently pursuing a Brady claim in the state courts, see Landano v. Rafferty, 970 F.2d 1230, 1233-1237 (CA3), cert. denied, ; Brief for Petitioners 3, n. 1. Seeking evidence to support that claim, Landano filed FOIA requests with the FBI for information that the Bureau had compiled in the course of its involvement in the investigation of Officer Snow's murder. Landano sought release of the Bureau's files on both Officer Snow and Forni. The FBI released several hundred pages of documents. The Bureau redacted some of these, however, and withheld several hundred other pages altogether.Landano filed an action in the United States District Court for the District of New Jersey seeking disclosure of the entire contents of the requested files. In response, the Government submitted a declaration of FBI Special Agent Regina Superneau explaining the Bureau's reasons for withholding portions of the files. The information withheld under Exemption 7(D) included information provided by five types of sources: regular FBI informants; individual witnesses who were not regular informants; state and local law enforcement agencies; other local agencies; and private financial and commercial institutions. Superneau Declaration, App. 28. Agent Superneau explained why, in the Government's view, all such sources should be presumed confidential. The deleted portions of the files were coded to indicate which type of source each involved. The Bureau provided no other information about the withheld materials. Id., at 33-41.On cross-motions for summary judgment, the District Court largely rejected the Government's categorical explanations. See 751 F.Supp. 502 (NJ 1990), clarified on reconsideration, 758 F.Supp. 1021 (NJ 1991). There was no dispute that the undisclosed portions of the Snow and Forni files constituted records or information compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation. The District Court concluded, however, that the Government had not met its burden of establishing that each withheld document reasonably could be expected to disclose the identity of, or information provided by, a "confidential source." Although the court evidently was willing to assume that regular FBI informants were confidential sources, it held that the FBI had to articulate "case-specific reasons for nondisclosure" of all other information withheld under Exemption 7(D). 751 F.Supp., at 508.The Court of Appeals for the Third Circuit affirmed in relevant part. 956 F.2d 422 (1992). Relying on legislative history, the court stated that a source is confidential within the meaning of Exemption 7(D) if the source received an explicit assurance of confidentiality or if there are circumstances "`from which such an assurance could reasonably be inferred.'" Id., at 433 (quoting S.Rep. No. 93-1200, p. 13 (1974)). An "assurance of confidentiality," the court said, is not a promise of absolute anonymity or secrecy, but "an assurance that the FBI would not directly or indirectly disclose the cooperation of the interviewee with the investigation unless such a disclosure is determined by the FBI to be important to the success of its law enforcement objective." 956 F.2d, at 434. The court then addressed the Government's argument that a presumption of confidentiality arises whenever any individual or institutional source supplies information to the Bureau during a criminal investigation. As the Court of Appeals phrased it, the issue was "whether the fact that the source supplied information to the FBI in the course of a criminal investigation is alone sufficient to support an inference that the source probably had a reasonable expectation that no unnecessary disclosure of his or her cooperation would occur." Ibid. The court thought the question "close." Ibid. On one hand, the Bureau tends to investigate significant criminal matters, and the targets of those investigations are likely to resent cooperating witnesses. This is especially so where, as here, the investigation concerns a highly publicized, possibly gang-related police shooting. Id., at 434 and n. 5. On the other hand, the court recognized that "there are undoubtedly many routine FBI interviews in the course of criminal investigations that are unlikely to give rise to similar apprehensions on the part of the interviewee." Id., at 434.The Court of Appeals recognized that a number of other courts had adopted the Government's position. See, e.g., Nadler v. United States Dept. of Justice, 955 F.2d 1479, 1484-1487 (CA11 1992); Schmerler v. FBIApp. D.C. 349, 353, 900 F.2d 333, 337 (1990); Donovan v. FBI, 806 F.2d 55, 61 (CA2 1986); Johnson v. United States Dept. of Justice, 739 F.2d 1514, 1517-1518 (CA10 1984); Ingle v. Department of Justice, 698 F.2d 259, 269 (CA6 1983); Miller v. Bell, 661 F.2d 623, 627 (CA7 1981) (per curiam), cert. denied, . Considering itself bound by its previous decision in Lame v. United States Department of Justice, 654 F.2d 917 (CA3 1981), however, the Court of Appeals took a different view. It declined to rely either on the Government's proposed presumption or on the particular subject matter of the investigation. Instead, it determined that, to justify withholding information under Exemption 7(D), the Government had to provide "`detailed explanations relating to each alleged confidential source.'" 956 F.2d, at 435 (quoting Lame, supra, at 928).We granted certiorari to resolve the conflict among the Courts of Appeals over the nature of the FBI's evidentiary burden under Exemption 7(D). .IIA Exemption 7(D) permits the Government to withhold"records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation ..., information furnished by a confidential source." 552(b)(7)(D). The Government bears the burden of establishing that the exemption applies. 552(a)(4)(B).We have described the evolution of Exemption 7(D) elsewhere. See John Doe Agency v. John Doe Corp., ; FBI v. Abramson, . When FOIA was enacted in 1966, Exemption 7 broadly protected "`investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.'" Id., at 621. Congress revised the statute in 1974 to provide that law enforcement records could be withheld only if the agency demonstrated one of six enumerated harms. The 1974 version of Exemption 7(D) protected"`investigatory records compiled for law enforcement purposes [the production of which] would ... disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, ... confidential information furnished only by the confidential source.'" Id., at 622. Congress adopted the current version of Exemption 7(D) in 1986. The 1986 amendment expanded "records" to "records or information," replaced the word "would" with the phrase "could reasonably be expected to," deleted the word "only" from before "confidential source," and clarified that a confidential source could be a state, local, or foreign agency or a private institution. See 5 U.S.C. 552(b)(7)(D).Under Exemption 7(D), the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential. According to the Conference Report on the 1974 amendment, a source is confidential within the meaning of Exemption 7(D) if the source provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred. S.Rep. No. 93-1200, at 13. In this case, the Government has not attempted to demonstrate that the FBI made explicit promises of confidentiality to particular sources. That sort of proof apparently often is not possible: the FBI does not have a policy of discussing confidentiality with every source, and when such discussions do occur, agents do not always document them. Tr. of Oral Arg. 7-8, 47-48. The precise question before us, then, is how the Government can meet its burden of showing that a source provided information on an implied assurance of confidentiality. The parties dispute two issues: the meaning of the word "confidential," and whether, absent specific evidence to the contrary, an implied assurance of confidentiality always can be inferred from the fact that a source cooperated with the FBI during a criminal investigation. BLandano argues that the FBI's sources in the Snow investigation could not have had a reasonable expectation of confidentiality because the Bureau might have been obliged to disclose the sources' names or the information they provided under Brady, the Jencks Act, 18 U.S.C. 3500, or federal discovery rules, see Fed. Rules Crim.Proc. 16, 26.2. He also points out that some FBI witnesses invariably will be called to testify publicly at trial. Landano apparently takes the position that a source is "confidential" for purposes of Exemption 7(D) only if the source can be assured, explicitly or implicitly, that the source's cooperation with the Bureau will be disclosed to no one. We agree with the Court of Appeals that this cannot have been Congress' intent.FOIA does not define the word "confidential." In common usage, confidentiality is not limited to complete anonymity or secrecy. A statement can be made "in confidence" even if the speaker knows the communication will be shared with limited others, as long as the speaker expects that the information will not be published indiscriminately. See Webster's Third New International Dictionary 476 (1986) (defining confidential to mean "communicated, conveyed, [or] acted on ... in confidence: known only to a limited few: not publicly disseminated"). A promise of complete secrecy would mean that the FBI agent receiving the source's information could not share it even with other FBI personnel. See Dow Jones & Co. v. Department of JusticeApp. D.C. 349, 357, 917 F.2d 571, 579 (1990) (Silberman, J., concurring in denial of rehearing en banc). Such information, of course, would be of little use to the Bureau.We assume that Congress was aware of the Government's disclosure obligations under Brady and applicable procedural rules when it adopted Exemption 7(D). Congress also must have realized that some FBI witnesses would testify at trial. We need not reach the question whether a confidential source's public testimony "waives" the FBI's right to withhold information provided by that source. See, e.g., Irons v. FBI, 880 F.2d 1446 (CA1 1989) (en banc). For present purposes, it suffices to note that, at the time an interview is conducted, neither the source nor the FBI agent ordinarily knows whether the communication will be disclosed in any of the aforementioned ways. Thus, an exemption so limited that it covered only sources who reasonably could expect total anonymity would be, as a practical matter, no exemption at all. Cf. John Doe, 493 U.S., at 152 (FOIA exemptions "are intended to have meaningful reach and application"). We therefore agree with the Court of Appeals that the word "confidential," as used in Exemption 7(D), refers to a degree of confidentiality less than total secrecy. A source should be deemed confidential if the source furnished information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes.CThe Government objects to the Court of Appeals' requirement that it make an individualized showing of confidentiality with respect to each source. It argues that an assurance of confidentiality is "`inherently implicit'" whenever a source cooperates with the FBI in a criminal investigation. Brief for Petitioners 18-20 (quoting Miller v. Bell, 661 F.2d, at 627). The Government essentially contends that all FBI sources should be presumed confidential; the presumption could be overcome only with specific evidence that a particular source had no interest in confidentiality.This Court previously has upheld the use of evidentiary presumptions supported by considerations of "fairness, public policy, and probability, as well as judicial economy." Basic Inc. v. Levinson, . We also have recognized the propriety of judicially created presumptions under federal statutes that make no express provision for their use. See, e.g., ibid. But we are not persuaded that the presumption for which the Government argues in this case is warranted.Although the Government sometimes describes its approach as "categorical," see, e.g., Superneau Declaration, App. 33-41, the proposed rule is not so much categorical as universal, at least with respect to FBI sources. The Government would have us presume that virtually every source is confidential: the paid informant who infiltrates an underworld organization; the eyewitness to a violent crime; the telephone company that releases phone records; the state agency that furnishes an address. The only "sources" that the Government is willing to state are not presumptively confidential (though they may be exempt from disclosure under other FOIA provisions) are newspaper clippings, wiretaps, and witnesses who speak to an undercover agent and therefore do not realize they are communicating with the FBI. Although we recognize that confidentiality often will be important to the FBI's investigative efforts, we cannot say that the Government's sweeping presumption comports with "common sense and probability." Basic Inc., supra, at 246.The FBI collects information from a variety of individual and institutional sources during the course of a criminal investigation. See, e.g., Superneau Declaration, App. 35-41. The Bureau's investigations also cover a wide range of criminal matters. See 28 U.S.C. 533 (FBI authorized to investigate "crimes against the United States" and to conduct other investigations "regarding official matters under the control of the Department of Justice and the Department of State"); 540 (FBI authorized to investigate certain felonious killings of state and local law enforcement officers). In this case, the Bureau participated in the investigation of a state crime in part because of the need for interstate "unlawful flight" warrants to apprehend certain suspects. Brief for Petitioners 2, n. 1. The types of information the Bureau collects during an investigation also appear to be quite diverse. Although the Government emphasizes the difficulty of anticipating all the ways in which release of information ultimately may prove harmful, it does not dispute that the communications the FBI receives can range from the extremely sensitive to the routine.The Government maintains that an assurance of confidentiality can be inferred whenever an individual source communicates with the FBI because of the risk of reprisal or other negative attention inherent in criminal investigations. See Superneau Declaration, App. 37-38. It acknowledges, however, that reprisal may not be threatened or even likely in any given case. Id., at 38. It may be true that many, or even most, individual sources will expect confidentiality. But the Government offers no explanation, other than ease of administration, why that expectation always should be presumed. The justifications offered for presuming the confidentiality of all institutional sources are less persuasive. The Government "is convinced" that the willingness of other law enforcement agencies to furnish information depends on a "traditional understanding of confidentiality." Id., at 40. There is no argument, however, that disclosure ordinarily would affect cooperating agencies adversely, or that the agencies otherwise would be deterred from providing even the most nonsensitive information. The Government does suggest that private institutions might be subject to "possible legal action or loss of business" if their cooperation with the Bureau became publicly known. Id., at 41. But the suggestion is conclusory. Given the wide variety of information that such institutions may be asked to provide, we do not think it reasonable to infer that the information is given with an implied understanding of confidentiality in all cases.Considerations of "fairness" also counsel against the Government's rule. Basic Inc., supra, at 245. The Government acknowledges that its proposed presumption, though rebuttable in theory, is in practice all but irrebuttable. Tr. of Oral Arg. 22-23. Once the FBI asserts that information was provided by a confidential source during a criminal investigation, the requester - who has no knowledge about the particular source or the information being withheld - very rarely will be in a position to offer persuasive evidence that the source in fact had no interest in confidentiality. See Dow Jones & Co. v. Department of JusticeApp. D.C., at 355, 917 F.2d, at 577.The Government contends that its presumption is supported by the phrase "could reasonably be expected to" and by our decision in Department of Justice v. Reporters Comm. for Freedom of Press, . In Reporters Committee, we construed Exemption 7(C), which allows the Government to withhold law enforcement records or information the production of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C). We held that certain criminal "rap sheet" information was categorically exempt from disclosure because the release of such information invariably constitutes an unwarranted invasion of privacy. 489 U.S., at 780. Our approval of a categorical approach was based in part on the phrase "could reasonably be expected to," which Congress adopted in 1986 to ease the Government's burden of invoking Exemption 7, see id., at 756, n. 9, and to "replace a focus on the effect of a particular disclosure `with a standard of reasonableness ... based on an objective test,'" id., at 778, n. 22 (quoting S.Rep. No. 98-221, p. 24 (1983)). As explained more fully in Part III, below, we agree with the Government that, when certain circumstances characteristically support an inference of confidentiality, the Government similarly should be able to claim exemption under Exemption 7(D) without detailing the circumstances surrounding a particular interview. Neither the language of Exemption 7(D) nor Reporters Committee, however, supports the proposition that the category of all FBI criminal investigative sources is exempt.The Government relies extensively on legislative history. It is true that, when Congress debated the adoption of Exemption 7(D), several Senators recognized the importance of confidentiality to the FBI and argued that the exemption should not jeopardize the effectiveness of the Bureau's investigations. See, e.g., 120 Cong.Rec. 17036, 17037 (May 30, 1974) (Sen. Thurmond) ("It is just such assurance [of confidentiality] that encourages individuals from all walks of life to furnish this agency information ..."). But Congress did not expressly create a blanket exemption for the FBI; the language that it adopted requires every agency to establish that a confidential source furnished the information sought to be withheld under Exemption 7(D). The Government cites testimony presented to Congress prior to passage of the 1986 amendment emphasizing that the threat of public exposure under FOIA deters potential sources from cooperating with the Bureau in criminal investigations. See, e.g., FBI Oversight: Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 96th Cong., 2d Sess., pp. 97, 99-100, 106 (1980) (FBI Dir. William Webster); see also Freedom of Information Act: Hearings before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., pp. 990-1040 (1981). But none of the changes made to Exemption 7(D) in 1986 squarely addressed the question presented here. In short, the Government offers no persuasive evidence that Congress intended for the Bureau to be able to satisfy its burden in every instance simply by asserting that a source communicated with the Bureau during the course of a criminal investigation. Had Congress meant to create such a rule, it could have done so much more clearly. IIIAlthough we have determined that it is unreasonable to infer that all FBI criminal investigative sources are confidential, we expect that the Government often can point to more narrowly defined circumstances that will support the inference. For example, as the courts below recognized, and respondent concedes, see Brief for Respondent 46, it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential. The nature of the informant's ongoing relationship with the Bureau, and the fact that the Bureau typically communicates with informants "only at locations and under conditions which assure the contact will not be noticed," Superneau Declaration, App. 36, justify the inference.There may well be other generic circumstances in which an implied assurance of confidentiality fairly can be inferred. The Court of Appeals suggested that the fact that the investigation in this case concerned the potentially gang-related shooting of a police officer was probative. We agree that the character of the crime at issue may be relevant to determining whether a source cooperated with the FBI with an implied assurance of confidentiality. So too may the source's relation to the crime. Most people would think that witnesses to a gang-related murder likely would be unwilling to speak to the Bureau except on the condition of confidentiality.The Court of Appeals below declined to rely on such circumstances. But several other Court of Appeals decisions (including some of those the Government cites favorably) have justified nondisclosure under Exemption 7(D) by examining factors such as the nature of the crime and the source's relation to it. See, e.g., Keys v. United States Dept. of JusticeApp. D.C. 189, 197-198, 830 F.2d 337, 345-346 (1987) (individuals who provided information about subject's possible Communist sympathies, criminal activity, and murder by foreign operatives would have worried about retaliation); Donovan v. FBI, 806 F.2d, at 60-61 (on facts of this case, in which FBI investigated murder of American churchwomen in El Salvador, "it cannot be doubted that the FBI's investigation would have been severely curtailed, and, perhaps, rendered ineffective if its confidential sources feared disclosure"); Parton v. United States Dept. of Justice, 727 F.2d 774, 776-777 (CA8 1984) (prison officials who provided information about alleged attack on inmate faced "high probability of reprisal"); Miller v. Bell, 661 F.2d, at 628 (individuals who provided information about self-proclaimed litigious subject who sought to enlist them in his "anti-government crusade" faced "strong potential for harassment"); Nix v. United States, 572 F.2d 998, 1003-1004 (CA4 1978) (risk of reprisal faced by guards and prison inmates who informed on guards who allegedly beat another inmate supported finding of implied assurance of confidentiality).We think this more particularized approach is consistent with Congress' intent to provide "`"workable" rules'" of FOIA disclosure. Reporters Committee, 489 U.S., at 779 (quoting FTC v. Grolier Inc., ); see also EPA v. Mink, . The Government does not deny that, when a document containing confidential source information is requested, it generally will be possible to establish factors such as the nature of the crime that was investigated and the source's relation to it. Armed with this information, the requester will have a more realistic opportunity to develop an argument that the circumstances do not support an inference of confidentiality. To the extent that the Government's proof may compromise legitimate interests, of course, the Government still can attempt to meet its burden with in camera affidavits.IVThe Government has argued forcefully that its ability to maintain the confidentiality of all of its sources is vital to effective law enforcement. A prophylactic rule protecting the identities of all FBI criminal investigative sources undoubtedly would serve the Government's objectives, and would be simple for the Bureau and the courts to administer. But we are not free to engraft that policy choice onto the statute that Congress passed. For the reasons we have discussed, and consistent with our obligation to construe FOIA exemptions narrowly in favor of disclosure, see, e.g., John Doe, 493 U.S., at 152; Department of Air Force v. Rose, , we hold that the Government is not entitled to a presumption that a source is confidential within the meaning of Exemption 7(D) whenever the source provides information to the FBI in the course of a criminal investigation.More narrowly defined circumstances, however, can provide a basis for inferring confidentiality. For example, when circumstances such as the nature of the crime investigated and the witness' relation to it support an inference of confidentiality, the Government is entitled to a presumption. In this case, the Court of Appeals incorrectly concluded that it lacked discretion to rely on such circumstances. 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
8	Petitioners sued respondents in an Alabama state court, alleging that respondent bank had fraudulently induced petitioner individuals to permit a third person to take control of a subsidiary of petitioner corporation and eventually to obtain complete ownership. Subsequently, the subsidiary was adjudicated an involuntary bankrupt. Petitioners then sued the bank in Federal District Court, alleging that the same conduct on the bank's part that was the subject of the state suit violated the Bank Holding Company Act (BHCA) amendments. The federal action went to trial before the state action, and the District Court granted judgment n.o.v. for the bank. The Court of Appeals affirmed. Thereafter, respondents pleaded a res judicata defense in the state action based on the federal judgment, but the Alabama court denied the defense. After the state complaint was amended to include a Uniform Commercial Code (UCC) claim that the bank's foreclosure sale of the subsidiary's assets was commercially unreasonable, the jury returned a verdict for damages in petitioners' favor. Respondents then returned to the District Court and filed an injunctive action against petitioners. Holding that the state fraud and UCC claims should have been raised in the federal action as pendent to the BHCA claim and accordingly that the BHCA judgment barred the state claims under res judicata, the District Court enjoined petitioners from further prosecuting the state action. The Court of Appeals affirmed, holding that the parties to the BHCA action were barred by res judicata from raising the state claims in state court after the entry of the federal judgment, and that the federal injunction was proper under the "relitigation exception" to the Anti-Injunction Act, which generally prohibits a federal court from enjoining state proceedings but excepts from the prohibition the issuance of an injunction by a federal court "where necessary ... to protect or effectuate its judgments." The court did not consider the possible preclusive effect under Alabama law of the state court's resolution of the res judicata issue, holding instead that the "relitigation exception" to the Anti-Injunction Act worked a pro tanto amendment to the Full Faith and Credit Act, which requires federal courts as well as state courts to give state judicial proceedings "the same full faith and credit ... as they have by law or usage in the courts of such State ... from which they are taken."Held: The Court of Appeals erred by refusing to consider the possible preclusive effect under Alabama law of the state-court judgment. Even if the state court mistakenly rejected respondents' res judicata claim, this would not justify the highly intrusive remedy of a federal-court injunction against enforcement of the state-court judgment. Rather, the Full Faith and Credit Act requires that the federal courts give the state-court judgment, and particularly the state court's resolution of the res judicata issue, the same preclusive effect it would have in another court of the same State. Pp. 523-526. 747 F.2d 1367, reversed and remanded.REHNQUIST, J., delivered the opinion for a unanimous Court.Frank M. Wilson argued the cause for petitioners. With him on the briefs was James Jerry Wood.M. Roland Nachman, Jr., argued the cause for respondents. With him on the brief was James A. Byram, Jr.JUSTICE REHNQUIST delivered the opinion of the Court.The Full Faith and Credit Act, 28 U.S.C. 1738, requires federal courts as well as state courts to give state judicial proceedings "the same full faith and credit ... as they have by law or usage in the courts of such State ... from which they are taken." The Anti-Injunction Act, 28 U.S.C. 2283, generally prohibits a federal court from granting an injunction to stay proceedings in a state court, but excepts from that prohibition the issuance of an injunction by a federal court "where necessary ... to protect or effectuate its judgments." In the present case the Court of Appeals for the Eleventh Circuit held that the quoted exception to the latter Act worked a pro tanto amendment to the former, so that a federal court might issue an injunction against state-court proceedings even though the prevailing party in the federal suit had litigated in the state court and lost on the res judicata effect of the federal judgment. We granted certiorari to consider this question, , and now reverse the judgment of the Court of Appeals. Petitioners Parsons Steel, Inc., and Jim and Melba Parsons sued respondents First Alabama Bank of Montgomery and Edward Herbert, a bank officer, in Alabama state court in February 1979, essentially alleging that the bank had fraudulently induced the Parsonses to permit a third person to take control of a subsidiary of Parsons Steel and eventually to obtain complete ownership of the subsidiary. The subsidiary was adjudicated an involuntary bankrupt in April 1979, and the trustee in bankruptcy was added as a party plaintiff in the state action. In May 1979 Parsons Steel and the Parsonses sued the bank in the United States District Court for the District of Alabama, alleging that the same conduct on the part of the bank that was the subject of the state-court suit also violated the Bank Holding Company Act (BHCA) amendments, 12 U.S.C. 1971-1978. The trustee in bankruptcy chose not to participate in the federal action.The parties conducted joint discovery in the federal and state actions. The federal action proceeded to trial on the issue of liability before the state action went to trial. A jury returned a verdict in favor of petitioners, but the District Court granted judgment n.o.v. to the bank. That judgment was affirmed on appeal. Parsons Steel, Inc. v. First Alabama Bank of Montgomery, 679 F.2d 242 (CA11 1982). After the federal judgment was entered, respondents pleaded in the state action the defenses of res judicata and collateral estoppel based on that judgment. The Alabama court, however, ruled that res judicata did not bar the state action. Almost a year after the federal judgment was entered, the state complaint was amended to include a Uniform Commercial Code (UCC) claim that the bank's foreclosure sale of the subsidiary's assets was commercially unreasonable. A jury returned a general verdict in favor of petitioners, awarding a total of four million and one dollars in damages.Having lost in state court, respondents returned to the District Court that had previously entered judgment in the bank's favor and filed the present injunctive action against petitioners, the plaintiffs in the state action.1 The District Court found that the federal BHCA suit and the state action were based on the same factual allegations and claimed substantially the same damages. The court held that the state claims should have been raised in the federal action as pendent to the BHCA claim and accordingly that the BHCA judgment barred the state claims under res judicata. Determining that the Alabama judgment in effect nullified the earlier federal-court judgment in favor of the bank, the District Court enjoined petitioners from further prosecuting the state action.A divided panel of the Court of Appeals affirmed in relevant part, holding that the issuance of the injunction was not "an abuse of discretion" by the District Court. 747 F.2d 1367, 1381 (1980). The majority first agreed with the District Court that the fraud and UCC claims presented issues of fact and law that could have been and should have been raised in the same action as the BHCA claim. Thus the parties to the BHCA action and their privies, including the trustee in bankruptcy, were barred by res judicata from raising these claims in state court after the entry of the federal judgment.The majority then held that the injunction was proper under the so-called "relitigation exception" to the Anti-Injunction Act, 28 U.S.C. 2283, which provides:"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments" (emphasis added). In reaching this holding, the majority explicitly declined to consider the possible preclusive effect, pursuant to the Full Faith and Credit Act, 28 U.S.C. 1738,2 of the state court's determination after full litigation by the parties that the earlier federal-court judgment did not bar the state action. According to the majority, "while a federal court is generally bound by other state court determinations, the relitigation exception empowers a federal court to be the final adjudicator as to the res judicata effects of its prior judgments on a subsequent state action." 747 F.2d, at 1376 (footnote omitted).Finally, the majority ruled that respondents had not waived their right to an injunction by waiting until after the trial in the state action was completed. The majority concluded that the state-court pleadings were so vague that it was not clear until after trial that essentially the same cause of action was involved as the BHCA claim and that the earlier federal judgment was in danger of being nullified. According to the majority, the Anti-Injunction Act does not limit the power of a federal court to protect its judgment "to specific points in time in state court trials or appellate procedure." Id., at 1377.3 The dissenting judge rejected "the majority's conclusion that the Anti-Injunction Act ... implicitly amended the Full Faith and Credit Act, 28 U.S.C. 1738." Id., at 1381 (Hill, J., dissenting). He agreed with the majority that "section 2283 allows the district court to enter an injunction, perhaps grounded in the concept of res judicata, unless the state court has already addressed the res judicata issue on the merits," but would have held in cases where the state court has decided the res judicata issue that "section 1738 requires the federal court to afford full faith and credit to the state court's resolution of the issue." Ibid.In our view, the majority of the Court of Appeals gave unwarrantedly short shrift to the important values of federalism and comity embodied in the Full Faith and Credit Act. As recently as last March, in Marrese v. American Academy of Orthopaedic Surgeons, , we reaffirmed our holding in Migra v. Warren City School Dist. Bd. of Education, , that under the Full Faith and Credit Act a federal court must give the same preclusive effect to a state-court judgment as another court of that State would give. "It has long been established that 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken." Kremer v. Chemical Construction Corp., . The Full Faith and Credit Act thus "allow[s] the States to determine, subject to the requirements of the statute and the Due Process Clause, the preclusive effect of judgments in their own courts." Marrese, supra, at 380.In the instant case, however, the Court of Appeals did not consider the possible preclusive effect under Alabama law of the state-court judgment, and particularly of the state court's resolution of the res judicata issue, concluding instead that the relitigation exception to the Anti-Injunction Act limits the Full Faith and Credit Act. We do not agree. "[A]n exception to 1738 will not be recognized unless a later statute contains an express or implied partial repeal." Kremer, supra, at 468; Allen v. McCurry, . Here, as in Kremer, there is no claim of an express repeal; rather, the Court of Appeals found an implied repeal. "`It is, of course, a cardinal principle of statutory construction that repeals by implication are not favored,' Radzanower v. Touche Ross & Co., ; United States v. United Continental Tuna Corp., , and whenever possible, statutes should be read consistently." 456 U.S., at 468. We believe that the Anti-Injunction Act and the Full Faith and Credit Act can be construed consistently, simply by limiting the relitigation exception of the Anti-Injunction Act to those situations in which the state court has not yet ruled on the merits of the res judicata issue. Once the state court has finally rejected a claim of res judicata, then the Full Faith and Credit Act becomes applicable and federal courts must turn to state law to determine the preclusive effect of the state court's decision.The contrary holding of the Court of Appeals apparently was based on the fact that Congress in 1948 amended the Anti-Injunction Act to overrule this Court's decision in Toucey v. New York Life Insurance Co., , in favor of the understanding of prior law expressed in Justice Reed's dissenting opinion. See Revisor's Note to 1948 Revision of Anti-Injunction Act, 28 U.S.C., p. 377. But the instant case is a far cry from Toucey, and one may fully accept the logic of Justice Reed's dissent without concluding that it sanctions the result reached by the Court of Appeals here. In each of the several cases involved in Toucey, the prevailing party in the federal action sought an injunction against relitigation in state court as soon as the opposing party commenced the state action, and before there was any resolution of the res judicata issue by the state court. In the instant case, on the other hand, respondents chose to fight out the res judicata issue in state court first, and only after losing there did they return to federal court for another try.The Court of Appeals also felt that the District Court's injunction would discourage inefficient simultaneous litigation in state and federal courts on the same issue - that is, the res judicata effect of the prior federal judgment. But this is one of the costs of our dual court system: "In short, the state and federal courts had concurrent jurisdiction in this case, and neither court was free to prevent either party from simultaneously pursuing claims in both courts." Atlantic Coast Line R. Co. v. Locomotive Engineers, . Indeed, this case is similar to Atlantic Coast Line, in which we held that the various exceptions to the Anti-Injunction Act did not permit a federal court to enjoin state proceedings in circumstances more threatening to federal jurisdiction than the circumstances of this case. There we stated that the phrase "to protect or effectuate its judgments" authorized a federal injunction of state proceedings only "to prevent a state court from so interfering with a federal court's consideration or disposition of a case as to seriously impair the federal court's flexibility and authority to decide that case." Ibid.We hold, therefore, that the Court of Appeals erred by refusing to consider the possible preclusive effect, under Alabama law, of the state-court judgment. Even if the state court mistakenly rejected respondents' claim of res judicata, this does not justify the highly intrusive remedy of a federal-court injunction against the enforcement of the state-court judgment. Rather, the Full Faith and Credit Act requires that federal courts give the state-court judgment, and particularly the state court's resolution of the res judicata issue, the same preclusive effect it would have had in another court of the same State. Challenges to the correctness of a state court's determination as to the conclusive effect of a federal judgment must be pursued by way of appeal through the state-court system and certiorari from this Court. See Angel v. Bullington, .We think the District Court is best situated to determine and apply Alabama preclusion law in the first instance. See Marrese v. American Academy of Orthopaedic Surgeons, supra, at 386-387; Migra v. Warren City School Dist. Bd. of Education, 465 U.S., at 87. Should the District Court conclude that the state-court judgment is not entitled to preclusive effect under Alabama law and the Full Faith and Credit Act, it would then be in the best position to decide the propriety of a federal-court injunction under the general principles of equity, comity, and federalism discussed in Mitchum v. Foster, .The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.4 It is so ordered.
8	4 Conn. Cir. 55, 225 A. 2d 507, appeal dismissed.Robert N. Grosby argued the cause for appellant. With him on the briefs was Joseph D. Harbaugh.George F. Carroll, Jr., argued the cause and filed a brief for appellee.PER CURIAM.The appeal is dismissed for want of a properly presented federal question.
2	Appellee Michigan State Chamber of Commerce (Chamber) is a nonprofit corporation, whose bylaws set forth both political and nonpolitical purposes. Its general treasury is funded through annual dues required of all members, three-quarters of whom are for-profit corporations. Section 54(1) of the Michigan Campaign Finance Act prohibits corporations, excluding media corporations, from using general treasury funds for, inter alia, independent expenditures in connection with state candidate elections. However, they may make such expenditures from segregated funds used solely for political purposes. Because the Chamber wished to use general treasury funds to place a local newspaper advertisement in support of a specific candidate for state office, it brought suit in the Federal District Court for injunctive relief against 54(1)'s enforcement, arguing that the expenditure restriction is unconstitutional under the First and Fourteenth Amendments. The court upheld the section, but the Court of Appeals reversed, reasoning that, as applied to the Chamber, 54(1) violated the First Amendment.Held: 1. Section 54(1) does not violate the First Amendment. Pp. 657-666. (a) Although 54(1)'s requirements burden the Chamber's exercise of political expression, see FEC v. Massachusetts Citizens for Life, Inc., (MCFL), they are justified by a compelling state interest: preventing corruption or the appearance of corruption in the political arena by reducing the threat that huge corporate treasuries, which are amassed with the aid of favorable state laws and have little or no correlation to the public's support for the corporation's political ideas, will be used to influence unfairly election outcomes. Pp. 657-660. (b) Section 54(1) is sufficiently narrowly tailored to achieve its goal, because it is precisely targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views by making expenditures through separate segregated funds. Because persons who contribute to segregated funds understand that their money will be used solely for political purposes, the speech generated accurately reflects contributors' support for the corporation's political views. The fact that 54(1) covers closely held corporations that do not possess vast reservoirs of capital does not make it substantially overinclusive, because all corporations receive the special benefits conferred by the corporate form and thus present the potential for distorting the political process. Cf. FEC v. National Right to Work Committee, . Pp. 660-661. (c) There is no merit to the Chamber's argument that even if 54(1) is constitutional with respect to for-profit corporations, it cannot be applied to a nonprofit ideological corporation such as itself. The Chamber does not exhibit the crucial features identified in MCFL, supra, that would require the State to exempt it from independent spending burdens as a nonprofit corporation more akin to a voluntary political association than a business firm. MCFL's narrow focus on the promotion of political ideas ensured that its resources reflected political support, while the Chamber's more varied bylaws do not. Additionally, unlike MCFL members, the Chamber's members are similar to shareholders - who have an economic disincentive for disassociating with a corporation even if they disagree with its political activity - in that they may be reluctant to withdraw from the Chamber because they wish to benefit from its nonpolitical programs and to establish contacts with other members of the business community. Also in contrast to MCFL, which took no contributions from business corporations, more than three-quarters of the Chamber's members are business corporations, whose political contributions and expenditures can constitutionally be regulated by the State, and who thus could circumvent 54(1)'s restriction by funneling money through the Chamber's general treasury. Pp. 661-665. (d) Section 54(1) is not rendered underinclusive by its failure to regulate the independent expenditures of unincorporated labor unions that also have the capacity to accumulate wealth, because the exclusion does not undermine the State's compelling interest in regulating corporations whose unique form enhances such capacity. Moreover, because members who disagree with a union's political activities can decline to contribute to them without giving up other membership benefits, a union's political funds more accurately reflect members' support for the organization's political views than does a corporation's general treasury. Pp. 665-666. 2. Section 54(1) does not violate the Equal Protection Clause of the Fourteenth Amendment. Even under strict scrutiny, its classifications pass muster. The State's decision to regulate corporations and not unincorporated associations is precisely tailored to serve its compelling interest. Similarly, the exemption of media corporations does not render the section unconstitutional. Restrictions on the expenditures of corporations whose resources are devoted to the collection and dissemination of information to the public might discourage news broadcasters or publishers from serving their crucial societal role of reporting on and publishing editorials about newsworthy events; thus, their exemption from the section's restriction is justified. Pp. 666-668. 856 F.2d 783, reversed.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. BRENNAN, J., post, p. 669, and STEVENS, J., post, p. 678, filed concurring opinions. SCALIA, J., filed a dissenting opinion, post, p. 679. KENNEDY, J., filed a dissenting opinion, in which O'CONNOR and SCALIA, JJ., joined, post, p. 695.Louis J. Caruso, Solicitor General of Michigan, argued the cause for appellants. With him on the briefs were Frank J. Kelley, Attorney General, pro se, Thomas L. Casey, Assistant Solicitor General, and Gary P. Gordon and Richard P. Gartner, Assistant Attorneys General.Richard D. McLellan argued the cause for appellee. With him on the brief were Joel M. Boyden, William J. Perrone, and Cindy M. Wilder.* [Footnote *] Briefs of amici curiae urging reversal were filed for the Federal Election Commission by Lawrence M. Noble and Richard B. Bader; and for Common Cause by Roger M. Witten, Carol F. Lee, and Archibald Cox.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Arthur B. Spitzer, John A. Powell, and Joel M. Gora; for the American Medical Association et al. by Michael A. Nemeroff, Carter G. Phillips, and Mark D. Hopson; for the Center for Public Interest Law by Robert C. Fellmeth; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar.Thomas J. Hart filed a brief of amici curiae for the National Organization for Women et al.JUSTICE MARSHALL delivered the opinion of the Court.In this appeal, we must determine whether 54(1) of the Michigan Campaign Finance Act, 1976 Mich. Pub. Acts 388, violates either the First or the Fourteenth Amendment to the Constitution. Section 54(1) prohibits corporations from using corporate treasury funds for independent expenditures in support of, or in opposition to, any candidate in elections for state office. Mich. Comp. Laws 169.254(1) (1979). Corporations are allowed, however, to make such expenditures from segregated funds used solely for political purposes. 169.255(1). In response to a challenge brought by the Michigan State Chamber of Commerce (Chamber), the Sixth Circuit held that 54(1) could not be applied to the Chamber, a Michigan nonprofit corporation, without violating the First Amendment. 856 F.2d 783 (1988). Although we agree that expressive rights are implicated in this case, we hold that application of 54(1) to the Chamber is constitutional because the provision is narrowly tailored to serve a compelling state interest. Accordingly, we reverse the judgment of the Court of Appeals.ISection 54(1) of the Michigan Campaign Finance Act prohibits corporations from making contributions and independent expenditures in connection with state candidate elections.1 The issue before us is only the constitutionality of the State's ban on independent expenditures. The Act defines "expenditure" as "a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate." 169.206(1). An expenditure is considered independent if it is "not made at the direction of, or under the control of, another person and if the expenditure is not a contribution to a committee." 169.209(1); see 169.203(4) (defining "committee" as a group that "receives contributions or makes expenditures for the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate"). The Act exempts from this general prohibition against corporate political spending any expenditure made from a segregated fund. 169.255(1). A corporation may solicit contributions to its political fund only from an enumerated list of persons associated with the corporation. See 169.255(2), (3).The Chamber, a nonprofit Michigan corporation, challenges the constitutionality of this statutory scheme. The Chamber comprises more than 8,000 members, three-quarters of whom are for-profit corporations. The Chamber's general treasury is funded through annual dues required of all members. Its purposes, as set out in the bylaws, are to promote economic conditions favorable to private enterprise; to analyze, compile, and disseminate information about laws of interest to the business community and to publicize to the government the views of the business community on such matters; to train and educate its members; to foster ethical business practices; to collect data on, and investigate matters of, social, civic, and economic importance to the State; to receive contributions and to make expenditures for political purposes and to perform any other lawful political activity; and to coordinate activities with other similar organizations.In June 1985 Michigan scheduled a special election to fill a vacancy in the Michigan House of Representatives. Although the Chamber had established and funded a separate political fund, it sought to use its general treasury funds to place in a local newspaper an advertisement supporting a specific candidate. As the Act made such an expenditure punishable as a felony, see 169.254(5), the Chamber brought suit in District Court for injunctive relief against enforcement of the Act, arguing that the restriction on expenditures is unconstitutional under both the First and the Fourteenth Amendments.The District Court upheld the statute. 643 F. Supp. 397 (WD Mich. 1986). The Sixth Circuit reversed, reasoning that the expenditure restriction, as applied to the Chamber, violated the First Amendment. We noted probable jurisdiction, , and now reverse. IITo determine whether Michigan's restriction on corporate political expenditures may constitutionally be applied to the Chamber, we must ascertain whether it burdens the exercise of political speech and, if it does, whether it is narrowly tailored to serve a compelling state interest. Buckley v. Valeo, (per curiam). Certainly, the use of funds to support a political candidate is "speech"; independent campaign expenditures constitute "political expression `at the core of our electoral process and of the First Amendment freedoms.'" Id., at 39 (quoting Williams v. Rhodes, ). The mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment. See, e. g., First National Bank of Boston v. Bellotti, .AThis Court concluded in FEC v. Massachusetts Citizens for Life, Inc., (MCFL), that a federal statute requiring corporations to make independent political expenditures only through special segregated funds, 2 U.S.C. 441b, burdens corporate freedom of expression. MCFL, 479 U.S., at 252 (plurality opinion); id., at 266 (O'CONNOR, J., concurring in part and concurring in judgment). The Court reasoned that the small nonprofit corporation in that case would face certain organizational and financial hurdles in establishing and administering a segregated political fund. For example, the statute required the corporation to appoint a treasurer for its segregated fund, keep records of all contributions, file a statement of organization containing information about the fund, and update that statement periodically. Id., at 253 (plurality opinion). In addition, the corporation was permitted to solicit contributions to its segregated fund only from "members," which did not include persons who merely contributed to or indicated support for the organization. Id., at 254 (plurality opinion). These hurdles "impose[d] administrative costs that many small entities [might] be unable to bear" and "create[d] a disincentive for such organizations to engage in political speech." Ibid; see also id., at 265-266 (O'CONNOR, J.).Despite the Chamber's success in administering its separate political fund, see, e. g., Tr. 443 (Chamber expected to have over $140,000 in its segregated fund available for use in the 1986 elections), Michigan's segregated fund requirement still burdens the Chamber's exercise of expression because "the corporation is not free to use its general funds for campaign advocacy purposes." MCFL, supra, at 252 (plurality opinion). The Act imposes requirements similar to those in the federal statute involved in MCFL: a segregated fund must have a treasurer, 169.221; and its administrators must keep detailed accounts of contributions, 169.224, and file with state officials a statement of organization, ibid. In addition, a nonprofit corporation like the Chamber may solicit contributions to its political fund only from members, stockholders of members, officers or directors of members, and the spouses of any of these persons. 169.255. Although these requirements do not stifle corporate speech entirely, they do burden expressive activity. See MCFL, 479 U.S., at 252 (plurality opinion); id., at 266 (O'CONNOR, J.). Thus, they must be justified by a compelling state interest.BThe State contends that the unique legal and economic characteristics of corporations necessitate some regulation of their political expenditures to avoid corruption or the appearance of corruption. See FEC v. National Conservative Political Action Committee, (NCPAC) ("[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances"). State law grants corporations special advantages - such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets - that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders' investments. These state-created advantages not only allow corporations to play a dominant role in the Nation's economy, but also permit them to use "resources amassed in the economic marketplace" to obtain "an unfair advantage in the political marketplace." MCFL, 479 U.S., at 257. As the Court explained in MCFL, the political advantage of corporations is unfair because"[t]he resources in the treasury of a business corporation ... are not an indication of popular support for the corporation's political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas." Id., at 258. We therefore have recognized that "the compelling governmental interest in preventing corruption support[s] the restriction of the influence of political war chests funneled through the corporate form." NCPAC, supra, at 500-501; see also MCFL, supra, at 257.The Chamber argues that this concern about corporate domination of the political process is insufficient to justify a restriction on independent expenditures. Although this Court has distinguished these expenditures from direct contributions in the context of federal laws regulating individual donors, Buckley, 424 U.S., at 47, it has also recognized that a legislature might demonstrate a danger of real or apparent corruption posed by such expenditures when made by corporations to influence candidate elections, Bellotti, supra, at 788, n. 26. Regardless of whether this danger of "financial quid pro quo" corruption, see NCPAC, supra, at 497; post, at 702-705 (KENNEDY, J., dissenting), may be sufficient to justify a restriction on independent expenditures, Michigan's regulation aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas. See supra, at 658-659. The Act does not attempt "to equalize the relative influence of speakers on elections," post, at 705 (KENNEDY, J., dissenting); see also post, at 684 (SCALIA, J., dissenting); rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations. We emphasize that the mere fact that corporations. may accumulate large amounts of wealth is not the justification for 54; rather, the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures. Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions. We therefore hold that the State has articulated a sufficiently compelling rationale to support its restriction on independent expenditures by corporations.CWe next turn to the question whether the Act is sufficiently narrowly tailored to achieve its goal. We find that the Act is precisely targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views. Contrary to the dissents' critical assumptions, see post, at 698, 699, 706 (KENNEDY, J.); post, at 680, 682-683 (SCALIA, J.), the Act does not impose an absolute ban on all forms of corporate political spending but permits corporations to make independent political expenditures through separate segregated funds. Because persons contributing to such funds understand that their money will be used solely for political purposes, the speech generated accurately reflects contributors' support for the corporation's political views. See MCFL, supra, at 258.The Chamber argues that 54(1) is substantially overinclusive, because it includes within its scope closely held corporations that do not possess vast reservoirs of capital. We rejected a similar argument in FEC v. National Right to Work Committee, (NRWC), in the context of federal restrictions on the persons from whom corporations could solicit contributions to their segregated funds. The Court found that the federal campaign statute, 2 U.S.C. 441b, "reflect[ed] a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation. While 441b restricts the solicitation of corporations and labor unions without great financial resources, as well as those more fortunately situated, we accept Congress' judgment that it is the potential for such influence that demands regulation." 459 U.S., at 209-210 (citation omitted; emphasis added). Although some closely held corporations, just as some publicly held ones, may not have accumulated significant amounts of wealth, they receive from the State the special benefits conferred by the corporate structure and present the potential for distorting the political process. This potential for distortion justifies 54(1)'s general applicability to all corporations. The section therefore is not substantially overbroad.IIIThe Chamber contends that even if the Campaign Finance Act is constitutional with respect to for-profit corporations, it nonetheless cannot be applied to a nonprofit ideological corporation like a chamber of commerce. In MCFL, we held that the nonprofit organization there had "features more akin to voluntary political associations than business firms, and therefore should not have to bear burdens on independent spending solely because of [its] incorporated status." 479 U.S., at 263. In reaching that conclusion, we enumerated three characteristics of the corporation that were "essential" to our holding. Ibid. Because the Chamber does not share these crucial features, the Constitution does not require that it be exempted from the generally applicable provisions of 54(1).The first characteristic of Massachusetts Citizens for Life, Inc., that distinguished it from ordinary business corporations was that the organization "was formed for the express purpose of promoting political ideas, and cannot engage in business activities." Id., at 264. Its articles of incorporation indicated that its purpose was "[t]o foster respect for human life and to defend the right to life of all human beings, born and unborn, through educational, political and other forms of activities," id., at 241-242, and all of the organization's activities were "designed to further its agenda," id., at 242. MCFL's narrow political focus thus "ensure[d] that [its] political resources reflect[ed] political support." Id., at 264.In contrast, the Chamber's bylaws set forth more varied purposes, see supra, at 656, several of which are not inherently political. For instance, the Chamber compiles and disseminates information relating to social, civic, and economic conditions, trains and educates its members, and promotes ethical business practices. Unlike MCFL's, the Chamber's educational activities are not expressly tied to political goals; many of its seminars, conventions, and publications are politically neutral and focus on business and economic issues. The Chamber's president and chief executive officer stated that one of the corporation's main purposes is to provide "service to [its] membership that includes everything from group insurance to educational seminars, and ... litigation activities on behalf of the business community." Deposition of E. James Barrett, Nov. 12, 1985, p. 11. See also PR Newswire, July 21, 1989 (Chamber cosponsored the Automotive Management Briefing Seminar); PR Newswire, May 9, 1989 (Chamber cosponsored the Michigan New Product Awards competition); PR Newswire, June 14, 1988 (Chamber sponsored seminar on product liability losses and lawsuits); PR Newswire, Feb. 4, 1988 (Chamber cosponsored outreach program to increase awareness of investment opportunities in the Caribbean Basin). The Chamber's nonpolitical activities therefore suffice to distinguish it from MCFL in the context of this characteristic.We described the second feature of MCFL as the absence of "shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with the organization will have no economic disincentive for disassociating with it if they disagree with its political activity." 479 U.S., at 264. Although the Chamber also lacks shareholders, many of its members may be similarly reluctant to withdraw as members even if they disagree with the Chamber's political expression, because they wish to benefit from the Chamber's nonpolitical programs and to establish contacts with other members of the business community. The Chamber's political agenda is sufficiently distinct from its educational and outreach programs that members who disagree with the former may continue to pay dues to participate in the latter. JUSTICE KENNEDY ignores these disincentives for withdrawing as a member of the Chamber, stating only that "[o]ne need not become a member ... to earn a living." Post, at 710 (KENNEDY, J., dissenting). Certainly, members would be disinclined to terminate their involvement with the organization on the basis of less extreme disincentives than the loss of employment. Thus, we are persuaded that the Chamber's members are more similar to shareholders of a business corporation than to the members of MCFL in this respect.2 The final characteristic upon which we relied in MCFL was the organization's independence from the influence of business corporations. On this score, the Chamber differs most greatly from the Massachusetts organization. MCFL was not established by, and had a policy of not accepting contributions from, business corporations. Thus it could not "serv[e] as [a] condui[t] for the type of direct spending that creates a threat to the political marketplace." 479 U.S., at 264. In striking contrast, more than three-quarters of the Chamber's members are business corporations, whose political contributions and expenditures can constitutionally be regulated by the State. See Buckley v. Valeo, 424 U.S., at 29 (upholding restrictions on political contributions); supra, at 658-661 (regarding independent expenditures). As we read the Act, a corporation's payments into the Chamber's general treasury would not be considered payments to influence an election, so they would not be "contributions" or "expenditures," see 169.204(1), 169.206, and would not be subject to the Act's limitations. Business corporations therefore could circumvent the Act's restriction by funneling money through the Chamber's general treasury.3 Because the Chamber accepts money from for-profit corporations, it could, absent application of 54(1), serve as a conduit for corporate political spending. In sum, the Chamber does not possess the features that would compel the State to exempt it from restriction on independent political expenditures.IVThe Chamber also attacks 54(1) as underinclusive because it does not regulate the independent expenditures of unincorporated labor unions.4 Whereas unincorporated unions, and indeed individuals, may be able to amass large treasuries, they do so without the significant state-conferred advantages of the corporate structure; corporations are "by far the most prominent example of entities that enjoy legal advantages enhancing their ability to accumulate wealth." MCFL, 479 U.S., at 258, n. 11. The desire to counterbalance those advantages unique to the corporate form is the State's compelling interest in this case; thus, excluding from the statute's coverage unincorporated entities that also have the capacity to accumulate wealth "does not undermine its justification for regulating corporations." Ibid.Moreover, labor unions differ from corporations in that union members who disagree with a union's political activities need not give up full membership in the organization to avoid supporting its political activities. Although a union and an employer may require that all bargaining unit employees become union members, a union may not compel those employees to support financially "union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment." Communications Workers v. Beck, . See also Abood v. Detroit Bd. of Ed., (holding that compelling nonmember employees to contribute to union's political activities infringes employees' First Amendment rights). An employee who objects to a union's political activities thus can decline to contribute to those activities, while continuing to enjoy the benefits derived from the union's performance of its duties as the exclusive representative of the bargaining unit on labor-management issues. As a result, the funds available for a union's political activities more accurately reflects members' support for the organization's political views than does a corporation's general treasury. Michigan's decision to exclude unincorporated labor unions from the scope of 54(1) is therefore justified by the crucial differences between unions and corporations.VBecause we hold that 54(1) does not violate the First Amendment, we must address the Chamber's contention that the provision infringes its rights under the Fourteenth Amendment. The Chamber argues that the statute treats similarly situated entities unequally. Specifically, it contends that the State should also restrict the independent expenditures of unincorporated associations with the ability to accumulate large treasuries and of corporations engaged in the media business.Because the right to engage in political expression is fundamental to our constitutional system, statutory classifications impinging upon that right must be narrowly tailored to serve a compelling governmental interest. Police Department of Chicago v. Mosley, . We find that, even under such strict scrutiny, the statute's classifications pass muster under the Equal Protection Clause. As we explained in the context of our discussions of whether the statute was overinclusive, supra, at 660-661, or underinclusive, supra, at 665 and this page, the State's decision to regulate only corporations is precisely tailored to serve the compelling state interest of eliminating from the political process the corrosive effect of political "war chests" amassed with the aid of the legal advantages given to corporations.Similarly, we find that the Act's exemption of media corporations from the expenditure restriction does not render the statute unconstitutional. The "media exception" excludes from the definition of "expenditure" any "expenditure by a broadcasting station, newspaper, magazine, or other periodical or publication for any news story, commentary, or editorial in support of or opposition to a candidate for elective office ... in the regular course of publication or broadcasting," 169.206(3)(d).5 The Court of Appeals did not address the Chamber's equal protection argument because it found that the application of 54(1) to the Chamber violates the First Amendment. See 856 F.2d, at 790. The District Court, however, appeared to hold that the media exception does not implicate the Equal Protection Clause because "[a]ny corporation ... may avail itself of the exemption" by entering the news broadcasting or publishing business. 643 F. Supp., at 405. We are persuaded, however, that a Fourteenth Amendment analysis is necessary in this case. It is true that the exemption does not refer expressly to "media corporations." Nevertheless, the exception will undoubtedly result in the imposition of fewer restrictions on the expression of corporations that are in the media business. Thus, it cannot be regarded as neutral, and the distinction must be justified by a compelling state purpose.Although all corporations enjoy the same state-conferred benefits inherent in the corporate form, media corporations differ significantly from other corporations in that their resources are devoted to the collection of information and its dissemination to the public. We have consistently recognized the unique role that the press plays in "informing and educating the public, offering criticism, and providing a forum for discussion and debate." Bellotti, 435 U.S., at 781. See also Mills v. Alabama, ("[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve"). The Act's definition of "expenditure," 169.206, conceivably could be interpreted to encompass election-related news stories and editorials. The Act's restriction on independent expenditures therefore might discourage incorporated news broadcasters or publishers from serving their crucial societal role. The media exception ensures that the Act does not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy events. Cf. H. R. Rep. No. 93-1239, p. 4 (1974) (explaining a similar federal media exception, 2 U.S.C. 431(9)(B)(i), as "assur[ing] the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns"); 15 U.S.C. 1801-1804 (enacting a limited exemption from the antitrust laws for newspapers in part because of the recognition of the special role of the press). A valid distinction thus exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public. Although the press' unique societal role may not entitle the press to greater protection under the Constitution, Bellotti, supra, at 782, and n. 18, it does provide a compelling reason for the State to exempt media corporations from the scope of political expenditure limitations. We therefore hold that the Act does not violate the Equal Protection Clause.VIMichigan identified as a serious danger the significant possibility that corporate political expenditures will undermine the integrity of the political process, and it has implemented a narrowly tailored solution to that problem. By requiring corporations to make all independent political expenditures through a separate fund made up of money solicited expressly for political purposes, the Michigan Campaign Finance Act reduces the threat that huge corporate treasuries amassed with the aid of favorable state laws will be used to influence unfairly the outcome of elections. The Michigan Chamber of Commerce does not exhibit the characteristics identified in MCFL that would require the State to exempt it from a generally applicable restriction on independent corporate expenditures. We therefore reverse the decision of the Court of Appeals. It is so ordered.
9	The National Labor Relations Board declines jurisdiction over radio stations with yearly gross receipts below $100,000, but takes jurisdiction where several nominally separate entities comprise an integrated enterprise of a single employer having receipts in excess of that figure. Where, as here, the criteria of interrelation of operations, common management and ownership, and centralized control of labor relations are met, the Board will assert jurisdiction, and state jurisdiction must yield. 276 Ala. 93, 159 So.2d 452, reversed.J. R. Goldthwaite, Jr., argued the cause and filed a brief for petitioners.Willis C. Darby, Jr., argued the cause for respondent. With him on the brief was George E. Stone, Jr.Solicitor General Cox, Arnold Ordman, Dominick L. Manoli and Norton J. Come filed a brief for the United States, as amicus curiae, urging reversal.PER CURIAM.The union, Radio and Television Broadcast Technicians, challenged the Alabama Circuit Court's jurisdiction over a suit by Broadcast Service of Mobile, the corporate name of Radio Station WSIM, to restrain peaceful picketing by the union and its solicitation of advertisers aimed at persuading them to cease doing business with the station. It contended that although the annual gross receipts of WSIM are below the National Labor Relations Board's jurisdictional minimum of $100,000 per year for radio stations, WSIM is an integral part of a group of radio stations owned and operated by Charles W. Holt and the Holt Broadcasting Service and that the annual receipts of the common enterprise are in excess of $100,000, which is determinative under the Board's standards. Stating that every court has judicial power to determine its jurisdiction and that the union failed to allege "that the appellant's [WSIM's] gross business exceeded $100,000 per annum," the Alabama Supreme Court held that the state courts had jurisdiction over WSIM's complaint. We granted certiorari. . The judgment below must be reversed.Although a state court may assume jurisdiction over labor disputes over which the National Labor Relations Board has, but declines to assert, jurisdiction, 29 U.S.C. 164 (c) (1) and (2) (1958 ed., Supp. V), there must be a proper determination of whether the case is actually one of those which the Board will decline to hear. Hattiesburg Building Trades Council v. Broome, . The Board will assert jurisdiction over an employer operating a radio station if his gross receipts equal or exceed $100,000 per year, Raritan Valley Broadcasting Co., 122 N. L. R. B. 90, and in determining the relevant employer, the Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise, N. L. R. B. Twenty-first Ann. Rep. 14-15 (1956). The controlling criteria, set out and elaborated in Board decisions, are interrelation of operations, common management, centralized control of labor relations and common ownership. Sakrete of Northern California, Inc., 137 N. L. R. B. 1220, aff'd 332 F.2d 902 (C. A. 9th Cir.), cert. denied, ; Family Laundry, Inc., 121 N. L. R. B. 1619; Canton, Carp's, Inc., 125 N. L. R. B. 483; V. I. P. Radio, Inc., 128 N. L. R. B. 113; Perfect T. V., Inc., 134 N. L. R. B. 575; Overton Markets, Inc., 142 N. L. R. B. 615. The record made below is more than adequate to show that all of these factors are present in regard to the Holt enterprise* and that this is not a case which the Board has announced it would decline to hear. Since the conduct set out in the complaint is regulated by the Labor Management Relations Act, 1947, 29 U.S.C. 141 et seq. (1958 ed.), "due regard for the federal enactment requires that state jurisdiction must yield." San Diego Building Trades v. Garmon, : Construction & General Laborers' Union v. Curry, . Reversed.[Footnote *] The United States, as amicus curiae, confirms the view that the Board's standards for determining a single employer enterprise were fully satisfied by the structure and operation of the Holt stations.
0	When respondents arrived by train in Boston from San Diego, they were arrested at their waiting automobile by federal narcotics agents, who had been alerted that respondents were possible drug traffickers. A double-locked footlocker, which respondents had transported on the train and which the agents had probable cause to believe contained narcotics, had been loaded in the trunk of the automobile. Respondents, together with the automobile and footlocker, which was admittedly under the agents' exclusive control, were then taken to the Federal Building in Boston. An hour and a half after the arrests the agents opened the footlocker without respondents' consent or a search warrant and found large amounts of marihuana in it. Respondents were subsequently indicted for possession of marihuana with intent to distribute it. The District Court granted their pretrial motion to suppress the marihuana obtained from the footlocker, holding that warrantless searches are per se unreasonable under the Fourth Amendment unless they fall within some established exception to the warrant requirement, and that the footlocker search was not justified under either the "automobile exception" or as a search incident to a lawful arrest; the Court of Appeals affirmed. Held: Respondents were entitled to the protection of the Warrant Clause of the Fourth Amendment, with the evaluation of a neutral magistrate, before their privacy interests in the contents of the footlocker were invaded. Pp. 6-16. (a) A fundamental purpose of the Fourth Amendment is to safeguard individuals from unreasonable government invasions of legitimate privacy interests, and not simply those interests inside the four walls of the home. Pp. 6-11. (b) By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination, and no less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment's Warrant Clause; since there was no exigency calling for an immediate search, it was unreasonable for the Government to conduct the search ithout the safeguards a judicial warrant provides. P. 11. (c) The footlocker search was not justified under the "automobile exception," since a person's expectations of privacy in personal luggage are substantially greater than in an automobile. In this connection, the footlocker's mobility did not justify dispensing with a search warrant, because once the federal agents had seized the footlocker at the railroad station and safely transferred it to the Federal Building under their exclusive control, there was not the slightest danger that it or its contents could have been removed before a valid search warrant could be obtained. Pp. 11-13. (d) Nor was the footlocker search justified as a search incident to a lawful arrest, where the search was remote in time or place from the arrest and no exigency existed, the search having been conducted more than an hour after the federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody. Pp. 14-16. 532 F.2d 773, affirmed.BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 16. BLACKMUN, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 17.Deputy Solicitor General Randolph argued the cause for the United States. On the brief were Acting Solicitor General Friedman, Assistant Attorney General Thornburgh, Kenneth S. Geller, and Sidney M. Glazer. Martin G. Weinberg argued the cause for respondents. With him on the brief were Philip S. Nyman, Robert L. Steadman, and Jeanne Baker.* [Footnote *] Joel M. Gora, Jack D. Novik, and John Reinstein filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.Frank Carrington, Glen R. Murphy, Cecil Hicks, and James P. Costello filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in this case to decide whether a search warrant is required before federal agents may open a locked footlocker which they have lawfully seized at the time of the arrest of its owners, when there is probable cause to believe the footlocker contains contraband.(1)On May 8, 1973, Amtrak railroad officials in San Diego observed respondents Gregory Machado and Bridget Leary load a brown footlocker onto a train bound for Boston. Their suspicions were aroused when they noticed that the trunk was unusually heavy for its size, and that it was leaking talcum powder, a substance often used to mask the odor of marihuana or hashish. Because Machado matched a profile used to spot drug traffickers, the railroad officials reported these circumstances to federal agents in San Diego, who in turn relayed the information, together with detailed descriptions of Machado and the footlocker, to their counterparts in Boston.When the train arrived in Boston two days later, federal narcotics agents were on hand. Though the officers had not obtained an arrest or search warrant, they had with them a police dog trained to detect marihuana. The agents identified Machado and Leary and kept them under surveillance as they claimed their suitcases and the footlocker, which had been transported by baggage cart from the train to the departure area. Machado and Leary lifted the footlocker from the baggage cart, placed it on the floor and sat down on it.The agents then released the dog near the footlocker. Without alerting respondents, the dog signaled the presence of a controlled substance inside. Respondent Chadwick then joined Machado and Leary, and they engaged an attendant to move the footlocker outside to Chadwick's waiting automobile. Machado, Chadwick, and the attendant together lifted the 200-pound footlocker into the trunk of the car, while Leary waited in the front seat. At that point, while the trunk of the car was still open and before the car engine had been started, the officers arrested all three. A search disclosed no weapons, but the keys to the footlocker were apparently taken from Machado.Respondents were taken to the Federal Building in Boston; the agents followed with Chadwick's car and the footlocker. As the Government concedes, from the moment of respondents' arrests at about 9 p. m., the footlocker remained under the exclusive control of law enforcement officers at all times. The footlocker and luggage were placed in the Federal Building, where, as one of the agents later testified, "there was no risk that whatever was contained in the footlocker trunk would be removed by the defendants or their associates." App. 44. The agents had no reason to believe that the footlocker contained explosives or other inherently dangerous items, or that it contained evidence which would lose its value unless the footlocker were opened at once. Facilities were readily available in which the footlocker could have been stored securely; it is not contended that there was any exigency calling for an immediate search.At the Federal Building an hour and a half after the arrests, the agents opened the footlocker and luggage. They did not obtain respondents' consent; they did not secure a search warrant. The footlocker was locked with a padlock and a regular trunk lock. It is unclear whether it was opened with the keys taken from respondent Machado, or by other means. Large amounts of marihuana were found in the footlocker.1 Respondents were indicted for possession of marihuana with intent to distribute it, in violation of 21 U.S.C. 841 (a)(1), and for conspiracy, in violation of 21 U.S.C. 846. Before trial, they moved to suppress the marihuana obtained from the footlocker. In the District Court, the Government sought to justify its failure to secure a search warrant under the "automobile exception" of Chambers v. Maroney, , and as a search incident to the arrests. Holding that "[w]arrantless searches are per se unreasonable, subject to a few carefully delineated and limited exceptions," the District Court rejected both justifications. 393 F. Supp. 763, 771 (Mass. 1975). The court saw the relationship between the footlocker and Chadwick's automobile as merely coincidental, and held that the double-locked, 200-pound footlocker was not part of "the area from within which [respondents] might gain possession of a weapon or destructible evidence." Chimel v. California, .A divided Court of Appeals for the First Circuit affirmed the suppression of the seized marihuana. The court held that the footlocker had been properly taken into federal custody after respondents' lawful arrest; it also agreed that the agents had probable cause to believe that the footlocker contained a controlled substance when they opened it. But probable cause alone was held not enough to sustain the warrantless search. On the premise that warrantless searches are per se unreasonable unless they fall within some established exception to the warrant requirement, the Court of Appeals agreed with the District Court that the footlocker search was not justified either under the "automobile exception" or as a search incident to a lawful arrest.The Court of Appeals then responded to an argument, suggested by the Government for the first time on appeal, that movable personalty lawfully seized in a public place should be subject to search without a warrant if there exists probable cause to believe it contains evidence of a crime. Conceding that such personalty shares some characteristics of mobility which support warrantless automobile searches, the court nevertheless concluded that a rule permitting a search of personalty on probable cause alone had not yet "received sufficient recognition by the Supreme Court outside the automobile area, or generally, for us to recognize it as a valid exception to the fourth amendment warrant requirement." 532 F.2d 773, 781 (1976). We granted certiorari, . We affirm.(2)In this Court the Government again contends that the Fourth Amendment Warrant Clause protects only interests traditionally identified with the home.2 Recalling the colonial writs of assistance, which were often executed in searches of private dwellings, the Government claims that the Warrant Clause was adopted primarily, if not exclusively, in response to unjustified intrusions into private homes on the authority of general warrants. The Government argues there is no evidence that the Framers of the Fourth Amendment intended to disturb the established practice of permitting warrantless searches outside the home, or to modify the initial clause of the Fourth Amendment by making warrantless searches supported by probable cause per se unreasonable.Drawing on its reading of history, the Government argues that only homes, offices, and private communications implicate interests which lie at the core of the Fourth Amendment. Accordingly, it is only in these contexts that the determination whether a search or seizure is reasonable should turn on whether a warrant has been obtained. In all other situations, the Government contends, less significant privacy values are at stake, and the reasonableness of a government intrusion should depend solely on whether there is probable cause to believe evidence of criminal conduct is present. Where personal effects are lawfully seized outside the home on probable cause, the Government would thus regard searches without a warrant as not "unreasonable."We do not agree that the Warrant Clause protects only dwellings and other specifically designated locales. As we have noted before, the Fourth Amendment "protects people, not places," Katz v. United States, ; more particularly, it protects people from unreasonable government intrusions into their legitimate expectations of privacy. In this case, the Warrant Clause makes a significant contribution to that protection. The question, then, is whether a warrantless search in these circumstances was unreasonable.3 (3)It cannot be doubted that the Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods. Though the authority to search granted by the writs was not limited to the home, searches conducted pursuant to them often were carried out in private residences. See generally Stanford v. Texas, ; Marcus v. Search Warrant, ; Frank v. Maryland, .Although the searches and seizures which deeply concerned the colonists, and which were foremost in the minds of the Framers, were those involving invasions of the home, it would be a mistake to conclude, as the Government contends, that the Warrant Clause was therefore intended to guard only against intrusions into the home. First, the Warrant Clause does not in terms distinguish between searches conducted in private homes and other searches. There is also a strong historical connection between the Warrant Clause and the initial clause of the Fourth Amendment, which draws no distinctions among "persons, houses, papers, and effects" in safeguarding against unreasonable searches and seizures. See United States v. Rabinowitz, (Frankfurter, J., dissenting).Moreover, if there is little evidence that the Framers intended the Warrant Clause to operate outside the home, there is no evidence at all that they intended to exclude from protection of the Clause all searches occurring outside the home. The absence of a contemporary outcry against warrantless searches in public places was because, aside from searches incident to arrest, such warrantless searches were not a large issue in colonial America. Thus, silence in the historical record tells us little about the Framers' attitude toward application of the Warrant Clause to the search of respondents' footlocker.4 What we do know is that the Framers were men who focused on the wrongs of that day but who intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which gave it birth.Moreover, in this area we do not write on a clean slate. Our fundamental inquiry in considering Fourth Amendment issues is whether or not a search or seizure is reasonable under all the circumstances. Cooper v. California, . The judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, . Once a lawful search has begun, it is also far more likely that it will not exceed proper bounds when it is done pursuant to a judicial authorization "particularly describing the place to be searched and the persons or things to be seized." Further, a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search. Camara v. Municipal Court, .Just as the Fourth Amendment "protects people, not places," the protections a judicial warrant offers against erroneous governmental intrusions are effective whether applied in or out of the home. Accordingly, we have held warrantless searches unreasonable, and therefore unconstitutional, in a variety of settings.5 A century ago, Mr. Justice Field, speaking for the Court, included within the reach of the Warrant Clause printed matter traveling through the mails within the United States:"Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household." Ex parte Jackson, . We reaffirmed Jackson in United States v. Van Leeuwen, , where a search warrant was obtained to open two packages which, on mailing, the sender had declared contained only coins. Judicial warrants have been required for other searches conducted outside the home. E. g., Katz v. United States, (electronic interception of conversation in public telephone booth); Coolidge v. New Hampshire, (automobile on private premises); Preston v. United States, (automobile in custody); United States v. Jeffers, (hotel room); G. M. Leasing Corp. v. United States, (office); Mancusi v. DeForte, (office). These cases illustrate the applicability of the Warrant Clause beyond the narrow limits suggested by the Government. They also reflect the settled constitutional principle, discussed earlier, that a fundamental purpose of the Fourth Amendment is to safeguard individuals from unreasonable government invasions of legitimate privacy interests,6 and not simply those interests found inside the four walls of the home. Wolf v. Colorado, .In this case, important Fourth Amendment privacy interests were at stake. By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause. There being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides.(4)The Government does not contend that the footlocker's brief contact with Chadwick's car makes this an automobile search, but it is argued that the rationale of our automobile search cases demonstrates the reasonableness of permitting warrantless searches of luggage; the Government views such luggage as analogous to motor vehicles for Fourth Amendment purposes. It is true that, like the footlocker in issue here, automobiles are "effects" under the Fourth Amendment, and searches and seizures of automobiles are therefore subject to the constitutional standard of reasonableness. But this Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. Carroll v. United States, ; Preston v. United States, supra, at 366-367; Chambers v. Maroney, . See also South Dakota v. Opperman, .Our treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable. Nevertheless, we have also sustained "warrantless searches of vehicles ... in cases in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not nonexistent." Cady v. Dombrowski, ; accord, South Dakota v. Opperman, supra, at 367; see Texas v. White, ; Chambers v. Maroney, supra; Cooper v. California, .The answer lies in the diminished expectation of privacy which surrounds the automobile:"One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects... . It travels public thoroughfares where both its occupants and its contents are in plain view." Cardwell v. Lewis, (plurality opinion). Other factors reduce automobile privacy. "All States require vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways." Cady v. Dombrowski, supra, at 441. Automobiles periodically undergo official inspection, and they are often taken into police custody in the interests of public safety. South Dakota v. Opperman, supra, at 368.The factors which diminish the privacy aspects of an automobile do not apply to respondents' footlocker. Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person's expectations of privacy in personal luggage are substantially greater than in an automobile.Nor does the footlocker's mobility justify dispensing with the added protections of the Warrant Clause. Once the federal agents had seized it at the railroad station and had safely transferred it to the Boston Federal Building under their exclusive control, there was not the slightest danger that the footlocker or its contents could have been removed before a valid search warrant could be obtained.7 The initial seizure and detention of the footlocker, the validity of which respondents do not contest, were sufficient to guard against any risk that evidence might be lost. With the footlocker safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.8 Finally, the Government urges that the Constitution permits the warrantless search of any property in the possession of a person arrested in public, so long as there is probable cause to believe that the property contains contraband or evidence of crime. Although recognizing that the footlocker was not within respondents' immediate control, the Government insists that the search was reasonable because the footlocker was seized contemporaneously with respondents' arrests and was searched as soon thereafter as was practicable. The reasons justifying search in a custodial arrest are quite different. When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless "search of the arrestee's person and the area `within his immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S., at 763. See also Terry v. Ohio, .Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the "immediate control" area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. United States v. Robinson, ; Terry v. Ohio, supra. However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the "search is remote in time or place from the arrest," Preston v. United States, 376 U.S., at 367, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.9 Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency. Even though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority. Respondents were therefore entitled to the protection of the Warrant Clause with the evaluation of a neutral magistrate, before their privacy interests in the contents of the footlocker were invaded.10 Accordingly, the judgment is Affirmed.
0	Respondent Valencia Gonzales, a death row inmate in Arizona, sought federal habeas relief. His counsel moved to stay the proceedings, contending that Gonzales' mental incompetence prevented him from rationally communicating with or assisting counsel, and that Gonzales was thus entitled to a stay because, under the Ninth Circuit's Rohan decision, what is now 18 U. S. C. §3599(a)(2) requires a stay when a petitioner is adjudged incompetent. The District Court denied a stay, finding that the claims before it were record based or resolvable as a matter of law and thus would not benefit from Gonzales' input. Gonzales thereafter sought a writ of mandamus in the Ninth Circuit. Applying Rohan and its recent decision in Nash — which gave habeas petitioners a right to competence even on record-based appeals — the court granted the writ, concluding that §3599 gave Gonzales the right to a stay pending a competency determination. Respondent Sean Carter, a death row inmate in Ohio, initiated federal habeas proceedings but eventually moved for a competency determination and stay of the proceedings. The District Court granted the motion and found Carter incompetent to assist counsel. Applying the Ninth Circuit's Rohan test, it determined that Carter's assistance was required to develop four of his exhausted claims. It thus dismissed his habeas petition without prejudice and prospectively tolled the statute of limitations. On appeal, the Sixth Circuit, relying in part on Rees v. Peyton, 384 U. S. 312 (Rees I), located a statutory right to competence in 18 U. S. C. §4241, and found that a court could employ that provision whenever a capital habeas petitioner seeks to forgo his petition. It thus ordered that Carter's petition be stayed indefinitely with respect to any claims requiring his assistance. Held: 1. Section 3599 does not provide a state prisoner a right to suspension of his federal habeas proceedings when he is adjudged incompetent. Pp. 5-12. (a) The assertion of such a right lacks any basis in the provision's text. Section 3599 guarantees federal habeas petitioners on death row the right to federally funded counsel, §3599(a)(2), and sets out various requirements that appointed counsel must meet, §§3599(b)-(e), but it does not direct district courts to stay proceedings when petitioners are found incompetent. The assertion is also difficult to square with the Court's constitutional precedents. If the Sixth Amendment right carried with it an implied right to competence, the right to competence at trial would flow from that Amendment, not from the right to due process, see Cooper v. Oklahoma, 517 U. S. 348, 354. But while the benefits flowing from the right to counsel at trial could be affected if an incompetent defendant is unable to communicate with his attorney, this Court has never said that the right to competence derives from the right to counsel. And the Court will not assume or infer that Congress intended to depart from such precedent and locate a right to competence in federal habeas proceedings within the right to counsel. See Merck & Co. v. Reynolds, 559 U. S. ___, ___. Pp. 5-7. (b) The Ninth Circuit identified its rule in Rohan, concluding there that a petitioner's mental incompetency could "eviscerate the statutory right to counsel" in federal habeas proceedings. But given the backward-looking, record-based nature of §2254 proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner's competence. Rees I, supra, Rees v. Peyton, 386 U. S. 989, and Rees v. Superintendent of the Va. State Penitentiary, 516 U. S 802, which involved an incompetent death row inmate's attempt to withdraw his certiorari petition, offer no support for federal habeas petitioners seeking to stay district court proceedings or for the Ninth Circuit's opinions in Rohan, Nash, or this case. The Ninth Circuit's interpretation is also not supported by McFarland v. Scott, 512 U. S. 849, 858, in which this Court held that a district court could stay an execution after a capital prisoner had invoked his right to counsel but before he had filed his habeas petition. In contrast, Gonzales is seeking to stay the District Court's proceedings, and he sought a stay more than six years after initiating his habeas petition, certainly ample time for his attorney to research and present the claims. Pp. 7-12. 2. Section 4241 also does not provide a statutory right to competence during federal habeas proceedings. The Sixth Circuit based its conclusion largely on a misreading of Rees I, which did not recognize such a right. Moreover, §4241 does not even apply to habeas proceedings. By its terms, it applies only to trial proceedings prior to sentencing and "at any time after the commencement of probation or supervised release." Federal habeas proceedings, however, commence after sentencing, and federal habeas petitioners are incarcerated, not on probation. Furthermore, §4241, like the rest of Title 18 generally, applies exclusively to federal defendants, not to state prisoners like Carter. Finally, §4241(a) authorizes a district court to grant a motion for a competency determination if there is reasonable cause to believe that the defendant's mental incompetence renders him "unable to understand . . . the proceedings against him or to assist properly in his defense," while a §2254 habeas proceeding is a civil action against a state-prison warden, in which the petitioner collaterally attacks his conviction in an earlier state trial. Pp. 12-14. 3. For purposes of resolving these cases, it is sufficient to address the outer limits of the district court's discretion to issue stays; it is unnecessary to determine the precise contours of that discretion. In Gonzales' case, the District Court did not abuse its discretion in denying a stay after finding that Gonzales' claims were all record based or resolvable as a matter of law, regardless of his competence. Review of a petitioner's record-based claims subject to §2254(d) is limited to the record before the state court that heard the case on the merits. Any evidence that Gonzales might have would be inadmissible. In Carter's case, three of his claims do not warrant a stay because they were adjudicated on the merits in state postconviction proceedings and thus subject to review under §2254(d). Thus, extrarecord evidence that he might have concerning these claims would be inadmissible. It is unclear from the record whether he exhausted his fourth claim. If it was exhausted, it too would be record based. But even if it was both unexhausted and not procedurally defaulted, an indefinite stay would be inappropriate, since such a stay would permit petitioners to "frustrate [the Antiterrorism and Effective Death Penalty Act of 1996's] goal of finality by dragging out indefinitely their federal habeas review." Rhines v. Weber, 544 U. S. 269, 277-278. Pp. 14-18.623 F. 3d 1242, No. 10-930, reversed; 644 F. 3d 329, No. 11-218, reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court.Opinion of the Court 568 U. S. ____ (2013)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.Nos. 10-930 and 11-218CHARLES L. RYAN, PETITIONER 10-930 v. ERNEST VALENCIA GONZALES TERRY TIBBALS, PETITIONER 11-218 v. SEAN CARTERon writ of certiorari to the united states court of appeals for the ninth circuiton writ of certiorari to the united states court of appeals for the sixth circuit[January 8, 2013] Justice Thomas delivered the opinion of the Court. These two cases present the question whether the incompetence of a state prisoner requires suspension of the prisoner's federal habeas corpus proceedings. We hold that neither 18 U. S. C. §3599 nor 18 U. S. C. §4241 provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent.IA Ernest Valencia Gonzales was convicted by an Arizona jury of felony murder, armed robbery, aggravated assault, first-degree burglary, and theft. The convictions arose from Gonzales' repeated stabbing of Darrel and Deborah Wagner in front of their 7-year-old son during a burglary of the Wagners' home. Darrel Wagner died from the stabbing, while Deborah Wagner survived but spent five days in intensive care. The trial court sentenced Gonzales to death on the murder charge and to various prison terms for the other crimes. After exhausting state remedies, Gonzales filed a petition for a writ of habeas corpus in Federal District Court on November 15, 1999. While the petition was pending, Gonzales' appointed counsel moved to stay the proceedings, contending that Gonzales was no longer capable of rationally communicating with or assisting counsel. He argued that mental incompetence entitled Gonzales to a stay under Ninth Circuit precedent. See Rohan v. Woodford, 334 F. 3d 803 (2003). In Rohan, the Ninth Circuit held that the federal statute guaranteeing state capital prisoners a right to counsel in federal habeas proceedings, 21 U. S. C. §848(q)(4)(B) (2000 ed.) (now codified as 18 U. S. C. §3599(a)(2)), could not "be faithfully enforced unless courts ensure that a petitioner is competent," 334 F. 3d, at 813. Rohan thus concluded that "where an incompetent capital habeas petitioner raises claims that could potentially benefit from his ability to communicate rationally, refusing to stay proceedings pending restoration of competence denies him his statutory right to assistance of counsel, whether or not counsel can identify with precision the information sought." Id., at 819. Applying Rohan, the District Court denied a stay after concluding that the claims properly before it were record based or resolvable as a matter of law and thus would not benefit from Gonzales' input. The court found it unnec-essary to determine whether Gonzales was incompetent, though it did find that he possessed "at least a limited capacity for rational communication." Gonzales v. Schriro, 617 F. Supp. 2d 849, 863 (Ariz. 2008). Gonzales thereafter filed an emergency petition for a writ of mandamus in the Ninth Circuit. While Gonzales' petition was pending, the Ninth Circuit decided Nash v. Ryan, 581 F. 3d 1048 (2009), which held that habeas petitioners have a right to competence on appeal, even though appeals are entirely record based. Id., at 1050 ("While an appeal is record-based, that does not mean that a habeas petitioner in a capital case is relegated to a nonexistent role. Meaningful assistance of appellate counsel may require rational communication between counsel and a habeas petitioner"). Applying Nash and Rohan, the court granted the writ of mandamus, concluding that even though Gonzales' "exhausted claims are record-based or legal in nature, he is entitled to a stay pending a competency determination" under 18 U. S. C. §3599. In re Gonzales, 623 F. 3d 1242, 1244 (2010). We granted certiorari to determine whether §3599 provides a statutory right to competence in federal habeas proceedings. 565 U. S. ___ (2012).B Sean Carter was convicted by an Ohio jury of aggra-vated murder, aggravated robbery, and rape, and sentenced to death for anally raping his adoptive grandmother, Veader Prince, and stabbing her to death. After exhausting his state-court appeals, Carter initiated federal habeas proceedings on March 19, 2002, in the Northern District of Ohio. Carter eventually filed a third amended petition, along with a motion requesting a competency determi-nation and a stay of the proceedings. The District Court granted the motion. Following several psychiatric evaluations and a com-petency determination, the District Court found Carter incompetent to assist counsel. Applying the Ninth Circuit's test in Rohan, it determined that Carter's assistance was required to develop four of his exhausted claims. As a result, the court dismissed his habeas petition without prejudice and prospectively tolled the statute of limitations. Carter v. Bradshaw, 583 F. Supp. 2d 872, 884 (2008). The State appealed. The Sixth Circuit acknowledged that "[f]ederal habeas petitioners facing the death penalty for state criminal convictions do not enjoy a constitutional right to competence." Carter v. Bradshaw, 644 F. 3d 329, 332 (2011). It nevertheless located a statutory right to competence in §4241, relying, in part, on this Court's decision in Rees v. Peyton, 384 U. S. 312 (1966) (per curiam) (Rees I ).1 644 F. 3d, at 332. The Sixth Circuit explained: "By applying section 4241 to habeas actions, Rees addresses the situation where a habeas petitioner awaiting the death penalty may seek to forego any collateral attacks on his conviction or sentence, and defines a statutory right for the petitioner to be competent enough to (1) understand the nature and consequences of the proceedings against him, and (2) assist properly in his defense." Id., at 333.The court concluded that "[a]nytime a capital habeas petitioner affirmatively seeks to forego his habeas petition, whether by action or inaction, . . . a district court may employ section 4241." Id., at 334. The court therefore amended the District Court's judgment and ordered that Carter's petition be stayed in-definitely with respect to any claims that required his assistance. Id., at 336-337. Judge Rogers dissented, arguing that there was no constitutional or statutory basis for the court's decision. Id., at 337-342. We granted certiorari to determine whether §4241 provides a statutory right to competence in federal habeas proceedings. 565 U. S. ___ (2012).II Both the Ninth and Sixth Circuits have concluded that death row inmates pursuing federal habeas are entitled to a suspension of proceedings when found incompetent. The Ninth Circuit located this right in §3599, while the Sixth Circuit located it in §4241. Neither section provides such a right.A Section 3599(a)(2) guarantees federal habeas petitioners on death row the right to federally funded counsel.2 The statute provides that petitioners who are "financially unable to obtain adequate representation . . . shall be entitled to the appointment of one or more attorneys." Appointed attorneys are required to have experience in death penalty litigation, §§3599(b)-(d), and, once appointed, are directed to "represent the defendant throughout every subsequent stage of available judicial proceedings," §3599(e). The statute also gives district courts the power to authorize funding for "investigative, expert, or other services" as are "reasonably necessary for the representation of the defendant." §3599(f). But §3599 does not direct district courts to stay proceedings when habeas petitioners are found incompetent.3 In addition to lacking any basis in the statutory text, the assertion that the right to counsel implies a right to competence is difficult to square with our constitutional precedents. The right to counsel is located in the Sixth Amendment. ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.") If the right to counsel carried with it an implied right to competence, the right to competence at trial would flow from the Sixth Amendment. But "[w]e have repeatedly and consistently recognized that 'the criminal trial of an incompetent defendant violates due process,' " not the Sixth Amendment. Cooper v. Oklahoma, 517 U. S. 348, 354 (1996) (quoting Medina v. California, 505 U. S. 437, 453 (1992); emphasis added); see also Drope v. Missouri, 420 U. S. 162, 172 (1975) ("[T]he failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial" (citing Pate v. Robinson, 383 U. S. 375, 385 (1966))). It stands to reason that the benefits flowing from the right to counsel at trial could be affected if an incompe-tent defendant is unable to communicate with his attorney. For example, an incompetent defendant would be unable to assist counsel in identifying witnesses and deciding on a trial strategy. For this reason, "[a] defendant may not be put to trial unless he ' "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him." ' " Cooper, supra, at 354 (quoting Dusky v. United States, 362 U. S. 402 (1960) (per curiam)). Notwithstanding the connection between the right to competence at trial and the right to counsel at trial, we have never said that the right to competence derives from the right to counsel. We will not assume or infer that Congress intended to depart from our precedents and locate a right to competence in federal habeas proceedings within the right to counsel. "We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent." Merck & Co. v. Reynolds, 559 U. S. ___, ___ (2010) (slip op., at 12). The Ninth Circuit located a statutory right to competence in §3599. 623 F. 3d, at 1245 (citing Rohan, 334 F. 3d 803, and Nash, 581 F. 3d 1048). Because Rohan is the Ninth Circuit's controlling precedent, we briefly address that decision. In Rohan, a habeas petitioner asserted a right to com-petency based both on the Due Process Clause and on 21 U. S. C. §848(q)(4)(B) (2000 ed.). After discussing the history of the common law, which prohibited the indictment, trial and execution of mentally incompetent defendants,4 the Court of Appeals stated that the petitioner's due process claim raised "substantial" "constitutional ques-tions." Rohan, 334 F. 3d, at 814. This conclusion is puzzling in light of the Ninth Circuit's acknowledgment that there is "no constitutional right to counsel on habeas," id., at 810 (citing Murray v. Giarratano, 492 U. S. 1, 10 (1989) (plurality opinion)), and that "there is no due process right to collateral review at all," 334 F. 3d, at 810 (citing United States v. MacCollom, 426 U. S. 317, 323 (1976) (plurality opinion)). The Ninth Circuit was simply incorrect in suggesting that, in this case, there might be a constitutional concern — much less a "substantial" one — raised by the petitioner's due process claim. Invoking the canon of constitutional avoidance, the Ninth Circuit gave the petitioner the practical benefit of a due process right to competence in federal habeas proceedings through its interpretation of §848(q)(4)(B).5 334 F. 3d, at 814. In analyzing that statute, the Rohan court relied on a Ninth Circuit en banc opinion in Calderon v. United States Dist. Court for Central Dist. of Cal., 163 F. 3d 530 (1998) (Kelly V), overruled in unrelated part, Woodford v. Garceau, 538 U. S. 202 (2003), which held that a prisoner's incompetence is grounds for equitably tolling the Antiterrorism and Effective Death Penalty Act of 1996's (AEDPA) 1-year statute of limitations for filing habeas petitions. The Rohan court purported to be bound by the "rationale" of Kelly V — that a prisoner's incompetence could "eviscerate the statutory right to counsel,"6 Kelly V, supra, at 541 — and concluded that "[i]f a petitioner's statutory rights depend on his ability to communicate rationally, compelling him to pursue relief while incompetent is no less an infringement than dismissing his late petition." 334 F. 3d, at 814. We are not persuaded by the Ninth Circuit's assertion that a habeas petitioner's mental incompetency could "evis-cerate the statutory right to counsel" in federal habeas proceedings. Given the backward-looking, record-based nature of most federal habeas proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner's competence. Indeed, where a claim is "adjudicated on the merits in State court proceedings," 28 U. S. C. §2254(d) (2006 ed.), counsel should, in most circumstances, be able to identify whether the "adjudication . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," §2254(d)(1), without any evi-dence outside the record. See Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 9) ("[R]eview under [28 U. S. C.] §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits... . This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time — i.e., the record before the state court"). Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients' assistance. Rohan also cited Rees I, 384 U. S. 312, in support of its conclusion. 334 F. 3d, at 815. In Rees I, a state inmate on death row filed a petition for a writ of habeas corpus in District Court, alleging that the state-court conviction violated his constitutional rights. 384 U. S., at 313. The District Court denied his petition, and the Court of Appeals affirmed. Ibid. Shortly after Rees' counsel filed a petition for certiorari with this Court, Rees directed his counsel to withdraw the petition and to forgo any further proceedings. Counsel advised the Court that he could not accede to these instructions without a psychiatric evaluation of Rees, because there was some doubt as to Rees' mental competency. Ibid. In response, the Court directed the District Court to determine Rees' mental competence. Id., at 313-314. After the District Court conducted a hearing and found Rees incompetent, the Court issued a one-sentence order directing that the petition for certiorari be "held without action." Rees v. Peyton, 386 U. S. 989 (1967) (Rees II ).7 When Rees died several decades later, the Court dismissed the petition. Rees v. Superintendent of Va. State Penitentiary, 516 U. S. 802 (1995) (Rees III ). The Ninth Circuit concluded that "[t]he record in Rees II shows that incompetence is grounds for staying habeas proceedings." Rohan, supra, at 815. This conclusion is unwarranted. Rees I concerned whether an incompetent habeas petitioner may withdraw his certiorari petition, and it provides no clear answer even to that question. Likewise, the unique, one-sentence order in Rees II offered no rationale for the decision to hold Rees' petition. As a result, Rees offers no support for federal habeas petitioners seeking to stay district court proceedings or for the Ninth Circuit's opinions in Rohan, Nash, or this case.8 Gonzales barely defends the Ninth Circuit's interpretation of §3599.9 He offers a single, halfhearted argument in support of the Ninth Circuit's opinion based on our statement in McFarland v. Scott, 512 U. S. 849, 858 (1994), that "the right to counsel necessarily includes a right for that counsel meaningfully to research and present a defendant's habeas claims." But McFarland was addressing whether a district court could issue a stay of execution after a capital prisoner had filed a request for counsel but before he had filed his habeas petition. Id., at 854-858. We held that a district court may stay a capital prisoner's execution once the prisoner has invoked his statutory right to counsel. Id., at 859. McFarland has no relevance here where Gonzales is not seeking a stay of execution, but rather a stay of the District Court's proceedings. Moreover, Gonzales moved for a stay more than six years after initiating his habeas petition. This was certainly ample time for his attorney to research and present the claims. For the foregoing reasons, we hold that §3599 does not provide federal habeas petitioners with a "statutory right" to competence.10B The Sixth Circuit reached the same conclusion as the Ninth Circuit but located the statutory right to competence during habeas proceedings in 18 U. S. C. §4241. Relying largely on Rees I, the Sixth Circuit concluded that §4241 provides a statutory right to competence. 644 F. 3d, at 333. But as discussed, Part II-A, supra, Rees I did not recognize a statutory right to competence in federal ha-beas proceedings.11 Moreover, §4241 does not even apply to such proceedings. Section 4241(a) provides:"At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suf-fering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."By its own terms, §4241 applies only to trial proceedings prior to sentencing and "at any time after the commencement of probation or supervised release." Federal habeas proceedings, however, commence after sentencing, and federal habeas petitioners, by definition, are incarcerated, not on probation. Furthermore, §4241, like the rest of Title 18 generally, applies exclusively to federal defendants and probationers subject to prosecution by the United States. Carter is not, and does not claim to be, a federal defendant. Rather, he is a state prisoner challenging the basis of his conviction in a federal civil action. See Blair v. Martel, 645 F. 3d 1151, 1155 (CA9 2011) ("By its own terms, §4241 does not apply unless a federal criminal defendant is on trial or is released on probation"). Finally, §4241(a) authorizes the district court to grant a motion for a competency determination if there is reasonable cause to believe that the defendant's mental incompetence renders him "unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." (Emphasis added.) See also §4241(d).12 A habeas proceeding under §2254, however, is not a "proceedin[g] against" the habeas petitioner; this, on the other hand, is a civil action against the warden of the state prison. And, a federal habeas petitioner does not mount a "defense" to the government's prosecution. Rather, the petitioner collaterally attacks his conviction at an earlier state trial. Accordingly, the statutory right to competence provided in §4241 is simply inapplicable to federal habeas proceedings. We would address Carter's arguments in defense of the Sixth Circuit's decision, but, there are none. Carter's brief informed us that "[t]his Court need not consider the statutory argument with which the [petitioner's] brief begins — i.e., that there is no 'statutory right' under C. §4241 to be competent in habeas proceedings." Brief for Respondent in No. 11-218, p. 15. Apparently, Carter found the Sixth Circuit's reasoning indefensible. We agree.III Both Gonzales and Carter argued at length in their briefs and at oral argument that district courts have the equitable power to stay proceedings when they determine that habeas petitioners are mentally incompetent.13 Neither petitioner disputes that "[d]istrict courts ... ordinarily have authority to issue stays, where such a stay would be a proper exercise of discretion." Rhines v. Weber, 544 U. S. 269, 276 (2005) (citation omitted); see also Enelow v. New York Life Ins. Co., 293 U. S. 379, 382 (1935) (explaining that a district court may stay a case "pending before it by virtue of its inherent power to control the progress of the cause so as to maintain the orderly processes of justice"). Similarly, both petitioners agree that "AEDPA does not deprive district courts of [this] authority." Rhines, supra, at 276. Petitioners and respondents disagree, however, about the types of situations in which a stay would be appropriate and about the permissible duration of a competency-based stay. We do not presume that district courts need unsolicited advice from us on how to manage their dockets. Rather, the decision to grant a stay, like the decision to grant an evidentiary hearing, is "generally left to the sound discretion of district courts." Schriro v. Landrigan, 550 U. S. 465, 473 (2007). For pur-poses of resolving these cases, it is unnecessary to determine the precise contours of the district court's discretion to issue stays. We address only its outer limits.A In Gonzales' case, the District Court correctly found that all of Gonzales' properly exhausted claims were record based or resolvable as a matter of law, irrespective of Gonzales' competence.14 617 F. Supp. 2d, at 863; see also State v. Gonzales, 181 Ariz. 502, 509-515, 892 P. 2d 838, 845-851 (1995) (adjudicating Gonzales' claims on the merits). The court therefore denied Gonzales' motion for a stay. The District Court did not abuse its discretion in so holding, because a stay is not generally warranted when a petitioner raises only record-based claims subject to 28 U. S. C. §2254(d). As previously noted, review of such claims "is limited to the record that was before the state court that adjudicated the claim on the merits." Pin-holster, 563 U. S., at ___ (slip op., at 9). Accordingly, any evidence that a petitioner might have would be inadmis-sible. Ibid. ("[T]he record under review is limited to the record in existence at that same time — i.e., the record before the state court"). Because federal habeas is "a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal," the types of errors redressable under §2254(d) should be apparent from the record. Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13) (quoting Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)). Counsel can read the record.B In Carter's case, the District Court concluded that four of Carter's claims could potentially benefit from Carter's assistance.15 However, three of these claims were adjudicated on the merits in state postconviction proceedings and, thus, were subject to review under §2254(d). See State v. Carter, No. 99-T-0133, 2000 Ohio App. LEXIS 5935, 5-13 (Dec. 15, 2000). Any extrarecord evidence that Carter might have concerning these claims would therefore be inadmissible. Pinholster, supra, at ___. Consequently, these claims do not warrant a stay. It is unclear from the record whether Carter exhausted the fourth claim.16 If that claim was exhausted, it too would be record based. But even if Carter could show that the claim was both unexhausted and not procedurally defaulted,17 an indefinite stay would be inappropriate. "AEDPA's acknowledged purpose" is to " 'reduc[e] delays in the execution of state and federal criminal sentences.' " Schriro, supra, at 475 (quoting Woodford, 538 U. S., at 206). "Staying a federal habeas petition frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings." Rhines, 544 U. S., at 277. In the context of discussing stay and abeyance procedures, we observed:"[N]ot all petitioners have an incentive to obtain federal relief as quickly as possible. In particular, capital petitioners might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death. Without time limits [on stays], petitioners could frustrate AEDPA's goal of finality by dragging out indefinitely their federal ha-beas review." Id., at 277-278.The same principle obtains in the context of competency-based stays. At some point, the State must be allowed to defend its judgment of conviction.18 If a district court concludes that the petitioner's claim could substantially benefit from the petitioner's assistance, the district court should take into account the likelihood that the petitioner will regain competence in the foreseeable future. Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State's attempts to defend its presumptively valid judgment.IV The judgment of the Ninth Circuit is reversed. We vacate the judgment of the Sixth Circuit and remand the case for proceedings consistent with this opinion.It is so ordered.FOOTNOTESFootnote 1 Together with No. 11-218, Tibbals, Warden v. Carter, on certiorari to the United States Court of Appeals for the Sixth Circuit.FOOTNOTESFootnote 1 In Rees, we held indefinitely a petition for certiorari after an in-competent capital inmate sought to withdraw his petition prior to our review. 384 U. S., at 313-314. See infra, at 12-14.Footnote 2 "In any postconviction proceeding under [28 U. S. C. §2254 or §2255], seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f )." 18 U. S. C. §3599(a)(2).Footnote 3 In fact, §3599(e), which contains the section's sole reference to "competency," cuts against the Ninth Circuit's conclusion. That section provides that appointed attorneys "shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant." We doubt that Congress would have authorized counsel to represent inmates in postconviction competency proceedings only if the inmates were competent.Footnote 4 Blackstone explained the common-law rule as follows: "[I]f a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the human-ity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution." 4 W. Blackstone, Commentaries on the Laws of England 24-25 (1769).Footnote 5 As noted supra, at 2, §848(q)(4)(B) has been superseded by 18 U. S. C. §3599(a)(2). Footnote 6 It is unclear how Kelly V's determination that mental incompetence is grounds for AEDPA equitable tolling could possibly control the outcome in Rohan, which had nothing to do with AEDPA's statute of limitations. The relevant questions for equitable tolling purposes are whether the petitioner has " 'been pursuing his rights diligently' " and whether " 'some extraordinary circumstance stood in his way.' " Holland v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 16-17) (quoting Pace v. DiGuglielmo, 544 U. S. 408, 418 (2005)). But the propriety of equitably tolling AEDPA's statute of limitations in the case of a men-tally incompetent petitioner has nothing to do with the statutory right to counsel. The Ninth Circuit has held that habeas petitioners who do not have a statutory right to counsel (i.e., all habeas petitioners other than those on death row) may still avail themselves of equitable tolling if they are mentally incompetent. See, e.g., Bills v. Clark, 628 F. 3d 1092, 1097 (2010) (establishing standard for deciding equitable tolling claims predicated on mental incompetence); Laws v. Lamarque, 351 F. 3d 919, 924-925 (2003) (recognizing that mental incompetence can give rise to equitable tolling for AEDPA's statute of limitations).Footnote 7 This order was issued after the Clerk of the Court spoke with the attorneys for Virginia and for the petitioner and proposed that the Court hold the petition indefinitely. See Memorandum from John F. Davis, Clerk of Court, to The Chief Justice (Mar. 31, 1967); see also Crocker, Not To Decide Is To Decide: The U. S. Supreme Court's Thirty-Year Struggle With One Case About Competency To Waive Death Penalty Appeals, 49 Wayne L. Rev. 885, 916 (2004). Although Virginia originally opposed the idea of an indefinite stay, see Memorandum for Respondent in Rees v. Peyton, O. T. 1966, No. 9, Misc., pp. 2-3 (Mar. 14, 1967), it eventually accepted the proposal, see Memorandum from John F. Davis, supra, at 2 ("In summary, counsel for both parties do not really present any objection to the procedure proposed in the case, but neither of them accepts it with enthusiasm").Footnote 8 Moreover, we note that Rees is a pre-AEDPA case. To whatever, extent Rees can be read to provide guidance in the habeas context, that guidance must pass muster under AEDPA.Footnote 9 See Brief for Respondent in No. 10-930, p. 13 ("The State and the Solicitor General argue that the federal habeas right-to-counsel provision, 18 U. S. C. §3599(a)(2), should not be interpreted to create a 'right to competence' . . . . However, that is not the question presented in this case. The issue is whether courts have authority to issue a stay, not whether capital habeas petitioners enjoy a freestanding 'right to competence,' or what the contours of such a right may be. The Court need not reach that question in order to uphold the discretionary, and temporary, stay of proceedings issued in this case"). Notwithstanding Gon-zales' attempt to rewrite the question presented, we granted certiorari on the following question:"Did the Ninth Circuit err when it held that C. §3599(a)(2)--which provides that an indigent capital state inmate pursuing federal habeas relief 'shall be entitled to the appointment of one or more attorneys'--impliedly entitles a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel? Footnote 10 Gonzales suggests that 28 U. S. C. §2251 supports the Ninth Circuit's decision. But §2251 merely provides district courts with the statutory authority to stay state-court proceedings pending the resolution of federal habeas proceedings. Section 2251 says nothing about whether a habeas petitioner is entitled to a stay of the district court's proceedings pending his return to competence.Footnote 11 The Sixth Circuit made much of the fact that Rees I cited 18 U. S. C. §§4244-4245, the predecessors of §4241. But that citation provides no support for a statutory right to competence. In Rees I, as part of our direction to the District Court, we said that it would "be appropriate for the District Court to subject Rees to psychiatric and other appropriate medical examinations and, so far as necessary, to temporary federal hospitalization for this purpose. Cf. C. §§4244-4245 (1964 ed.)." 384 U. S., at 314. The citation to §§4244-4245 did nothing more than point the District Court to those sections of the Criminal Code that set forth the proper procedures for conducting a competency hearing. There would have been little point in this Court's directing the District Court to reinvent the wheel when §4244 already provided a rubric for conducting such a hearing.Footnote 12 Section 4241(d) provides, in relevant part: "If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental dis-ease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General." (Emphasis added.)Footnote 13 This argument is especially curious coming from Gonzales, because the District Court denied his request for a stay. For Gonzales to prevail on his "equitable discretion" theory, Tr. of Oral Arg. in No. 10-930, p. 33, we would have to conclude that the District Court abused its discretion in denying the stay. But Gonzales has not argued that the District Court abused its discretion by denying his stay motion. Gon-zales' arguments, thus, have little to do with the facts of his case.Footnote 14 Gonzales alleges that the trial judge refused to recuse himself; that he was prejudiced by the presence of the victim's wife in the courtroom during jury selection and following her testimony; that the wife's in-court identification was tainted; that there was insufficient evidence to support two aggravating factors found by the judge; and that Arizona's statutory death penalty scheme unconstitutionally precludes the sentencer from considering all mitigating evidence.Footnote 15 Claim one alleges that Carter was incompetent to stand trial and was unlawfully removed from the trial proceedings. Claims two, five, and six are ineffective-assistance-of-counsel claims.Footnote 16 The fourth claim alleges ineffective assistance of appellate counsel for not raising trial counsel's failure to pursue the competency-at-trial issue. It is unclear from the record whether Carter presented this claim to the Ohio Court of Appeals on state postconviction review, and there is no mention of this claim in that court's opinion. In the District Court, the State argued that certain claims were procedurally de-faulted, see Carter v. Bradshaw, 583 F. Supp. 2d 872, 880 (ND Ohio 2008), but the court deferred ruling on this argument. The State was likely referring to claim four. We, therefore, leave the resolution of this claim to the District Court on remand.Footnote 17 In Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 14, n. 10), we did "not decide where to draw the line between new claims and claims adjudicated on the merits."Footnote 18 Our opinion today does not implicate the prohibition against " 'carrying out a sentence of death upon a prisoner who is insane.' " Panetti v. Quarterman, 551 U. S. 930, 934 (2007) (quoting Ford v. Wainwright, 477 U. S. 399, 409-410 (1986)).
7	A group of citrus fruit growers in California and Arizona organized local cooperative associations which joined together for the purpose of collectively marketing their fruit through the agency of an area-wide marketing cooperative and two processing cooperatives. Respondents sued petitioners, the areawide cooperative and one of the processing cooperatives, for treble damages under 4 of the Clayton Act, claiming that they had conspired with the other processing cooperative and two privately owned processing corporations to restrain and monopolize interstate trade in citrus fruit and by-products and had actually monopolized the same, in violation of 1 and 2 of the Sherman Act. Held: In view of the exemption from the antitrust laws accorded to agricultural cooperatives by 6 of the Clayton Act and 1 of the Capper-Volstead Act, 7 U.S.C. 291, a judgment based on a general verdict against petitioners, which may have rested on a finding of an unlawful conspiracy among the three cooperatives, must be reversed. Pp. 20-30. (a) The instructions in this case left it open for the jury to base its verdict on a finding of a conspiracy among the marketing cooperative and the two processing cooperatives. Pp. 25-26. (b) On the record in this case it cannot be said that petitioners waived their objection to these instructions. Pp. 26-27. (c) In view of the provisions of 6 of the Clayton Act and 1 of the Capper-Volstead Act, the three legal entities formed by these growers for the purpose of processing and marketing their agricultural products cooperatively cannot be considered independent parties for the purposes of the conspiracy provisions of 1 and 2 of the Sherman Act. Pp. 27-29. (d) Where one of several theories submitted to a jury is held erroneous, a general verdict must be reversed, as it may have rested on the erroneous theory. Pp. 29-30. 284 F.2d 1, reversed and cause remanded. Herman F. Selvin argued the cause for petitioners. With him on the briefs was Ross C. Fisher.William C. Dixon argued the cause for respondents. With him on the briefs was Holmes Baldridge.MR. JUSTICE CLARK delivered the opinion of the Court.This is a treble damage suit brought under 4 of the Clayton Act. 38 Stat. 731, 15 U.S.C. 15, charging petitioners, Sunkist Growers, Incorporated, and The Exchange Orange Products Company, with conspiracy to restrain and monopolize interstate trade and commerce in citrus fruits and by-products and with actual monopolization thereof in violation of 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U.S.C. 1, 2, as amended. The petitioners are each agricultural cooperative organizations, Exchange Orange being a wholly owned subsidiary of Sunkist. Petitioners contend the case was submitted under instructions permitting the jury to find an illegal conspiracy among them and Exchange Lemon Products Company, a cooperative processing association owned and operated exclusively by a number of lemon-grower associations all of which are members of Sunkist Growers, Inc. They say that under the exemptions from the antitrust laws granted agricultural associations by 6 of the Clayton Act, 38 Stat. 731, 15 U.S.C. 17, and 1 of the Capper-Volstead Act, 42 Stat. 388, 7 U.S.C. 291, Sunkist, Exchange Orange, and Exchange Lemon, being made up of the same growers and associations, cannot be charged with conspiracy among themselves. The trial court overruled this contention, among others, and the jury returned a verdict of $500,000. Judgment for treble this amount and attorney fees, less some minor offsets, was entered. The Court of Appeals, accepting petitioners' view of the instructions, held that the exemption claimed did not apply here and affirmed the judgment as to liability but reversed as to the amount of damages. 284 F.2d 1. We granted certiorari limited to the issue of the immunity of interorganizational dealings among the three cooperatives from the conspiracy provisions of the antitrust laws. . We have concluded that the case was submitted to the jury on the theory claimed by petitioners and that this was erroneous. Thus we reverse the judgment.Sunkist Growers, Inc., has at its base 12,000 growers of citrus fruits in California and Arizona. These growers are organized into local associations which operate packing houses. The associations in turn are grouped into district exchanges, and representatives from these exchanges make up the governing board of Sunkist, a nonstock membership corporation. Sunkist serves the members as an organization for marketing their fresh fruit and fruit products1 through its field, advertising, sales, and traffic departments. All of its net revenues are distributed to the members.In 1915 several member associations of Sunkist undertook to develop by-products for lemons in order to create a market for produce not salable as fresh fruit. Because this was a new, untried field the entire cooperative did not participate. Rather a separate cooperative - Exchange Lemon, a nonprofit stock corporation - was formed for this venture by the interested associations. Since that time Exchange Lemon has retained its separate identity although it is made up exclusively of lemon-grower associations which are also members of Sunkist. Its function now is primarily one of processing, and the resultant products are marketed for the owners by Sunkist through its products department, which is jointly managed by directors of Exchange Lemon and Exchange Orange. One year after the organization of Exchange Lemon a similar association was formed to develop by-products for oranges. This organization, Exchange Orange, was comprised of a number of Sunkist member associations until 1931. At that time the Sunkist directors decided to make the processing facilities of Exchange Orange available to all of its member associations by purchasing it and operating it as a wholly owned subsidiary.In sum, the individual growers involved each belong to a local grower association. Fruit which is to be sold fresh is packed by the associations and marketed by Sunkist, a nonstock membership corporation comprised of district exchanges to which the associations belong. Most fruit which is to be processed into by-products is handled by Exchange Orange, a subsidiary of Sunkist, or by Exchange Lemon, a separate organization comprised of a number of Sunkist member associations.2 It is then marketed by the products department of Sunkist which is managed by directors of Exchange Orange and Exchange Lemon.Competing with the three cooperatives in the California-Arizona area in the business of processing and selling canned orange juice were four independent processors, which were primarily dependent upon Sunkist for their supply of by-product oranges.3 In 1951 two of these concerns, TreeSweet Products Company and E. A. Silzle Corporation, had process-and-purchase contracts with Exchange Orange. Under its contract TreeSweet agreed to process at cost an undetermined amount of oranges provided by Exchange Orange and to purchase the resultant orange juice at the then current price of Sunkist. The average net price for the oranges under this contract was alleged to have been $25.10 per ton.4 The contract with Silzle provided that it would process a stated amount of oranges for Exchange Orange and purchase the juice at a stated price less its processing cost alleged to have netted $17.66 per ton.5 The third producer, Case-Swayne Company, allegedly declined Sunkist's offer of a similar contract. Respondent Winckler & Smith Citrus Products Company, the final processor, was offered oranges only at the list price of $40 to $44 per ton, depending upon content of soluble solids and was refused the process-and-purchase arrangements described above.Respondents brought this suit on the theory that Sunkist and Exchange Orange controlled the supply of byproduct oranges available in the California-Arizona area to independent processors; that they combined and conspired with Exchange Lemon, TreeSweet, and Silzle to restrain and to monopolize interstate trade and commerce in 1951 in the processing and sale of citrus fruit juices, particularly canned orange juice; that they in fact monopolized such trade and commerce; and that the purpose or effect thereof was the elimination of Winckler as a competitor in the sale of such juices. Respondents relied on six specific acts and contracts which allegedly furthered the conspiracy, namely: (1) the processing of oranges at cost by Exchange Lemon for Exchange Orange during 1951; (2) the processing of lemons at cost by Exchange Orange for Exchange Lemon during 1951; (3) the establishment by Sunkist and Exchange Orange of a price to independent processors alleged to be too high to enable purchasers to compete, i. e., the $40-$44 per ton list price; (4) the contract between Exchange Orange and TreeSweet in 1951; (5) the contract between Exchange Orange and Silzle in 1951; (6) the refusal to sign a comparable contract with respondent Winckler.After a lengthy trial producing a 4,000-page transcript, the case went to the jury under a necessarily complicated charge. As to the parties the jury might find to have participated in an illegal conspiracy, the court gave several instructions. One, given early in the charge, was that:"a parent corporation and its wholly-owned subsidiary can be guilty of combining or conspiring together to violate the antitrust laws. The defendants Sunkist Growers, Inc., and its wholly-owned subsidiary Exchange Orange Products Company, can accordingly combine or conspire together or with others to violate Sections 1 and 2 of the Sherman Act as charged in the first and second causes of action, subject to other instructions concerning the Capper-Volstead Act, and Section 6 of the Clayton Act, and the exemptions contained therein." The instructions on the Clayton and Capper-Volstead Acts merely stated that the cooperatives could lawfully have a monopoly of the fruit and products in which they dealt. Later references to the alleged conspiracy often mentioned only petitioners and the two independent processors, e. g., "If you find that either or both of the defendants [Sunkist and Exchange Orange, petitioners here] combined with TreeSweet or Silzle to eliminate the competition of the plaintiff ... ." However, the court's concluding instructions on the subject could well have been taken by the jury as permitting them to find an illegal conspiracy solely among the three cooperatives: "Unless you find, therefore, from the preponderance of the evidence, that Sunkist or Exchange Orange or either of them, combined or conspired with either TreeSweet, or Silzle, or ELP [Exchange Lemon Products], and in 1951 did one or more of the specific acts charged ... . "... Unless you find from the preponderance of the evidence that defendants Sunkist and Exchange Orange, or either of them, and one or more of the alleged co-conspirators [one of which was Exchange Lemon], combined and conspired, and pursuant to such combination or conspiracy ... . "Those are summary instructions which sort of sum up what is charged and what the plaintiff must prove." And in a final addendum after consultation with counsel the court instructed that: "I also am told that I spoke about how the defendants had conspired on one occasion. The charge is not that the defendants conspired. The charge is that the defendants and co-conspirators conspired." "However, as a matter of fact, you may find that nobody conspired, or you may pick out and decide that some number less than the total conspired." On the question now before us, the Court of Appeals held that any objection to at least one of the conspiracy instructions was waived; that in any event different agricultural cooperatives combining together are not entitled to claim a total immunity for acts which they might do unilaterally and individually; and that the common ownership of Sunkist, Exchange Orange, and Exchange Lemon did not prevent the finding of an illegal conspiracy among them.We believe the instructions quite plainly left it open for the jury to base their verdict upon a finding of a conspiracy among petitioners and Exchange Lemon.6 At the outset the court instructed that a conspiracy could be found between Sunkist and its wholly owned subsidiary Exchange Orange. Thereafter the charge advised the jury that a finding of conspiracy between "Sunkist or Exchange Orange or either of them ... [and] either TreeSweet, or Silzle, or ELP" was sufficient basis for a judgment against petitioners. From this it is entirely probable that the jury's verdict against both petitioners was based on their finding of a conspiracy among Sunkist, Exchange Orange, and Exchange Lemon. There is no question that Exchange Lemon was identified in the complaint and throughout the trial as an alleged co-conspirator. In no fewer than five instances did the trial court refer to the alleged conspiracy as being among petitioners and the "co-conspirators" or petitioners and Exchange Lemon, TreeSweet, or Silzle. The final summarization on conspiracy was in terms of finding that petitioners combined or conspired with either TreeSweet or Silzle or Exchange Lemon, and the addendum instructions emphasized that the jury could find either or both petitioners had illegally conspired with any one of the alleged co-conspirators. It is true that in some instances the court's conspiracy instructions mentioned only TreeSweet and Silzle as co-conspirators. Conjecture as to the reasons for this would not be fruitful. For it is clear that the court never limited the jury to a consideration of those parties as the sole co-conspirators. And other instructions, including the summarization, allowed the jury to base their verdict upon a finding of an illegal conspiracy solely among Sunkist, Exchange Orange, and Exchange Lemon.It is suggested by respondents and the court below that petitioners waived their objection to these instructions. This is based on petitioners' acquiescence in the additional instructions, including references to the conspiracy, given the jury after the general charge. But petitioners' actions here must be viewed in context. Prior to the general charge, conferences of counsel and the trial court were held to discuss the instructions. At each point counsel for petitioners objected to instructions which suggested that the three cooperatives might be found to have illegally conspired among themselves and requested instructions that would have limited a finding of an unlawful conspiracy in this case to one among petitioners and TreeSweet or Silzle. The trial court consistently ruled adversely to petitioners on this point. After the charge was delivered, counsel were told that all prior objections would be preserved and asked if they had any additional objections. In light of this assurance and petitioners' prior objections and requests, we believe the acquiescence in the added instructions could not be considered a waiver.We are squarely presented, then, with the question of whether Sunkist, Exchange Orange, and Exchange Lemon - the three legal entities formed by these 12,000 growers - can be considered independent parties for the purposes of the conspiracy provisions of 1 and 2 of the Sherman Act. We conclude not. Section 6 of the Clayton Act provides, inter alia, that agricultural organizations instituted for the purposes of mutual help shall not be held or construed to be illegal combinations or conspiracies in restraint of trade under the antitrust laws.7 The Capper-Volstead Act sets out this immunity in greater specificity: "That persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes ... ."8 There can be no doubt that under these statutes the 12,000 California-Arizona citrus growers ultimately involved could join together into one organization for the collective processing and marketing of their fruit and fruit products without the business decisions of their officers being held combinations or conspiracies. The language of the Capper-Volstead Act is specific in permitting concerted efforts by farmers in the processing, preparing for market, and marketing of their products. And the legislative history of the Act reveals several references to the Sunkist organization - then called the California Fruit Growers Exchange and numbering 11,000 members - including a suggestion by Senator Capper that this was the type of cooperative that would find "definite legalization" under the legislation.9 Although we cannot draw from these references a knowing approval of the tripartite legal organization of the 11,000 growers, they do indicate that a cooperative of such size and general activities was contemplated by the Act.Instead of a single cooperative, these growers through local associations first formed one area-wide organization (Sunkist) for marketing purposes. When it was decided to perform research and processing on a joint basis, separate organizations were formed by the interested associations for reasons outlined above. At a later date one of these (Exchange Orange) was acquired by the Sunkist organization and is presently held as a subsidiary. The other (Exchange Lemon) is still owned by the lemongrower associations, all of whom are also member associations of Sunkist. With due respect to the contrary opinions of the Court of Appeals and District Court, we feel that the 12,000 growers here involved are in practical effect and in the contemplation of the statutes one "organization" or "association" even though they have formally organized themselves into three separate legal entities. To hold otherwise would be to impose grave legal consequences upon organizational distinctions that are of de minimis meaning and effect to these growers who have banded together for processing and marketing purposes within the purview of the Clayton and Capper-Volstead Acts. There is no indication that the use of separate corporations had economic significance in itself or that outsiders considered and dealt with the three entities as independent organizations. That the packing is done by local associations, the advertising, sales, and traffic by divisions of the area association, and the processing by separate organizations does not in our opinion preclude these growers from being considered one organization or association for purposes of the Clayton and Capper-Volstead Acts.Since we hold erroneous one theory of liability upon which the general verdict may have rested - a conspiracy among petitioners and Exchange Lemon - it is unnecessary for us to explore the legality of the other theories. As was stated of a general verdict in Maryland v. Baldwin, , "[I]ts generality prevents us from perceiving upon which plea they found. If, therefore, upon any one issue error was committed, either in the admission of evidence, or in the charge of the court, the verdict cannot be upheld ... ." Suffice it to say that our decision in no way detracts from earlier cases holding agricultural cooperatives liable for conspiracies with outside groups, United States v. Borden Co., , and for monopolization, Maryland & Virginia Milk Producers Assn. v. United States, . Reversed and remanded.MR. JUSTICE FRANKFURTER took no part in the decision of this case.MR. JUSTICE WHITE took no part in the consideration or decision of this case.
1	In 1975, respondent city set about to hire a new Recreation Director to manage the city's recreational facilities and to develop recreational programs. A committee, consisting of four men and one woman, was responsible for choosing the Director. Eight persons applied for the position, including petitioner, the only woman applicant. At the time, petitioner was a 39-year-old schoolteacher with college degrees in social studies and education. The committee offered the position to a 24-year-old male applicant, who had recently graduated from college with a degree in physical education. The four men on the committee voted to offer the job to him, and only the woman voted for petitioner. Petitioner then filed discrimination charges with the Equal Employment Opportunity Commission (EEOC), which, upon finding that there was reasonable cause to believe that petitioner's charges were true, invited the parties to engage in conciliation proceedings. When these efforts proved unsuccessful, the EEOC issued petitioner a right-to-sue letter, and she filed an action in Federal District Court under Title VII of the Civil Rights Act of 1964. After a trial in which testimony from petitioner, the applicant who was hired, and members of the selection committee was heard, the court issued a memorandum announcing its finding that petitioner was entitled to judgment because she had been denied the position on account of her sex. The memorandum requested petitioner to submit proposed findings of fact and conclusions of law expanding upon those set forth in the memorandum. When petitioner complied with this request, the court requested and received a response setting forth respondent's objections to the proposed findings. The court then issued its own findings of fact and conclusions of law. The court's finding that petitioner had been denied employment because of her sex was based on findings of fact that she was the most qualified candidate, that she had been asked questions during her interview regarding her spouse's feelings about her application for the position that other applicants were not asked, and that the male committee members were biased against hiring a woman. The Court of Appeals reversed, holding that the District Court's findings were clearly erroneous and that the court had therefore erred in finding that petitioner had been discriminated against on account of sex. Held: The Court of Appeals misapprehended and misapplied the clearly-erroneous standard and accordingly erred in denying petitioner relief under Title VII. Pp. 571-581. (a) Where the District Court did not simply adopt petitioner's proposed findings but provided respondent with an opportunity to respond to those findings and the findings ultimately issued varied considerably from those proposed by petitioner, there is no reason to doubt that the ultimate findings represented the court's own considered conclusions or to subject those findings to a more stringent appellate review than is called for by the applicable rules. Pp. 571-573. (b) Under Federal Rule of Civil Procedure 52(a) - which provides that "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witness" - "[a] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., . If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. This is so even when the district court's findings do not rest on credibility determinations, but are based on physical or documentary evidence or inferences from other facts. When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's finding. Pp. 573-576. (c) Application of the above principles to the facts of this case discloses that the Court of Appeals erred in its employment of the clearly-erroneous standard. The District Court's finding that petitioner was better qualified was entitled to deference notwithstanding it was not based on credibility determinations, and the record contains nothing that mandates a holding that the finding was clearly erroneous. As to the District Court's finding that petitioner was the only applicant asked questions regarding her spouse's feelings about her application for the position, the Court of Appeals erred in failing to give due regard to the District Court's ability to interpret and discern the credibility of oral testimony, especially that of the woman member of the selection committee, whose testimony the District Court felt supported the finding. Given that that finding was not clearly erroneous, the District Court's finding of bias cannot be termed erroneous. It is supported not only by the treatment of petitioner in her interview but also by the testimony of one committee member that he believed it would have been difficult for a woman to perform the job and by evidence that another member solicited applications only from men. Because the findings on which the District Court based its finding of sex discrimination were not clearly erroneous, its finding of discrimination was also not clearly erroneous. Pp. 576-581. 717 F.2d 149, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, MARSHALL, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 581. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 581.Jonathan Wallas argued the cause for petitioner. With him on the briefs were John T. Nockelby, J. LeVonne Chambers, O. Peter Sherwood, and Eric Schnapper.Carolyn S. Corwin argued the cause for the United States et al. as amici curiae urging reversal. With her on the brief were Solicitor General Lee, Deputy Solicitor General Wallace, Johnny J. Butler, and Philip B. Sklover.Philip M. Van Hoy argued the cause for respondent. With him on the brief were Eugene Gressman and Arthur C. Blue III.* [Footnote *] Joan E. Bertin, E. Richard Larson, Burt Neuborne, and Isabelle Katz Pinzler filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.JUSTICE WHITE delivered the opinion of the Court.In Pullman-Standard v. Swint, , we held that a District Court's finding of discriminatory intent in an action brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 2000e et seq., is a factual finding that may be overturned on appeal only if it is clearly erroneous. In this case, the Court of Appeals for the Fourth Circuit concluded that there was clear error in a District Court's finding of discrimination and reversed. Because our reading of the record convinces us that the Court of Appeals misapprehended and misapplied the clearly-erroneous standard, we reverse. IEarly in 1975, officials of respondent Bessemer City, North Carolina, set about to hire a new Recreation Director for the city. Although the duties that went with the position were not precisely delineated, the new Recreation Director was to be responsible for managing all of the city's recreational facilities and for developing recreational programs - athletic and otherwise - to serve the needs of the city's residents. A five-member committee selected by the Mayor was responsible for choosing the Recreation Director. Of the five members, four were men; the one woman on the committee, Mrs. Auddie Boone, served as the chairperson.Eight persons applied for the position of Recreation Director. Petitioner, at the time a 39-year-old schoolteacher with college degrees in social studies and education, was the only woman among the eight. The selection committee reviewed the resumes submitted by the applicants and briefly interviewed each of the jobseekers. Following the interviews, the committee offered the position to Mr. Donald Kincaid, a 24-year-old who had recently graduated from college with a degree in physical education. All four men on the committee voted to offer the job to Mr. Kincaid; Mrs. Boone voted for petitioner.Believing that the committee had passed over her in favor of a less qualified candidate solely because she was a woman, petitioner filed discrimination charges with the Charlotte District Office of the Equal Employment Opportunity Commission. In July 1980 (five years after petitioner filed the charges), the EEOC's District Director found that there was reasonable cause to believe that petitioner's charges were true and invited the parties to attempt a resolution of petitioner's grievance through conciliation proceedings. The EEOC's efforts proved unsuccessful, and in due course, petitioner received a right-to-sue letter.Petitioner then filed this Title VII action in the United States District Court for the Western District of North Carolina. After a 2-day trial during which the court heard testimony from petitioner, Mr. Kincaid, and the five members of the selection committee, the court issued a brief memorandum of decision setting forth its finding that petitioner was entitled to judgment because she had been denied the position of Recreation Director on account of her sex. In addition to laying out the rationale for this finding, the memorandum requested that petitioner's counsel submit proposed findings of fact and conclusions of law expanding upon those set forth in the memorandum. Petitioner's counsel complied with this request by submitting a lengthy set of proposed findings (App. 11a-34a); the court then requested and received a response setting forth in detail respondent's objections to the proposed findings (id., at 36a-47a) - objections that were, in turn, answered by petitioner's counsel in a somewhat less lengthy reply (id., at 48a-54a). After receiving these submissions, the court issued its own findings of fact and conclusions of law. 557 F. Supp. 412, 413-419 (1983).As set forth in the formal findings of fact and conclusions of law, the court's finding that petitioner had been denied employment by respondent because of her sex rested on a number of subsidiary findings. First, the court found that at the time the selection committee made its choice, petitioner had been better qualified than Mr. Kincaid to perform the range of duties demanded by the position. The court based this finding on petitioner's experience as a classroom teacher responsible for supervising schoolchildren in recreational and athletic activities, her employment as a hospital recreation director in the late 1950's, her extensive involvement in a variety of civic organizations, her knowledge of sports acquired both as a high school athlete and as a mother of children involved in organized athletics, her skills as a public speaker, her experience in handling money (gained in the course of her community activities and in her work as a book-keeper for a group of physicians), and her knowledge of music, dance, and crafts. The court found that Mr. Kincaid's principal qualifications were his experience as a student teacher and as a coach in a local youth basketball league, his extensive knowledge of team and individual sports, acquired as a result of his lifelong involvement in athletics, and his formal training as a physical education major in college. Noting that the position of Recreation Director involved more than the management of athletic programs, the court concluded that petitioner's greater breadth of experience made her better qualified for the position.Second, the court found that the male committee members had in fact been biased against petitioner because she was a woman. The court based this finding in part on the testimony of one of the committee members that he believed it would have been "real hard" for a woman to handle the job and that he would not want his wife to have to perform the duties of the Recreation Director. The finding of bias found additional support in evidence that another male committee member had told Mr. Kincaid, the successful applicant, of the vacancy and had also solicited applications from three other men, but had not attempted to recruit any women for the job.Also critical to the court's inference of bias was its finding that petitioner, alone among the applicants for the job, had been asked whether she realized the job would involve night work and travel and whether her husband approved of her applying for the job. The court's finding that the committee had pursued this line of inquiry only with petitioner was based on the testimony of petitioner that these questions had been asked of her and the testimony of Mrs. Boone that similar questions had not been asked of the other applicants. Although Mrs. Boone also testified that during Mr. Kincaid's interview, she had made a "comment" to him regarding the reaction of his new bride to his taking the position of Recreation Director, the court concluded that this comment was not a serious inquiry, but merely a "facetious" remark prompted by Mrs. Boone's annoyance that only petitioner had been questioned about her spouse's reaction. The court also declined to credit the testimony of one of the male committee members that Mr. Kincaid had been asked about his wife's feelings "in a way" and the testimony of another committeeman that all applicants had been questioned regarding their willingness to work at night and their families' reaction to night work. The court concluded that the finding that only petitioner had been seriously questioned about her family's reaction suggested that the male committee members believed women had special family responsibilities that made certain forms of employment inappropriate.Finally, the court found that the reasons offered by the male committee members for their choice of Mr. Kincaid were pretextual. The court rejected the proposition that Mr. Kincaid's degree in physical education justified his choice, as the evidence suggested that where male candidates were concerned, the committee valued experience more highly than formal training in physical education.1 The court also rejected the claim of one of the committeemen that Mr. Kincaid had been hired because of the superiority of the recreational programs he planned to implement if selected for the job. The court credited the testimony of one of the other committeemen who had voted for Mr. Kincaid that the programs outlined by petitioner and Mr. Kincaid were substantially identical.On the basis of its findings that petitioner was the most qualified candidate, that the committee had been biased against hiring a woman, and that the committee's explanations for its choice of Mr. Kincaid were pretextual, the court concluded that petitioner had met her burden of establishing that she had been denied the position of Recreation Director because of her sex. Petitioner having conceded that ordering the city to hire her would be an inappropriate remedy under the circumstances, the court awarded petitioner backpay in the amount of $30,397 and attorney's fees of $16,971.59.The Fourth Circuit reversed the District Court's finding of discrimination. 717 F.2d 149 (1983). In the view of the Court of Appeals, three of the District Court's crucial findings were clearly erroneous: the finding that petitioner was the most qualified candidate, the finding that petitioner had been asked questions that other applicants were spared, and the finding that the male committee members were biased against hiring a woman. Having rejected these findings, the Court of Appeals concluded that the District Court had erred in finding that petitioner had been discriminated against on account of her sex.IIWe must deal at the outset with the Fourth Circuit's suggestion that "close scrutiny of the record in this case [was] justified by the manner in which the opinion was prepared," id., at 156 - that is, by the District Court's adoption of petitioner's proposed findings of fact and conclusions of law. The court recalled that the Fourth Circuit had on many occasions condemned the practice of announcing a decision and leaving it to the prevailing party to write the findings of fact and conclusions of law. See, e. g., Cuthbertson v. Biggers Bros., Inc., 702 F.2d 454 (1983); EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633 (1983); Chicopee Mfg. Corp. v. Kendall Co., 288 F.2d 719 (1961). The court rejected petitioner's contention that the procedure followed by the trial judge in this case was proper because the judge had given respondent an opportunity to object to the proposed findings and had not adopted petitioner's findings verbatim. According to the court, the vice of the procedure lay in the trial court's solicitation of findings after it had already announced its decision and in the court's adoption of the "substance" of petitioner's proposed findings.We, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record. See, e. g., United States v. El Paso Natural Gas Co., ; United States v. Marine Bancorporation, , n. 13 (1974). We are also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor. See J. Wright, The Nonjury Trial - Preparing Findings of Fact, Conclusions of Law, and Opinions, Seminars for Newly Appointed United States District Judges 159, 166 (1962). Nonetheless, our previous discussions of the subject suggest that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. United States v. Marine Bancorporation, supra, at 615, n. 13; United States v. El Paso Natural Gas Co., supra, at 656-657.In any event, the District Court in this case does not appear to have uncritically accepted findings prepared without judicial guidance by the prevailing party. The court itself provided the framework for the proposed findings when it issued its preliminary memorandum, which set forth its essential findings and directed petitioner's counsel to submit a more detailed set of findings consistent with them. Further, respondent was provided and availed itself of the opportunity to respond at length to the proposed findings. Nor did the District Court simply adopt petitioner's proposed findings: the findings it ultimately issued - and particularly the crucial findings regarding petitioner's qualifications, the questioning to which petitioner was subjected, and bias on the part of the committeemen - vary considerably in organization and content from those submitted by petitioner's counsel. Under these circumstances, we see no reason to doubt that the findings issued by the District Court represent the judge's own considered conclusions. There is no reason to subject those findings to a more stringent appellate review than is called for by the applicable rules.IIIBecause a finding of intentional discrimination is a finding of fact, the standard governing appellate review of a district court's finding of discrimination is that set forth in Federal Rule of Civil Procedure 52(a): "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." The question before us, then, is whether the Court of Appeals erred in holding the District Court's finding of discrimination to be clearly erroneous.Although the meaning of the phrase "clearly erroneous" is not immediately apparent, certain general principles governing the exercise of the appellate court's power to overturn findings of a district court may be derived from our cases. The foremost of these principles, as the Fourth Circuit itself recognized, is that "[a] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., . This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. "In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo." Zenith Radio Corp. v. Hazeltine Research, Inc., . If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., ; see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., .This is so even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. To be sure, various Courts of Appeals have on occasion asserted the theory that an appellate court may exercise de novo review over findings not based on credibility determinations. See, e. g., Orvis v. Higgins, 180 F.2d 537 (CA2 1950); Lydle v. United States, 635 F.2d 763, 765, n. 1 (CA6 1981); Swanson v. Baker Industries, Inc., 615 F.2d 479, 483 (CA8 1980). This theory has an impressive genealogy, having first been articulated in an opinion written by Judge Frank and subscribed to by Judge Augustus Hand, see Orvis v. Higgins, supra, but it is impossible to trace the theory's lineage back to the text of Rule 52(a), which states straightforwardly that "findings of fact shall not be set aside unless clearly erroneous." That the Rule goes on to emphasize the special deference to be paid credibility determinations does not alter its clear command: Rule 52(a) "does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court's findings unless clearly erroneous." Pullman-Standard v. Swint, 456 U.S., at 287.The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the Court has stated in a different context, the trial on the merits should be "the `main event' ... rather than a `tryout on the road.'" Wainwright v. Sykes, . For these reasons, review of factual findings under the clearly-erroneous standard - with its deference to the trier of fact - is the rule, not the exception.When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. See Wainwright v. Witt, . This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. See, e. g., United States v. United States Gypsum Co., supra, at 396. But when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Cf. United States v. Aluminum Co. of America, 148 F.2d 416, 433 (CA2 1945); Orvis v. Higgins, supra, at 539-540.IVApplication of the foregoing principles to the facts of the case lays bare the errors committed by the Fourth Circuit in its employment of the clearly-erroneous standard. In detecting clear error in the District Court's finding that petitioner was better qualified than Mr. Kincaid, the Fourth Circuit improperly conducted what amounted to a de novo weighing of the evidence in the record. The District Court's finding was based on essentially undisputed evidence regarding the respective backgrounds of petitioner and Mr. Kincaid and the duties that went with the position of Recreation Director. The District Court, after considering the evidence, concluded that the position of Recreation Director in Bessemer City carried with it broad responsibilities for creating and managing a recreation program involving not only athletics, but also other activities for citizens of all ages and interests. The court determined that petitioner's more varied educational and employment background and her extensive involvement in a variety of civic activities left her better qualified to implement such a rounded program than Mr. Kincaid, whose background was more narrowly focused on athletics.The Fourth Circuit, reading the same record, concluded that the basic duty of the Recreation Director was to implement an athletic program, and that the essential qualification for a successful applicant would be either education or experience specifically related to athletics.2 Accordingly, it seemed evident to the Court of Appeals that Mr. Kincaid was in fact better qualified than petitioner.Based on our own reading of the record, we cannot say that either interpretation of the facts is illogical or implausible. Each has support in inferences that may be drawn from the facts in the record; and if either interpretation had been drawn by a district court on the record before us, we would not be inclined to find it clearly erroneous. The question we must answer, however, is not whether the Fourth Circuit's interpretation of the facts was clearly erroneous, but whether the District Court's finding was clearly erroneous. See McAllister v. United States, . The District Court determined that petitioner was better qualified, and, as we have stated above, such a finding is entitled to deference notwithstanding that it is not based on credibility determinations. When the record is examined in light of the appropriately deferential standard, it is apparent that it contains nothing that mandates a finding that the District Court's conclusion was clearly erroneous.Somewhat different concerns are raised by the Fourth Circuit's treatment of the District Court's finding that petitioner, alone among the applicants for the position of Recreation Director, was asked questions regarding her spouse's feelings about her application for the position. Here the error of the Court of Appeals was its failure to give due regard to the ability of the District Court to interpret and discern the credibility of oral testimony. The Court of Appeals rested its rejection of the District Court's finding of differential treatment on its own interpretation of testimony by Mrs. Boone - the very witness whose testimony, in the view of the District Court, supported the finding. In the eyes of the Fourth Circuit, Mrs. Boone's testimony that she had made a "comment" to Mr. Kincaid about the feelings of his wife (a comment judged "facetious" by the District Court) conclusively established that Mr. Kincaid, and perhaps other male applicants as well, had been questioned about the feelings of his spouse. Mrs. Boone's testimony on this point, which is set forth in the margin,3 is certainly not free from ambiguity. But Mrs. Boone several times stated that other candidates had not been questioned about the reaction of their wives - at least, "not in the same context" as had petitioner. And even after recalling and calling to the attention of the court that she had made a comment on the subject to Mr. Kincaid, Mrs. Boone denied that she had "asked" Mr. Kincaid about his wife's reaction. Mrs. Boone's testimony on these matters is not inconsistent with the theory that her remark was not a serious inquiry into whether Mr. Kincaid's wife approved of his applying for the position. Whether the judge's interpretation is actually correct is impossible to tell from the paper record, but it is easy to imagine that the tone of voice in which the witness related her comment, coupled with her immediate denial that she had questioned Mr. Kincaid on the subject, might have conclusively established that the remark was a facetious one. We therefore cannot agree that the judge's conclusion that the remark was facetious was clearly erroneous.Once the trial court's characterization of Mrs. Boone's remark is accepted, it is apparent that the finding that the male candidates were not seriously questioned about the feelings of their wives cannot be deemed clearly erroneous. The trial judge was faced with the testimony of three witnesses, one of whom (Mrs. Boone) stated that none of the other candidates had been so questioned, one of whom (a male committee member) testified that Mr. Kincaid had been asked such a question "in a way," and one of whom (another committeeman) testified that all the candidates had been subjected to similar questioning. None of these accounts is implausible on its face, and none is contradicted by any reliable extrinsic evidence. Under these circumstances, the trial court's decision to credit Mrs. Boone was not clearly erroneous.The Fourth Circuit's refusal to accept the District Court's finding that the committee members were biased against hiring a woman was based to a large extent on its rejection of the finding that petitioner had been subjected to questioning that the other applicants were spared. Given that that finding was not clearly erroneous, the finding of bias cannot be termed erroneous: it finds support not only in the treatment of petitioner in her interview, but also in the testimony of one committee member that he believed it would have been difficult for a woman to perform the job and in the evidence that another member solicited applications for the position only from men.4 Our determination that the findings of the District Court regarding petitioner's qualifications, the conduct of her interview, and the bias of the male committee members were not clearly erroneous leads us to conclude that the court's finding that petitioner was discriminated against on account of her sex was also not clearly erroneous. The District Court's findings regarding petitioner's superior qualifications and the bias of the selection committee are sufficient to support the inference that petitioner was denied the position of Recreation Director on account of her sex. Accordingly, we hold that the Fourth Circuit erred in denying petitioner relief under Title VII.In so holding, we do not assert that our knowledge of what happened 10 years ago in Bessemer City is superior to that of the Court of Appeals; nor do we claim to have greater insight than the Court of Appeals into the state of mind of the men on the selection committee who rejected petitioner for the position of Recreation Director. Even the trial judge, who has heard the witnesses directly and who is more closely in touch than the appeals court with the milieu out of which the controversy before him arises, cannot always be confident that he "knows" what happened. Often, he can only determine whether the plaintiff has succeeded in presenting an account of the facts that is more likely to be true than not. Our task - and the task of appellate tribunals generally - is more limited still: we must determine whether the trial judge's conclusions are clearly erroneous. On the record before us, we cannot say that they are. Accordingly, the judgment of the Court of Appeals is Reversed.
0	[Footnote *] Together with No. 1311, Misc., Ellison v. Texas, and No. 1823, Misc., Jackson v. Beto, Corrections Director, both on petitions for writs of certiorari. No. 1311, Misc., is to the Court of Criminal Appeals of Texas, and No. 1823, Misc., to the Court of Appeals for the Fifth Circuit. Certiorari granted; No. 759, Misc., 271 N.C. 23, 155 S. E. 2d 802; No. 1311, Misc., 419 S. W. 2d 849; and No. 1823, Misc., 388 F.2d 409, vacated and remanded.Sam Houston Clinton, Jr., for petitioner in No. 1311, Misc.T. W. Bruton, Attorney General of North Carolina, and Harry W. McGalliard, Deputy Attorney General, for respondent in No. 759, Misc. Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, Hawthorne Phillips and Lonny F. Zwiener, Assistant Attorneys General, and A. J. Carubbi, Jr., for respondent in No. 1311, Misc. Mr. Martin, Miss White, and Robert C. Flowers, Douglas H. Chilton, and Mr. Zwiener, Assistant Attorneys General, for respondent in No. 1823, Misc.PER CURIAM.The motions for leave to proceed in forma pauperis and the petitions for writs of certiorari are granted. The judgments of the courts below are vacated and the cases remanded for reconsideration in the light of Witherspoon v. Illinois, .MR. JUSTICE BLACK and MR. JUSTICE HARLAN dissent for reasons stated in MR. JUSTICE BLACK's dissenting opinion in Witherspoon v. Illinois, .MR. JUSTICE WHITE dissents for the reasons stated in his dissenting opinion in Witherspoon v. Illinois, .
1	Respondent United Parcel Service, Inc. (UPS), hired petitioner as a mechanic, a position that required him to drive commercial vehicles. To drive, he had to satisfy certain Department of Transportation (DOT) health certification requirements, including having "no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely." 49 CFR §391.41(b)(6). Despite petitioner's high blood pressure, he was erroneously granted certification and commenced work. After the error was discovered, respondent fired him on the belief that his blood pressure exceeded the DOT's requirements. Petitioner brought suit under Title I of the Americans with Disabilities Act of 1990 (ADA), the District Court granted respondent summary judgment, and the Tenth Circuit affirmed. Citing its decision in Sutton v. United Air Lines, Inc., 130 F. 3d 893, 902, aff'd, ante, p. ___, that an individual claiming a disability under the ADA should be assessed with regard to any mitigating or corrective measures employed, the Court of Appeals held that petitioner's hypertension is not a disability because his doctor testified that when medicated, petitioner functions normally in everyday activities. The court also affirmed the District Court's determi-nation that petitioner is not "regarded as" disabled under the ADA,explaining that respondent did not terminate him on an unsubstantiated fear that he would suffer a heart attack or stroke, but because his blood pressure exceeded the DOT's requirements for commercial vehicle drivers.Held: 1. Under the ADA, the determination whether petitioner's impairment "substantially limits" one or more major life activities is made with reference to the mitigating measures he employs. Sutton, ante, p. ___. The Tenth Circuit concluded that, when medicated, petitioner's high blood pressure does not substantially limit him in any major life activity. Because the question whether petitioner is disabled when taking medication is not before this Court, there is no occasion here to consider whether he is "disabled" due to limitations that persist despite his medication or the negative side effects of his medication. P. 4. 2. Petitioner is not "regarded as" disabled because of his high blood pressure. Under Sutton, ante, at ___, a person is "regarded as" disabled within the ADA's meaning if, among other things, a covered entity mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities. Here, respondent argues that it does not regard petitioner as substantially limited in the major life activity of working, but, rather, regards him as unqualified to work as a UPS mechanic because he is unable to obtain DOT health certification. When referring to the major life activity of working, the Equal Employment Opportunity Commission (EEOC) defines "substantially limits" as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 CFR §1630(j)(3)(i). Thus, one must be regarded as precluded from more than a particular job. Assuming without deciding that the EEOC regulations are valid, the Court concludes that the evidence that petitioner is regarded as unable to meet the DOT regulations is not sufficient to create a genuine issue of material fact as to whether he is regarded as unable to perform a class of jobs utilizing his skills. At most, petitioner has shown that he is regarded as unable to perform the job of mechanic only when that job requires driving a commercial motor vehicle — a specific type of vehicle used on a highway in interstate commerce. He has put forward no evidence that he is regarded as unable to perform any mechanic job that does not call for driving a commercial motor vehicle and thus does not require DOT certification. Indeed, it is undisputed that he is generally employable as a mechanic, and there is uncontroverted evidence that he could perform a number of mechanic jobs. Consequently, petitioner has failed to show that he is regarded as unable to perform a class of jobs. Rather, the undisputed record evidence demonstrates that petitioner is, at most, regarded as unable to perform only a particular job. This is insufficient, as a matter of law, to prove that petitioner is regarded as substantially limited in the major life activity of working. Pp. 4-8.141 F. 3d 1185, affirmed. O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, in which Breyer, J., joined. VAUGHN L. MURPHY, PETITIONER v.UNITED PARCEL SERVICE, INC.on writ of certiorari to the united states court of appeals for the tenth circuit[June 22, 1999] Justice O'Connor delivered the opinion of the Court. Respondent United Parcel Service, Inc. (UPS), dismissed petitioner Vaughn L. Murphy from his job as a UPS mechanic because of his high blood pressure. Petitioner filed suit under Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 328, 42 U. S. C. §12101 et seq., in Federal District Court. The District Court granted summary judgment to respondent, and the Court of Appeals for the Tenth Circuit affirmed. We must decide whether the Court of Appeals correctly considered petitioner in his medicated state when it held that petitioner's impairment does not "substantially limi[t]" one or more of his major life activities and whether it correctly determined that petitioner is not "regarded as disabled." See §12102(2). In light of our decision in Sutton v. United Air Lines, Inc., ante, p. ____, we conclude that the Court of Appeals' resolution of both issues was correct.I Petitioner was first diagnosed with hypertension (high blood pressure) when he was 10 years old. Unmedicated, his blood pressure is approximately 250/160. With medication, however, petitioner's "hypertension does not significantly restrict his activities and ... in general he can function normally and can engage in activities that other persons normally do." 946 F. Supp. 872, 875 (Kan. 1996) (discussing testimony of petitioner's physician). In August 1994, respondent hired petitioner as a mechanic, a position that required petitioner to drive commercial motor vehicles. Petitioner does not challenge the District Court's conclusion that driving a commercial motor vehicle is an essential function of the mechanic's job at UPS. 946 F. Supp., at 882-883. To drive such vehicles, however, petitioner had to satisfy certain health requirements imposed by the Department of Transportation (DOT). 49 CFR §391.41(a) (1998) ("A person shall not drive a commercial motor vehicle unless he/she is physically qualified to do so and ... has on his/her person ... a medical examiner's certificate that he/she is physically qualified to drive a commercial motor vehicle"). One such requirement is that the driver of a commercial motor vehicle in interstate commerce have "no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely." §391.41(b)(6). At the time respondent hired him, petitioner's blood pressure was so high, measuring at 186/124, that he was not qualified for DOT health certification, see App. 98a-102a (Department of Transportation, Medical Regulatory Criteria for Evaluation Under Section 391.41(b)(6), attached as exhibit to Affidavit and Testimony of John R. McMahon) (hereinafter Medical Regulatory Criteria). Nonetheless, petitioner was erroneously granted certification, and he commenced work. In September 1994, a UPS Medical Supervisor who was reviewing petitioner's medical files discovered the error and requested that petitioner have his blood pressure retested. Upon retesting, petitioner's blood pressure was measured at 160/102 and 164/104. See App. 48a (testimony of Vaughn Murphy). On October 5, 1994, respondent fired petitioner on the belief that his blood pressure exceeded the DOT's requirements for drivers of commercial motor vehicles. Petitioner brought suit under Title I of the ADA in the United States District Court for the District of Kansas. The court granted respondent's motion for summary judgment. It held that, to determine whether petitioner is disabled under the ADA, his "impairment should be evaluated in its medicated state." 946 F. Supp., at 881. Noting that when petitioner is medicated he is inhibited only in lifting heavy objects but otherwise functions normally, the court held that petitioner is not "disabled" under the ADA. Id., at 881-882. The court also rejected petitioner's claim that he was "regarded as" disabled, holding that respondent "did not regard Murphy as disabled, only that he was not certifiable under DOT regulations." Id., at 882. The Court of Appeals affirmed the District Court's judgment. 141 F. 3d 1185 (CA10 1999) (judgt. order). Citing its decision in Sutton v. United Air Lines, Inc., 130 F. 3d 893, 902 (CA10 1997), aff'd, ___ U. S. ___ (1999), that an individual claiming a disability under the ADA should be assessed with regard to any mitigating or corrective measures employed, the court held that petitioner's hypertension is not a disability because his doctor had testified that when petitioner is medicated, he " `functions normally doing everyday activity that an everyday person does.' " App. to Pet. for Cert. 4a. The court also affirmed the District Court's determination that petitioner is not "regarded as" disabled under the ADA. It explained that respondent did not terminate petitioner "on an unsubstantiated fear that he would suffer a heart attack or stroke," but "because his blood pressure exceeded the DOT's requirements for drivers of commercial vehicles." Id., at 5a. We granted certiorari, 525 U. S. ____ (1999), and we now affirm.II The first question presented in this case is whether the determination of petitioner's disability is made with reference to the mitigating measures he employs. We have answered that question in Sutton in the affirmative. Given that holding, the result in this case is clear. The Court of Appeals concluded that, when medicated, petitioner's high blood pressure does not substantially limit him in any major life activity. Petitioner did not seek, and we did not grant, certiorari on whether this conclusion was correct. Because the question whether petitioner is disabled when taking medication is not before us, we have no occasion here to consider whether petitioner is "disabled" due to limitations that persist despite his medication or the negative side effects of his medication. Instead, the question granted was limited to whether, under the ADA, the determination of whether an individual's impairment "substantially limits" one or more major life activities should be made without consideration of mitigating measures. Consequently, we conclude that the Court of Appeals correctly affirmed the grant of summary judgment in respondent's favor on the claim that petitioner is substantially limited in one or more major life activities and thus disabled under the ADA.III The second issue presented is also largely resolved by our opinion in Sutton. Petitioner argues that the Court of Appeals erred in holding that he is not "regarded as" disabled because of his high blood pressure. As we held in Sutton, ante, p. 15, a person is "regarded as" disabled within the meaning of the ADA if a covered entity mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities. Here, petitioner alleges that his hypertension is regarded as substantially limiting him in the major life activity of working, when in fact it does not. To support this claim, he points to testimony from respondent's resource manager that respondent fired petitioner due to his hypertension, which he claims evidences respondent's belief that petitioner's hypertension — and consequent inability to obtain DOT certification — substantially limits his ability to work. In response, respondent argues that it does not regard petitioner as substantially limited in the major life activity of working but, rather, regards him as unqualified to work as a UPS mechanic because he is unable to obtain DOT health certification. As a preliminary matter, we note that there remains some dispute as to whether petitioner meets the requirements for DOT certification. As discussed above, petitioner was incorrectly granted DOT certification at his first examination when he should have instead been found unqualified. See supra, at 2. Upon retesting, although petitioner's blood pressure was not low enough to qualify him for the one-year certification that he had incorrectly been issued, it was sufficient to qualify him for optional temporary DOT health certification. App. 98a-102a (Medical Regulatory Criteria). Had a physician examined petitioner and, in light of his medical history, declined to issue a temporary DOT certification, we would not second-guess that decision. Here, however, it appears that UPS determined that petitioner could not meet the DOT standards and did not allow him to attempt to obtain the optional temporary certification. Id., at 84a-86a (testimony of Monica Sloan, UPS's company nurse); id., at 54a-55a (testimony and affidavit of Vaughn Murphy). We need not resolve the question of whether petitioner could meet the standards for DOT health certification, however, as it goes only to whether petitioner is qualified and whether respondent has a defense based on the DOT regulations, see Albertsons v. Kirkingburg, post, p. ____ — issues not addressed by the court below or raised in the petition for certiorari. The only issue remaining is whether the evidence that petitioner is regarded as unable to obtain DOT certification (regardless of whether he can, in fact, obtain optional temporary certification) is sufficient to create a genuine issue of material fact as to whether petitioner is regarded as substantially limited in one or more major life activities. As in Sutton, ante, at 18-19, we assume, arguendo, that the EEOC regulations regarding the disability determination are valid. When referring to the major life activity of working, the Equal Employment Opportunity Commission (EEOC) defines "substantially limits" as: "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 CFR §1630(j)(3)(i) (1998). The EEOC further identifies several factors that courts should consider when determining whether an individual is substantially limited in the major life activity of working, including "the number and types of jobs utilizing similar training, knowledge, skills or abilities, within [the] geographical area [reasonably accessible to the individual], from which the individual is also disqualified." §1630(j)(3)(ii)(B). Thus, to be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from more than a particular job. See §1630(j)(3)(i) ("The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working"). Again, assuming without deciding that these regulations are valid, petitioner has failed to demonstrate that there is a genuine issue of material fact as to whether he is regarded as disabled. Petitioner was fired from the position of UPS mechanic because he has a physical impairment — hypertension — that is regarded as preventing him from obtaining DOT health certification. See App. to Pet. for Cert. 5a (UPS terminated Murphy because "his blood pressure exceeded the DOT's requirements for drivers of commercial vehicles"); 946 F. Supp., at 882 ("[T]he court concludes UPS did not regard Murphy as disabled, only that he was not certifiable under DOT regulations"); App. 125a, ¶ ;18 (Defendant's Memorandum in Support of Motion for Summary Judgment) ("UPS considers driving commercial motor vehicles an essential function of plaintiff 's job as mechanic"); App. 103a (testimony of John R. McMahon) (stating that the reason why petitioner was fired was that he "did not meet the requirements of the Department of Transportation"). The evidence that petitioner is regarded as unable to meet the DOT regulations is not sufficient to create a genuine issue of material fact as to whether petitioner is regarded as unable to perform a class of jobs utilizing his skills. At most, petitioner has shown that he is regarded as unable to perform the job of mechanic only when that job requires driving a commercial motor vehicle — a specific type of vehicle used on a highway in interstate commerce. 49 CFR §390.5 (defining "commercial motor vehicle" as a vehicle weighing over 10,000 pounds, designed to carry 16 or more passengers, or used in the transportation of hazardous materials). Petitioner has put forward no evidence that he is regarded as unable to perform any mechanic job that does not call for driving a commercial motor vehicle and thus does not require DOT certification. Indeed, it is undisputed that petitioner is generally employable as a mechanic. Petitioner has "performed mechanic jobs that did not require DOT certification" for "over 22 years," and he secured another job as a mechanic shortly after leaving UPS. 946 F. Supp., at 875, 876. Moreover, respondent presented uncontroverted evidence that petitioner could perform jobs such as diesel mechanic, automotive mechanic, gas-engine repairer, and gas-welding equipment mechanic, all of which utilize petitioner's mechanical skills. See App. 115a (report of Lewis Vierling). Consequently, in light of petitioner's skills and the array of jobs available to petitioner utilizing those skills, petitioner has failed to show that he is regarded as unable to perform a class of jobs. Rather, the undisputed record evidence demonstrates that petitioner is, at most, regarded as unable to perform only a particular job. This is insufficient, as a matter of law, to prove that petitioner is regarded as substantially limited in the major life activity of working. See Sutton, ante, at 19-20. Accordingly, the Court of Appeals correctly granted summary judgment in favor of respondent on petitioner's claim that he is regarded as disabled. For the reasons stated, we affirm the decision of the Court of Appeals for the Tenth Circuit.It is so ordered. VAUGHN L. MURPHY, PETITIONER v.UNITED PARCEL SERVICE, INC.on writ of certiorari to the united states court of appeals for the tenth circuit[June 22, 1999] Justice Stevens, with whom Justice Breyer joins, dissenting. For the reasons stated in my dissenting opinion in Sutton v. United Air Lines, Inc., ante, p. ___, I respectfully dissent. I believe that petitioner has a "disability" within the meaning of the ADA because, assuming petitioner's uncontested evidence to be true, his very severe hypertension — in its unmedicated state--"substantially limits" his ability to perform several major life activities. Without medication, petitioner would likely be hospitalized. See App. 81. Indeed, unlike Sutton, this case scarcely requires us to speculate whether Congress intended the Act to cover individuals with this impairment. Severe hypertension, in my view, easily falls within the ADA's nucleus of covered impairments. See Sutton, ante, at 3-9 (Stevens, J., dissenting). Because the Court of Appeals did not address whether petitioner was qualified or whether he could perform the essential job functions, App. to Pet. for Cert. 5a, I would reverse and remand for further proceedings.
8	Without applying to the National Labor Relations Board for relief, a corporation engaged in interstate commerce sued in a state court to enjoin a labor union from peacefully picketing the corporation's places of business, on the ground that such conduct constituted a common-law conspiracy and a statutory and common-law restraint of trade in violation of state law. Claiming that the matter was in the exclusive jurisdiction of the National Labor Relations Board and that the state court had no jurisdiction, the union sued in a Federal District Court to enjoin the corporation from further prosecution of its suit in the state court, basing jurisdiction on 28 U.S.C. 1337 and 1651. Held: Under 28 U.S.C. 2283, the Federal District Court was denied power to enjoin the proceedings in the state court. Pp. 512-521. 1. The clear-cut prohibition of 2283 against a federal court granting an injunction to stay proceedings in a state court cannot be held inapplicable whenever a party applying to a Federal District Court to enjoin proceedings in a state court alleges that the state court is without jurisdiction of the subject matter because it has invaded a field pre-empted by Congress. Pp. 514-516. 2. The specific exception in 2283 which permits an injunction to issue "as expressly authorized by Act of Congress" is not applicable to this case. The Taft-Hartley Act authorizes the National Labor Relations Board and its representatives to apply to a District Court for injunctive relief in certain circumstances; but it does not authorize private litigants to apply for such relief. Pp. 516-519. 3. Nor is this case within the specific exception to 2283 which permits a federal court to issue an injunction "where necessary in aid of its jurisdiction." Pp. 519-521. 211 F.2d 449, affirmed. William J. Isaacson argued the cause for petitioners. With him on the brief was Louis H. Pollak.By special leave of Court, Philip Elman argued the cause for the National Labor Relations Board, as amicus curiae, urging reversal. With him on the brief were Solicitor General Sobeloff, David P. Findling, Dominick L. Manoli and Norton J. Come.Luther Day argued the cause and filed a brief for respondent.MR. JUSTICE FRANKFURTER delivered the opinion of the Court.In Weber v. Anheuser-Busch, Inc., , decided last Monday on writ of certiorari to the Missouri Supreme Court, we considered the jurisdiction of a state court to enjoin conduct which in one aspect brought it within exclusive federal authority under the Taft-Hartley Act and in another constituted a violation of a state statute against restraint of trade. In this case we have to decide the question whether, under similar circumstances, a union has open to it, without resorting to the appellate procedures of the State and eventually of this Court, jurisdiction of a federal district court to enjoin the employer from pursuing his action in the state court.Petitioner, an unincorporated association of clothing workers, was responsible for peaceful picketing of a number of respondent's retail stores, presumably to compel its factory employees to join the union. Respondent, an Ohio corporation engaged in the manufacture and sale of men's clothing in interstate commerce, filed suit in the Court of Common Pleas for Cuyahoga County, Ohio, alleging that the union's conduct constituted a common-law conspiracy as well as a statutory and common-law restraint of trade. It prayed for temporary and permanent injunctions. The union brought proceedings to remove the case to the United States District Court for the Northern District of Ohio, claiming that the employer's petition alleged facts bringing the case within the original jurisdiction of the District Court as a civil action arising under the Taft-Hartley Act. 28 U.S.C. 1337. That court remanded the action to the state court on the ground that if, as the union contended, the complaint in effect alleged a violation of 8 (b) (1) (A) of the Taft-Hartley Act, under the decision in Garner v. Teamsters Union, , only the National Labor Relations Board had jurisdiction of its subject matter. Richman Brothers Co. v. Amalgamated Clothing Workers, 114 F. Supp. 185, rehearing denied, 116 F. Supp. 800.Upon remand, the union invoked the ground taken by the District Court in denying its jurisdiction in a motion to dismiss the action in the state court. This motion was denied without opinion. The union then filed this complaint in the same District Court seeking an injunction which would require the employer to withdraw the action commenced in the state court. Jurisdiction was based on 28 U.S.C. 1337. This provision confers jurisdiction on federal courts over any civil action arising under any Act of Congress regulating interstate commerce. The union also relied on 28 U.S.C. 1651, the all-writs section. The District Court held that under 28 U.S.C. 2283, which prohibits federal injunctions against state court proceedings, it was without power to grant the requested relief, inasmuch as the action did not come within any of the exceptions to that general prohibition. The Court of Appeals for the Sixth Circuit unanimously affirmed, 211 F.2d 449. The jurisdictional question is plainly important in this area of federal-state relations and we granted certiorari, .Subsequent to the affirmance by the Court of Appeals, the Ohio Court of Common Pleas ruled favorably on the employer's motion for a temporary injunction. Richman Brothers Co. v. Amalgamated Clothing Workers, 51 Ohio Op. 145, 116 N. E. 2d 60.1. Under the decision in Weber v. Anheuser-Busch, Inc., we may assume that the conduct in controversy is subject to whatever relief the Taft-Hartley Act may afford, and therefore is outside state authority. The question is whether a federal court may, before complaint has been entertained by the Board and at the request of one of the private parties, enjoin the attempt to secure relief through state proceedings.We need not re-examine the series of decisions, prior to the enactment of Title 28 of the United States Code in 1948, which appeared to recognize implied exceptions to the historic prohibition against federal interference with state judicial proceedings. See Toucey v. New York Life Ins. Co., . By that enactment, Congress made clear beyond cavil that the prohibition is not to be whittled away by judicial improvisation. Former 265 of the Judicial Code provided: "The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." 36 Stat. 1162. The 1948 enactment revised as well as codified. The old section was thus embodied in the new 2283: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." In lieu of the bankruptcy exception of 265, Congress substituted a generalized phrase covering all exceptions, such as that of the Interpleader Act, 28 U.S.C. 2361, to be found in federal statutes. Two newly formulated exceptions to the general prohibition deal with problems of judicial administration which had earlier been the subject of the series of decisions dealt with in the Toucey case. If confirmation of the comprehensive scope thus revealed on the face of the enactment were necessary, it is to be found in the Reviser's Notes, which state: "An exception as to Acts of Congress relating to bankruptcy was omitted and the general exception substituted to cover all exceptions."1 In the face of this carefully considered enactment, we cannot accept the argument of petitioner and the Board, as amicus curiae, that 2283 does not apply whenever the moving party in the District Court alleges that the state court is "wholly without jurisdiction over the subject matter, having invaded a field preempted by Congress." No such exception had been established by judicial decision under former 265.2 In any event, Congress has left no justification for its recognition now. This is not a statute conveying a broad general policy for appropriate ad hoc application. Legislative policy is here expressed in a clear-cut prohibition qualified only by specifically defined exceptions.We are further admonished against taking the liberty of interpolation when Congress clearly left no room for it, by the inadmissibility of the assumption that ascertainment of pre-emption under the Taft-Hartley Act is self-determining or even easy. As we have noted in the Weber case, "the areas that have been pre-empted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds." 348 U.S., at 480. What is within exclusive federal authority may first have to be determined by this Court to be so.2. We turn, therefore, to the specific exemptions contained in 2283. The first of these permits an injunction to issue "as expressly authorized by Act of Congress." In the present case we are directed to no "express" authorization within even the most attenuated meaning of the term. Of course no prescribed formula is required; an authorization need not expressly refer to 2283. But the only "express" authorization, in the freest use of the word, to be found in the Taft-Hartley Act does not help petitioner. Congress has provided an administrative agency to pass on claims that rights granted by the Act are denied or that restrictions imposed by the Act are disregarded. Only after the Board has found such claims to be well-founded and has formulated remedies for their vindication does the jurisdiction for review by the Court of Appeals come into being. However, injunctive relief or a temporary restraining order may be obtained by the Board from the appropriate District Court, pending final adjudication by the Board, "upon issuance of a complaint" by the Board or when there is "reasonable cause to believe" in the truth of a charge that a party "has engaged in an unfair labor practice within the meaning of paragraph (4) (A), (B), or (C) of section 8 (b)." Congress explicitly gave such jurisdiction to the district courts only on behalf of the Board on a petition by it or "the officer or regional attorney to whom the matter may be referred." 10 (j), (l), 61 Stat. 149, 29 U.S.C. 160 (j), (l). To hold that the Taft-Hartley Act also authorizes a private litigant to secure interim relief would be to ignore the closely circumscribed jurisdiction given to the District Court and to generalize where Congress has chosen to specify. To find exclusive authority for relief vested in the Board and not in private parties accords with other aspects of the Act. See Amalgamated Utility Workers v. Consolidated Edison Co., . Such was the authority recognized in Capital Service, Inc. v. Labor Board, .But the argument is made that to permit the state courts to proceed unchecked in their incursion upon a federally pre-empted domain dislocates the federal scheme as a whole. This argument is only a rephrasing of the suggestion that whenever Congress is found to have pre-empted a field by legislation 2283 must yield. But its thrust is deeper in the particular circumstances of this case. If the employer's use of the judicial process of the State does not amount to an unfair labor practice, and if the Board is without power to seek an injunction before a complaint is filed with it, the federal mechanism will not be invoked and federally protected rights may be denied until the injunction is lifted. The employer, who might have brought a charge of an unfair labor practice before the Board, has chosen to ignore his remedy under the Taft-Hartley Act. The temporary injunction which has been issued is not, under Ohio law, appealable,3 and the appellate procedures which will be available if a permanent injunction is issued are necessarily time-consuming. Thus, so the argument runs, unless the federal court can intervene, delay will not only undercut the legislative scheme, but opportunity for effective union activity may be diminished if not lost.The assumption upon which the argument proceeds is that federal rights will not be adequately protected in the state courts, and the "gap" complained of is impatience with the appellate process if state courts go wrong. But during more than half of our history Congress, in establishing the jurisdiction of the lower federal courts, in the main relied on the adequacy of the state judicial systems to enforce federal rights, subject to review by this Court. With limited exceptions, it was not until 1875 that the lower federal courts were given general jurisdiction over federal questions.4 During that entire period, the vindication of federal rights depended upon the procedure which petitioner attacks as so grossly inadequate that it could not have been contemplated by Congress. The prohibition of 2283 is but continuing evidence of confidence in the state courts, reinforced by a desire to avoid direct conflicts between state and federal courts.We cannot assume that this confidence has been misplaced. Neither the course of this case, nor the history of state court actions since the decision in Garner v. Teamsters Union, , demonstrates recalcitrance on the part of state courts to recognize the rather subtle line of demarcation between exclusive federal and allowable state jurisdiction over labor problems. In its effort to define what has been withdrawn from the States and what has been left them, the opinion in Garner, decided just last Term, was hedged with qualifications, even in a case which dealt only with state court enforcement of a state labor policy as such.Misapplication of this Court's opinions is not confined to the state courts, nor are delays in litigation peculiar to them. To permit the federal courts to interfere, as a matter of judicial notions of policy, may add to the number of courts which pass on a controversy before the rightful forum for its settlement is established. A district court's assertion of equity power or its denial may in turn give rise to appellate review on this collateral issue. There may also be added an element of federal-state competition and conflict which may be trusted to be exploited and to complicate, not simplify, existing difficulties.3. The exception to 2283 which permits the District Court to issue injunctions "where necessary in aid of its jurisdiction" remains to be considered. In no lawyer-like sense can the present proceeding be thought to be in aid of the District Court's jurisdiction. Under no circumstances has the District Court jurisdiction to enforce rights and duties which call for recognition by the Board. Such nonexistent jurisdiction therefore cannot be aided.5 Insofar as protection is needed for the Board's exercise of its jurisdiction, Congress has, as we have seen, specifically provided for resort, but only by the Board, to the District Court's equity powers. Since the very presupposition of this proceeding is that jurisdiction of the subject matter of which the employer complained was in the Board and not in the state court, any aid that is needed to protect jurisdiction is the aid which the Board may need for the safeguarding of its authority. Such aid only the Board could seek, and only if, in a case pending before it, it has satisfied itself as to the adequacy of the complaint.It is urged that an employer may deliberately prevent Board action by going into a state court. For one thing, it has not yet been determined that, if an employer resorts to a state court in relation to conduct that is obviously taken over by the Taft-Hartley Act and outside the bounds of state relief, it may not under appropriate circumstances give ground for a finding of an unfair labor practice.6 In any event, if resort to a state court may not be circumvented by the power of the Board to entertain such a complaint, we are bound to repeat that, insofar as a penumbral region must remain between state and federal authority touching industrial relations until finally clarified by definitive rulings here or further legislation by Congress, state litigation must, in view of 2283, be allowed to run its course, including the ultimate reviewing power in this Court. Affirmed.MR. JUSTICE HARLAN took no part in the consideration or decision of this case.
0	Per Curiam. Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13). The Court of Appeals for the Sixth Circuit purported to identify three such grievous errors in the Ohio Supreme Court's affirmance of respondent Archie Dixon's murder conviction. Because it is not clear that the Ohio Supreme Court erred at all, much less erred so transparently that no fairminded jurist could agree with that court's decision, the Sixth Circuit's judgment must be reversed.* * * Archie Dixon and Tim Hoffner murdered Chris Hammer in order to steal his car. Dixon and Hoffner beat Hammer, tied him up, and buried him alive, pushing the struggling Hammer down into his grave while they shoveled dirt on top of him. Dixon then used Hammer's birth certificate and social security card to obtain a state identification card in Hammer's name. After using that identification card to establish ownership of Hammer's car, Dixon sold the vehicle for $2,800. Hammer's mother reported her son missing the day after his murder. While investigating Hammer's disappearance, police had various encounters with Dixon, three of which are relevant here. On November 4, 1993, a police detective spoke with Dixon at a local police station. It is undisputed that this was a chance encounter — Dixon was apparently visiting the police station to retrieve his own car, which had been impounded for a traffic violation. The detective issued Miranda warnings to Dixon and then asked to talk to him about Hammer's disappearance. See Miranda v. Arizona, 384 U. S. 436 (1966). Dixon declined to answer questions without his lawyer present and left the station. As their investigation continued, police determined that Dixon had sold Hammer's car and forged Hammer's signature when cashing the check he received in that sale. Police arrested Dixon for forgery on the morning of November 9. Beginning at 11:30 a.m. detectives intermittently interrogated Dixon over several hours, speaking with him for about 45 minutes total. Prior to the interrogation, the detectives had decided not to provide Dixon with Miranda warnings for fear that Dixon would again refuse to speak with them. Dixon readily admitted to obtaining the identification card in Hammer's name and signing Hammer's name on the check, but said that Hammer had given him permission to sell the car. Dixon claimed not to know where Hammer was, although he said he thought Hammer might have left for Tennessee. The detectives challenged the plausibility of Dixon's tale and told Dixon that Tim Hoffner was providing them more useful information. At one point a detective told Dixon that "now is the time to say" whether he had any involvement in Hammer's disappearance because "if Tim starts cutting a deal over there, this is kinda like, a bus leaving. The first one that gets on it is the only one that's gonna get on." App. to Pet. for Cert. 183a. Dixon responded that, if Hoffner knew anything about Hammer's disappearance, Hoffner had not told him. Dixon insisted that he had told police everything he knew and that he had "[n]othing whatsoever" to do with Hammer's disappearance. Id., at 186a. At approximately 3:30 p.m. the interrogation concluded, and the detectives brought Dixon to a correctional facility where he was booked on a forgery charge. The same afternoon, Hoffner led police to Hammer's grave. Hoffner claimed that Dixon had told him that Hammer was buried there. After concluding their interview with Hoffner and releasing him, the police had Dixon transported back to the police station. Dixon arrived at the police station at about 7:30 p.m. Prior to any police questioning, Dixon stated that he had heard the police had found a body and asked whether Hoffner was in custody. The police told Dixon that Hoffner was not, at which point Dixon said, "I talked to my attorney, and I want to tell you what happened." State v. Dixon, 101 Ohio St. 3d 328, 331, 2004-Ohio-1585, 805 N. E. 2d 1042, 1050. The police read Dixon his Miranda rights, obtained a signed waiver of those rights, and spoke with Dixon for about half an hour. At 8 p.m. the police, now using a tape recorder, again advised Dixon of his Miranda rights. In a detailed confession, Dixon admitted to murdering Hammer but attempted to pin the lion's share of the blame on Hoffner. At Dixon's trial, the Ohio trial court excluded both Dixon's initial confession to forgery and his later confession to murder. The State took an interlocutory appeal. The State did not dispute that Dixon's forgery confession was properly suppressed, but argued that the murder confession was admissible because Dixon had received Miranda warnings prior to that confession. The Ohio Court of Appeals agreed and allowed Dixon's murder confession to be admitted as evidence. Dixon was convicted of murder, kidnaping, robbery, and forgery, and sentenced to death. The Ohio Supreme Court affirmed Dixon's convictions and sentence. To analyze the admissibility of Dixon's murder confession, the court applied Oregon v. Elstad, 470 U. S. 298 (1985). The Ohio Supreme Court found that Dixon's confession to murder after receiving Miranda warnings was admissible because that confession and his prior, unwarned confession to forgery were both voluntary. State v. Dixon, supra, at 332-334, 805 N. E. 2d, at 1050-1052; see Elstad, supra, at 318 ("We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings"). Dixon then filed a petition for a writ of habeas corpus under 28 U. S. C. §2254 in the U. S. District Court for the Northern District of Ohio. Dixon claimed, inter alia, that the state court decisions allowing the admission of his murder confession contravened clearly established federal law. The District Court denied relief, but a divided panel of the Sixth Circuit reversed. Dixon v. Houk, 627 F. 3d 553 (2010). The Sixth Circuit had authority to issue the writ of habeas corpus only if the Ohio Supreme Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law," as set forth in this Court's holdings, or was "based on an unreasonable determination of the facts" in light of the state court record. §2254(d); see Harrington, 562 U. S., at ___ (slip op., at 10). The Sixth Circuit believed that the Ohio Supreme Court's decision contained three such egregious errors. First, according to the Sixth Circuit, the Miranda decision itself clearly established that police could not speak to Dixon on November 9, because on November 4 Dixon had refused to speak to police without his lawyer. That is plainly wrong. It is undisputed that Dixon was not in custody during his chance encounter with police on November 4. And this Court has "never held that a person can invoke his Miranda rights anticipatorily, in a context other than 'custodial interrogation.' " McNeil v. Wisconsin, 501 U. S. 171, 182, n. 3 (1991); see also Montejo v. Louisiana, 556 U. S. 778, ___ (2009) (slip. op., at 16) ("If the defendant is not in custody then [Miranda and its progeny] do not apply"). Second, the Sixth Circuit held that police violated the Fifth Amendment by urging Dixon to "cut a deal" before his accomplice Hoffner did so.1 The Sixth Circuit cited no precedent of this Court — or any court — holding that this common police tactic is unconstitutional. Cf., e.g., Elstad, supra, at 317 ("[T]he Court has refused to find that a defendant who confesses, after being falsely told that his codefendant has turned State's evidence, does so involuntarily"). Because no holding of this Court suggests, much less clearly establishes, that police may not urge a suspect to confess before another suspect does so, the Sixth Circuit had no authority to issue the writ on this ground.2 Third, the Sixth Circuit held that the Ohio Supreme Court unreasonably applied this Court's precedent in Elstad. In that case, a suspect who had not received Miranda warnings confessed to burglary as police took him into custody. Approximately an hour later, after he had received Miranda warnings, the suspect again confessed to the same burglary. This Court held that the later, warned confession was admissible because "there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second [warned] statement was also voluntarily made." 470 U. S., at 318 (footnote omitted). As the Ohio Supreme Court's opinion explained, the circumstances surrounding Dixon's interrogations demonstrate that his statements were voluntary. During Dixon's first interrogation, he received several breaks, was given water and offered food, and was not abused or threatened. He freely acknowledged that he had forged Hammer's name, even stating that the police were "welcome" to that information, and he had no difficulty denying that he had anything to do with Hammer's disappearance. State v. Dixon, 101 Ohio St. 3d, at 331, 805 N. E. 2d, at 1049. Prior to his second interrogation, Dixon made an unsolicited declaration that he had spoken with his attorney and wanted to tell the police what had happened to Hammer. Then, before giving his taped confession, Dixon twice received Miranda warnings and signed a waiver-of-rights form which stated that he was acting of his own free will. The Ohio Supreme Court recognized that Dixon's first interrogation involved "an intentional Miranda violation." The court concluded, however, that "as in Elstad, the breach of the Miranda procedures here involved no actual compulsion" and thus there was no reason to suppress Dixon's later, warned confession. 101 Ohio St. 3d, at 334, 805 N. E. 2d, at 1052 (citing Elstad, supra, at 318). The Sixth Circuit disagreed, believing that Dixon's confession was inadmissible under Elstad because it was the product of a "deliberate question-first, warn-later strategy." 627 F. 3d, at 557. In so holding, the Sixth Circuit relied heavily on this Court's decision in Missouri v. Seibert, 542 U. S. 600 (2004).3 In Seibert, police employed a two-step strategy to reduce the effect of Miranda warnings: A detective exhaustively questioned Seibert until she confessed to murder and then, after a 15- to 20-minute break, gave Seibert Miranda warnings and led her to repeat her prior confession. 542 U. S., at 604-606, 616 (plurality opinion). The Court held that Seibert's second confession was inadmissible as evidence against her even though it was preceded by a Miranda warning. A plurality of the Court reasoned that "[u]pon hearing warnings only in the aftermath of interrogation and just after mak ing a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again." 542 U. S., at 613; see also id., at 615 (detailing a "series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object"). Justice Kennedy concurred in the judgment, noting he "would apply a narrower test applicable only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." Id., at 622. In this case, no two-step interrogation technique of the type that concerned the Court in Seibert undermined the Miranda warnings Dixon received. In Seibert, the suspect's first, unwarned interrogation left "little, if anything, of incriminating potential left unsaid," making it "unnatural" not to "repeat at the second stage what had been said before." 542 U. S., at 616-617 (plurality opinion). But in this case Dixon steadfastly maintained during his first, unwarned interrogation that he had "[n]othing whatsoever" to do with Hammer's disappearance. App. to Pet. for Cert. 186a. Thus, unlike in Seibert, there is no concern here that police gave Dixon Miranda warnings and then led him to repeat an earlier murder confession, because there was no earlier confession to repeat. Indeed, Dixon contradicted his prior unwarned statements when he confessed to Hammer's murder. Nor is there any evidence that police used Dixon's earlier admission to forgery to induce him to waive his right to silence later: Dixon declared his desire to tell police what happened to Hammer before the second interrogation session even began. As the Ohio Supreme Court reasonably concluded, there was simply "no nexus" between Dixon's unwarned admission to forgery and his later, warned confession to murder. 101 Ohio St. 3d, at 333, 805 N. E. 2d, at 1051. Moreover, in Seibert the Court was concerned that the Miranda warnings did not "effectively advise the suspect that he had a real choice about giving an admissible statement" because the unwarned and warned interrogations blended into one "continuum." 542 U. S., at 612, 617. Given all the circumstances of this case, that is not so here. Four hours passed between Dixon's unwarned interrogation and his receipt of Miranda rights, during which time he traveled from the police station to a separate jail and back again; claimed to have spoken to his lawyer; and learned that police were talking to his accomplice and had found Hammer's body. Things had changed. Under Seibert, this significant break in time and dramatic change in circumstances created "a new and distinct experience," ensuring that Dixon's prior, unwarned interrogation did not undermine the effectiveness of the Miranda warnings he received before confessing to Hammer's murder. 542 U. S., at 615; see also id., at 622 (Kennedy, J., concurring in judgment) ("For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn").4 The admission of Dixon's murder confession was consistent with this Court's precedents: Dixon received Mi- randa warnings before confessing to Hammer's murder; the effectiveness of those warnings was not impaired by the sort of "two-step interrogation technique" condemned in Seibert; and there is no evidence that any of Dixon's statements was the product of actual coercion. That does not excuse the detectives' decision not to give Dixon Miranda warnings before his first interrogation. But the Ohio courts recognized that failure and imposed the appropriate remedy: exclusion of Dixon's forgery confession and the attendant statements given without the benefit of Miranda warnings. Because no precedent of this Court required Ohio to do more, the Sixth Circuit was without authority to overturn the reasoned judgment of the State's highest court. The petition for a writ of certiorari and respondent's motion to proceed in forma pauperis are granted. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.FOOTNOTESFootnote 1 In the Sixth Circuit's view, the Ohio Supreme Court's contrary conclusion that Dixon's confession was voluntary "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." §2254(d)(2). The Sixth Circuit did not, however, purport to identify any mistaken factual finding. It differed with the Ohio Supreme Court only on the ultimate characterization of Dixon's confession as voluntary, and this Court's cases make clear that "the ultimate issue of 'voluntariness' is a legal question." Miller v. Fenton, 474 U. S. 104, 110 (1985); see also Arizona v. Fulminante, 499 U. S. 279, 287 (1991). This Court therefore addresses the question the Sixth Circuit should have addressed: whether the Ohio Supreme Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." §2254(d)(1).Footnote 2 The only case the Sixth Circuit cited on this issue was Mincey v. Arizona, 437 U. S. 385 (1978). Mincey involved the "virtually continuous questioning of a seriously and painfully wounded man on the edge of consciousness" who was in a hospital's intensive care unit and who "clearly expressed his wish not to be interrogated" while in a "debilitated and helpless condition." Id., at 399-401. There is simply nothing in the facts or reasoning of Mincey suggesting that any of Dixon's statements were involuntary.Footnote 3 Seibert was not decided until after the Ohio Supreme Court's opinion in this case, but was issued before this Court denied Dixon's petition for certiorari seeking review of the Ohio Supreme Court's decision. It is thus an open question whether Seibert was "clearly established Federal law" for purposes of §2254(d). See Smith v. Spisak¸ 558 U. S. ___, ___ (2010) (slip op., at 3). It is not necessary to decide that question here because Seibert is entirely consistent with the Ohio Supreme Court's decision. Thus, if Seibert was clearly established law, the Ohio Supreme Court's decision was not "contrary to" or "an unreasonable application of" Seibert. §2254(d). And if Seibert was not clearly established law, Seibert's explication of Elstad further demonstrates that the Ohio Supreme Court's decision was not contrary to or an unreasonable application of Elstad.Footnote 4 The Sixth Circuit also concluded that "the Ohio Supreme Court erroneously placed the burden of proof on Dixon to prove that his confession was coerced." Dixon v. Houk, 627 F. 3d 553, 558 (2010). But the Ohio Supreme Court clearly said that "the state carries the burden of proving voluntariness." State v. Dixon, 101 Ohio St. 3d 328, 332, 2004-Ohio-1585, 805 N. E. 2d 1042, 1050. That the court's opinion discusses the absence of evidence of coerciveness alongside the affirmative evidence of voluntariness in no way indicates that the court shifted the burden onto Dixon.
2	[Footnote *] Together with No. 1885, United States v. Washington Post Co. et al., on certiorari to the United States Court of Appeals for the District of Columbia Circuit. The United States, which brought these actions to enjoin publication in the New York Times and in the Washington Post of certain classified material, has not met the "heavy burden of showing justification for the enforcement of such a [prior] restraint." No. 1873, 444 F.2d 544, reversed and remanded; No. 1885, ___ U.S. App. D.C. ___, 446 F.2d 1327, affirmed.Alexander M. Bickel argued the cause for petitioner in No. 1873. With him on the brief were William E. Hegarty and Lawrence J. McKay.Solicitor General Griswold argued the cause for the United States in both cases. With him on the brief were Assistant Attorney General Mardian and Daniel M. Friedman.William R. Glendon argued the cause for respondents in No. 1885. With him on the brief were Roger A. Clark, Anthony F. Essaye, Leo P. Larkin, Jr., and Stanley Godofsky.Briefs of amici curiae were filed by Bob Eckhardt and Thomas I. Emerson for Twenty-Seven Members of Congress; by Norman Dorsen, Melvin L. Wulf, Burt Neuborne, Bruce J. Ennis, Osmond K. Fraenkel, and Marvin M. Karpatkin for the American Civil Liberties Union; and by Victor Rabinowitz for the National Emergency Civil Liberties Committee. PER CURIAM.We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy." Post, pp. 942, 943."Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, ; see also Near v. Minnesota, . The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, . The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree. The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith. So ordered.MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.I adhere to the view that the Government's case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms.1 They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."2 (Emphasis added.) The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law ... abridging the freedom ... of the press ... ." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.The Government's case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated: "Now, Mr. Justice [BLACK], your construction of ... [the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that `no law' does not mean `no law', and I would seek to persuade the Court that is true... . [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and ... the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States."3 And the Government argues in its brief that in spite of the First Amendment, "[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief."4 In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.5 See concurring opinion of MR. JUSTICE DOUGLAS, post, at 721-722. To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes - great man and great Chief Justice that he was - when the Court held a man could not be punished for attending a meeting run by Communists."The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government."6
0	Michigan police dispatched to a gas station parking lot found Anthony Covington mortally wounded. Covington told them that he had been shot by respondent Bryant outside Bryant's house and had then driven himself to the lot. At trial, which occurred before Crawford v. Washington, 541 U. S. 36, and Davis v. Washington, 547 U. S. 813, were decided, the officers testified about what Covington said. Bryant was found guilty of, inter alia, second-degree murder. Ultimately, the Michigan Supreme Court reversed his conviction, holding that the Sixth Amendment's Confrontation Clause, as explained in Crawford and Davis, rendered Covington's statements inadmissible testimonial hearsay. Held: Covington's identification and description of the shooter and the location of the shooting were not testimonial statements because they had a "primary purpose ... to enable police assistance to meet an ongoing emergency." Davis, 547 U. S., at 822. Therefore, their admission at Bryant's trial did not violate the Confrontation Clause. Pp. 5-32. (a) In Crawford, this Court held that in order for testimonial evidence to be admissible, the Sixth Amendment "demands ... unavailability and a prior opportunity for cross-examination." 541 U. S., at 68. Crawford did not "spell out a comprehensive definition of 'testimonial,' " but it noted that testimonial evidence includes, among other things, "police interrogations." Ibid. Thus, Sylvia Crawford's statements during a station-house interrogation about a stabbing were testimonial, and their admission when her husband, the accused, had "no opportunity" for cross-examination due to spousal privilege made out a Sixth Amendment violation. In Davis and Hammon, both domestic violence cases, the Court explained that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the [interrogation's] primary purpose ... is to enable police assistance to meet an ongoing emergency," but they "are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the [interrogation's] primary purpose is to establish or prove past events potentially relevant to later criminal prosecution." 547 U. S., at 822. Thus, a recording of a 911 call describing an ongoing domestic disturbance was nontestimonial in Davis, where the victim's "elicited statements were necessary to be able to resolve [the ongoing] emergency," and the statements were not formal. Id., at 827. But the statements in Hammon were testimonial, where the victim was interviewed after the event in a room separate from her husband and "deliberately recounted, in response to police questioning" the past events. Id., at 830. Here, the context is a nondomestic dispute, with the "ongoing emergency" extending beyond an initial victim to a potential threat to the responding police and the public. This context requires additional clarification of what Davis meant by "the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Id., at 822. Pp. 5-12. (b) To make the "primary purpose" determination, the Court must objectively evaluate the circumstances in which the encounter between the individual and the police occurs and the parties' statements and actions. Pp. 12-23. (1) The primary purpose inquiry is objective. The circumstances in which an encounter occurs — e.g., at or near a crime scene versus at a police station, during an ongoing emergency or afterwards — are clearly matters of objective fact. And the relevant inquiry into the parties' statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties' statements and actions and the circumstances in which the encounter occurred. P. 13. (2) The existence of an "ongoing emergency" at the time of the encounter is among the most important circumstances informing the interrogation's "primary purpose." See, e.g., Davis, 547 U. S., at 828-830. An emergency focuses the participants not on "prov[ing] past events potentially relevant to later criminal prosecution," id., at 822, but on "end[ing] a threatening situation," id., at 832. The Michigan Supreme Court failed to appreciate that whether an emergency exists and is ongoing is a highly context-dependent inquiry. An assessment of whether an emergency threatening the police and public is ongoing cannot narrowly focus on whether the threat to the first victim has been neutralized because the threat to the first responders and public may continue. The State Supreme Court also did not appreciate that an emergency's duration and scope may depend in part on the type of weapon involved; the court below relied on Davis and Hammon, where the assailants used their fists, as controlling the scope of an emergency involving a gun. A victim's medical condition is important to the primary purpose inquiry to the extent that it sheds light on the victim's ability to have any purpose at all in responding to police questions and on the likelihood that any such purpose would be a testimonial one. It also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public. This does not mean that an emergency lasts the entire time that a perpetrator is on the loose, but trial courts can determine in the first instance when an interrogation transitions from nontestimonial to testimonial. Finally, whether an ongoing emergency exists is simply one factor informing the ultimate inquiry regarding an interrogation's "primary purpose." Another is the encounter's informality. Formality suggests the absence of an emergency, but informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. The facts here — the questioning occurred in an exposed, public area, before emergency medical services arrived, and in a disorganized fashion — distinguish this case from Crawford's formal station-house interrogation. Pp. 14-20. (3) The statements and actions of both the declarant and interrogators also provide objective evidence of the interrogation's primary purpose. Looking to the contents of both the questions and the answers ameliorates problems that could arise from looking solely to one participant, since both interrogators and declarants may have mixed motives. Police officers' dual responsibilities as both first responders and criminal investigators may lead them to act with different motives simultaneously or in quick succession. And during an ongoing emergency, victims may want the threat to end, but may not envision prosecution. Alternatively, a severely injured victim may have no purpose at all in answering questions. Taking into account such injuries does not make the inquiry subjective. The inquiry still focuses on the understanding and purpose of a reasonable victim in the actual victim's circumstances, which prominently include the victim's physical state. Objectively ascertaining the primary purpose of the interrogation by examining the statements and actions of all participants is also consistent with this Court's prior holdings. E.g., Davis, 547 U. S., at 822-823, n. 1. Pp. 20-23. (c) Here, the circumstances of the encounter as well as the statements and actions of Covington and the police objectively indicate that the interrogation's "primary purpose" was "to enable police assistance to meet an ongoing emergency," 547 U. S., at 822. The circumstances of the interrogation involved an armed shooter, whose motive for and location after the shooting were unknown and who had mortally wounded Covington within a few blocks and a few minutes of the location where police found Covington. Unlike the emergencies in Davis and Hammon, this dispute's potential scope and thus the emergency encompassed a potential threat to the police and the public. And since this case involved a gun, the physical separation that was sufficient to end the emergency in Hammon was not necessarily sufficient to end the threat here. Informed by the circumstances of the ongoing emergency, the Court now turns to determining the "primary purpose of the interrogation" as evidenced by the statements and actions of Covington and the police. The circumstances of the encounter provide important context for understanding Covington's statements to the police. When he responded to their questions, he was lying in a gas station parking lot bleeding from a mortal gunshot wound, and his answers were punctuated with questions about when emergency medical services would arrive. Thus, this Court cannot say that a person in his situation would have had a "primary purpose" "to establish or prove past events potentially relevant to later criminal prosecution." Ibid. For their part, the police responded to a call that a man had been shot. They did not know why, where, or when the shooting had occurred; the shooter's location; or anything else about the crime. They asked exactly the type of questions necessary to enable them "to meet an ongoing emergency." Ibid. Nothing in Covington's responses indicated to the police that there was no emergency or that the emergency had ended. Finally, this situation is more similar to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford. The officers all arrived at different times; asked, upon arrival, what had happened; and generally did not conduct a structured interrogation. The informality suggests that their primary purpose was to address what they considered to be an ongoing emergency, and the circumstances lacked a formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements. Pp. 23-32.483 Mich. 132, 768 N. W. 2d 65, vacated and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. Scalia, J., and Ginsburg, J., filed dissenting opinions. Kagan, J., took no part in the consideration or decision of the case.MICHIGAN, PETITIONER v. RICHARD PERRYBRYANTon writ of certiorari to the supreme court of michigan[February 28, 2011] Justice Sotomayor delivered the opinion of the Court. At respondent Richard Bryant's trial, the court admitted statements that the victim, Anthony Covington, made to police officers who discovered him mortally wounded in a gas station parking lot. A jury convicted Bryant of, inter alia, second-degree murder. 483 Mich. 132, 137, 768 N. W. 2d 65, 67-68 (2009). On appeal, the Supreme Court of Michigan held that the Sixth Amendment's Confrontation Clause, as explained in our decisions in Crawford v. Washington, 541 U. S. 36 (2004), and Davis v. Washington, 547 U. S. 813 (2006), rendered Covington's statements inadmissible testimonial hearsay, and the court reversed Bryant's conviction. 483 Mich., at 157, 768 N. W. 2d, at 79. We granted the State's petition for a writ of certiorari to consider whether the Confrontation Clause barred the admission at trial of Covington's statements to the police. We hold that the circumstances of the interaction between Covington and the police objectively indicate that the "primary purpose of the interrogation" was "to enable police assistance to meet an ongoing emergency." Davis, 547 U. S., at 822. Therefore, Covington's identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant's trial did not violate the Confrontation Clause. We vacate the judgment of the Supreme Court of Michigan and remand.I Around 3:25 a.m. on April 29, 2001, Detroit, Michigan police officers responded to a radio dispatch indicating that a man had been shot. At the scene, they found the victim, Anthony Covington, lying on the ground next to his car in a gas station parking lot. Covington had a gunshot wound to his abdomen, appeared to be in great pain, and spoke with difficulty. The police asked him "what had happened, who had shot him, and where the shooting had occurred." 483 Mich., at 143, 768 N. W. 2d, at 71. Covington stated that "Rick" shot him at around 3 a.m. Id., at 136, and n. 1, 768 N. W. 2d, at 67, and n. 1. He also indicated that he had a conversation with Bryant, whom he recognized based on his voice, through the back door of Bryant's house. Covington explained that when he turned to leave, he was shot through the door and then drove to the gas station, where police found him. Covington's conversation with the police ended within 5 to 10 minutes when emergency medical services arrived. Covington was transported to a hospital and died within hours. The police left the gas station after speaking with Covington, called for backup, and traveled to Bryant's house. They did not find Bryant there but did find blood and a bullet on the back porch and an apparent bullet hole in the back door. Police also found Covington's wallet and identification outside the house. At trial, which occurred prior to our decisions in Crawfordand Davisthe police officers who spoke with Covington at the gas station testified about what Covington had told them. The jury returned a guilty verdict on charges of second-degree murder, being a felon in possession of a firearm, and possession of a firearm during the commission of a felony. Bryant appealed, and the Michigan Court of Appeals affirmed his conviction. No. 247039, 2004 WL 1882661 (Aug. 24, 2004) (per curiam). Bryant then appealed to the Supreme Court of Michigan, arguing that the trial court erred in admitting Covington's statements to the police. The Supreme Court of Michigan eventually remanded the case to the Court of Appeals for reconsideration in light of our 2006 decision in Davis. 477 Mich. 902, 722 N. W. 2d 797 (2006). On remand, the Court of Appeals again affirmed, holding that Covington's statements were properly admitted because they were not testimonial. No. 247039, 2007 WL 675471 (Mar. 6, 2007) (per curiam). Bryant again appealed to the Supreme Court of Michigan, which reversed his conviction. 483 Mich. 132, 768 N. W. 2d 65. Before the Supreme Court of Michigan, Bryant argued that Covington's statements to the police were testimonial under Crawford and Davis and were therefore inadmissible. The State, on the other hand, argued that the statements were admissible as "excited utterances" under the Michigan Rules of Evidence. 483 Mich., at 142, and n. 6, 768 N. W. 2d, at 70, and n. 6. There was no dispute that Covington was unavailable at trial and Bryant had no prior opportunity to cross-examine him. The court therefore assessed whether Covington's statements to the police identifying and describing the shooter and the time and location of the shooting were testimonial hearsay for purposes of the Confrontation Clause. The court concluded that the circumstances "clearly indicate that the 'primary purpose' of the questioning was to establish the facts of an event that had already occurred; the 'primary purpose' was not to enable police assistance to meet an ongoing emergency." Id., at 143, 768 N. W. 2d, at 71. The court explained that, in its view, Covington was describing past events and as such, his "primary purpose in making these statements to the police ... was ... to tell the police who had committed the crime against him, where the crime had been committed, and where the police could find the criminal." Id., at 144, 768 N. W. 2d, at 71. Noting that the officers' actions did not suggest that they perceived an ongoing emergency at the gas station, the court held that there was in fact no ongoing emergency. Id., at 145-147, 768 N. W. 2d, at 71-73. The court distinguished the facts of this case from those in Davis, where we held a declarant's statements in a 911 call to be nontestimonial. It instead analogized this case to Hammon v. Indiana, which we decided jointly with Davis and in which we found testimonial a declarant's statements to police just after an assault. See 547 U. S., at 829-832. Based on this analysis, the Supreme Court of Michigan held that the admission of Covington's statements constituted prejudicial plain error warranting reversal and ordered a new trial. 483 Mich., at 151-153, 768 N. W. 2d, at 75-76. The court did not address whether, absent a Confrontation Clause bar, the statements' admission would have been otherwise consistent with Michigan's hearsay rules or due process.1 The majority's opinion provoked two dissents, both of which would have held Covington's statements admissible because they were made in circumstances indicating that their "primary purpose" was to assist police in addressing an ongoing emergency. Id., at 157, 768 N. W. 2d, at 79 (opinion of Weaver, J.); id., at 157-158, 768 N. W. 2d, at 79 (opinion of Corrigan, J.). Justice Corrigan's dissent explained that the time and space between "the onset of an emergency and statements about that emergency clearly must be considered in context." Id., at 161, 768 N. W. 2d, at 80. Justice Corrigan concluded that the objective circumstances of Covington's interaction with police rendered this case more similar to the nontestimonial statements in Davis than to the testimonial statements in Crawford. 483 Mich., at 164, 768 N. W. 2d, at 82. We granted certiorari to determine whether the Confrontation Clause barred admission of Covington's statements. 559 U. S. ___ (2010).II The Confrontation Clause of the Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Fourteenth Amendment renders the Clause binding on the States. Pointer v. Texas, 380 U. S. 400, 403 (1965). In Ohio v. Roberts, 448 U. S. 56, 66 (1980), we explained that the confrontation right does not bar admission of statements of an unavailable witness if the statements "bea[r] adequate 'indicia of reliability.' " We held that reliability can be established if "the evidence falls within a firmly rooted hearsay exception," or if it does not fall within such an exception, then if it bears "particularized guarantees of trustworthiness." Ibid. Nearly a quarter century later, we decided Crawford v. Washington, 541 U. S. 36. Petitioner Michael Crawford was prosecuted for stabbing a man who had allegedly attempted to rape his wife, Sylvia. Sylvia witnessed the stabbing, and later that night, after she and her husband were both arrested, police interrogated her about the incident. At trial, Sylvia Crawford claimed spousal privilege and did not testify, but the State introduced a tape recording of Sylvia's statement to the police in an effort to prove that the stabbing was not in self-defense, as Michael Crawford claimed. The Washington Supreme Court affirmed Crawford's conviction because it found Sylvia's statement to be reliable, as required under Ohio v. Roberts. We reversed, overruling Ohio v. Roberts. 541 U. S., at 60-68; see also Davis, 547 U. S., at 825, n. 4. Crawford examined the common-law history of the confrontation right and explained that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." 541 U. S., at 50. We noted that in England, pretrial examinations of suspects and witnesses by government officials "were sometimes read in court in lieu of live testimony." Id., at 43. In light of this history, we emphasized the word "witnesses" in the Sixth Amendment, defining it as "those who 'bear testimony.' " Id., at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). We defined "testimony" as " ' [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " 541 U. S., at 51 (quoting Webster). We noted that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Ibid. We therefore limited the Confrontation Clause's reach to testimonial statements and held that in order for testimonial evidence to be admissible, the Sixth Amendment "demands what the common law required: unavailability and a prior opportunity for cross-examination." Id., at 68. Although "leav[ing] for another day any effort to spell out a comprehensive definition of 'testimonial,' " Crawford noted that "at a minimum" it includes "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations." Ibid. Under this reasoning, we held that Sylvia Crawford's statements in the course of police questioning were testimonial and that their admission when Michael Crawford "had no opportunity to cross-examine her" due to spousal privilege was "sufficient to make out a violation of the Sixth Amendment." Ibid. In 2006, the Court in Davis v. Washington and Hammon v. Indiana, 547 U. S. 813, took a further step to "determine more precisely which police interrogations produce testimony" and therefore implicate a Confrontation Clause bar. Id., at 822. We explained that when Crawford said that " 'interrogations by law enforcement officers fall squarely within [the] class' of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial." Davis, 547 U. S., at 826. We thus made clear in Davis that not all those questioned by the police are witnesses and not all "interrogations by law enforcement officers," Crawford, 541 U. S., at 53, are subject to the Confrontation Clause.2 Davis and Hammon were both domestic violence cases. In Davis, Michelle McCottry made the statements at issue to a 911 operator during a domestic disturbance with Adrian Davis, her former boyfriend. McCottry told the operator, " 'He's here jumpin' on me again,' " and, " 'He's usin' his fists.' " 547 U. S., at 817. The operator then asked McCottry for Davis' first and last names and middle initial, and at that point in the conversation McCottry reported that Davis had fled in a car. Id., at 818. McCottry did not appear at Davis' trial, and the State introduced the recording of her conversation with the 911 operator. Id., at 819. In Hammon, decided along with Davis, police responded to a domestic disturbance call at the home of Amy and Hershel Hammon, where they found Amy alone on the front porch. Ibid. She appeared " 'somewhat frightened,' " but told them " 'nothing was the matter.' " Ibid. (quoting Hammon v. State, 829 N. E. 2d 444, 446-447 (Ind. 2005)). She gave the police permission to enter the house, where they saw a gas heating unit with the glass front shattered on the floor. One officer remained in the kitchen with Hershel, while another officer talked to Amy in the living room about what had happened. Hershel tried several times to participate in Amy's conversation with the police and became angry when the police required him to stay separated from Amy. 547 U. S., at 819-820. The police asked Amy to fill out and sign a battery affidavit. She wrote: " 'Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn't leave the house. Attacked my daughter.' " Id., at 820. Amy did not appear at Hershel's trial, so the police officers who spoke with her testified as to her statements and authenticated the affidavit. Ibid. The trial court admitted the affidavit as a present sense impression and admitted the oral statements as excited utterances under state hearsay rules. Ibid. The Indiana Supreme Court affirmed Hammon's conviction, holding that Amy's oral statements were not testimonial and that the admission of the affidavit, although erroneous because the affidavit was testimonial, was harmless. Hammon v. State, 829 N. E. 2d, at 458-459. To address the facts of both cases, we expanded upon the meaning of "testimonial" that we first employed in Crawford and discussed the concept of an ongoing emergency. 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." Davis, 547 U. S., at 822. Examining the Davis and Hammon statements in light of those definitions, we held that the statements at issue in Davis were nontestimonial and the statements in Hammon were testimonial. We distinguished the statements in Davis from the testimonial statements in Crawford on several grounds, including that the victim in Davis was "speaking about events as they were actually happening, rather than 'describ[ing] past events,' " that there was an ongoing emergency, that the "elicited statements were necessary to be able to resolve the present emergency," and that the statements were not formal. 547 U. S., at 827. In Hammon, on the other hand, we held that, "[i]t is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct." Id., at 829. There was "no emergency in progress." Ibid. The officer questioning Amy "was not seeking to determine ... 'what is happening,' but rather 'what happened.' " Id., at 830. It was "formal enough" that the police interrogated Amy in a room separate from her husband where, "some time after the events described were over," she "deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed." Ibid. Because her statements "were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation," id., at 832, we held that they were testimonial. Davis did not "attemp[t] to produce an exhaustive classification of all conceivable statements — or even all conceivable statements in response to police interrogation — as either testimonial or nontestimonial." Id., at 822.3 The basic purpose of the Confrontation Clause was to "targe[t]" the sort of "abuses" exemplified at the notorious treason trial of Sir Walter Raleigh. Crawford, 541 U. S., at 51. Thus, the most important instances in which the Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial.4 See id., at 43-44. Even where such an interrogation is conducted with all good faith, introduction of the resulting statements at trial can be unfair to the accused if they are untested by cross-examination. Whether formal or informal, out-of-court statements can evade the basic objective of the Confrontation Clause, which is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial. When, as in Davis, 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 Clause. But 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. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. 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.5 Deciding this case also requires further explanation of the "ongoing emergency" circumstance addressed in Davis. Because Davis and Hammon arose in the domestic violence context, that was the situation "we had immediately in mind (for that was the case before us)." 547 U. S., at 826. We now face a new context: a nondomestic dispute, involving a victim found in a public location, suffering from a fatal gunshot wound, and a perpetrator whose location was unknown at the time the police located the victim. Thus, we confront for the first time circumstances in which the "ongoing emergency" discussed in Davis extends beyond an initial victim to a potential threat to the responding police and the public at large. This new context requires us to provide additional clarification with regard to what Davis meant by "the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Id., at 822. III To determine whether the "primary purpose" of an interrogation is "to enable police assistance to meet an ongoing emergency," Davis, 547 U. S., at 822, which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties. A The Michigan Supreme Court correctly understood that this inquiry is objective.6 483 Mich., at 142, 768 N. W. 2d, at 70. Davis uses the word "objective" or "objectively" no fewer than eight times in describing the relevant inquiry. See 547 U. S., at 822, 826-828, 830-831, and n. 5; see, e.g., id., at 826 ("The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements"). "Objectively" also appears in the definitions of both testimonial and nontestimonial statements that Davis established. Id., at 822. An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the "primary purpose of the interrogation." The circumstances in which an encounter occurs — e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards — are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.7 B As our recent Confrontation Clause cases have explained, the existence of an "ongoing emergency" at the time of an encounter between an individual and the police is among the most important circumstances informing the "primary purpose" of an interrogation. See Davis, 547 U. S., at 828-830; Crawford, 541 U. S., at 65. The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than "prov[ing] past events potentially relevant to later criminal prosecution."8 Davis, 547 U. S., at 822. Rather, it focuses them on "end[ing] a threatening situation." Id., at 832. Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination. This logic is not unlike that justifying the excited utterance exception in hearsay law. Statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," Fed. Rule Evid. 803(2); see also Mich. Rule Evid. 803(2) (2010), are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood. See Idaho v. Wright, 497 U. S. 805, 820 (1990) ("The basis for the 'excited utterance' exception ... is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation ... "); 5 J. Weinstein & M. Berger, Weinstein's Federal Evidence §803.04[1] (J. McLaughlin ed., 2d ed. 2010) (same); Advisory Committee's Notes on Fed. Rule Evid. 803(2), 28 U. S. C. App., p. 371 (same). An ongoing emergency has a similar effect of focusing an individual's attention on responding to the emergency.9 Following our precedents, the court below correctly began its analysis with the circumstances in which Covington interacted with the police. 483 Mich., at 143, 768 N. W. 2d, at 71. But in doing so, the court construed Davis to have decided more than it did and thus employed an unduly narrow understanding of "ongoing emergency" that Davis does not require. First, the Michigan Supreme Court repeatedly and incorrectly asserted that Davis "defined" " 'ongoing emergency.' " 483 Mich., at 147, 768 N. W. 2d, at 73; see also id., at 144, 768 N. W. 2d, at 71-72. In fact, Davis did not even define the extent of the emergency in that case. The Michigan Supreme Court erroneously read Davis as deciding that "the statements made after the defendant stopped assaulting the victim and left the premises did not occur during an 'ongoing emergency.' " 483 Mich., at 150, n. 15, 768 N. W. 2d, at 75, n. 15. We explicitly explained in Davis, however, that we were asked to review only the testimonial nature of Michelle McCottry's initial statements during the 911 call; we therefore merely assumed the correctness of the Washington Supreme Court's holding that admission of her other statements was harmless, without deciding whether those subsequent statements were also made for the primary purpose of resolving an ongoing emergency. 547 U. S., at 829. Second, by assuming that Davis defined the outer bounds of "ongoing emergency," the Michigan Supreme Court failed to appreciate that whether an emergency exists and is ongoing is a highly context-dependent inquiry. See Brief for United States as Amicus Curiae 20. Davis and Hammon involved domestic violence, a known and identified perpetrator, and, in Hammon, a neutralized threat. Because Davis and Hammon were domestic violence cases, we focused only on the threat to the victims and assessed the ongoing emergency from the perspective of whether there was a continuing threat to them. 547 U. S., at 827, 829-830. Domestic violence cases like Davis and Hammon often have a narrower zone of potential victims than cases involving threats to public safety. An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and public may continue. See 483 Mich., at 164, 768 N. W. 2d, at 82 (Corrigan, J., dissenting) (examining the threat to the victim, police, and the public); Brief for United States as Amicus Curiae 19-20 ("An emergency posed by an unknown shooter who remains at large does not automatically abate just because the police can provide security to his first victim"). The Michigan Supreme Court also did not appreciate that the duration and scope of an emergency may depend in part on the type of weapon employed. The court relied on Davis and Hammon, in which the assailants used their fists, as controlling the scope of the emergency here, which involved the use of a gun. The problem with that reasoning is clear when considered in light of the assault on Amy Hammon. Hershel Hammon was armed only with his fists when he attacked his wife, so removing Amy to a separate room was sufficient to end the emergency. 547 U. S., at 830-832. If Hershel had been reported to be armed with a gun, however, separation by a single household wall might not have been sufficient to end the emergency. Id., at 819. The Michigan Supreme Court's failure to focus on the context-dependent nature of our Davis decision also led it to conclude that the medical condition of a declarant is irrelevant. 483 Mich., at 149, 768 N. W. 2d, at 74 ("The Court said nothing at all that would remotely suggest that whether the victim was in need of medical attention was in any way relevant to whether there was an 'ongoing emergency' "). But Davis and Hammon did not present medical emergencies, despite some injuries to the victims. 547 U. S., at 818, 820. Thus, we have not previously considered, much less ruled out, the relevance of a victim's severe injuries to the primary purpose inquiry. Taking into account the victim's medical state does not, as the Michigan Supreme Court below thought, "rende[r] non-testimonial" "all statements made while the police are questioning a seriously injured complainant." 483 Mich., at 149, 768 N. W. 2d, at 74. The medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. The victim's medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public. As the Solicitor General's brief observes, Brief for United States as Amicus Curiae 20, and contrary to the Michigan Supreme Court's claims, 483 Mich., at 147, 768 N. W. 2d, at 73, none of this suggests that an emergency is ongoing in every place or even just surrounding the victim for the entire time that the perpetrator of a violent crime is on the loose. As we recognized in Davis, "a conversation which begins as an interrogation to determine the need for emergency assistance" can "evolve into testimonial statements." 547 U. S., at 828 (internal quotation marks omitted). This evolution may occur if, for example, a declarant provides police with information that makes clear that what appeared to be an emergency is not or is no longer an emergency or that what appeared to be a public threat is actually a private dispute. It could also occur if a perpetrator is disarmed, surrenders, is apprehended, or, as in Davis, flees with little prospect of posing a threat to the public. Trial courts can determine in the first instance when any transition from nontestimonial to testimonial occurs,10 and exclude "the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence." Id., at 829. Finally, our discussion of the Michigan Supreme Court's misunderstanding of what Davis meant by "ongoing emergency" should not be taken to imply that the existence vel non of an ongoing emergency is dispositive of the testimonial inquiry. As Davis made clear, whether an ongoing emergency exists is simply one factor — albeit an important factor — that informs the ultimate inquiry regarding the "primary purpose" of an interrogation. Another factor the Michigan Supreme Court did not sufficiently account for is the importance of informality in an encounter between a victim and police. Formality is not the sole touchstone of our primary purpose inquiry because, although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to "establish or prove past events potentially relevant to later criminal prosecution," id., at 822, informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. Cf. id., at 826 (explaining that Confrontation Clause requirements cannot "readily be evaded" by the parties deliberately keeping the written product of an interrogation informal "instead of having the declarant sign a deposition"). The court below, however, too readily dismissed the informality of the circumstances in this case in a single brief footnote and in fact seems to have suggested that the encounter in this case was formal. 483 Mich., at 150, n. 16, 768 N. W. 2d, at 75, n. 16. As we explain further below, the questioning in this case occurred in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion. All of those facts make this case distinguishable from the formal station-house interrogation in Crawford. See Davis, 547 U. S., at 827. C In addition to the circumstances in which an encounter occurs, the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation. See, e.g., Davis, 547 U. S., at 827 ("[T]he nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past" (first emphasis added)). The Michigan Supreme Court did, at least briefly, conduct this inquiry. 483 Mich., at 144-147, 768 N. W. 2d, at 71-73. As the Michigan Supreme Court correctly recognized, id., at 140, n. 5, 768 N. W. 2d, at 69, n. 5, Davis requires a combined inquiry that accounts for both the declarant and the interrogator.11 In many instances, the primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers. To give an extreme example, if the police say to a victim, "Tell us who did this to you so that we can arrest and prosecute them," the victim's response that "Rick did it," appears purely accusatory because by virtue of the phrasing of the question, the victim necessarily has prosecution in mind when she answers. The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession. See New York v. Quarles ("Undoubtedly most police officers [deciding whether to give Miranda warnings in a possible emergency situation] would act out of a host of different, instinctive, and largely unverifiable motives — their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect"); see also Davis, 547 U. S., at 839 (Thomas, J., concurring in judgment in part and dissenting in part) ("In many, if not most, cases where police respond to a report of a crime, whether pursuant to a 911 call from the victim or otherwise, the purposes of an interrogation, viewed from the perspective of the police, are both to respond to the emergency situation and to gather evidence"). Victims are also likely to have mixed motives when they make statements to the police. During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant. A victim may want the attacker to be incapacitated temporarily or rehabilitated. Alternatively, a severely injured victim may have no purpose at all in answering questions posed; the answers may be simply reflexive. The victim's injuries could be so debilitating as to prevent her from thinking sufficiently clearly to understand whether her statements are for the purpose of addressing an ongoing emergency or for the purpose of future prosecution.12 Taking into account a victim's injuries does not transform this objective inquiry into a subjective one. The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim — circumstances that prominently include the victim's physical state. The dissent suggests, post, at 3-4 (opinion of Scalia, J.), that we intend to give controlling weight to the "intentions of the police," post, at 4. That is a misreading of our opinion. At trial, the declarant's statements, not the interrogator's questions, will be introduced to "establis[h] the truth of the matter asserted," Crawford, 541 U. S., at 60, n. 9, and must therefore pass the Sixth Amendment test. See n. 11, supra. In determining whether a declarant's statements are testimonial, courts should look to all of the relevant circumstances. Even Justice Scalia concedes that the interrogator is relevant to this evaluation, post, at 3, and we agree that "[t]he identity of an interrogator, and the content and tenor of his questions," ibid., can illuminate the "primary purpose of the interrogation." The dissent, see post, at 3-5 (opinion of Scalia, J.), criticizes the complexity of our approach, but we, at least, are unwilling to sacrifice accuracy for simplicity. Simpler is not always better, and courts making a "primary purpose" assessment should not be unjustifiably restrained from consulting all relevant information, including the statements and actions of interrogators. Objectively ascertaining the primary purpose of the interrogation by examining the statements and actions of all participants is also the approach most consistent with our past holdings. E.g., Davis, 547 U. S., at 822-823, n. 1 (noting that "volunteered testimony" is still testimony and remains subject to the requirements of the Confrontation Clause). IV As we suggested in Davis, when a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the "primary purpose of the interrogation" by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs. The existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation.13 As the context of this case brings into sharp relief, the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public. Applying this analysis to the facts of this case is more difficult than in Davis because we do not have the luxury of reviewing a transcript of the conversation between the victim and the police officers. Further complicating our task is the fact that the trial in this case occurred before our decisions in Crawford and Davis. We therefore review a record that was not developed to ascertain the "primary purpose of the interrogation." We first examine the circumstances in which the interrogation occurred. The parties disagree over whether there was an emergency when the police arrived at the gas station. Bryant argues, and the Michigan Supreme Court accepted, 483 Mich., at 147, 768 N. W. 2d, at 73, that there was no ongoing emergency because "there ... was no criminal conduct occurring. No shots were being fired, no one was seen in possession of a firearm, nor were any witnesses seen cowering in fear or running from the scene." Brief for Respondent 27. Bryant, while conceding that "a serious or life-threatening injury creates a medical emergency for a victim," id., at 30, further argues that a declarant's medical emergency is not relevant to the ongoing emergency determination. In contrast, Michigan and the Solicitor General explain that when the police responded to the call that a man had been shot and found Covington bleeding on the gas station parking lot, "they did not know who Covington was, whether the shooting had occurred at the gas station or at a different location, who the assailant was, or whether the assailant posed a continuing threat to Covington or others." Brief for United States as Amicus Curiae 15; Brief for Petitioner 16; see also id., at 15 ("[W]hen an officer arrives on the scene and does not know where the perpetrator is, whether he is armed, whether he might have other targets, and whether the violence might continue at the scene or elsewhere, interrogation that has the primary purpose of establishing those facts to assess the situation is designed to meet the ongoing emergency and is nontestimonial"). The Michigan Supreme Court stated that the police asked Covington, "what had happened, who had shot him, and where the shooting had occurred." 483 Mich., at 143, 768 N. W. 2d, at 71. The joint appendix contains the transcripts of the preliminary examination, suppression hearing, and trial testimony of five officers who responded to the scene and found Covington. The officers' testimony is essentially consistent but, at the same time, not specific. The officers basically agree on what information they learned from Covington, but not on the order in which they learned it or on whether Covington's statements were in response to general or detailed questions. They all agree that the first question was "what happened?" The answer was either "I was shot" or "Rick shot me."14 As explained above, the scope of an emergency in terms of its threat to individuals other than the initial assailant and victim will often depend on the type of dispute involved. Nothing Covington said to the police indicated that the cause of the shooting was a purely private dispute or that the threat from the shooter had ended. The record reveals little about the motive for the shooting. The police officers who spoke with Covington at the gas station testified that Covington did not tell them what words Covington and Rick had exchanged prior to the shooting.15 What Covington did tell the officers was that he fled Bryant's back porch, indicating that he perceived an ongoing threat.16 The police did not know, and Covington did not tell them, whether the threat was limited to him. The potential scope of the dispute and therefore the emergency in this case thus stretches more broadly than those at issue in Davis and Hammon and encompasses a threat potentially to the police and the public. This is also the first of our post-Crawford Confrontation Clause cases to involve a gun. The physical separation that was sufficient to end the emergency in Hammon was not necessarily sufficient to end the threat in this case; Covington was shot through the back door of Bryant's house. Bryant's argument that there was no ongoing emergency because "[n]o shots were being fired," Brief for Respondent 27, surely construes ongoing emergency too narrowly. An emergency does not last only for the time between when the assailant pulls the trigger and the bullet hits the victim. If an out-of-sight sniper pauses between shots, no one would say that the emergency ceases during the pause. That is an extreme example and not the situation here, but it serves to highlight the implausibility, at least as to certain weapons, of construing the emergency to last only precisely as long as the violent act itself, as some have construed our opinion in Davis. See Brief for Respondent 23-25. At no point during the questioning did either Covington or the police know the location of the shooter. In fact, Bryant was not at home by the time the police searched his house at approximately 5:30 a.m. 483 Mich., at 136, 768 N. W. 2d, at 67. At some point between 3 a.m. and 5:30 a.m., Bryant left his house. At bottom, there was an ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded Covington within a few blocks and a few minutes of the location where the police found Covington.17 This is not to suggest that the emergency continued until Bryant was arrested in California a year after the shooting. Id., at 137, 768 N. W. 2d, at 67. We need not decide precisely when the emergency ended because Covington's encounter with the police and all of the statements he made during that interaction occurred within the first few minutes of the police officers' arrival and well before they secured the scene of the shooting — the shooter's last known location. We reiterate, moreover, that the existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry; rather, the ultimate inquiry is whether the "primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency." Davis, 547 U. S., at 822. We turn now to that inquiry, as informed by the circumstances of the ongoing emergency just described. The circumstances of the encounter provide important context for understanding Covington's statements to the police. When the police arrived at Covington's side, their first question to him was "What happened?"18 Covington's response was either "Rick shot me" or "I was shot," followed very quickly by an identification of "Rick" as the shooter. App. 76. In response to further questions, Covington explained that the shooting occurred through the back door of Bryant's house and provided a physical description of the shooter. When he made the statements, Covington was lying in a gas station parking lot bleeding from a mortal gunshot wound to his abdomen. His answers to the police officers' questions were punctuated with questions about when emergency medical services would arrive. Id., at 56-57 (suppression hearing testimony of Officer Brown). He was obviously in considerable pain and had difficulty breathing and talking. Id., at 75, 83-84 (testimony of Officer McCallister); id., at 101, 110-111 (testimony of Sgt. Wenturine); id., at 126, 137 (testimony of Officer Stuglin). From this description of his condition and report of his statements, we cannot say that a person in Covington's situation would have had a "primary purpose" "to establish or prove past events potentially relevant to later criminal prosecution." Davis, 547 U. S., at 822. For their part, the police responded to a call that a man had been shot. As discussed above, they did not know why, where, or when the shooting had occurred. Nor did they know the location of the shooter or anything else about the circumstances in which the crime occurred.19 The questions they asked--"what had happened, who had shot him, and where the shooting occurred," 483 Mich., at 143, 768 N. W. 2d, at 71 — were the exact type of questions necessary to allow the police to " 'assess the situation, the threat to their own safety, and possible danger to the potential victim' " and to the public, Davis, 547 U. S., at 832 (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177, 186 (2004)), including to allow them to ascertain "whether they would be encountering a violent felon,"20 Davis, 547 U. S., at 827. In other words, they solicited the information necessary to enable them "to meet an ongoing emergency." Id., at 822. Nothing in Covington's responses indicated to the police that, contrary to their expectation upon responding to a call reporting a shooting, there was no emergency or that a prior emergency had ended. Covington did indicate that he had been shot at another location about 25 minutes earlier, but he did not know the location of the shooter at the time the police arrived and, as far as we can tell from the record, he gave no indication that the shooter, having shot at him twice, would be satisfied that Covington was only wounded. In fact, Covington did not indicate any possible motive for the shooting, and thereby gave no reason to think that the shooter would not shoot again if he arrived on the scene. As we noted in Davis, "initial inquiries" may "often ... produce nontestimonial statements." Id., at 832. The initial inquiries in this case resulted in the type of nontestimonial statements we contemplated in Davis. Finally, we consider the informality of the situation and the interrogation. This situation is more similar, though not identical, to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford. As the officers' trial testimony reflects, the situation was fluid and somewhat confused: the officers arrived at different times; apparently each, upon arrival, asked Covington "what happened?"; and, contrary to the dissent's portrayal, post, at 7-9 (opinion of Scalia, J.), they did not conduct a structured interrogation. App. 84 (testimony of Officer McCallister) (explaining duplicate questioning, especially as to "what happened?"); id., at 101-102 (testimony of Sgt. Wenturine) (same); id., at 126-127 (testimony of Officer Stuglin) (same). The informality suggests that the interrogators' primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements. Because the circumstances of the encounter as well as the statements and actions of Covington and the police objectively indicate that the "primary purpose of the interrogation" was "to enable police assistance to meet an ongoing emergency," Davis, 547 U. S., at 822, Covington's identification and description of the shooter and the location of the shooting were not testimonial hearsay. The Confrontation Clause did not bar their admission at Bryant's trial. * * * For the foregoing reasons, we hold that Covington's statements were not testimonial and that their admission at Bryant's trial did not violate the Confrontation Clause. We leave for the Michigan courts to decide on remand whether the statements' admission was otherwise permitted by state hearsay rules. The judgment of the Supreme Court of Michigan is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered. Justice Kagan took no part in the consideration or decision of this case.MICHIGAN, PETITIONER v. RICHARD PERRY BRYANTon writ of certiorari to the supreme court of michigan[February 28, 2011] Justice Thomas, concurring in the judgment. I agree with the Court that the admission of Covington's out-of-court statements did not violate the Confrontation Clause, but I reach this conclusion because Covington's questioning by police lacked sufficient formality and solemnity for his statements to be considered "testimonial." See Crawford v. Washington, 541 U. S. 36, 68 (2004). In determining whether Covington's statements to police implicate the Confrontation Clause, the Court evaluates the " 'primary purpose' " of the interrogation. Ante, at 12. The majority's analysiswhich relies on, inter alia, what the police knew when they arrived at the scene, the specific questions they asked, the particular information Covington conveyed, the weapon involved, and Covington's medical conditionillustrates the uncertainty that this test creates for law enforcement and the lower courts. Ante, at 25-31. I have criticized the primary-purpose test as "an exercise in fiction" that is "disconnected from history" and "yields no predictable results." Davis v. Washington, 547 U. S. 813, 839, 838 (2006) (opinion concurring in judgment in part and dissenting in part). Rather than attempting to reconstruct the "primary purpose" of the participants, I would consider the extent to which the interrogation resembles those historical practices that the Confrontation Clause addressed. See, e.g., id., at 835-836 (describing "practices that occurred under the English bail and committal statutes passed during the reign of Queen Mary"). As the majority notes, Covington interacted with the police under highly informal circumstances, while he bled from a fatal gunshot wound. Ante, at 19-20, 31. The police questioning was not "a formalized dialogue," did not result in "formalized testimonial ma-terials" such as a deposition or affidavit, and bore no "in- dicia of solemnity." Davis, supra, at 840, 837 (opinion of Thomas, J.); see also Giles v. California, 554 U. S. 353, 377-378 (2008) (Thomas, J., concurring). Nor is there any indication that the statements were offered at trial "in order to evade confrontation." Davis, supra, at 840. This interrogation bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate. Covington thus did not "bea[r] testimony" against Bryant, Crawford, supra, at 51, and the introduction of his statements at trial did not implicate the Confrontation Clause. I concur in the judgment.MICHIGAN, PETITIONER v. RICHARD PERRY BRYANTon writ of certiorari to the supreme court of michigan[February 28, 2011] Justice Scalia, dissenting. Today's tale — a story of five officers conducting suc-cessive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose — is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however — or perhaps as an intended second goal — today's opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U. S. 36 (2004), I dissent.IA The Confrontation Clause of the Sixth Amendment, made binding on the States by the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." In Crawford, we held that this provision guarantees a defendant his common-law right to confront those "who 'bear testimony' " against him. 541 U. S., at 51. A witness must deliver his testimony against the defendant in person, or the prosecution must prove that the witness is unavailable to appear at trial and that the defendant has had a prior opportunity for cross-examination. Id., at 53-54. Not all hearsay falls within the Confrontation Clause's grasp. At trial a witness "bears testimony" by providing " '[a] solemn declaration or affirmation ... for the purpose of establishing or proving some fact.' " Id., at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The Confrontation Clause protects defendants only from hearsay statements that do the same. Davis v. Washington, 547 U. S. 813, 823-824 (2006). In Davis, we explained how to identify testimonial hearsay prompted by police questioning in the field. A statement is testimonial "when the circumstances objectively indicate ... that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id., at 822. When, however, the circumstances objectively indicate that the declarant's statements were "a cry for help [o]r the provision of information enabling officers immediately to end a threatening situation," id., at 832, they bear little resemblance to in-court testimony. "No 'witness' goes into court to proclaim an emergency and seek help." Id., at 828. Crawford and Davis did not address whose perspective matters — the declarant's, the interrogator's, or both — when assessing "the primary purpose of [an] interrogation." In those cases the statements were testimonial from any perspective. I think the same is true here, but because the Court picks a perspective so will I: The declarant's intent is what counts. In-court testimony is more than a narrative of past events; it is a solemn declaration made in the course of a criminal trial. For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused.1 See Friedman, Grappling with the Meaning of "Testimonial," 71 Brooklyn L. Rev. 241, 259 (2005). That is what distinguishes a narrative told to a friend over dinner from a statement to the police. See Crawford, supra, at 51. The hidden purpose of an interrogator cannot substitute for the declarant's intentional solemnity or his understanding of how his words may be used. A declarant-focused inquiry is also the only inquiry that would work in every fact pattern implicating the Confrontation Clause. The Clause applies to volunteered testimony as well as statements solicited through police interrogation. See Davis, supra, at 822-823, n. 1. An inquiry into an officer's purposes would make no sense when a declarant blurts out "Rick shot me" as soon as the officer arrives on the scene. I see no reason to adopt a different test — one that accounts for an officer's intent — when the officer asks "what happened" before the declarant makes his accusation. (This does not mean the interrogator is irrelevant. The identity of an interrogator, and the content and tenor of his questions, can bear upon whether a declarant intends to make a solemn statement, and envisions its use at a criminal trial. But none of this means that the interrogator's purpose matters.) In an unsuccessful attempt to make its finding of emergency plausible, the Court instead adopts a test that looks to the purposes of both the police and the declarant. It claims that this is demanded by necessity, fretting that a domestic-violence victim may want her abuser briefly arrested — presumably to teach him a lesson — but not desire prosecution. See ante, at 22. I do not need to probe the purposes of the police to solve that problem. Even if a victim speaks to the police "to establish or prove past events" solely for the purpose of getting her abuser arrested, she surely knows her account is "potentially rel-evant to later criminal prosecution" should one ensue. Davis, supra, at 822. The Court also wrings its hands over the possibility that "a severely injured victim" may lack the capacity to form a purpose, and instead answer questions "reflexive[ly]." Ante, at 22. How to assess whether a declarant with diminished capacity bore testimony is a difficult question, and one I do not need to answer today. But the Court's proposed answer — to substitute the intentions of the police for the missing intentions of the declarant — cannot be the correct one. When the declarant has diminished capacity, focusing on the interrogators make less sense, not more. The inquiry under Crawford turns in part on the actions and statements of a declarant's audience only because they shape the declarant's perception of why his audience is listening and therefore influence his purpose in making the declaration. See 541 U. S., at 51. But a person who cannot perceive his own purposes certainly cannot perceive why a listener might be interested in what he has to say. As far as I can tell, the Court's substituted-intent theory "has nothing to be said for it except that it can sometimes make our job easier," Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L. P. A., 559 U. S. ___, ___ (2010) (Scalia, J., concurring in part and concurring in judgment) (slip op., at 2). The Court claims one affirmative virtue for its focus on the purposes of both the declarant and the police: It "ameliorates problems that ... arise" when declarants have "mixed motives." Ante, at 21. I am at a loss to know how. Sorting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation. And the Court's solution creates a mixed-motive problem where (under the proper theory) it does not exist — viz., where the police and the declarant each have one motive, but those motives conflict. The Court does not provide an answer to this glaringly obvious problem, probably because it does not have one. The only virtue of the Court's approach (if it can be misnamned a virtue) is that it leaves judges free to reach the "fairest" result under the totality of the circumstances. If the dastardly police trick a declarant into giving an incriminating statement against a sympathetic defendant, a court can focus on the police's intent and declare the statement testimonial. If the defendant "deserves" to go to jail, then a court can focus on whatever perspective is necessary to declare damning hearsay nontestimonial. And when all else fails, a court can mix-and-match perspectives to reach its desired outcome. Unfortunately, under this malleable approach "the guarantee of confrontation is no guarantee at all." Giles v. California, 554 U. S. 353, 375 (2008) (plurality).B Looking to the declarant's purpose (as we should), this is an absurdly easy case. Roughly 25 minutes after Anthony Covington had been shot, Detroit police responded to a 911 call reporting that a gunshot victim had appeared at a neighborhood gas station. They quickly arrived at the scene, and in less than 10 minutes five different Detroit police officers questioned Covington about the shooting. Each asked him a similar battery of questions: "what happened" and when, App. 39, 126, "who shot" the victim," id., at 22, and "where" did the shooting take place, id., at 132. See also id., at 113. After Covington would answer, they would ask follow-up questions, such as "how tall is" the shooter, id., at 134, "[h]ow much does he weigh," ibid. what is the exact address or physical description of the house where the shooting took place, and what chain of events led to the shooting. The battery relented when the paramedics arrived and began tending to Covington's wounds. From Covington's perspective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant. He knew the "threatening situation," Davis, 547 U. S., at 832, had ended six blocks away and 25 minutes earlier when he fled from Bryant's back porch. See 483 Mich. 132, 135-136, 768 N.W. 2d 65, 67 (2009); App. 105. Bryant had not confronted him face-to-face before he was mortally wounded, instead shooting him through a door. See 483 Mich., at 136-137, 768 N.W. 2d, at 67. Even if Bryant had pursued him (unlikely), and after seeing that Covington had ended up at the gas station was unable to confront him there before the police arrived (doubly unlikely), it was entirely beyond imagination that Bryant would again open fire while Covington was surrounded by five armed police officers. And Covington knew the shooting was the work of a drug dealer, not a spree killer who might randomly threaten others. Id., at 135, 137, 768 N.W. 2d, at 67. Covington's knowledge that he had nothing to fear differs significantly from Michelle McCottry's state of mind during her "frantic" statements to a 911 operator at issue in Davis, 547 U. S., at 827. Her "call was plainly a call for help against a bona fide physical threat" describing "events as they were actually happening." Ibid. She did not have the luxuries of police protection and of time and space separating her from immediate danger that Covington enjoyed when he made his statements. See id., at 831. Covington's pressing medical needs do not suggest that he was responding to an emergency, but to the contrary reinforce the testimonial character of his statements. He understood the police were focused on investigating a past crime, not his medical needs. None of the officers asked Covington how he was doing, attempted more than superficially to assess the severity of his wounds, or attempted to administer first aid.2 They instead primarily asked questions with little, if any, relevance to Covington's dire situation. Police, paramedics, and doctors do not need to know the address where a shooting took place, the name of the shooter, or the shooter's height and weight to provide proper medical care. Underscoring that Covington understood the officers' investigative role, he interrupted their interrogation to ask "when is EMS coming?" App. 57. When, in other words, would the focus shift to his medical needs rather than Bryant's crime? Neither Covington's statements nor the colloquy between him and the officers would have been out of place at a trial; it would have been a routine direct examination. See Davis, 547 U. S., at 830. Like a witness, Covington recounted in detail how a past criminal event began and progressed, and like a prosecutor, the police elicited that account through structured questioning. Preventing the admission of "weaker substitute[s] for live testimony at trial" such as this, id., at 828 (internal quotation marks omitted), is precisely what motivated the Framers to adopt the Confrontation Clause and what motivated our decisions in Crawford and in Hammon v. Indiana, decided with Davis. Ex parte examinations raise the same constitutional concerns whether they take place in a gas-station parking lot or in a police interrogation room.C Worse still for the repute of today's opinion, this is an absurdly easy case even if one (erroneously) takes the interrogating officers' purpose into account. The five officers interrogated Covington primarily to investigate past criminal events. None — absolutely none — of their actions indicated that they perceived an imminent threat. They did not draw their weapons, and indeed did not immediately search the gas station for potential shooters.3 To the contrary, all five testified that they questioned Covington before conducting any investigation at the scene. Would this have made any sense if they feared the presence of a shooter? Most tellingly, none of the officers started his interrogation by asking what would have been the obvious first question if any hint of such a fear existed: Where is the shooter? But do not rely solely on my word about the officers' primary purpose. Listen to Sergeant Wenturine, who candidly admitted that he interrogated Covington because he "ha[d] a man here that [he] believe[d] [was] dying [so he was] gonna find out who did this, period." App. 112. In short, he needed to interrogate Covington to solve a crime. Wenturine never mentioned an interest in ending an ongoing emergency. At the very least, the officers' intentions turned investigative during their 10-minute encounter with Covington, and the conversation "evolve[d] into testimonial statements." Davis, 547 U. S., at 828 (internal quotation marks omitted). The fifth officer to arrive at the scene did not need to run straight to Covington and ask a battery of questions "to determine the need for emergency assistance," Ibid. He could have asked his fellow officers, who presumably had a better sense of that than Covington — and a better sense of what he could do to assist. No, the value of asking the same battery of questions a fifth time was to ensure that Covington told a consistent story and to see if any new details helpful to the investigation and eventual prosecution would emerge. Having the testimony of five officers to recount Covington's consistent story undoubtedly helped obtain Bryant's conviction. (Which came, I may note, after the first jury could not reach a verdict. See 483 Mich., at 137, 768 N.W. 2d, at 67.)D A final word about the Court's active imagination. The Court invents a world where an ongoing emergency exists whenever "an armed shooter, whose motive for and lo-cation after the shooting [are] unknown, ... mortally wound[s]" one individual "within a few blocks and [25] minutes of the location where the police" ultimately find that victim. Ante, at 27. Breathlessly, it worries that a shooter could leave the scene armed and ready to pull the trigger again. See ante, at 17-18, 27, 30. Nothing suggests the five officers in this case shared the Court's dystopian4 view of Detroit, where drug dealers hunt their shooting victim down and fire into a crowd of police officers to finish him off, see ante, at 30, or where spree killers shoot through a door and then roam the streets leaving a trail of bodies behind. Because almost 90 percent of murders involve a single victim,5 it is much more likely — indeed, I think it certain — that the officers viewed their encounter with Covington for what it was: an investi-gation into a past crime with no ongoing or immediate consequences. The Court's distorted view creates an expansive exception to the Confrontation Clause for violent crimes. Because Bryant posed a continuing threat to public safety in the Court's imagination, the emergency persisted for confrontation purposes at least until the police learned his "motive for and location after the shooting." Ante, at 27. It may have persisted in this case until the police "secured the scene of the shooting" two-and-a-half hours later. Ante, at 28. (The relevance of securing the scene is unclear so long as the killer is still at large — especially if, as the Court speculates, he may be a spree-killer.) This is a dangerous definition of emergency. Many individuals who testify against a defendant at trial first offer their accounts to police in the hours after a violent act. If the police can plausibly claim that a "potential threat to ... the public" persisted through those first few hours, ante, at 12 (and if the claim is plausible here it is always plausible) a defendant will have no constitutionally protected right to exclude the uncross-examined testimony of such witnesses. His conviction could rest (as perhaps it did here) solely on the officers' recollection at trial of the witnesses' accusations. The Framers could not have envisioned such a hollow constitutional guarantee. No framing-era confrontation case that I know of, neither here nor in England, took such an enfeebled view of the right to confrontation. For example, King v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202, 202-203 (K. B. 1779), held inadmissible a mother's account of her young daughter's statements "immediately on her coming home" after being sexually assaulted. The daughter needed to testify herself. But today's majority presumably would hold the daughter's account to her mother a nontestimonial statement made during an ongoing emergency. She could not have known whether her attacker might reappear to attack again or attempt to silence the lone witness against him. Her mother likely listened to the account to assess the threat to her own safety and to decide whether the rapist posed a threat to the community that required the immediate intervention of the local authorities. Cf. ante, at 29-30. Utter nonsense. The 16th- and 17th-century English treason trials that helped inspire the Confrontation Clause show that today's decision is a mistake. The Court's expansive definition of an "ongoing emergency" and its willingness to consider the perspective of the interrogator and the declarant cast a more favorable light on those trials than history or our past decisions suggest they deserve. Royal officials conducted many of the ex parte examinations introduced against Sir Walter Raleigh and Sir John Fenwick while investigating alleged treasonous conspiracies of unknown scope, aimed at killing or overthrowing the King. See Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 21-22, and n. 11. Social stability in 16th- and 17th-century England depended mainly on the continuity of the ruling monarch, cf. 1 J. Stephen, A History of the Criminal Law of England 354 (1883), so such a conspiracy posed the most pressing emergency imaginable. Presumably, the royal officials investigating it would have understood the gravity of the situation and would have focused their interrogations primarily on ending the threat, not on generating testimony for trial. I therefore doubt that under the Court's test English officials acted improperly by denying Raleigh and Fenwick the opportunity to confront their accusers "face to face," id., at 326. Under my approach, in contrast, those English trials remain unquestionably infamous. Lord Cobham did not speak with royal officials to end an ongoing emergency. He was a traitor! He spoke, as Raleigh correctly observed, to establish Raleigh's guilt and to save his own life. See 1 D. Jardine, Criminal Trials 435 (1832). Cobham's statements, when assessed from his perspective, had only a testimonial purpose. The same is true of Covington's statements here.IIA But today's decision is not only a gross distortion of the facts. It is a gross distortion of the law — a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned. According to today's opinion, the Davis inquiry into whether a declarant spoke to end an ongoing emergency or rather to "prove past events potentially relevant to later criminal prosecution," 547 U. S., at 822, is not aimed at answering whether the declarant acted as a witness. Instead, the Davis inquiry probes the reliability of a declarant's statements, "[i]mplicit[ly]" importing the excited-utterances hearsay exception into the Constitution. Ante, at 14-15. A statement during an ongoing emergency is sufficiently reliable, the Court says, "because the prospect of fabrication ... is presumably significantly diminished," so it "does not [need] to be subject to the crucible of cross-examination." Id., at 14. Compare that with the holding of Crawford: "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." 541 U. S., at 68-69. Today's opinion adopts, for emergencies and faux emergencies at least, the discredited logic of White v. Illinois, 502 U. S. 346, 355-356, and n. 8 (1992), and Idaho v. Wright, 497 U. S. 805, 819-820 (1990). White is, of course, the decision that both Crawford and Davis found most incompatible with the text and history of the Confrontation Clause. See Davis, supra, at 825; Crawford, supra, at 58, n. 8. (This is not to say that that "reliability" logic can actually justify today's result: Twenty-five minutes is plenty of time for a shooting victim to reflect and fabricate a false story.) The Court announces that in future cases it will look to "standard rules of hearsay, designed to identify some statements as reliable," when deciding whether a statement is testimonial. Ante, at 11-12. Ohio v. Roberts, 448 U. S. 56 (1980) said something remarkably similar: An out-of-court statement is admissible if it "falls within a firmly rooted hearsay exception" or otherwise "bears adequate 'indicia of reliability.' " Id., at 66. We tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause. See 541 U. S., at 54, 60, 63-65, 67-68. The arguments in Raleigh's infamous 17th-century treason trial contained full debate about the reliability of Lord Cobham's ex parte accusations, see Raleigh's Case, 2 How. St. Tr. 1, 14, 17, 19-20, 22-23, 29 (1603); that case remains the canonical example of a Confrontation Clause violation, not because Raleigh should have won the debate but because he should have been allowed cross-examination. The Court attempts to fit its resurrected interest in reliability into the Crawford framework, but the result is incoherent. Reliability, the Court tells us, is a good indicator of whether "a statement is ... an out-of-court substitute for trial testimony." Ante, at 11. That is patently false. Reliability tells us nothing about whether a statement is testimonial. Testimonial and nontestimonial statements alike come in varying degrees of reliability. An eyewitness's statements to the police after a fender-bender, for example, are both reliable and testimonial. Statements to the police from one driver attempting to blame the other would be similarly testimonial but rarely reliable. The Court suggests otherwise because it "misunderstands the relationship" between qualification for one of the standard hearsay exceptions and exemption from the confrontation requirement. Melendez-Diaz v. Massachusetts, 557 U. S. ___, ___ (2009) (slip op., at 18). That relationship is not a causal one. Hearsay law exempts business records, for example, because businesses have a financial incentive to keep reliable records. See Fed. Rule Evid. 803(6). The Sixth Amendment also generally admits business records into evidence, but not because the records are reliable or because hearsay law says so. It admits them "because — having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial — they are not" weaker substitutes for live testimony. Melendez-Diaz, 557 U. S., at ___ (slip op., at 18). Moreover, the scope of the exemption from confrontation and that of the hearsay exceptions also are not always coextensive. The reliability logic of the business-record exception would extend to records maintained by neutral parties providing litigation-support services, such as evidence testing. The Confrontation Clause is not so forgiving. Business records prepared specifically for use at a criminal trial are testimonial and require confrontation. See ibid. Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford's focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by following today's illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices' preference comports with the meaning of the Confrontation Clause that the People adopted — or to confess that only the Justices' preference really matters.B The Court recedes from Crawford in a second significant way. It requires judges to conduct "open-ended balancing tests" and "amorphous, if not entirely subjective," inquiries into the totality of the circumstances bearing upon reliability. 541 U. S., at 63, 68. Where the prosecution cries "emergency," the admissibility of a statement now turns on "a highly context-dependent inquiry," ante, at 16, into the type of weapon the defendant wielded, see ante, at 17; the type of crime the defendant committed, see ante, at 12, 16-17; the medical condition of the declarant, see ante, at 17-18; if the declarant is injured, whether paramedics have arrived on the scene, see ante, at 20; whether the encounter takes place in an "exposed public area," ibid.; whether the encounter appears disorganized, see ibid.; whether the declarant is capable of forming a purpose, see ante, at 22; whether the police have secured the scene of the crime, see ante, at 28; the formality of the statement, see ante, at 19; and finally, whether the statement strikes us as reliable, see ante, at 11-12, 14-15. This is no better than the nine-factor balancing test we rejected in Crawford, 541 U. S., at 63. I do not look forward to resolving conflicts in the future over whether knives and poison are more like guns or fists for Confrontation Clause purposes, or whether rape and armed robbery are more like murder or domestic violence. It can be said, of course, that under Crawford analysis of whether a statement is testimonial requires consideration of all the circumstances, and so is also something of a multifactor balancing test. But the "reliability" test does not replace that analysis; it supplements it. As I understand the Court's opinion, even when it is determined that no emergency exists (or perhaps before that determination is made) the statement would be found admissible as far as the Confrontation Clause is concerned if it is not testimonial. In any case, we did not disavow multifactor balancing for reliability in Crawford out of a preference for rules over standards. We did so because it "d[id] violence to" the Framers' design. Id., at 68. It was judges' open-ended determination of what was reliable that violated the trial rights of Englishmen in the political trials of the 16th and 17th centuries. See, e.g., Throckmorton's Case, 1 How. St. Tr. 869, 875-876 (1554); Raleigh's Case, 2 How. St. Tr., at 15-16, 24. The Framers placed the Confrontation Clause in the Bill of Rights to ensure that those abuses (and the abuses by the Admiralty courts in colonial America) would not be repeated in this country. Not even the least dangerous branch can be trusted to assess the reliability of uncross-examined testimony in politically charged trials or trials implicating threats to national security. See Crawford, supra, at 67-68; cf. Hamdi v. Rumsfeld, 542 U. S. 507, 576-578 (2004) (Scalia, J., dissenting).* * * Judicial decisions, like the Constitution itself, are nothing more than "parchment barriers," 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges' policy preferences. Today's opinion falls far short of living up to that obligation — short on the facts, and short on the law. For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.MICHIGAN, PETITIONER v. RICHARD PERRY BRYANTon writ of certiorari to the supreme court of michigan[February 28, 2011] Justice Ginsburg, dissenting. I agree with Justice Scalia that Covington's statements were testimonial and that "[t]he declarant's intent is what counts." Ante, at 2 (dissenting opinion). Even if the interrogators' intent were what counts, I further agree, Covington's statements would still be testimonial. Ante, at 8. It is most likely that "the officers viewed their encounter with Covington [as] an investigation into a past crime with no ongoing or immediate consequences." Ante, at 10. Today's decision, Justice Scalia rightly notes, "creates an expansive exception to the Confrontation Clause for violent crimes." Ibid. In so doing, the decision confounds our recent Confrontation Clause jurisprudence, ante, at 12, which made it plain that "[r]eliability tells us nothing about whether a statement is testimonial," ante, at 14 (emphasis deleted). I would add, however, this observation. In Crawford v. Washington, 541 U. S. 36, 56, n. 6 (2004), this Court noted that, in the law we inherited from England, there was a well-established exception to the confrontation requirement: The cloak protecting the accused against admission of out-of-court testimonial statements was removed for dying declarations. This historic exception, we recalled in Giles v. California, 554 U. S. 353, 358 (2008); see id., at 361-362, 368, applied to statements made by a person about to die and aware that death was imminent. Were the issue properly tendered here, I would take up the question whether the exception for dying declarations survives our recent Confrontation Clause decisions. The Michigan Supreme Court, however, held, as a matter of state law, that the prosecutor had abandoned the issue. See 483 Mich. 132, 156-157, 768 N. W. 2d 65, 78 (2009). The matter, therefore, is not one the Court can address in this case.FOOTNOTESFootnote 1 The Supreme Court of Michigan held that the question whether the victim's statements would have been admissible as "dying declarations" was not properly before it because at the preliminary examination, the prosecution, after first invoking both the dying declaration and excited utterance hearsay exceptions, established the factual foundation only for admission of the statements as excited utterances. The trial court ruled that the statements were admissible as excited utterances and did not address their admissibility as dying declarations. 483 Mich., at 153-154, 768 N. W. 2d, at 76-77. This occurred prior to our 2004 decision in Crawford v. Washington, 541 U. S. 36, where we first suggested that dying declarations, even if testimonial, might be admissible as a historical exception to the Confrontation Clause. Id., at 56, n. 6; see also Giles v. California, 554 U. S. 353, 358-359 (2008). We noted in Crawford that we "need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations." 541 U. S., at 56, n. 6. Because of the State's failure to preserve its argument with regard to dying declarations, we similarly need not decide that question here. See also post, p. __ (Ginsburg, J., dissenting).Footnote 2 We noted in Crawford that "[w]e use the term 'interrogation' in its colloquial, rather than any technical legal, sense," and that "[j]ust as various definitions of 'testimonial' exist, one can imagine various definitions of 'interrogation,' and we need not select among them in this case." 541 U. S., at 53, n. 4. Davis did not abandon those qualifications; nor do we do so here.Footnote 3 Davis explained that 911 operators "may at least be agents of law enforcement when they conduct interrogations of 911 callers," and therefore "consider[ed] their acts to be acts of the police" for purposes of the opinion. 547 U. S., at 823, n. 2. Davis explicitly reserved the question of "whether and when statements made to someone other than law enforcement personnel are 'testimonial.' " Ibid. We have no need to decide that question in this case either because Covington's statements were made to police officers. The dissent also claims to reserve this question, see post, at 3, n. 1 (opinion of Scalia, J.), but supports one of its arguments by relying on King v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202, 202-203 (K. B. 1779), which involved statements made by a child to her mother — a private citizen — just after the child had been sexually assaulted. See also Crawford v. Washington, 541 U. S. 36, 69-70 (2004) (Rehnquist, C. J., concurring in judgment) (citing King v. Brasier for the different proposition that "out-of-court statements made by someone other than the accused and not taken under oath, unlike ex parte depositions or affidavits, were generally not considered substantive evidence upon which a conviction could be based").Footnote 4 Contrary to the dissent's excited suggestion, nothing in this opinion casts "favorable light," post, at 11 (opinion of Scalia, J.), on the conduct of Sir Walter Raleigh's trial or other 16th- and 17th-century English treason trials. The dissent is correct that such trials are "unquestionably infamous," ibid., and our decision here confirms, rather than undermines, that assessment. See also n. 17, infra. For all of the reasons discussed in Justice Thomas' opinion concurring in the judgment, the situation presented in this case is nothing like the circumstances presented by Sir Walter Raleigh's trial. See post, p. __.Footnote 5 See Davis v. Washington, 547 U. S. 813, 823-824 (2006) (explaining the question before the Court as "whether the Confrontation Clause applies only to testimonial hearsay" and answering in the affirmative because "[a] limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its 'core,' but its perimeter"). See also post, at 2 (Scalia, J., dissenting). Footnote 6 Bryant suggests that Michigan is arguing for "a subjective analysis of the intent of the interrogator's questioning." Brief for Respondent 12. We do not read Michigan's brief to be arguing for a subjective inquiry, and any such argument would be in error. We do not understand the dissent to disagree that the inquiry is objective. Footnote 7 This approach is consistent with our rejection of subjective inquiries in other areas of criminal law. See, e.g., Whren v. United States, 517 U. S. 806, 813 (1996) (refusing to evaluate Fourth Amendment reasonableness subjectively in light of the officers' actual motivations); New York v. Quarles, and n. 6 (1984) (holding that an officer's subjective motivation is irrelevant to determining the applicability of the public safety exception to Miranda v. Arizona); Rhode Island v. Innis (holding that a police officer's subjective intent to obtain incriminatory statements is not relevant to determining whether an interrogation has occurred).Footnote 8 The existence of an ongoing emergency must be objectively assessed from the perspective of the parties to the interrogation at the time, not with the benefit of hindsight. If the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the Confrontation Clause. The emergency is relevant to the "primary purpose of the interrogation" because of the effect it has on the parties' purpose, not because of its actual existence.Footnote 9 Many other exceptions to the hearsay rules similarly rest on the belief that certain statements are, by their nature, made for a purpose other than use in a prosecution and therefore should not be barred by hearsay prohibitions. See, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement by a co-conspirator during and in furtherance of the conspiracy); 803(4) (Statements for Purposes of Medical Diagnosis or Treatment); 803(6) (Records of Regularly Conducted Activity); 803(8) (Public Records and Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Religious Organizations); 803(12) (Marriage, Baptismal, and Similar Certificates); 803(13) (Family Records); 804(b)(3) (Statement Against Interest); see also Melendez-Diaz v. Massachusetts, 557 U. S. __, __ (2009) (slip op., at 18) ("Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial"); Giles v. California, 554 U. S., at 376 (noting in the context of domestic violence that "[s]tatements to friends and neighbors about abuse and intimidation and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules"); Crawford, 541 U. S., at 56 ("Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy").Footnote 10 Recognizing the evolutionary potential of a situation in criminal law is not unique to the Confrontation Clause context. We noted in Davis that "[j]ust as, for Fifth Amendment purposes, 'police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect, ... trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial." 547 U. S., at 829 (quoting New York v. Quarles, 467 U. S., at 658-659).Footnote 11 Some portions of Davis, however, have caused confusion about whether the inquiry prescribes examination of one participant to the exclusion of the other. Davis' language indicating that a statement's testimonial or nontestimonial nature derives from "the primary purpose of the interrogation," 547 U. S., at 822 (emphasis added), could be read to suggest that the relevant purpose is that of the interrogator. In contrast, footnote 1 in Davis explains, "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." Id., at 822-823, n. 1. Bryant draws on the footnote to argue that the primary purpose inquiry must be conducted solely from the perspective of the declarant, and argues against adoption of a purpose-of-the-interrogator perspective. Brief for Respondent 10-13; see also Brief for Richard D. Friedman as Amicus Curiae 5-15. But this statement in footnote 1 of Davis merely acknowledges that the Confrontation Clause is not implicated when statements are offered "for purposes other than establishing the truth of the matter asserted." Crawford, 541 U. S., at 60, n. 9. An interrogator's questions, unlike a declarant's answers, do not assert the truth of any matter. The language in the footnote was not meant to determine how the courts are to assess the nature of the declarant's purpose, but merely to remind readers that it is the statements, and not the questions, that must be evaluated under the Sixth Amendment.Footnote 12 In such a situation, the severe injuries of the victim would undoubtedly also weigh on the credibility and reliability that the trier of fact would afford to the statements. Cf. Advisory Committee's Notes on Fed. Rule Evid. 803(2), 28 U. S. C. App., p. 371 (noting that although the "theory" of the excited utterance exception "has been criticized on the ground that excitement impairs [the] accuracy of observation as well as eliminating conscious fabrication," it "finds support in cases without number" (citing 6 J. Wigmore, Evidence §1750 (J. Chadbourn rev. 1976))).Footnote 13 Of course the Confrontation Clause is not the only bar to admissibility of hearsay statements at trial. State and federal rules of evidence prohibit the introduction of hearsay, subject to exceptions. Consistent with those rules, the Due Process Clauses of the Fifth and Fourteenth Amendments may constitute a further bar to admission of, for example, unreliable evidence. See Montana v. Egelhoff, 518 U. S. 37, 53 (1996) (plurality opinion) ("[E]rroneous evidentiary rulings can, in combination, rise to the level of a due process violation"); Dutton v. Evans, 400 U. S. 74, 96-97 (1970) (Harlan, J., concurring in result) ("[T]he Fifth and Fourteenth Amendments' commands that federal and state trials, respectively, must be conducted in accordance with due process of law" is the "standard" by which to "test federal and state rules of evidence"). Footnote 14 See App. 76 (testimony of Officer McCallister); id., at 101, 113-114 (testimony of Sgt. Wenturine); id., at 127, 131-133 (testimony of Officer Stuglin). Covington told them that Rick had shot him through the back door of Rick's house, id., at 127-128 (testimony of Officer Stuglin), located at the corner of Pennsylvania and Laura, id., at 102 (testimony of Sgt. Wenturine), and that Covington recognized Rick by his voice, id., at 128 (testimony of Officer Stuglin). Covington also gave them a physical description of Rick. Id., at 84-85, 93-94 (testimony of Officer McAllister); id., at 103, 115 (testimony of Sgt. Wenturine); id., at 134 (testimony of Officer Stuglin).Footnote 15 See id., at 114 ("Q Did he tell you what Rick said? A He said they were having a conversation. Q Did he tell you what Rick said? A He did not" (testimony of Sgt. Wenturine) (paragraph breaks omitted)); see also id., at 79 (testimony of Officer McAllister); id., at 128 (testimony of Officer Stuglin). Footnote 16 See id., at 127-128 ("A He said he'd went up, he went up to the back door of a house; that a person he said he knew, and he was knocking and he was knocking on the door he said he'd talked to somebody through the door. He said he recognized the voice. Q Did he say who it was that he recognized the voice of? A That's when he told me it was, he said it was Rick a/k/a Buster. Q And did he say what the conversation was about at the door? A I don't, I don't believe so. Q All right. And did he say what happened there, whether or not they had a conversation or not, did he say what ended up happening? A He said what happened was that he heard a shot and then he started to turn to get off the porch and then another one and then that's when he was hit by a gunshot" (testimony of Officer Stuglin) (paragraph breaks omitted)). Unlike the dissent's apparent ability to read Covington's mind, post, at 6 (opinion of Scalia, J.), we rely on the available evidence, which suggests that Covington perceived an ongoing threat.Footnote 17 It hardly bears mention that the emergency situation in this case is readily distinguishable from the "treasonous conspiracies of unknown scope, aimed at killing or overthrowing the king," post, at 11, about which Justice Scalia's dissent is quite concerned. Footnote 18 Although the dissent claims otherwise, post, at 7 (opinion of Scalia, J.), at least one officer asked Covington something akin to "how was he doing." App. 131 (testimony of Officer Stuglin) ("A I approached the subject, the victim, Mr. Covington, on the ground and had asked something like what happened or are you okay, something to that line... . Q So you asked this man how are you, how are you doing? A Well, basically it's, you know, what's wrong, you know" (paragraph breaks omitted)). The officers also testified about their assessment of Covington's wounds. See id., at 35 (suppression hearing testimony of Officer Brown) ("[H]e had blood ... on the front of his body"); id., at 75 (testimony of Officer McCallister) ("It appeared he had a stomach wound of a gunshot"); id., at 132 (testimony of Officer Stuglin) ("Q Did you see the wound? A Yes, I did. Q You had to move some clothing to do that? A Yes" (paragraph breaks omitted)).Footnote 19 Contrary to the dissent's suggestion, post, at 8 (opinion of Scalia, J.), and despite the fact that the record was developed prior to Davis' focus on the existence of an "ongoing emergency," the record contains some testimony to support the idea that the police officers were concerned about the location of the shooter when they arrived on the scene and thus to suggest that the purpose of the questioning of Covington was to determine the shooter's location. See App. 136 (testimony of Officer Stuglin) (stating that upon arrival officers questioned the gas station clerk about whether the shooting occurred in the gas station parking lot and about concern for safety); see also ibid. (testimony of Officer Stuglin) ("Q ... So you have some concern, there may be a person with a gun or somebody, a shooter right there in the immediate area? A Sure, yes. Q And you want to see that that area gets secured? A Correct. Q For your safety as well as everyone else? A Correct" (paragraph breaks omitted)); id., at 82 (testimony of Officer McCallister). But see id., at 83 (cross-examination of Officer McAllister) ("Q You didn't, you didn't look around and say, gee, there might be a shooter around here, I better keep an eye open? A I did not, no. That could have been my partner I don't know" (paragraph breaks omitted)). Footnote 20 Hiibel, like our post-Crawford Confrontation Clause cases, involved domestic violence, which explains the Court's focus on the security of the victim and the police: they were the only parties potentially threatened by the assailant. 542 U. S., at 186 (noting that the case involved a "domestic assault").FOOTNOTESFootnote 1 I remain agnostic about whether and when statements to nonstate actors are testimonial. See Davis v. Washington, 547 U. S. 813, 823, n. 2 (2006).Footnote 2 Officer Stuglin's testimony does not undermine my assessment of the officers' behavior, although the Court suggests otherwise. See ante, at 28, n. 18. Officer Stuglin first testified that he "asked something like what happened or are you okay, something to that line." App., 131. When pressed on whether he asked "how are you doing?," he responded, "Well, basically ... what's wrong." Ibid. Other officers were not so equivocal: They admitted they had no need to "ask him how he was doing. ... It was very obvious how he was doing." Id., at 110; see also id., at 19.Footnote 3 The Court cites Officer Stuglin's testimony that "I think [Brown and Pellerito] did a little bit of both" joining the interrogation and helping to secure the scene. Id., at 135-136. But the point is not whether they did both; it is whether they moved to secure the area first. No officer's testimony suggests this. Pellerito testified that he, Stuglin, and Brown arrived at the scene at roughly the same time and all three immediately went to Covington. See id., at 17-18. The testimony of Brown and McCallister corroborate that account. See id., at 34-36, 79-82.Footnote 4 The opposite of utopian. The word was coined by John Stuart Mill as a caustic description of British policy. See 190 Hansard's Parliamentary Debates, Third Series 1517 (3d Ser. 1868); 5 Oxford English Dictionary 13 (2d ed. 1989).Footnote 5 See Federal Bureau of Investigation, Crime in the United States, 2009: Expanded Homicide Data Table 4, Murder by Victim/Offender Situations, 2009 (Sept. 2010), online at http://www2.fbi.gov/ucr/ cius2009/offenses/expanded_information/data/shrtable_04.html (as visited Feb. 25, 2011, and available in Clerk of Court's case file).
7	To recover damages in a private securities-fraud action under §10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5, a plaintiff must prove, among other things, reliance on a material misrepresentation or omission made by the defendant. Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. ___, ___. Requiring proof of direct reliance "would place an unnecessarily unrealistic evidentiary burden on [a] plaintiff who has traded on an impersonal market." Basic Inc. v. Levinson, 485 U. S. 224, 245. Thus, this Court has endorsed a "fraud-on-the-market" theory, which permits securities-fraud plaintiffs to invoke a rebuttable presumption of reliance on public, material misrepresentations regarding securities traded in an efficient market. Id., at 241-249. The fraud-on-the-market theory facilitates the certification of securities-fraud class actions by permitting reliance to be proved on a classwide basis. Invoking the fraud-on-the-market theory, respondent Connecticut Retirement Plans and Trust Funds (Connecticut Retirement) sought certification of a securities-fraud class action under Federal Rule of Civil Procedure 23(b)(3) against biotechnology company Amgen Inc. and several of its officers (collectively, Amgen). The District Court certified the class, and the Ninth Circuit affirmed. The Ninth Circuit rejected Amgen's argument that Connecticut Retirement was required to prove the materiality of Amgen's alleged misrepresentations and omissions before class certification in order to satisfy Rule 23(b)(3)'s requirement that "questions of law or fact common to class members predominate over any questions affecting only individual members." The Ninth Circuit also held that the District Court did not err in refusing to consider rebuttal evidence that Amgen had presented on the issue of materiality at the class-certification stage. Held: Proof of materiality is not a prerequisite to certification of a securities-fraud class action seeking money damages for alleged violations of §10(b) and Rule 10b-5. Pp. 9-26. (a) The pivotal inquiry in this case is whether proof of materiality is needed to ensure that the questions of law or fact common to the class will "predominate over any questions affecting only individual members" as the litigation progresses. For two reasons, the answer to this question is "no." First, because materiality is judged according to an objective standard, it can be proved through evidence common to the class. TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 445. Thus, it is a common question for Rule 23(b)(3) purposes. Second, a failure of proof on the common question of materiality would not result in individual questions predominating. Instead, it would end the case, for materiality is an essential element of a securities-fraud claim. Pp. 9-14. (b) Amgen's arguments to the contrary are unpersuasive. Pp. 14-24. (1) Amgen points to the Court's statement in Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. ___, ___, that "securities fraud plaintiffs must prove certain things in order to invoke Basic's rebuttable presumption of reliance," including "that the alleged misrepresentations were publicly known . . . , that the stock traded in an efficient market, and that the relevant transaction took place 'between the time the misrepresentations were made and the time the truth was revealed.' " If these fraud-on-the-market predicates must be proved before class certification, Amgen contends, materiality — another fraud-on-the-market predicate — should be treated no differently. The Court disagrees. The requirement that a putative class representative establish that it executed trades "between the time the misrepresentations were made and the time the truth was revealed" relates primarily to the Rule 23(a)(3) and (a)(4) inquiries into typicality and adequacy of representation, not to the Rule 23(b)(3) predominance inquiry. And unlike materiality, market efficiency and the public nature of the alleged misrepresentations are not indispensable elements of a Rule 10-5 claim. While the failure of common, classwide proof of market efficiency or publicity leaves open the prospect of individualized proof of reliance, the failure of common proof on the issue of materiality ends the case for all class members. Pp. 15-18. (2) Amgen also contends that "policy considerations" militate in favor of requiring precertification proof of materiality. Because class certification can exert substantial pressure on the defendant to settle rather than risk ruinous liability, Amgen asserts, materiality may never be addressed by a court if it is not required to be evaluated at the class-certification stage. In this regard, however, materiality does not differ from other essential elements of a Rule 10b-5 claim, notably, the requirements that the statements or omissions on which the plaintiff's claims are based were false or misleading and that the alleged statements or omissions caused the plaintiff to suffer economic loss. Significantly, while addressing the settlement pressures associated with securities-fraud class actions, Congress has rejected calls to undo the fraud-on-the-market theory. And contrary to Amgen's argument that requiring proof of materiality before class certification would conserve judicial resources, Amgen's position would necessitate time and resource intensive mini-trials on materiality at the class-certification stage. Pp. 18-22. (c) Also unavailing is Amgen's claim that the District Court erred by refusing to consider the rebuttal evidence Amgen proffered in opposing Connecticut Retirement's class-certification motion. The Ninth Circuit concluded, and Amgen does not contest, that Amgen's rebuttal evidence aimed to prove that the misrepresentations and omissions alleged in Connecticut Retirement's complaint were immaterial. The potential immateriality of Amgen's alleged misrepresentations and omissions, however, is no barrier to finding that common questions predominate. Just as a plaintiff class's inability to prove materiality creates no risk that individual questions will predominate, a definitive rebuttal on the issue of materiality would not undermine the predominance of questions common to the class. Pp. 24-26.660 F. 3d 1170, affirmed. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a concurring opinion. Scalia, J., filed a dissenting opinion. Thomas, J., filed a dissenting opinion, in which Kennedy, J., joined, and in which Scalia, J., joined except for Part I-B. Opinion of the Court 568 U. S. ____ (2013)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 11-1085AMGEN INC., et al., PETITIONERS v. CONNECTICUTRETIREMENT PLANS AND TRUST FUNDSon writ of certiorari to the united states court of appeals for the ninth circuit[February 27, 2013] Justice Ginsburg delivered the opinion of the Court. This case involves a securities-fraud complaint filed by Connecticut Retirement Plans and Trust Funds (Connecticut Retirement) against biotechnology company Amgen Inc. and several of its officers (collectively, Amgen). Seeking class-action certification under Federal Rule of Civil Procedure 23, Connecticut Retirement invoked the "fraud-on-the-market" presumption endorsed by this Court in Basic Inc. v. Levinson, 485 U. S. 224 (1988), and recognized most recently in Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. ___ (2011). The fraud-on-the-market premise is that the price of a security traded in an efficient market will reflect all publicly available information about a company; accordingly, a buyer of the security may be presumed to have relied on that information in purchasing the security. Amgen has conceded the efficiency of the market for the securities at issue and has not contested the public character of the allegedly fraudulent statements on which Connecticut Retirement's complaint is based. Nor does Amgen here dispute that Connecticut Retirement meets all of the class-action prerequisites stated in Rule 23(a): (1) the alleged class "is so numerous that joinder of all members is impracticable"; (2) "there are questions of law or fact common to the class"; (3) Connecticut Retirement's claims are "typical of the claims . . . of the class"; and (4) Connecticut Retirement will "fairly and adequately protect the interests of the class." The issue presented concerns the requirement stated in Rule 23(b)(3) that "the questions of law or fact common to class members predominate over any questions affecting only individual members." Amgen contends that to meet the predominance requirement, Connecticut Retirement must do more than plausibly plead that Amgen's alleged misrepresentations and misleading omissions materially affected Amgen's stock price. According to Amgen, certification must be denied unless Connecticut Retirement proves materiality, for immaterial misrepresentations or omissions, by definition, would have no impact on Amgen's stock price in an efficient market. While Connecticut Retirement certainly must prove materiality to prevail on the merits, we hold that such proof is not a prerequisite to class certification. Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class. Because materiality is judged according to an objective standard, the materiality of Amgen's alleged misrepresentations and omissions is a question common to all members of the class Connecticut Retirement would represent. The alleged misrepresentations and omissions, whether material or immaterial, would be so equally for all investors composing the class. As vital, the plaintiff class's inability to prove materiality would not result in individual questions predominating. Instead, a failure of proof on the issue of materiality would end the case, given that materiality is an essential element of the class members' securities-fraud claims. As to materiality, therefore, the class is entirely cohesive: It will prevail or fail in unison. In no event will the individual circumstances of particular class members bear on the inquiry. Essentially, Amgen, also the dissenters from today's decision, would have us put the cart before the horse. To gain certification under Rule 23(b)(3), Amgen and the dissenters urge, Connecticut Retirement must first establish that it will win the fray. But the office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the "metho[d]" best suited to adjudication of the controversy "fairly and efficiently."IA This case involves the interaction between federal securities-fraud laws and Rule 23's requirements for class certification. To obtain certification of a class action for money damages under Rule 23(b)(3), a plaintiff must satisfy Rule 23(a)'s above-mentioned prerequisites of numerosity, commonality, typicality, and adequacy of representation, see supra, at 1-2, and must also establish that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." To recover damages in a private securities-fraud action under §10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 15 U. S. C. §78j(b) (2006 ed., Supp. V), and Securities and Exchange Commission Rule 10b-5, 17 CFR §240.10b-5 (2011), a plaintiff must prove "(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation." Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. ___, ___ (2011) (slip op., at 9) (internal quotation marks omitted). "Reliance," we have explained, "is an essential element of the §10(b) private cause of action" because "proof of reliance ensures that there is a proper connection between a defendant's misrepresentation and a plaintiff's injury." Halliburton, 563 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). "The traditional (and most direct) way" for a plaintiff to demonstrate reliance "is by showing that he was aware of a company's statement and engaged in a relevant transaction . . . based on that specific misrepresentation." Ibid. We have recognized, however, that requiring proof of direct reliance "would place an unnecessarily unrealistic evidentiary burden on [a] plaintiff who has traded on an impersonal market." Basic, 485 U. S., at 245. Accordingly, in Basic the Court endorsed the "fraud-on-the-market" theory, which permits certain Rule 10b-5 plaintiffs to invoke a rebuttable presumption of reliance on material misrepresentations aired to the general public. Id., at 241-249.1 The fraud-on-the-market theory rests on the premise that certain well developed markets are efficient processors of public information. In such markets, the "market price of shares" will "reflec[t] all publicly available information." Id., at 246. Few investors in such markets, if any, can consistently achieve above-market returns by trading based on publicly available information alone, for if such above-market returns were readily attainable, it would mean that market prices were not efficiently incorporating the full supply of public information. See R. Brealey, S. Myers, & F. Allen, Principles of Corporate Finance 330 (10th ed. 2011) ("[I]n an efficient market, there is no way for most investors to achieve consistently superior rates of return."). In Basic, we held that if a market is shown to be efficient, courts may presume that investors who traded securities in that market relied on public, material misrepresentations regarding those securities. See 485 U. S., at 245-247. This presumption springs from the very concept of market efficiency. If a market is generally efficient in incorporating publicly available information into a security's market price, it is reasonable to presume that a particular public, material misrepresentation will be reflected in the security's price. Furthermore, it is reasonable to presume that most investors — knowing that they have little hope of outperforming the market in the long run based solely on their analysis of publicly available information — will rely on the security's market price as an unbiased assessment of the security's value in light of all public information. Thus, courts may presume that investors trading in efficient markets indirectly rely on public, material misrepresentations through their "reliance on the integrity of the price set by the market." Id., at 245. "[T]he presumption," however, is "just that, and [can] be rebutted by appropriate evidence." Halliburton, 563 U. S., at ___ (slip op., at 5). See also Basic, 485 U. S., at 248-249 (providing examples of showings that would rebut the fraud-on-the-market presumption). Although fraud on the market is a substantive doctrine of federal securities-fraud law that can be invoked by any Rule 10b-5 plaintiff, see, e.g., Black v. Finantra Capital, Inc., 418 F. 3d 203, 209 (CA2 2005); Blackie v. Barrack, 524 F. 2d 891, 908 (CA9 1975), the doctrine has particular significance in securities-fraud class actions. Absent the fraud-on-the-market theory, the requirement that Rule 10b-5 plaintiffs establish reliance would ordinarily preclude certification of a class action seeking money damages because individual reliance issues would overwhelm questions common to the class. See Basic, 485 U. S., at 242. The fraud-on-the-market theory, however, facilitates class certification by recognizing a rebuttable presumption of classwide reliance on public, material misrepresentations when shares are traded in an efficient market. Ibid.2B In its complaint, Connecticut Retirement alleges that Amgen violated §10(b) and Rule 10b-5 through certain misrepresentations and misleading omissions regarding the safety, efficacy, and marketing of two of its flagship drugs.3 According to Connecticut Retirement, these misrepresentations and omissions artificially inflated the price of Amgen's stock at the time Connecticut Retirement and numerous other securities buyers purchased the stock. When the truth came to light, Connecticut Retirement asserts, Amgen's stock price declined, resulting in financial losses to those who purchased the stock at the inflated price. In its answer to Connecticut Retirement's complaint, Amgen conceded that "[a]t all relevant times, the market for [its] securities," which are traded on the NASDAQ stock exchange, "was an efficient market"; thus, "the market for Amgen's securities promptly digested current information regarding Amgen from all publicly available sources and reflected such information in Amgen's stock price." Consolidated Amended Class Action Complaint ¶¶199-200 in No. CV-07-2536 (CD Cal.); Answer ¶¶199-200. The District Court granted Connecticut Retirement's motion to certify a class action under Rule 23(b)(3) on behalf of all investors who purchased Amgen stock between the date of the first alleged misrepresentation and the date of the last alleged corrective disclosure. After granting Amgen's request to take an interlocutory appeal from the District Court's class-certification order, see Fed. Rule Civ. Proc. 23(f), the Court of Appeals affirmed. See 660 F. 3d 1170 (CA9 2011). Amgen raised two arguments on appeal. First, Amgen contended that the District Court erred by certifying the proposed class without first requiring Connecticut Retirement to prove that Amgen's alleged misrepresentations and omissions were material. Second, Amgen argued that the District Court erred by refusing to consider certain rebuttal evidence that Amgen had proffered in opposition to Connecticut Retirement's class-certification motion. This evidence, in Amgen's view, demonstrated that the market was well aware of the truth regarding its alleged misrepresentations and omissions at the time the class members purchased their shares. The Court of Appeals rejected both contentions. Amgen's first argument, the Court of Appeals noted, made the uncontroversial point that immaterial misrepresentations and omissions "by definition [do] not affect . . . stock price[s] in an efficient market." Id., at 1175. Thus, where misrepresentations and omissions are not material, there is no basis for presuming classwide reliance on those misrepresentations and omissions through the information-processing mechanism of the market price. "The problem with that argument," the Court of Appeals ob-served, is evident: "[B]ecause materiality is an element of the merits of their securities fraud claim, the plaintiffs cannot both fail to prove materiality yet still have a viable claim for which they would need to prove reliance individually." Ibid. The Court of Appeals thus concluded that "proof of materiality is not necessary" to ensure compliance with Rule 23(b)(3)'s requirement that common questions predominate. Id., at 1177. With respect to Amgen's second argument, the Court of Appeals determined that Amgen's proffered rebuttal evidence was merely "a method of refuting [the] materi- ality" of the misrepresentations and omissions alleged in Connecticut Retirement's complaint. Ibid. Having already concluded that a securities-fraud plaintiff does not need to prove materiality before class certification, the court similarly held that "the district court correctly refused to consider" Amgen's rebuttal evidence "at the class certification stage." Ibid. We granted Amgen's petition for certiorari, 567 U. S. ___ (2012), to resolve a conflict among the Courts of Appeals over whether district courts must require plaintiffs to prove, and must allow defendants to present evidence rebutting, the element of materiality before certifying a class action under §10(b) and Rule 10b-5. Compare 660 F. 3d 1170 (case below); and Schleicher v. Wendt, 618 F. 3d 679, 687 (CA7 2010) (materiality need not be proved at the class-certification stage), with In re Salomon Analyst Metromedia Litigation, 544 F. 3d 474, 484-485, 486, n. 9 (CA2 2008) (plaintiff must prove, and defendant may present evidence rebutting, materiality before class certification). See also In re DVI, Inc. Securities Litigation, 639 F. 3d 623, 631-632, 637-638 (CA3 2011) (plaintiff need not prove materiality before class certification, but defendant may present rebuttal evidence on the issue).IIA The only issue before us in this case is whether Connecticut Retirement has satisfied Rule 23(b)(3)'s requirement that "questions of law or fact common to class members predominate over any questions affecting only individual members." Although we have cautioned that a court's class-certification analysis must be "rigorous" and may "entail some overlap with the merits of the plaintiff's underlying claim," Wal-Mart Stores, Inc. v. Dukes, 564 U. S. ___, ___ (2011) (slip op., at 10) (internal quotation marks omitted), Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied. See id., at ___, n. 6 (slip op., at 10, n. 6) (a district court has no " 'authority to conduct a preliminary inquiry into the merits of a suit' " at class certification unless it is necessary "to determine the propriety of certification" (quoting Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 177 (1974))); Advisory Committee's 2003 Note on subd. (c)(1) of Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 144 ("[A]n evaluation of the probable outcome on the merits is not properly part of the certification decision."). Bearing firmly in mind that the focus of Rule 23(b)(3) is on the predominance of common questions, we turn to Amgen's contention that the courts below erred by failing to require Connecticut Retirement to prove the materiality of Amgen's alleged misrepresentations and omissions before certifying Connecticut Retirement's proposed class. As Amgen notes, materiality is not only an element of the Rule 10b-5 cause of action; it is also an essential predicate of the fraud-on-the-market theory. See Basic, 485 U. S., at 247 ("[W]here materially misleading statements have been disseminated into an impersonal, well-developed market for securities, the reliance of individual plaintiffs on the integrity of the market price may be presumed." (emphasis added)). That theory, Amgen correctly observes, is premised on the understanding that in an efficient market, all publicly available information is rapidly incorporated into, and thus transmitted to investors through, the market price. See id., at 246-247. Because immaterial information, by definition, does not affect market price, it cannot be relied upon indirectly by investors who, as the fraud-on-the-market theory presumes, rely on the market price's integrity. Therefore, the fraud-on-the-market theory cannot apply absent a material misrepresentation or omission. And without the fraud-on-the-market theory, the element of reliance cannot be proved on a classwide basis through evidence common to the class. See id., at 242. It thus follows, Amgen contends, that materiality must be proved before a securities-fraud class action can be certified. Contrary to Amgen's argument, the key question in this case is not whether materiality is an essential predicate of the fraud-on-the-market theory; indisputably it is.4 Instead, the pivotal inquiry is whether proof of materiality is needed to ensure that the questions of law or fact common to the class will "predominate over any questions affecting only individual members" as the litigation progresses. Fed. Rule Civ. Proc. 23(b)(3). For two reasons, the answer to this question is clearly "no." First, because "[t]he question of materiality . . . is an objective one, involving the significance of an omitted or misrepresented fact to a reasonable investor," materiality can be proved through evidence common to the class. TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 445 (1976). Consequently, materiality is a "common questio[n]" for purposes of Rule 23(b)(3). Basic, 485 U. S., at 242 (listing "materiality" as one of the questions common to the Basic class members). Second, there is no risk whatever that a failure of proof on the common question of materiality will result in individual questions predominating. Because materiality is an essential element of a Rule 10b-5 claim, see Matrixx Initiatives, 563 U. S., at ___ (slip op., at 9), Connecticut Retirement's failure to present sufficient evidence of materiality to defeat a summary-judgment motion or to prevail at trial would not cause individual reliance questions to overwhelm the questions common to the class. Instead, the failure of proof on the element of materiality would end the case for one and for all; no claim would remain in which individual reliance issues could potentially predominate. Totally misapprehending our essential point, Justice Thomas' dissent asserts that our "entire argument is based on the assumption that the fraud-on-the-market presumption need not be shown at certification because it will be proved later on the merits." Post, at 11, n. 9. Our position is not so based. We rest, instead, entirely on the text of Rule 23(b)(3), which provides for class certification if "the questions of law or fact common to class members predominate over any questions affecting only individual members." A failure of proof on the common question of materiality ends the litigation and thus will never cause individual questions of reliance or anything else to overwhelm questions common to the class. Therefore, under the plain language of Rule 23(b)(3), plaintiffs are not required to prove materiality at the class-certification stage. In other words, they need not, at that threshold, prove that the predominating question will be answered in their favor. Justice Thomas urges that a plaintiff seeking class certification "must show that the elements of [her] claim are susceptible to classwide proof." Post, at 7. See also post, at 11 (criticizing the Court for failing to focus its analysis on "whether the element of reliance is susceptible to classwide proof"). From this premise, Justice Thomas concludes that Rule 10b-5 plaintiffs must prove materiality before class certification because (1) "materiality is a necessary component of fraud on the market," and (2) without fraud on the market, the Rule 10b-5 element of reliance is not "susceptible of a classwide answer." Post, at 6, 10-11. See also post, at 12 ("[I]f a plaintiff wishes to use Basic's presumption to prove that reliance is a common question, he must establish the entire presumption, including materiality, at the class certification stage."). Rule 23(b)(3), however, does not require a plaintiff seeking class certification to prove that each "elemen[t] of [her] claim [is] susceptible to classwide proof." Post, at 7. What the rule does require is that common questions "predominate over any questions affecting only individual [class] members." Fed. Rule Civ. Proc. 23(b)(3) (emphasis added). Nowhere does Justice Thomas explain how, in an action invoking the Basic presumption, a plaintiff class's failure to prove an essential element of its claim for relief will result in individual questions predominating over common ones. Absent proof of materiality, the claim of the Rule 10b-5 class will fail in its entirety; there will be no remaining individual questions to adjudicate. Consequently, proof of materiality is not required to establish that a proposed class is "sufficiently cohesive to warrant adjudication by representation"--the focus of the predominance inquiry under Rule 23(b)(3). Amchem Products, Inc. v. Windsor, 521 U. S. 591, 623 (1997). No doubt a clever mind could conjure up fantastic scenarios in which an individual investor might rely on immaterial information (think of the superstitious investor who sells her securities based on a CEO's statement that a black cat crossed the CEO's path that morning). But such objectively unreasonable reliance does not give rise to a Rule 10b-5 claim. See TSC Industries, 426 U. S., at 445 (materiality is judged by an objective standard). Thus, "the individualized questions of reliance," post, at 9, n. 8, that hypothetically might arise when a failure of proof on the issue of materiality dooms the fraud-on-the-market class are far more imaginative than real. Such "individualized questions" do not undermine class cohesion and thus cannot be said to "predominate" for purposes of Rule 23(b)(3).5 Because the question of materiality is common to the class, and because a failure of proof on that issue would not result in questions "affecting only individual members" predominating, Fed. Rule Civ. Proc. 23(b)(3), Connecticut Retirement was not required to prove the materiality of Amgen's alleged misrepresentations and omissions at the class-certification stage. This is not a case in which the asserted problem — i.e., that the plaintiff class cannot prove materiality--"exhibits some fatal dissimilarity" among class members that would make use of the class-action device inefficient or unfair. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 107 (2009). Instead, what Amgen alleges is "a fatal similarity--[an alleged] failure of proof as to an element of the plaintiffs' cause of action." Ibid. Such a contention is properly addressed at trial or in a ruling on a summary-judgment motion. The allegation should not be resolved in deciding whether to certify a proposed class. Ibid. See also Schleicher, 618 F. 3d, at 687 ("[W]hether a statement is materially false is a question common to all class members and therefore may be resolved on a class-wide basis after certification.").B Insisting that materiality must be proved at the class-certification stage, Amgen relies chiefly on two arguments, neither of which we find persuasive.61 Amgen points first to our statement in Halliburton that "securities fraud plaintiffs must prove certain things in order to invoke Basic's rebuttable presumption of reliance," including "that the alleged misrepresentations were publicly known . . . , that the stock traded in an efficient market, and that the relevant transaction took place 'between the time the misrepresentations were made and the time the truth was revealed.' " 563 U. S., at ___ (slip op., at 5-6) (quoting Basic, 485 U. S., at 248, n. 27). See also Dukes, 564 U. S., at ___, n. 6 (slip op., at 11, n. 6) ("[P]laintiffs seeking 23(b)(3) certification [of a securities-fraud class action] must prove that their shares were traded on an efficient market."). If these fraud-on-the-market predicates must be proved before class certification, Amgen contends, materiality — another fraud-on-the-market predicate — should be treated no differently. We disagree. As an initial matter, the requirement that a putative class representative establish that it executed trades "between the time the misrepresentations were made and the time the truth was revealed" relates primarily to the Rule 23(a)(3) and (a)(4) inquiries into typicality and adequacy of representation, not to the Rule 23(b)(3) predominance inquiry. Basic, 485 U. S., at 248, n. 27.7 A security's market price cannot be affected by a misrepresentation not yet made, and in an efficient market, a misrepresentation's impact on market price is quickly nullified once the truth comes to light. Thus, a plaintiff whose relevant transactions were not executed between the time the misrepresentation was made and the time the truth was revealed cannot be said to have indirectly relied on the misrepresentation through its reliance on the integrity of the market price.8 Such a plaintiff's claims, therefore, would not be "typical" of the claims of investors who did trade during the window between misrepresentation and truth revelation. Fed. Rule Civ. Proc. 23(a)(3). Nor could a court confidently conclude that such a plaintiff would "fairly and adequately protect the interests" of investors who traded during the relevant window. Rule 23(a)(4). The requirement that the fraud-on-the-market theory's trade-timing predicate be established before class certification thus sheds little light on the question whether materiality must also be proved at the class-certification stage. Amgen is not aided by Halliburton's statement that market efficiency and the public nature of the alleged misrepresentations must be proved before a securities-fraud class action can be certified. As Amgen notes, market efficiency, publicity, and materiality can all be proved on a classwide basis. Furthermore, they are all essential predicates of the fraud-on-the-market theory. Unless those predicates are established, there is no basis for presuming that the defendant's alleged misrepresentations were reflected in the security's market price, and hence no grounding for any contention that investors indirectly relied on those misrepresentations through their reliance on the integrity of the market price. But unlike materiality, market efficiency and publicity are not indispensable elements of a Rule 10b-5 claim. See Matrixx Initiatives, 563 U. S., at ___ (slip op., at 9) (listing elements of a Rule 10b-5 claim). Thus, where the market for a security is inefficient or the defendant's alleged misrepresentations were not aired publicly, a plaintiff cannot invoke the fraud-on-the-market presumption. She can, however, attempt to establish reliance through the "traditional" mode of demonstrating that she was personally "aware of [the defendant's] statement and engaged in a relevant transaction . . . based on that specific misrepresentation." Halliburton, 563 U. S., at ___ (slip op., at 4). Individualized reliance issues would predominate in such a lawsuit. See Basic, 485 U. S., at 242. The litigation, therefore, could not be certified under Rule 23(b)(3) as a class action, but the initiating plaintiff's claim would remain live; it would not be "dead on arrival." 660 F. 3d, at 1175. A failure of proof on the issue of materiality, in contrast, not only precludes a plaintiff from invoking the fraud-on-the-market presumption of classwide reliance; it also establishes as a matter of law that the plaintiff cannot prevail on the merits of her Rule 10b-5 claim. Materiality thus differs from the market-efficiency and publicity predicates in this critical respect: While the failure of common, classwide proof on the issues of market efficiency and publicity leaves open the prospect of individualized proof of reliance, the failure of common proof on the issue of materiality ends the case for the class and for all individuals alleged to compose the class. See Brief for United States as Amicus Curiae 20 ("Unless the failure of common proof gives rise to a need for individualized proof, it does not cast doubt on the propriety of class certification."). In short, there can be no actionable reliance, individually or collectively, on immaterial information. Because a failure of proof on the issue of materiality, unlike the issues of market efficiency and publicity, does not give rise to any prospect of individual questions overwhelming common ones, materiality need not be proved prior to Rule 23(b)(3) class certification.2 Amgen also contends that certain "policy considerations" militate in favor of requiring precertification proof of materiality. Brief for Petitioners 28. An order granting class certification, Amgen observes, can exert substantial pressure on a defendant "to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability." Advisory Committee's 1998 Note on subd. (f) of Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 143. See also AT&T Mobility LLC v. Concepcion, 563 U. S. ___, ___ (2011) (slip op., at 16) (class actions can entail a "risk of 'in terrorem' settlements"). Absent a requirement to evaluate materiality at the class-certification stage, Amgen contends, the issue may never be addressed by a court, for the defendant will surrender and settle soon after a class is certified. Insistence on proof of materiality before certifying a securities-fraud class action, Amgen thus urges, ensures that the issue will be adjudicated and not forgone. See also post, at 4 (Scalia, J., dissenting) (expressing the same concerns). In this regard, however, materiality does not differ from other essential elements of a Rule 10b-5 claim, notably, the requirements that the statements or omissions on which the plaintiff's claims are based were false or misleading and that the alleged statements or omissions caused the plaintiff to suffer economic loss. See Matrixx Initiatives, 563 U. S., at ___ (slip op., at 9). Settlement pressure exerted by class certification may prevent judicial resolution of these issues. Yet this Court has held that loss causation and the falsity or misleading nature of the defendant's alleged statements or omissions are common questions that need not be adjudicated before a class is certified. See Halliburton, 563 U. S., at ___ (slip op., at 3) (loss causation need not be proved at the class-certification stage); Basic, 485 U. S., at 242 ("the falsity or misleading nature of the . . . public statements" allegedly made by the defendant is a "common questio[n]"). See also Schleicher, 618 F. 3d, at 685 (falsity of alleged misstatements need not be proved before certification of a securities-fraud class action). Congress, we count it significant, has addressed the settlement pressures associated with securities-fraud class actions through means other than requiring proof of materiality at the class-certification stage. In enacting the Private Securities Litigation Reform Act of 1995 (PSLRA), 109 Stat. 737, Congress recognized that although private securities-fraud litigation furthers important public-policy interests, prime among them, deterring wrongdoing and providing restitution to defrauded investors, such lawsuits have also been subject to abuse, including the "extract[ion]" of "extortionate 'settlements' " of frivolous claims. H. R. Conf. Rep. No. 104-369, pp. 31-32 (1995). The PSLRA's response to the perceived abuses was, inter alia, to "impos[e] heightened pleading requirements" for securities-fraud actions, "limit recoverable damages and attorney's fees, provide a 'safe harbor' for forward-looking statements, impose new restrictions on the selection of (and compensation awarded to) lead plaintiffs, mandate imposition of sanctions for frivolous litigation, and authorize a stay of discovery pending resolution of any motion to dismiss." Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 81-82 (2006). See also 15 U. S. C. §78u-4 (2006 ed. and Supp. V). Congress later fortified the PSLRA by enacting the Securities Litigation Uniform Standards Act of 1998, 112 Stat. 3227, which curtailed plaintiffs' ability to evade the PSLRA's limitations on federal securities-fraud litigation by bringing class-action suits under state rather than federal law. See 15 U. S. C. §78bb(f)(1) (2006 ed.). While taking these steps to curb abusive securities-fraud lawsuits, Congress rejected calls to undo the fraud-on-the-market presumption of classwide reliance endorsed in Basic. See Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 153, and n. 8 (noting that the initial version of H. R. 10, 104th Cong., 1st Sess. (1995), an unenacted bill that, like the PSLRA, was designed to curtail abuses in private securities litigation, "would have undone Basic"). See also Common Sense Legal Reform Act: Hearings before the Subcommittee on Telecommunications and Finance of the House Committee on Commerce, 104th Cong., 1st Sess., 92, 236-237, 251-252, 272 (1995) (witnesses criticized the fraud-on-the-market presumption and expressed support for H. R. 10's requirement that securities-fraud plaintiffs prove direct reliance). Nor did Congress decree that securities-fraud plaintiffs prove each element of their claim before obtaining class certification. Because Congress has homed in on the precise policy concerns raised in Amgen's brief, "[w]e do not think it appropriate for the judiciary to make its own further adjustments by reinterpreting Rule 23 to make likely success on the merits essential to class certification in securities-fraud suits." Schleicher, 618 F. 3d, at 686; cf. Smith v. Bayer Corp., 564 U. S. ___, ___ (2011) (slip op., at 17-18) ("Congress's decision to address the relitigation concerns associated with class actions through the mechanism of removal provides yet another reason for federal courts to adhere in this context to longstanding principles of preclusion."). In addition to seeking our aid in warding off "in terrorem" settlements, Amgen also argues that requiring proof of materiality before class certification would conserve judicial resources by sparing judges the task of overseeing large class proceedings in which the essential element of reliance cannot be proved on a classwide basis. In reality, however, it is Amgen's position, not the judgments of the lower courts in this case, that would waste judicial resources. Amgen's argument, if embraced, would necessitate a mini-trial on the issue of materiality at the class-certification stage. Such preliminary adjudications would entail considerable expenditures of judicial time and resources, costs scarcely anticipated by Federal Rule of Civil Procedure 23(c)(1)(A), which instructs that the decision whether to certify a class action be made "[a]t an early practicable time." If the class is certified, materiality might have to be shown all over again at trial. And if certification is denied for failure to prove materiality, nonnamed class members would not be bound by that determination. See Smith, 564 U. S., at ___ (slip op., at 12-18). They would be free to renew the fray, perhaps in another forum, perhaps with a stronger showing of materiality. Given the tenuousness of Amgen's judicial-economy argument, Amgen's policy arguments ultimately return to the contention that private securities-fraud actions should be hemmed in to mitigate their potentially "vexatiou[s]" character. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 739 (1975). We have already noted what Congress has done to control exorbitant securities-fraud actions. See supra, at 19-20. Congress, the Executive Branch, and this Court, moreover, have "recognized that meritorious private actions to enforce federal antifraud securities laws are an essential supplement to criminal prosecutions and civil enforcement actions brought, respectively, by the Department of Justice and the Securities and Exchange Commission." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U. S. 308, 313 (2007); see H. R. Conf. Rep. No. 104-369, at 31; Brief for United States as Amicus Curiae 1. See also Amchem, 521 U. S., at 617 (" 'The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.' " (quoting Mace v. Van Ru Credit Corp., 109 F. 3d 338, 344 (CA7 1997))). We have no warrant to encumber securities-fraud litigation by adopting an atextual requirement of precertification proof of materiality that Congress, despite its extensive involvement in the securities field, has not sanctioned.C Justice Scalia acknowledges that proof of materiality is not required to satisfy Rule 23(b)(3)'s predominance requirement. See post, at 1. Nevertheless, he maintains that full satisfaction of Rule 23's requirements is insufficient to obtain class certification under Basic. In Justice Scalia's view, the Court's decision in Basic established a special rule: A securities-fraud class action cannot be certified unless all of the prerequisites of the fraud-on-the-market presumption of reliance, including materiality, have first been established. Post, at 2. The purported rule is Justice Scalia's invention. It cannot be attributed to anything the Court said in Basic. That decision is best known for its endorsement of the fraud-on-the-market theory. But the opinion also established something more. It stated the proper standard for judging the materiality of misleading statements regarding the existence and status of preliminary merger discussions. See 485 U. S., at 230-241, 250 ("Materiality in the merger context depends on the probability that the transaction will be consummated, and its significance to the issuer of the securities."). The District Court in Basic certified a class of investors whose share prices were allegedly depressed by misleading statements that disguised ongoing merger negotiations. Id., at 228. Postcertification, the court granted summary judgment to the defendants on the ground that the alleged misstatements were immaterial as a matter of law. Id., at 228-229. The Court of Appeals affirmed the class certification but reversed the grant of summary judgment. Id., at 229. This Court, in turn, vacated the Court of Appeals' judgment and remanded for further proceedings on the defendants' summary-judgment motion in light of the materiality standard set forth in the Court's opinion. Id., at 240-241, 250. Notably, however, we did not disturb the District Court's class-certification order, which we stated "was appropriate when made." Id., at 250.9 If Justice Scalia were correct that our decision in Basic demands proof of materiality before class certification, the Court in Basic should have ordered the lower courts to reconsider on remand both the defendants' entitlement to summary judgment and the propriety of class certification. Instead, the Court expressly endorsed the District Court's class-certification order while at the same time recognizing that further proceedings were necessary to determine whether the plaintiffs had mustered sufficient evidence to satisfy the relatively lenient standard for avoiding summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986) ("[S]ummary judgment will not lie if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party."). Unlike Justice Scalia, we are unwilling to presume that Basic announced a rule requiring precertification proof of materiality when Basic failed to apply any such rule to the very case before it.10III Amgen also argues that the District Court erred by refusing to consider the rebuttal evidence Amgen proffered in opposing Connecticut Retirement's class-certification motion. This evidence, Amgen contends, showed that "in light of all the information available to the market," its alleged misrepresentations and misleading omissions "could not be presumed to have altered the market price because they would not have 'significantly altered the total mix of information made available.' " Brief for Petitioners 40-41 (quoting Basic, 485 U. S., at 232). For example, Connecticut Retirement's complaint alleges that an Amgen executive misleadingly downplayed the significance of an upcoming Food and Drug Administration advisory committee meeting by incorrectly stating that the meeting would not focus on one of Amgen's leading drugs. See App. to Pet. for Cert. 17a. Amgen responded to this allegation by presenting public documents — including the committee's meeting agenda, which was published in the Federal Register more than a month before the meeting — stating that safety concerns associated with Amgen's drug would be discussed at the meeting. See id., at 41a-42a. See also 69 Fed. Reg. 16582 (2004). The District Court did not err, we agree with the Court of Appeals, by disregarding Amgen's rebuttal evidence in deciding whether Connecticut Retirement's proposed class satisfied Rule 23(b)(3)'s predominance requirement. The Court of Appeals concluded, and Amgen does not contest, that Amgen's rebuttal evidence aimed to prove that the misrepresentations and omissions alleged in Connecticut Retirement's complaint were immaterial. 660 F. 3d, at 1177 (characterizing Amgen's rebuttal evidence as an attempt to present a " 'truth-on-the-market' defense," which the Court of Appeals explained "is a method of refuting an alleged misrepresentation's materiality"). See also Reply Brief 17 (Amgen's evidence was offered to rebut the "materiality predicate" of the fraud-on-the-market theory). As explained above, however, the potential immateriality of Amgen's alleged misrepresentations and omissions is no barrier to finding that common questions predominate. See Part II, supra. If the alleged misrepresentations and omissions are ultimately found immaterial, the fraud-on-the-market presumption of classwide reliance will collapse. But again, as earlier explained, see supra, at 10-13, individual reliance questions will not overwhelm questions common to the class, for the class members' claims will have failed on their merits, thus bringing the litigation to a close. Therefore, just as a plaintiff class's inability to prove materiality creates no risk that individual questions will predominate, so even a definitive rebuttal on the issue of materiality would not undermine the predominance of questions common to the class. We recognized as much in Basic itself. A defendant could "rebut the [fraud-on-the-market] presumption of reliance," we observed in Basic, by demonstrating that "news of the [truth] credibly entered the market and dissipated the effects of [prior] misstatements." 485 U. S., at 248-249. We emphasized, however, that "[p]roof of that sort is a matter for trial" (and presumably also for a summary-judgment motion under Federal Rule of Civil Procedure 56). Id., at 249, n. 29.11 The District Court thus correctly reserved consideration of Amgen's rebuttal evidence for summary judgment or trial. It was not required to consider the evidence in determining whether common questions predominated under Rule 23(b)(3).* * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is affirmed.It is so ordered.Alito, J., concurring 568 U. S. ____ (2013)No. 11-1085AMGEN INC., et al., PETITIONERS v. CONNECTICUT RETIREMENT PLANS AND TRUST FUNDSon writ of certiorari to the united states court of appeals for the ninth circuit[February 27, 2013] Justice Alito, concurring. I join the opinion of the Court with the understanding that the petitioners did not ask us to revisit Basic's fraud-on-the-market presumption. See Basic Inc. v. Levinson, 485 U. S. 224 (1988). As the dissent observes, more recent evidence suggests that the presumption may rest on a faulty economic premise. Post, at 4, n. 4 (opinion of Thomas, J.); see Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 175-176. In light of this development, reconsideration of the Basic presumption may be appropriate.Scalia, J., dissenting 568 U. S. ____ (2013)No. 11-1085AMGEN INC., et al., PETITIONERS v. CONNECTICUT RETIREMENT PLANS AND TRUST FUNDSon writ of certiorari to the united states court of appeals for the ninth circuit[February 27, 2013] Justice Scalia, dissenting. I join the principal dissent, that of Justice Thomas, except for Part I-B. The fraud-on-the-market rule says that purchase or sale of a security in a well functioning market establishes reliance on a material misrepresentation known to the market. This rule is to be found nowhere in the United States Code or in the common law of fraud or deception; it was invented by the Court in Basic Inc. v. Levinson, 485 U. S. 224 (1988). Today's Court applies to that rule the principles of Federal Rule of Civil Procedure 23(b)(3), and thereby concludes (logically enough) that commonality is established at the certification stage even when material-ity has not been shown. That would be a correct procedure if Basic meant the rule it announced to govern only the question of substantive liability — what must be shown in order to prevail. If that were so, the new substantive rule, like the more general substantive rule that reliance must be proved, would be subject, at the certification stage, to the commonality analysis of Rule 23(b)(3). In my view, however, the Basic rule of fraud-on-the-market — a well functioning market plus purchase or sale in the market plus material misrepresentation known to the market establishes a necessary showing of reliance — governs not only the question of substantive liability, but also the question whether certification is proper. All of the elements of that rule, including materiality, must be established if and when it is relied upon to justify certification. The answer to the question before us today is to be found not in Rule 23(b)(3), but in the opinion of Basic. Basic established a presumption that the misrepresen-tation was relied upon, not a mere presumption that the plaintiffs relied on the market price. And it established that presumption not just for the question of substantive liability but also for the question of certification. "We granted certiorari . . . to determine whether the courts below properly applied a presumption of reliance in certifying the class, rather than requiring each class member to show direct reliance on Basic's statements." 485 U. S., at 230 (emphasis added). Of course it makes no sense to "presume reliance" on the misrepresentation merely because the plaintiff relied on the market price, unless the alleged misrepresentation would likely have affected the market price — that is, unless it was material. Thus, as Justice Thomas' dissent shows, the Basic opinion is shot through with references to the necessary materiality. The presumption of reliance does not apply, and hence neither substantive liability will attach nor will certification be proper, unless materiality is shown. The necessity of materiality for certification is demonstrated by the last sentence of the Basic opinion, which comes after the Court has decided to remand the case for reconsideration of materiality under the appropriate legal standard: "The District Court's certification of the class here was appropriate when made but is subject on remand to such adjustment, if any, as developing circumstances demand." Id., at 250. Those circumstances are the establishment of facts that rebut the presumption, including of facts that show the misrepresentation was not material, or was not known to the market. The Court argues that if materiality were a predicate to certification on a fraud-on-the-market theory, the Basic Court would not have approved the class certification order while remanding for reconsideration of "whether the plaintiffs had mustered sufficient evidence to satisfy the relatively lenient standard for avoiding summary judg-ment." See ante, at 23-24. The Court manufactures an inconsistency on the basis of doctrine that did not govern class certification at the time of Basic. We recently clarified that "Rule 23 does not set forth a mere pleading standard." Wal-Mart Stores, Inc. v. Dukes, 564 U. S. ___, ___ (2011) (slip op., at 10). But review of the Basic certification order shows that the District Court's fraud-on-the-market analysis was based exclusively on the pleadings: "[T]he allegations of plaintiffs' complaint are sufficient to bring this section 10(b) and Rule 10(b)(5) claim within the so-called 'fraud on the market' theory." App. to Pet. for Cert. in Basic Inc. v. Levinson, O. T. 1987, No. 86-279, p. 115a (emphasis added); see also ibid. (citing complaint paragraphs as establishing fraud on the market). Under a pleadings standard, the District Court found that the plaintiffs had satisfied Rule 23(b)(3) with regard to fraud on the market, including its materiality predicate. See id., at 133a (denial of reconsideration) ("This court ruled on December 10 that transaction causation [i.e., reliance] could be established by the following: proof of a material misrepresentation which affected the market price of the stocks with a resulting injury to the plaintiffs" (emphasis added)). Thus, even if the plaintiffs sufficiently pleaded materiality that the certification order "was appropriate when made," Basic, supra, at 250, the defendants retained an opportunity on remand to rebut the pleading in order to defeat certification.* Certification of the class is often, if not usually, the prelude to a substantial settlement by the defendant because the costs and risks of litigating further are so high. It does an injustice to the Basic Court to presume without clear evidence — and indeed in the face of language to the contrary — that it was establishing a regime in which not only those market class-action suits that have earned the presumption of reliance pass beyond the crucial certification stage, but all market-purchase and market-sale class-action suits do so, no matter what the al-leged misrepresentation. The opinion need not be read this way, and it should not. The fraud-on-the-market theory approved by Basic en-visions a demonstration of materiality not just for substantive recovery but for certification. Today's holding does not merely accept what some consider the regrettable consequences of the four-Justice opinion in Basic; it expands those consequences from the arguably regrettable to the unquestionably disastrous.Thomas, J., dissenting 568 U. S. ____ (2013)No. 11-1085AMGEN INC., et al., PETITIONERS v. CONNECTICUT RETIREMENT PLANS AND TRUST FUNDSon writ of certiorari to the united states court of appeals for the ninth circuit[February 27, 2013] Justice Thomas, with whom Justice Kennedy joins, and with whom Justice Scalia joins except for Part I-B, dissenting.I The Court today allows plaintiffs to obtain certification of securities-fraud class actions without proof that common questions predominate over individualized questions of reliance, in contravention of Federal Rule of Civil Procedure 23(b)(3). The Court does so by all but eliminating materiality as one of the predicates of the fraud-on-the-market theory, which serves as an alternative mode of es-tablishing reliance. See Basic Inc. v. Levinson, 485 U. S. 224, 241-250 (1988). Without demonstrating materiality at certification, plaintiffs cannot establish Basic's fraud-on-the-market presumption. Without proof of fraud on the market, plaintiffs cannot show that otherwise individualized questions of reliance will predominate, as required by Rule 23(b)(3). And without satisfying Rule 23(b)(3), class certification is improper. Fraud on the market is thus a condition precedent to class certification, without which individualized questions of reliance will defeat certification. The Court's opinion depends on the following assumption: Plaintiffs will either (1) establish materiality at the merits stage, in which case class certification was proper because reliance turned out to be a common question, or (2) fail to establish materiality, in which case the claim would fail on the merits, notwithstanding the fact that the class should not have been certified in the first place, because reliance was never a common question. The failure to establish materiality retrospectively confirms that fraud on the market was never established, that questions regarding the element of reliance were not common under Rule 23(b)(3), and, by extension, that certification was never proper. Plaintiffs cannot be excused of their Rule 23 burden to show at certification that questions of reliance are common merely because they might lose later on the merits element of materiality. Because a securities-fraud plaintiff invoking Basic's fraud-on-the-market presumption to satisfy Rule 23(b)(3) should be required to prove each of the predicates of that theory at certification in order to demonstrate that questions of reliance are common to the class, I respectfully dissent.A We begin with §10 of the Securities Exchange Act of 1934, 15 U. S. C. §78j (2006 ed. and Supp. V).1 We "have implied a private cause of action from the text and purposes of §10(b)" and Securities and Exchange Commission Rule 10b-5, 17 CFR §240.10b-5 (2011).2 Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. ___, ___ (2011) (slip op., at 9). See also Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6, 13, n. 9 (1971) ("It is now established that a private right of action is implied under §10(b)"). The elements of an implied §10(b) cause of action for securities fraud are " '(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrep-resentation or omission; (5) economic loss; and (6) loss causation.' " Matrixx, supra, at ___ (slip op., at 9) (quoting Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 157 (2008)). This case concerns the reliance element of the §10(b) claim and its interaction with Rule 23(b)(3). To prove reliance, a plaintiff, whether proceeding individually or as a class member, must show that his stock transaction was caused by the specific alleged misstatement. "[P]roof of reliance ensures that there is a proper 'connection between a defendant's misrepresentation and a plaintiff's injury.' " Erica P. John Fund, Inc. v. Hal-liburton Co., 563 U. S. ___, ___ (2011) (slip op., at 4) (quoting Basic, supra, at 243).3 To satisfy this element, a plaintiff traditionally was required to "sho[w] that he was aware of a company's statement and engaged in a relevant transaction . . . based on that specific misrepresentation." Erica P. John Fund, supra, at ___ (slip op., at 4) (emphasis added). In the face-to-face fraud cases from which securities claims historically arose, see, e.g., Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 343-344 (2005) (discussing common-law roots of securities-fraud actions), this requirement was easily met by showing that the seller made statements directly to the purchaser and that the purchaser bought stock in reliance on those statements. However, in a modern securities market many, if not most, individuals who purchase stock from third parties on an impersonal exchange will be unaware of statements made by the issuer of those securities. As a result, such purchaser-plaintiffs are unable to meet the traditional reliance requirement because they cannot establish that they "engaged in a relevant transaction . . . based on [a] specific misrepresentation." Erica P. John Fund, supra, at ___ (slip op., at 4). This concern was the driving force behind the development of the fraud-on-the-market theory adopted in Basic. Because individuals trading stock on an impersonal market often cannot show reliance even for purposes of an individual securities-fraud action, Basic permitted "plaintiffs to invoke a rebuttable presumption of reliance." Erica P. John Fund, supra, at ___ (slip op., at 5).4 Basic presumes that " 'in an open and developed securities market, the price of a company's stock is determined by the avail-able material information regarding the company and its business.' " 485 U. S., at 241 (quoting Peil v. Speiser, 806 F. 2d 1154, 1160-1161 (CA3 1986); emphasis added).5 " 'Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.' " 485 U. S., at 241-242. As a result, "[a]n investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price," and "an investor's reliance on any public material misrepresentations" may therefore "be presumed for purposes of a Rule 10b-5 action." Id., at 247 (emphasis added). If a plaintiff opts to show reliance through fraud on the market, Basic is clear that the plaintiff must show the following predicates in order to prevail: (1) an efficient market, (2) a public statement, (3) that the stock was traded after the statement was made but before the truth was revealed, and (4) the materiality of the statement. Id., at 248, n. 27.6 Both the Court and respondent agree that materiality is a necessary component of fraud on the market. See, e.g., ante, at 9 (materiality is "indisputably" "an essential predicate of the fraud-on-the-market the-ory"); Brief for Respondent 29 ("If the statement is not materially false, then no one in the class can establish reliance via the integrity of the market"). The materiality of a specific statement is, therefore, essential to the fraud-on-the-market presumption, which in turn enables a plaintiff to prove reliance.B Basic's fraud-on-the-market presumption is highly sig-nificant because it makes securities-fraud class actions possible by converting the inherently individual reliance inquiry into a question common to the class, which is necessary to satisfy the dictates of Rule 23(b)(3).7 Rule 23(b)(3) requires the party seeking certification to prove that "questions of law or fact common to class members predominate over any questions affecting only individual members." A plaintiff seeking class certification is not required to prove the elements of his claim at the certifi-cation stage, but he must show that the elements of the claim are susceptible to classwide proof. See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564 U. S. ___, ___, n. 6 (2011) (slip op., at 11, n. 6) ("[P]laintiffs seeking 23(b)(3) certifi-cation must prove that their shares were traded on an ef-ficient market," an element of the fraud-on-the-market theory (emphasis added)). Without that proof, there is no justification for certifying a class because there is no " 'capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.' " Id., at ___ (slip op., at 9-10) (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009)). If plaintiffs fail to show that reliance is a common question at the time of certification, certification is improper. For if reliance is not a common question, each plaintiff would be required to prove that he in fact relied on a misstatement, a showing which is simply not susceptible to classwide proof. Individuals make stock transactions for divergent, even idiosyncratic, reasons. As the leading pre-Basic fraud-on-the-market case recognized, "[a] purchaser on the stock exchanges may be either unaware of a specific false representation, or may not directly rely on it; he may purchase because of a favorable price trend, price earnings ratio, or some other factor." Blackie v. Barrack, 524 F. 2d 891, 907 (CA9 1975). The inquiry's inherently individualized nature renders it impossible to generate the common answers necessary for certification under Rule 23(b)(3). See Basic, 485 U. S., at 242 ("Requiring proof of individualized reliance from each member of the proposed plaintiff class effectively would have prevented respondents from proceeding with a class action, since individual issues then would have overwhelmed the common ones"). The Court's solution in Basic was to allow putative class members to prove reliance through the fraud-on-the-market presumption. Id., at 241-250. As the Court today recognizes, failure to establish fraud on the market "leaves open the prospect of individualized proof of reliance." Ante, at 17. Notably, the Court and the Ninth Circuit both acknowledge that in order to obtain the benefit of the presumption, plaintiffs must establish two of the fraud-on-the-market predicates at class certification: (1) that the market was generally efficient, and (2) that the alleged misstatement was public. See ante, at 16 (acknowledging "that market efficiency and the public nature of the alleged misrepresentations must be proved before a securities-fraud class action can be certified"); 660 F. 3d 1170, 1175 (CA9 2011) (same). See also Erica P. John Fund, 563 U. S., at ___ (slip op., at 5) ("It is undisputed that securities fraud plaintiffs must prove," at certification inter alia, "that the alleged misrepresentations were publicly known . . . [and] that the stock traded in an efficient market"). The Court is correct insofar as its statements recognize that fraud on the market is a condition precedent to showing that there are common questions of reliance at the time of class certification. Nevertheless, the Court asserts that materiality — by its own admission an essential predicate to invoking fraud on the market — need not be established at certification because it will ultimately be proved at the merits stage. Ante, at 16-18. This assertion is an express admission that parties will not know at certification whether reliance is an individual or common question. To support its position, the Court transforms the predicate certification inquiry into a novel either-or inquiry occurring much later on the merits. According to the Court, either (1) plaintiffs will prove materiality on the merits, thus demonstrating ex post that common questions predominated at certification, or (2) they will fail to prove materiality, at which point we learn ex post that certification was inappropriate because reliance was not, in fact, a common question. In the Court's second scenario, fraud on the market was never established, reliance for each class member was inherently individualized, and Rule 23(b)(3) in fact should have barred certification long ago.8 The Court suggests that the problem created by the second scenario is excusable because the plaintiffs will lose anyway on alternative merits grounds, and the case will be over. See ante, at 17 ("[F]ailure of proof on the issue of materiality [at the merits stage] . . . not only precludes a plaintiff from invoking the fraud-on-the-market presumption of classwide reliance; it also establishes as a matter of law that the plaintiff cannot prevail on the merits of her Rule 10b-5 claim"). But nothing in logic or precedent justifies ignoring at certification whether reliance is susceptible to Rule 23(b)(3) classwide proof simply because one predicate of reliance — materiality — will be resolved, if at all, much later in the litigation on an independent merits element. It is the Court, not Amgen, that "would have us put the cart before the horse," ante, at 3, by jumping chronologically to the §10(b) merits element of materiality. But Rule 23, as well as common sense, requires class certification issues to be addressed first. See Rule 23(c)(1)(A) ("At an early practicable time after a person sues or is sued . . . the court must determine by order whether to certify the action as a class action"). A plaintiff who cannot prove materiality does not simply have a claim that is " 'dead on arrival' " at the merits, ante, at 17 (quoting 660 F. 3d, at 1175); he has a class that should never have arrived at the merits at all because it failed Rule 23(b)(3) certification from the outset. Without materiality, there is no fraudon-the-market presumption, questions of reliance remain individualized, and Rule 23(b)(3) certification is impossible. And the fact that evidence of materiality goes to both fraud on the market at certification and an independent merits element is no issue; Wal-Mart expressly held that a court at certification may inquire into questions that also have later relevance on the merits. See 564 U. S., at ___ (slip op., at 10-11). The Court reverses that inquiry, effectively saying that certification may be put off until later because an adverse merits determination will retroactively wipe out the entire class. However, a plaintiff who cannot prove materiality cannot prove fraud on the market and, thus, cannot demonstrate that the question of reliance is susceptible of a classwide answer. The fact that a statement may prove to be material at the merits stage does not justify conflating the doctrinally independent (and distinct) elements of materiality and reliance.9 The Court's error occurs when, instead of asking whether the element of reliance is susceptible to classwide proof, the Court focuses on whether materiality is susceptible to classwide proof. Ante, at 10 ("[T]he piv-otal inquiry is whether proof of materiality is needed to ensure that the questions of law or fact common to the class will 'predominate' "). The result is that the Court effectively equates §10(b) materiality with fraud-on-the-market materiality and elides reliance as a §10(b) element. But a plaintiff seeking certification under Rule 23 bears the burden of proof with regard to all the elements of a §10(b) claim, which includes materiality and reliance. As Wal-Mart explained, "[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." 564 U. S., at ___ (slip op., at 10). If the elements of fraud on the market are not proved at certification, a plaintiff has failed to carry his burden of establishing that questions of individualized reliance will not predominate, without which the plaintiff class cannot obtain certification. Cf. id., at ___ (slip op., at 12) (holding in Rule 23(a)(2) context that "[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer"). It is only by establishing all of the elements of the fraud-on-the-market presumption that reliance can be proved on a classwide basis. Therefore, if a plaintiff wishes to use Basic's presumption to prove that reliance is a common question, he must establish the entire presumption, including materiality, at the class certification stage. Nor is it relevant, as respondent argues, that requiring plaintiffs to establish all predicates of fraud on the market at certification will make it more difficult to obtain certification. See Brief for Respondent 35-38. In Basic, four Justices of a six-Justice Court created the fraud-on-the-market presumption from a combination of newly minted economic theories, 485 U. S., at 250-251, n. 1 (White, J., concurring in part and dissenting in part), and "considerations of fairness, public policy, and probability," id., at 245 (majority opinion), to allow claims that otherwise would have been barred due to the plaintiffs' inability to show reliance, id., at 242. Basic is a judicially invented doctrine based on an economic theory adopted to ease the burden on plaintiffs bringing claims under an implied cause of action. There is nothing untoward about requiring plaintiffs to take the steps that the Basic Court created in an effort to save otherwise inadequate claims.II The majority's approach is, thus, doctrinally incorrect under Basic. Its shortcomings are further highlighted by the role that materiality played in the pre-Basic development of the fraud-on-the-market theory as a condition precedent to showing that there are common questions of reliance in the class-action context. Materiality, at the time of certification, has been a driving force behind the theory from the outset. This fact further supports the need to prove materiality at the time the fraud-on-the-market theory is invoked to show that questions of reliance can be answered on a classwide basis.A Before Basic, two signposts marked the way for courts applying the fraud-on-the-market theory. Both demonstrate that the materiality of an alleged falsehood was not a mere afterthought but rather one of the primary reasons for allowing traditional proof of reliance to be brushed aside at certification. This fact weighs strongly in favor of the conclusion that materiality must be resolved at certi-fication when the fraud-on-the-market presumption is invoked to show that reliance can be proved on a classwide basis. The first signpost was the Ninth Circuit's 1975 opinion in Blackie, termed by one pre-Basic court the "seminal fraud on the market case." Peil, 806 F. 2d, at 1163, n. 16. See also Basic, supra, at 251, n. 1 (White, J., dissenting) ("The earliest Court of Appeals case adopting this theory cited by the Court is Blackie v. Barrack, 524 F. 2d 891 (CA9 1975), cert. denied, 429 U. S. 816 (1976)"). Blackie arose from a $90 million loss reported by audio equipment manufacturer Ampex Corp. in its 1972 annual report. 524 F. 2d, at 894.10 Ampex's independent auditors not only refused to certify the 1972 annual report but also withdrew certification of all 1971 financial statements "because of doubts that the loss reported for 1972 was in fact suffered in that year." Ibid. In resultant class actions, the defendants argued that reliance stood in the way of class certification under Rule 23(b)(3) because it was not a common question. The Ninth Circuit disagreed. Instead, it relieved plaintiffs from providing traditional proof of reliance, ex-plaining that "causation is adequately established in the impersonal stock exchange context by proof of purchase and of the materiality of misrepresentations, without direct proof of reliance." Id., at 906 (emphasis added). The court left no doubt that the materiality of the $90 million shortfall in Ampex's financial statements was central to its determination that reliance could be presumed. It asserted that "[m]ateriality circumstantially establishes the reliance of some market traders and hence the inflation in the stock price — when the purchase is made[,] the causational chain between defendant's conduct and plaintiff's loss is sufficiently established to make out a prima facie case." Ibid. Materiality was not merely an important factor that allowed reliance to be presumed at certification; materiality was the factor. It demonstrated that the defendants had committed a fraud on the market, that all putative class plaintiffs had relied on it in purchasing stock, and, therefore, that questions of reliance would be susceptible to common answers.11 The second fraud-on-the-market signpost prior to Basic was a note in the Harvard Law Review, which described the nascent theory. See Note, The Fraud-on-the-Market Theory, 95 Harv. L. Rev. 1143 (1982) (hereinafter Harv. L. Rev. Note). The Sixth Circuit opinion reviewed in Basic termed the Note "[t]he clearest statement of the theory of presumption of reliance." Levinson v. Basic Inc., 786 F. 2d 741, 750 (1986). Indeed, in the briefing for Basic itself, the plaintiffs, the United States, and plaintiffs' amicus cited the article repeatedly as an authoritative statement on the subject. See Brief for Respondent 43, n. 18, 46, n. 20 (cited in Peil, supra, at 1160), Brief for Securities and Exchange Commission as Amicus Curiae 22, n. 25, 24, n. 30, 26, n. 32, and Brief for Joseph Harris et al. as Amicus Curiae 4, n. 2, in Basic Inc. v. Levinson, O. T. 1987, No. 86-279. Like Blackie, the Note also hinged the fraud-on-the-market presumption of reliance on proof of materiality. Harv. L. Rev. Note 1161 ("In developed markets, which are apparently efficient, reliance should be presumed from the materiality of the deception" (emphasis added)). Ultimately, in language that will be familiar to anyone who has read Basic, the Note formulated a "pivotal assumption" underlying the fraud-on-the-market theory as the belief that:"market prices respond to information disseminated (or not disseminated) concerning the companies whose securities are traded. In such a setting — often described as an 'efficient market'--the reliance of some traders upon a material deception influences market prices and thereby affects even traders who never read or hear of the deception." Harv. L. Rev. Note 1154 (footnote omitted). Again, the materiality of the alleged misstatement was a key component, without which the market could not be presumed to move. As a result, without materiality it is impossible to say that there has been a fraud on the market at all, and if that is not the case there is no reason to believe that the market price at which stock transactions occurred was affected by an alleged misstatement or, by extension, that any market participants relied on it. Materiality should thus be proved when the fraud-on-the-market presumption is invoked, or there is no common-ality with respect to questions of reliance.B Nor did the importance of materiality diminish in the Sixth Circuit opinion reviewed in Basic. Rather, the court followed the path marked by the signposts discussed above. It excused plaintiffs from offering traditional evidence of reliance, so long as "a defendant is shown to have made a material public misrepresentation that, if relied on directly, would fraudulently induce an individual to mis-judge the value of the stock." Levinson, 786 F. 2d, at 750 (emphasis added). The court's analysis made clear that materiality should be demonstrated at the time the presumption was invoked: "In order to invoke the presumption of reliance based upon the fraud on the market theory, a plaintiff must allege and prove . . . that the mis-representations were material . . . ." Ibid. (citing Blackie, 524 F. 2d, at 906).C Finally, the briefing before this Court in Basic itself built upon this framework and the foundational principle that materiality is an integral part of the theory. Criti-cally, the Basic defendants argued that the plaintiffs could not establish fraud on the market at certification even if the theory were valid because the alleged misstatement was immaterial. They "contrast[ed] the likely market impact of disclosure of the [$90 million Blackie loss] . . . with the disclosure of the information which respondents contend[ed] rendered Basic's statements materially misleading." See Brief for Petitioners in O. T. 1987, No. 86-279, p. 42. The Basic defendants concluded that "the differences between a company's $90 million loss and a company's sporadic contacts with a friendly suitor are sub-stantial. . . . [T]he fraud on the market theory, if it has vitality, should not be applied in a case such as this." Id., at 43. In response, the plaintiffs in Basic did not argue that the defendants misunderstood the role of materiality in the fraud-on-the-market theory. They instead advanced a now-foreclosed interpretation of dicta from Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 177 (1974):"Petitioners' final argument — that respondents will be unable to establish that Basic's repeated false and misleading statements impacted the price of Basic stock over a fourteen month period — represents an effort to litigate the merits of this case on the motion for class certification. . . . As this Court held in Eisen v. Carlisle & Jacquelin: 'We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.' " Brief for Respondents in O. T. 1987, No. 86-279, p. 54. The Court rejected this reading of Eisen two Terms ago, explaining that the very language the Basic plaintiffs quoted was "sometimes mistakenly cited" as prohibiting inquiry into "the propriety of certification under Rules 23(a) and (b)." Wal-Mart Stores, Inc., 564 U. S., at ___, n. 6 (slip op., at 10, n. 6). That reading, the Court explained, "is the purest dictum and is contradicted by our other cases." Ibid. The Basic defendants' reply is consistent with Wal-Mart:"Putative class representatives, such as respondents, should not be permitted to invoke the fraud on the market theory while, at the same time, arguing that courts may not make any preliminary inquiry into the claimed impact on the market. See, e.g., Resp. Br., p. 54. By seeking the benefit of the presumption, respondents necessarily invite judicial scrutiny of the circumstances in which it is invoked." Reply Brief for Petitioners in O. T. 1987, No. 86-279, p. 18. Well said. The history of Basic is worth the volume of argument offered by the majority. Cf. New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921) (majority opinion of Holmes, J.). Materiality was central to the development, analysis, and adoption of the fraud-on-the-market theory both before Basic and in Basic itself. Materiality, therefore, must be demonstrated to prove fraud on the market, and until materiality of an alleged misstatement is shown there is no reason to believe that all market participants have relied equally on it. Otherwise individualized questions of reliance remain. This history confirms that materiality must be proved at the time that the theory is invoked — i.e., at certification.III I, thus, would reverse the judgment of the Ninth Circuit and hold that a plaintiff invoking the fraud-on-the-market presumption bears the burden to establish all the elements of fraud on the market at certification, including the materiality of the alleged misstatement.FOOTNOTESFootnote 1 Part IV of Justice Blackmun's opinion in Basic — the part endorsing the fraud-on-the-market theory — was joined by Justices Brennan, Marshall, and Stevens. Together, these Justices composed a majority of the quorum of six Justices who participated in the case. See 28 U. S. C. §1 ("The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.").Footnote 2 Although describing Basic's adoption of the fraud-on-the-market presumption of reliance as "questionable," Justice Thomas' dissent acknowledges that "the Court has not been asked to revisit" that issue. Post, at 4-5, n. 4. See also post, p. 1 (Alito, J., concurring).Footnote 3 Amgen's allegedly improper marketing practices have sparked federal and state investigations and several whistleblower lawsuits. See Dye, Amgen to pay $762 million in drug-marketing case, Washington Post, Dec. 19, 2012, p. A17.Footnote 4 We agree with Justice Thomas that "[m]ateriality was central to the development, analysis, and adoption of the fraud-on-the-market theory both before Basic and in Basic itself." Post, at 18. We disagree, however, that the history of the fraud-on-the-market theory's development "confirms that materiality must be proved at the time that the theory is invoked — i.e., at certification." Ibid. As explained below, see infra this page and 11-13, proof of materiality is not required prior to class certification because such proof is not necessary to ensure satisfaction of Rule 23(b)(3)'s predominance requirement.Footnote 5 Justice Thomas is also wrong in arguing that a failure of proof on the issue of materiality would demonstrate that a Rule 10b-5 class action "should not have been certified in the first place." Post, at 2. Quite the contrary. The fact that such a failure of proof resolves all class members' claims once and for all, leaving no individual issues to be adjudicated, confirms that the original certification decision was proper.Footnote 6 Amgen advances a third argument founded on modern economic research tending to show that market efficiency is not " 'a binary, yes or no question.' " Brief for Petitioners 32 (quoting Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 167). Instead, this research suggests, differences in efficiency can exist within a single market. For example, a market may more readily process certain forms of widely disseminated and easily digestible information, such as public merger announcements, than information more difficult to acquire and understand, such as obscure technical data buried in a filing with the Securities and Exchange Commission. See, e.g., Macey & Miller, Good Finance, Bad Economics: An Analysis of the Fraud-on-the-Market Theory, 42 Stan. L. Rev. 1059, 1083-1087 (1990); Stout, The Mechanisms of Market Inefficiency: An Introduction to the New Finance, 28 J. Corp. L. 635, 653-656 (2003). Amgen, however, never clearly explains how this research on market efficiency bolsters its argument that courts should require precertification proof of materiality. In any event, this case is a poor vehicle for exploring whatever implications the research Amgen cites may have for the fraud-on-the-market presumption recognized in Basic. As noted above, see supra, at 6-7, Amgen conceded in its answer that the market for its securities is "efficient" and thus "promptly digest[s] current information regarding Amgen from all publicly available sources and reflect[s] such information in Amgen's stock price." Consolidated Amended Class Action Complaint ¶¶199-200; Answer ¶¶199-200. See also App. to Pet. for Cert. 40a (relying on the admission in Amgen's answer and an unchallenged expert report submitted by Connecticut Retirement, the District Court expressly found that the market for Amgen's stock was efficient). Amgen remains bound by that concession. See American Title Ins. Co. v. Lacelaw Corp., 861 F. 2d 224, 226 (CA9 1988) ("Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them."); cf. Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U. S. ___, ___ (2010) (slip op., at 10) ("This Court has . . . refused to consider a party's argument that contradicted a joint 'stipulation [entered] at the outset of th[e] litigation.' " (quoting Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 226 (2000))). We thus find nothing in the cited research that would support requiring precertification proof of materiality in this case.Footnote 7 As earlier noted, see supra, at 1-2, Amgen does not here contest Connecticut Retirement's satisfaction of Rule 23(a)'s requirements.Footnote 8 Accordingly, "the timing of the relevant stock trades" is indeed an "element" of the fraud-on-the-market theory. Post, at 6, n. 6 (opinion of Thomas, J.). Unlike Justice Thomas, however, see ibid., we do not understand the United States as amicus curiae to take a different view. See Brief for United States 15, n. 2 ("Precise identification of the times when the alleged misrepresentation was made and the truth was subsequently revealed is . . . important to ensure that the named plaintiff has traded stock during the time the stock price allegedly was distorted by the defendant's misrepresentations.").Footnote 9 Scouring the Court's decision in Basic for some semblance of support for his position, Justice Scalia attaches portentous significance to Basic's statement that the District Court's class-certification order, although " 'appropriate when made,' " was " 'subject on remand to such adjustment, if any, as developing circumstances demand[ed].' " Post, at 2 (quoting Basic, 485 U. S., at 250). This statement, however, merely reminds that certifications are not frozen once made. Rule 23 empowers district courts to "alte[r] or amen[d]" class-certification orders based on circumstances developing as the case unfolds. Fed. Rule Civ. Proc. 23(c)(1) (1988). See also Rule 23(c)(1)(C) (2013). Footnote 10 Justice Scalia suggests that the Court's approach in Basic might have been influenced by the obsolete view that " 'Rule 23 . . . set[s] forth a mere pleading standard.' " Post, at 3 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U. S. ___, ___ (2011) (slip op., at 10)). The opinion in Basic, however, provides no indication that the Court perceived any issue before it to turn on the question whether a plaintiff must merely plead, rather than "affirmatively demonstrate," her satisfaction of Rule 23's certification requirements. Dukes, 564 U. S., at ___ (slip op., at 10).Footnote 11 Amgen attempts to minimize the import of this statement by noting that it was made prior to a 2003 amendment to Rule 23 that eliminated district courts' authority to conditionally certify class actions. See Advisory Committee's 2003 Note on subd. (c)(1) of Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 144. Nothing in our opinion in Basic, however, suggests that the statement relied in any way on district courts' conditional-certification authority. To the contrary, the Court in Basic stated: "Proof of that sort [i.e., that news of the truth had entered the market and dissipated the effects of prior misstatements] is a matter for trial, throughout which the District Court retains the authority to amend the certification order as may be appropriate." 485 U. S., at 249, n. 29 (emphasis added). Rule 23(c)(1)(C) continues to provide that a class-certification order "may be altered or amended before final judgment."FOOTNOTESFootnote 1* As for the Court's contention that I have "[s]cour[ed] the Court's decision in Basic" to find "some semblance of support" for my reading of the case, ante, at 23, n. 9: It does not take much scouring to come across the Court's opening statement that "[w]e granted certiorari . . . to determine whether the courts below properly applied a presumption of reliance in certifying the class." 485 U. S., at 230 (emphasis added).FOOTNOTESFootnote 1 Section 10 states, in relevant part: "It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange--. . . . . "(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange ... any manipu-lative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe . . . ."Footnote 2 Rule 10b-5 states: "It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security."Footnote 3 Courts have also "referred to the element of reliance as 'transaction causation.' " Erica P. John Fund, 563 U. S., at ___ (slip op., at 6) (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 341-342 (2005), in turn citing Basic Inc. v. Levinson, 485 U. S. 224, 248-249 (1988)). This alternative phrasing recognizes that the reliance inquiry is directed at determining whether a particular piece of information caused an individual to enter into a given transaction.Footnote 4 The Basic decision itself is questionable. Only four Justices joined the portion of the opinion adopting the fraud-on-the-market theory. Justice White, joined by Justice O'Connor, dissented from that section, emphasizing that "[c]onfusion and contradiction in court rulings are inevitable when traditional legal analysis is replaced with economic theorization by the federal courts" and that the Court is "not well equipped to embrace novel constructions of a statute based on contemporary microeconomic theory." 485 U. S., at 252-253 (concurring in part and dissenting in part). Justice White's concerns remain valid today, but the Court has not been asked to revisit Basic's fraud-on-the-market presumption. I thus limit my dissent to demonstrating that the Court is not following Basic's dictates. Moreover, the Court acknowledges there is disagreement as to whether market efficiency is " ' "a binary, yes or no question," ' " or in-stead operates differently depending on the information at issue, see ante, at 14, n. 6 (quoting Brief for Petitioners 32, in turn quoting Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 167).Footnote 5 Basic "adopt[ed] the TSC Industries standard of materiality for the §10(b) and Rule 10b-5 context." 485 U. S., at 232. That standard indicates that " '[a]n omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.' " Id., at 231 (quoting TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 449 (1976); alteration in original). "[T]o fulfill the materiality requirement 'there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the "total mix" of information made available.' " 485 U. S., at 231-232 (quoting TSC Industries, supra, at 449).Footnote 6 The United States as amicus curiae invokes Rule 23(a)(3) to suggest that the third element, the timing of the relevant stock trades, is a "limit on the definition of the class." Brief for United States 15, n. 2. But it is also necessary to establish the timing of the allegedly material, public misstatement made into an allegedly efficient market (as well as when the fraud ended due to entry of truth on the market) before the fraud-on-the-market theory can be evaluated under Rule 23(b)(3). Thus, the lower court opinion in Basic expressly identified "the time the misrepresentations were made and the time the truth was revealed" as part of fraud on the market. Levinson v. Basic Inc., 786 F. 2d 741, 750 (CA6 1986). The Basic Court cited the formulation approvingly, 485 U. S., at 248, n. 27, and recently in Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. ___ (2011), the Court cited the same language as part of the "undisputed" elements a securities-fraud plaintiff must prove to invoke Basic. 563 U. S., at ___ (slip op., at 5-6) (quoting Basic, supra, at 248, n. 27). Unless the timing of the misrepresentation and truth is established at certification, there is no framework within which to determine whether fraud on the market renders reliance a common question. Thus, insofar as the majority recognizes that timing is a factor of the fraud-on-the-market theory, ante, at 16, n. 8, I agree. It would be incorrect to suggest that timing solely relates to Rules 23(a)(3) and (4). It is equally important to establish the timing range at certification for Rule 23(b)(3) reliance purposes. This fact undercuts the majority's attempt to isolate materiality as the only factor of fraud on the market that need not be shown at certification to demonstrate that reliance is a common question.Footnote 7 There is no dispute that respondent meets the prerequisites of Fed. Rule Civ. Proc. 23(a).Footnote 8 The majority ignores this explanation of the fundamental flaw in its position, asserting that I never "explain how . . . a plaintiff class's failure to prove an essential element of its claim for relief will result in individual questions predominating over common ones." Ante, at 12. But a plaintiff, who is excused from his burden of showing, at certifi-cation that reliance is a common question, fails to demonstrate that common questions predominate over the individualized questions of re-liance that are inherent in a securities fraud claim. A plaintiff must carry this burden at certification for certification to be proper. The majority does not respond to the inherent timing problem in its position. It does not explain how ignoring questions of reliance — that undeniably will be individualized in some cases — at certification is justified by the fact that those questions will be resolved months or years later on the merits in a way that indicates reliance was indeed an individualized question all along. Far from obeying the dictates of Rule 23(b)(3) as it claims, ante, at 12-13, the majority unjustifiably puts off a critical part of the Rule 23(b)(3) inquiry until the merits. The only way the majority can purport to follow Rule 23(b)(3) is by ignoring the fact that, under its own analysis, reliance may be an individualized question that predominates over common questions at certification.Footnote 9 Of course, the Court's assertion that materiality will be resolved on the merits presumes that certification will not bring in terrorem settlement pressures to bear, foreclosing any materiality inquiry at all. The Court dismisses this concern, ante, at 18-20, attempting to give fraud-on-the-market analysis the imprimatur of congressional enactment instead of recognizing it as a judicially created doctrine grafted onto an implied cause of action. But the fact that Congress has enacted legislation to curb excesses in securities litigation while leaving Basic intact, see ante, at 19-20, says nothing about the proper interpretation of Basic at issue here. The Court retains discretion over the contours of Basic unless and until Congress sees fit to alter them — a fact Congress must also have realized when it passed the Private Securities Litigation Reform Act of 1995, 109 Stat. 737, and other legislation. The Court's entire argument is based on the assumption that the fraud-on-the-market presumption need not be shown at certification because it will be proved later on the merits; insofar as certification makes that later determination unlikely to occur, it at least counsels against the certitude with which the Court assures us that its gloss on Basic is correct.Footnote 10 Ampex's sales for 1971 were just under $284 million. See Reckert, A. & P. Registers Deficit for First Fiscal Quarter, N. Y. Times, July 1, 1972, p. 30 (discussing Ampex's revenue and net loss in its 1972 Annual Report).Footnote 11 Blackie's use of materiality to satisfy reliance for purposes of Rule 23(b)(3) predominance continued to form the foundation for the fraud-on-the-market concept in subsequent pre-Basic appellate cases. See, e.g., Peil v. Speiser, 806 F. 2d 1154, 1161 (CA3 1986) ("[W]e hold that plaintiffs who purchase in an open and developed market need not prove direct reliance on defendants' misrepresentations, but can satisfy their burden of proof on the element of causation by showing that the defendants made material misrepresentations" (footnote omitted)); Panzirer v. Wolf, 663 F. 2d 365, 368 (CA2 1981) ("Blackie held that the materiality of a fraud creates a presumption of reliance through its presumed effect on the market. . . . Our holding is no more than an extension of Blackie").
0	204 Va. 275, 130 S. E. 2d 437, reversed.Calvin H. Childress argued the cause and filed a brief for petitioner.D. Gardiner Tyler, Assistant Attorney General of Virginia, argued the cause for respondent. With him on the briefs was Robert Y. Button, Attorney General of Virginia.PER CURIAM.The motion to strike the supplemental brief on behalf of the respondent is denied. The judgment is reversed. Silverman v. United States, ; Ker v. California, .MR. JUSTICE CLARK, concurring: Since the Court finds that the "spiked" mike used by the police officers penetrated petitioner's premises sufficiently to be an actual trespass thereof, I join in the judgment.MR. JUSTICE WHITE dissents.
0	Certiorari granted; judgment vacated and case remanded. Reported below: 266 F.2d 88.Petitioner pro se.Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Robert G. Maysack for the United States.PER CURIAM.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 for consideration in light of Elkins v. United States, ante, p. 206, decided this day.MR. JUSTICE FRANKFURTER dissents on the basis of his dissenting opinion in Rios v. United States, ante, p. 233, and Elkins v. United States, ante, p. 233, decided this day.
10	In a dispute between Illinois and Kentucky over their common boundary, the Special Master has recommended that this Court determine the boundary to be the "low-water mark on the northerly side of the Ohio River as it existed in the year 1792," rather than the river's northerly low-water mark "as it exists from time to time"; find that the record does not support Kentucky's affirmative defenses of acquiescence and laches and its defenses based on "principles of riparian boundaries, including accretion, erosion and avulsion"; find that the construction of dams on the river has caused the present low-water mark on the Illinois side to be farther north than it was in 1792; and order the two States' common boundary to be determined as nearly as the 1792 line can now be ascertained. Kentucky has filed exceptions.Held: 1. The boundary is the line of the low-water mark as it was in 1792. Pp. 383-388. (a) This is the rule that was used to determine the boundary between Kentucky and its neighboring States of Ohio, Ohio v. Kentucky, , and Indiana, Indiana v. Kentucky, ; and the history and precedent that supplied the rule in those cases govern here. Pp. 383-384. (b) Kentucky has not proved that, under the doctrine of prescription and acquiescence, the boundary is a transient low-water mark. The record fails to support Kentucky's claim of a long and continuous possession of, and assertion of sovereignty over, land within the territory delimited by the transient mark. Kentucky has imposed property taxes on only 3 of the 15 structures extending into the territory in question. And evidence of its ad valorem taxation of barges and other watercraft traveling on the river fails to speak directly to the boundary issue, since it is undisputed that the sailing line on the river is within Kentucky's boundary and jurisdiction, and since barges and watercraft would rarely venture near the disputed territory. Moreover, both the Legislative Research Commission of the Kentucky General Assembly and the Commonwealth's Attorney General have made references to the 1792 low water mark as the boundary. Nor does the record support the claim of Illinois' acquiescence. The descriptions of the boundary as following "along [the Ohio River's] north-western shore" in earlier versions of the Illinois Constitution are verbatim recitations of the congressional language describing Illinois' boundary in that State's Enabling Act, and the Special Master correctly reasoned that Congress intended Illinois' southern boundary to be the same as that granted Ohio and Indiana when they were formed. In addition, the Illinois Supreme Court took an even less hospitable view toward Kentucky's claim than the State Constitution when it adopted, and used for almost 50 years, a theory that would have ratchetted the boundary line forever southward toward the river's deepest point. Pp. 384-388. (c) Kentucky's other affirmative defenses are likewise unavailing. The laches defense is generally inapplicable against a State. And the defenses based on the "principles of riparian boundaries" require no extended consideration, for Kentucky concedes that these would affect the ultimate boundary determination only if it prevailed on the issues of prescription and acquiescence. Pp. 388-389. 2. Kentucky's exception to the recommended finding that the construction of dams on the river has permanently raised its level above that of 1792, consequently placing the present low-water mark on the Illinois side farther north than it was in 1792, is sustained. Any question about the relative locations of the 1792 line and today's low-water mark is premature, and should be determined after the Special Master has made further recommendations to resolve any disputes the parties may have about the exact location of the 1792 line. P. 389. Exceptions to Special Master's Report sustained in part and overruled in part, Report adopted in part, and case remanded.SOUTER, J., delivered the opinion for a unanimous Court.John Brunsman, Assistant Attorney General of Illinois, argued the cause for plaintiff. With him on the brief was Neil F. Hartigan, Attorney General.Rickie L. Pearson, Assistant Attorney General of Kentucky, argued the cause for defendant. With him on the brief were Frederic J. Cowan, Attorney General, and James M. Ringo, Assistant Attorney General.JUSTICE SOUTER delivered the opinion of the Court.In this case, we return again to the history and geography of the Ohio River valley, as we consider the location of the boundary of the Commonwealth of Kentucky with the State of Illinois. We hold it to be the line of the low water mark along the river's northerly shore as it was in 1792. IIn July, 1986, Illinois sought leave to file a bill of complaint against Kentucky, invoking this Court's original jurisdiction to resolve a disagreement about the location of the common boundary of the two States. See U.S. Const., Art. III, 2. Illinois asked the Court to declare "the boundary line ... to be the low-water mark on the northerly shore of the Ohio River as it existed in 1792," Report of Special Master 1-2, and to enjoin Kentucky "from disturbing in any manner the State of Illinois or its citizens from the peaceful use, and enjoyment of all land, water and jurisdiction within the boundaries of Illinois as established by the Court," id., at 2. We granted leave to file the bill of complaint, , and appointed the Honorable Robert Van Pelt as Special Master.* In its answer to the complaint, Kentucky denied that the boundary was the 1792 line and claimed it to be the river's northerly low-water mark "as it exists from time to time." The answer raised the "affirmative defenses" of acquiescence and laches, and invoked certain "principles of riparian boundaries." Report of Special Master 2.The parties spent the next three years in discovery and, after submitting evidence to the Special Master in January, 1990, were granted additional time to develop the evidentiary record on Kentucky's claim of prescription and acquiescence. After receiving this evidence in April, 1990, the Special Master submitted a report to this Court, which was ordered filed. .The Special Master recommended that we (1) determine the boundary between Illinois and Kentucky to be the "low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; (2) find that the record fails to "support the Commonwealth of Kentucky's affirmative defenses"; (3) find that the construction of dams on the Ohio River has caused "the present low-water mark on the Illinois side of the river [to be] farther north than it was in 1792"; and (4) order the two States' common boundary to be determined, "as nearly as [the 1792 line] can now be ascertained, ... either (a) by agreement of the parties, (b) by joint survey agreed upon by both parties, or (c) in the absence of such an agreement or survey, [by the Court] after hearings conducted by the Special Master and the submission by him to the Court of proposed findings and conclusions." Report of Special Master 48-49.Kentucky has filed exceptions to the Special Master's report. While Kentucky challenges many of the factual findings, its primary dispute is with the conclusion that Kentucky has failed to prove its claim, styled as an affirmative defense, that, under the doctrine of prescription and acquiescence, the boundary is the low-water mark as it may be from to time.IIAWe agree in large measure with the Special Master's report. The threshold issue presented in this case was resolved in Ohio v. Kentucky, , in which we held that Kentucky's boundary with Ohio was the northerly low-water mark of the Ohio River as it was in 1792. We based that holding on the history of Virginia's 1784 cession to the United States of the lands "northwest of the river Ohio" and Kentucky's succession to Virginia's northwest boundary upon reaching statehood in 1792. Id., at 337-338. We relied on the prior opinion in Indiana v. Kentucky, , in which Justice Field, for a unanimous Court, reviewed this history and held that Kentucky's boundary with Indiana followed the low-water mark on the northerly shore of the Ohio River "when Kentucky became a State." Ibid. The same history and precedent that supplied the general rule for determining the boundary separating Kentucky from its neighboring States of Ohio and Indiana on the Ohio River also govern the determination of Kentucky's historical boundary on that river with Illinois.Kentucky has, indeed, conceded that, "if this case were before the Court simply as a matter of law, Ohio v. Kentucky ... would be controlling precedent." Exceptions of Commonwealth of Kentucky 9 (emphasis in original). Kentucky's exceptions assume, rather, that the case does not turn on the issue of law decided in Ohio v. Kentucky, but on the "factual issue of acquiescence which Kentucky has raised as an affirmative defense on the question of its boundary with Illinois." Exceptions of Commonwealth of Kentucky 9-10. Kentucky contends that it has long asserted, and Illinois has acquiesced in the assertion, that the common boundary of the two States is the low-water mark of the Ohio River, not as it was in 1792, but as it may be from time to time.Although Kentucky has styled its acquiescence claim an affirmative defense, this "defense," if successfully proved, would not only counter Illinois' boundary claim but also establish Kentucky's own position. To do this on a theory of prescription and acquiescence, Kentucky would need to show by a preponderance of the evidence, first, a long and continuous possession of, and assertion of sovereignty over, the territory delimited by the transient low-water mark. Longstanding "[p]ossession and dominion are essential elements of a claim of sovereignty by prescription and acquiescence." Georgia v. South Carolina, . Kentucky would then have the burden to prove Illinois' long acquiescence in those acts of possession and jurisdiction. As we stated in Oklahoma v. Texas, , there is a "general principle of public law" that, as between States, a "long acquiescence in the possession of territory under a claim of right and in the exercise of dominion and sovereignty over it, is conclusive of the rightful authority." See also Georgia v. South Carolina, supra, at 389 ("[L]ong acquiescence in the practical location of an interstate boundary, and possession in accordance therewith, often has been used as an aid in resolving boundary disputes" between States).The record developed before the Special Master in this case fails to support Kentucky's claim of sovereignty by prescription and acquiescence. After a thorough review of the voluminous evidence presented by both States, the Special Master concluded that Kentucky had proved neither long and continuous action in support of its claim to a boundary at the northerly low-water mark as it might be from time to time, nor Illinois' acquiescence in that claim. While Kentucky's many exceptions to the extensive factual findings on these issues do not merit discussion seriatim, an examination of a few will indicate the evidentiary support generally for the Special Master's conclusions.The Special Master first assessed the evidence bearing on Kentucky's exercise of dominion. According to Kentucky's view of the boundary, for example, any permanent structure extending out over the water from the river's northern bank would be within Kentucky's territory, and subject to its taxing power, one of the primary indicia of sovereignty. The record in this case, however, shows that Kentucky has imposed a property tax on only 3 of the 15 structures that extend out, into, or over the water from the Illinois shoreline. Of the three affected taxpayers, one who received a Kentucky tax bill for property extending south into the river was also taxed on the same structure by Illinois, and another paid the Kentucky bill only under protest, "claiming that the property [taxed was] within the State of Illinois." Report of Special Master 37. The remaining 12 structures extending south into the river from Illinois have never been taxed by Kentucky.Kentucky advanced what it took to be a stronger claim to having exercised exclusive taxing jurisdiction right up to the transient low water mark by offering evidence of its ad valorem taxation of barges and other watercraft traveling on the river. But this evidence simply fails to speak directly to the boundary issue in this case. Vessels traveling the river usually follow a sailing line charted by the United States Army Corps of Engineers which, for most of the stretch in question, is either close to the center of the river or near the Kentucky shore. Illinois does not dispute that the sailing line, like most of the river, is within the boundary and jurisdiction of Kentucky. Id., at 38. The territory in question, rather, is thought to be a comparatively narrow sliver of the Ohio along its northerly shore, where barges and watercraft would rarely venture. As to the sliver, Kentucky's acts of taxation have been, at best, equivocal, and the Special Master was accordingly correct when he observed that the fact of Kentucky's taxation of barges "traveling on the Ohio River within the acknowledged jurisdiction of Kentucky, does not support Kentucky's claim of exclusive jurisdiction of the entire breadth of the river." Ibid.This evidence of Kentucky's failure to engage in consistent and unequivocal acts of occupation and dominion does not stand alone, however, for we are concerned not only with what its officers have done, but with what they have said, as well. And what they have said has, in several instances, supported Illinois' claim. The Legislative Research Commission of the Kentucky General Assembly and the Attorney General of Kentucky have each taken the position in the recent past that Kentucky's northern border is the 1792 low-water mark. An Information Bulletin issued by the Legislative Research Commission in December 1972 states that "`Kentucky's North and Western boundary, to-wit, the low-water mark on the North shore of the Ohio River as of 1792 has been recognized as the boundary based upon the fact that Kentucky was created from what was then Virginia.'" Id., at 15. An earlier opinion by the Commonwealth's Attorney General issued in 1963 asserted that the "`law, of course is that the boundary line between the states of Indiana and Kentucky is the low-water [mark] on the north shore of the Ohio as it existed when Kentucky became a state in 1792.'" Id., at 12. These statements came to our attention in Kentucky's last boundary case in this Court, where we found it "of no little interest" in deciding Ohio v. Kentucky, 444 U.S., at 340-341, that these "Kentucky sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary." It is hardly of less interest this time.Just as this representative evidence fails to indicate any longstanding exercise of occupation and dominion of the disputed area by Kentucky, the record is equally unsupportive of the claim of Illinois' acquiescence. It is true that the Illinois Constitution of 1818 described the State's boundary with Kentucky on the Ohio River simply as following "along its north-western shore," Ill. Const., Preamble (1818), and the same description was employed in the State Constitutions of 1848 and 1870, see Ill. Const., Art. I (1848), Ill. Const., Art. I (1870). But these are verbatim recitations of the congressional language describing Illinois' boundary in the State's Enabling Act of April 18, 1818, ch. 67, 3 Stat. 428, and the Special Master correctly reasoned that "[w]hat Congress intended to be the southern boundary of Illinois, was the same southern boundary granted the states of Ohio and Indiana when they were formed... . Illinois, like Ohio and Indiana, was created from the territory ceded by Virginia to the United States... ." Report of Special Master 28. Although the current version of the Illinois Constitution, adopted in 1970, omits any description of the State's boundaries, the 1870 Constitution's language remained the reference point in the most recent Illinois case dealing with the State's river boundary that has come to our attention. See People ex rel. Scott v. Dravo Corp., 10 Ill. App. 3d 944, 944-945, 295 N.E.2d 284, 285 (1973), cert. denied, . The courts of Illinois, indeed, for some time took an even less hospitable view of Kentucky's interests than the Illinois Constitution did. In Joyce-Watkins Co. v. Industrial Comm'n, 325 Ill. 378, 381, 156 N.E. 346, 348 (1927), the State Supreme Court adopted a theory that would have ratchetted the boundary line forever southward toward the deepest point of the river, by holding the boundary to be the low-water mark on the northerly shore of the river at the "point to which the water receded at its lowest stage." This description of the boundary was followed by Illinois courts until at least 1973, see People ex rel. Scott v. Dravo Corp., supra, and while it plainly conflicts with our decisions in Indiana v. Kentucky, and Ohio v. Kentucky, supra, its use over nearly 50 years shows that Illinois did not acquiesce in any claim by Kentucky to a low-water mark that might edge northward over time.Such was the force of the evidence adduced, and such was its failure to support Kentucky's claim of prescription and acquiescence.BKentucky's other affirmative defenses are likewise unavailing. The Special Master correctly observed that the laches defense is generally inapplicable against a State. See Block v. North Dakota, ex rel. Bd. of Univ. and School Lands, (O'CONNOR, J., dissenting) (collecting authorities); Guaranty Trust Co. v. United States, ; cf. Weber v. Board of Harbor Comm'rs, 18 Wall. 57, 70 (1873) (statutes of limitations generally not applicable to State). Although the law governing interstate boundary disputes takes account of the broad policy disfavoring the untimely assertion of rights that underlies the defense of laches and statutes of limitations, it does so through the doctrine of prescription and acquiescence, see generally Georgia v. South Carolina, supra, which Kentucky has failed to satisfy. Kentucky's affirmative defenses based on the "principles of riparian boundaries, including accretion, erosion and avulsion," require no extended consideration, for Kentucky concedes that these would affect the ultimate boundary determination only if it prevailed on the issues of prescription and acquiescence. Exceptions of Commonwealth of Kentucky 48-49 ("It is Kentucky's position that if it prevails on its affirmative defense of acquiescence, then the well-recognized principles of accretion, erosion and avulsion would obviously apply to a current shoreline boundary as it may change from time to time"). We have previously held as much, concluding that "the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river" have no application to Kentucky's Ohio River boundary because of the "historical factors" stemming from the cession by Virginia of the land northwest of the river to the United States. Ohio v. Kentucky, supra, at 337.Kentucky's final exception to the Special Master's report goes to the finding in Part III.C. that construction of dams on the river has permanently raised its level above that of 1792, consequently placing the present low-water mark on the Illinois side farther north than it was in 1792. Kentucky calls any question about the relative locations of the 1792 line and today's low-water mark premature, and we agree. Indeed, the Special Master himself suggested that this issue might, if necessary, "be determined at a later date," Report of Special Master 47, after he had made further recommendations to resolve any disputes the parties may have about the exact location of the 1792 line.IIIThe exception of the Commonwealth of Kentucky to Part III.C. and Recommendation (3) of the report of the Special Master, as to the effect of modern dams on the level of the Ohio River, is sustained. Kentucky's other exceptions are overruled. The report, save for Part III.C. and Recommendation (3), is adopted, and the case remanded to the Special Master for such further proceedings as may be necessary to prepare and submit an appropriate decree for adoption by the Court, locating the 1792 line.It is so ordered.[Footnote *] In June, 1988, we appointed a new Special Master, Matthew J. Jasen, Esq., to replace Judge Van Pelt, who had died in April 1988. .
12	In order to eliminate the federal budget deficit, Congress enacted the Balanced Budget and Emergency Deficit Control Act of 1985 (Act), popularly known as the "Gramm-Rudman-Hollings Act," which sets a maximum deficit amount for federal spending for each of the fiscal years 1986 through 1991 (progressively reducing the deficit amount to zero in 1991). If in any fiscal year the budget deficit exceeds the prescribed maximum by more than a specified sum, the Act requires basically across-the-board cuts in federal spending to reach the targeted deficit level. These reductions are accomplished under the "reporting provisions" spelled out in 251 of the Act, which requires the Directors of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) to submit their deficit estimates and program-by-program budget reduction calculations to the Comptroller General who, after reviewing the Directors' joint report, then reports his conclusions to the President. The President in turn must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General, and the sequestration order becomes effective unless, within a specified time, Congress legislates reductions to obviate the need for the sequestration order. The Act also contains in 274(f) a "fallback" deficit reduction process (eliminating the Comptroller General's participation) to take effect if 251's reporting provisions are invalidated. In consolidated actions in the Federal District Court, individual Congressmen and the National Treasury Employees Union (Union) (who, along with one of the Union's members, are appellees here) challenged the Act's constitutionality. The court held, inter alia, that the Comptroller General's role in exercising executive functions under the Act's deficit reduction process violated the constitutionally imposed doctrine of separation of powers because the Comptroller General is removable only by a congressional joint resolution or by impeachment, and Congress may not retain the power of removal over an officer performing executive powers.Held: 1. The fact that members of the Union, one of whom is an appellee here, will sustain injury because the Act suspends certain scheduled cost-of-living benefit increases to the members, is sufficient to create standing under a provision of the Act and Article III to challenge the Act's constitutionality. Therefore, the standing issue as to the Union itself or Members of Congress need not be considered. P. 721. 2. The powers vested in the Comptroller General under 251 violate the Constitution's command that Congress play no direct role in the execution of the laws. Pp. 721-734. (a) Under the constitutional principle of separation of powers, Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control of the execution of the laws. The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. Cf. INS v. Chadha, . Pp. 721-727. (b) There is no merit to the contention that the Comptroller General performs his duties independently and is not subservient to Congress. Although nominated by the President and confirmed by the Senate, the Comptroller General is removable only at the initiative of Congress. Under controlling statutes, he may be removed not only by impeachment but also by joint resolution of Congress "at any time" for specified causes, including "inefficiency," "neglect of duty," and "malfeasance." The quoted terms, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. Moreover, the political realities do not reveal that the Comptroller General is free from Congress' influence. He heads the General Accounting Office, which under pertinent statutes is "an instrumentality of the United States Government independent of the executive departments," and Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. Thus, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. Pp. 727-732. (c) Under 251 of the Act, the Comptroller General has been improperly assigned executive powers. Although he is to have "due regard" for the estimates and reductions contained in the joint report of the Directors of the CBO and the OMB, the Act clearly contemplates that in preparing his report the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates and will make decisions of the kind that are made by officers charged with executing a statute. The Act's provisions give him, not the President, the ultimate authority in determining what budget cuts are to be made. By placing the responsibility for execution of the Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the Act's execution and has unconstitutionally intruded into the executive function. Pp. 732-734. 3. It is not necessary to consider whether the appropriate remedy is to nullify the 1921 statutory provisions that authorize Congress to remove the Comptroller General, rather than to invalidate 251 of the Act. In 274(f), Congress has explicitly provided "fallback" provisions that take effect if any of the reporting procedures described in 251 are invalidated. Assuming that the question of the appropriate remedy must be resolved on the basis of congressional intent, the intent appears to have been for 274(f) to be given effect as written. Pp. 734-736. 626 F. Supp. 1374, affirmed.BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment in which MARSHALL, J., joined, post, p. 736. WHITE, J., post, p. 759, and BLACKMUN, J., post, p. 776, filed dissenting opinions.[Footnote *] Together with No. 85-1378, United States Senate v. Synar, Member of Congress, et al., and No. 85-1379, O'Neill, Speaker of the United States House of Representatives, et al. v. Synar, Member of Congress, et al., also on appeal from the same court.Lloyd N. Cutler argued the cause for appellant in No. 85-1377. With him on the briefs were John H. Pickering, William T. Lake, Richard K. Lahne, and Neal T. Kilminster. Steven R. Ross argued the cause for appellants in No. 85-1379. With him on the briefs were Charles Tiefer and Michael L. Murray. Michael Davidson argued the cause for appellant in No. 85-1378. With him on the briefs were Ken U. Benjamin, Jr., and Morgan J. Frankel.Solicitor General Fried argued the cause for the United States. With him on the brief were Assistant Attorney General Willard, Deputy Solicitor General Kuhl, Deputy Assistant Attorney General Spears, Edwin S. Kneedler, Robert E. Kopp, Neil H. Koslowe, and Douglas Letter. Alan B. Morrison argued the cause for appellees Synar et al. With him on the brief was Katherine A. Meyer. Lois G. Williams argued the cause for appellees National Treasury Employees Union et al. With her on the brief were Gregory O'Duden and Elaine D. Kaplan.Fn Fn Briefs of amici curiae urging reversal were filed for the National Tax Limitation Committee et al. by Ronald A. Zumbrun, Sam Kazman, and Lucinda Low Swartz; and for Howard H. Baker, Jr., pro se. Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations et al by Robert M. Weinberg, Peter O. Shinevar, Laurence Gold, George Kaufmann, Edward J. Hickey, Jr., Thomas A. Woodley, Mark Roth, Darryl J. Anderson, and Anton G. Hajjar, for the Coalition for Health Funding et al. by Stephan E. Lawton and Jack N. Goodman; for the National Federation of Federal Employees by Patrick J. Riley; and for William H. Gray III et al. by Richard A. Wegman, Paul S. Hoff, and Thomas H. Stanton. Briefs of amici curiae were filed for the American Jewish Congress by Neil H. Cogan; and for Edward Blankstein by Eric H. Karp.CHIEF JUSTICE BURGER delivered the opinion of the Court.The question presented by these appeals is whether the assignment by Congress to the Comptroller General of the United States of certain functions under the Balanced Budget and Emergency Deficit Control Act of 1985 violates the doctrine of separation of powers.IAOn December 12, 1985, the President signed into law the Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99-177, 99 Stat. 1038, 2 U.S.C. 901 et seq. (1982 ed., Supp. III), popularly known as the "Gramm-Rudman-Hollings Act." The purpose of the Act is to eliminate the federal budget deficit. To that end, the Act sets a "maximum deficit amount" for federal spending for each of fiscal years 1986 through 1991. The size of that maximum deficit amount progressively reduces to zero in fiscal year 1991. If in any fiscal year the federal budget deficit exceeds the maximum deficit amount by more than a specified sum, the Act requires across-the-board cuts in federal spending to reach the targeted deficit level, with half of the cuts made to defense programs and the other half made to nondefense programs. The Act exempts certain priority programs from these cuts. 255.These "automatic" reductions are accomplished through a rather complicated procedure, spelled out in 251, the so-called "reporting provisions" of the Act. Each year, the Directors of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) independently estimate the amount of the federal budget deficit for the upcoming fiscal year. If that deficit exceeds the maximum targeted deficit amount for that fiscal year by more than a specified amount, the Directors of OMB and CBO independently calculate, on a program-by-program basis, the budget reductions necessary to ensure that the deficit does not exceed the maximum deficit amount. The Act then requires the Directors to report jointly their deficit estimates and budget reduction calculations to the Comptroller General.The Comptroller General, after reviewing the Directors' reports, then reports his conclusions to the President. 251(b). The President in turn must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General. 252. There follows a period during which Congress may by legislation reduce spending to obviate, in whole or in part, the need for the sequestration order. If such reductions are not enacted, the sequestration order becomes effective and the spending reductions included in that order are made.Anticipating constitutional challenge to these procedures, the Act also contains a "fallback" deficit reduction process to take effect "[i]n the event that any of the reporting procedures described in section 251 are invalidated." 274(f). Under these provisions, the report prepared by the Directors of OMB and the CBO is submitted directly to a specially created Temporary Joint Committee on Deficit Reduction, which must report in five days to both Houses a joint resolution setting forth the content of the Directors' report. Congress then must vote on the resolution under special rules, which render amendments out of order. If the resolution is passed and signed by the President, it then serves as the basis for a Presidential sequestration order.BWithin hours of the President's signing of the Act,1 Congressman Synar, who had voted against the Act, filed a complaint seeking declaratory relief that the Act was unconstitutional. Eleven other Members later joined Congressman Synar's suit. A virtually identical lawsuit was also filed by the National Treasury Employees Union. The Union alleged that its members had been injured as a result of the Act's automatic spending reduction provisions, which have suspended certain cost-of-living benefit increases to the Union's members.2 A three-judge District Court, appointed pursuant to 2 U.S.C. 922(a)(5) (1982 ed., Supp. III), invalidated the reporting provisions. Synar v. United States, 626 F. Supp. 1374 (DC 1986) (Scalia, Johnson, and Gasch, JJ.). The District Court concluded that the Union had standing to challenge the Act since the members of the Union had suffered actual injury by suspension of certain benefit increases. The District Court also concluded that Congressman Synar and his fellow Members had standing under the so-called "congressional standing" doctrine. See Barnes v. KlineApp. D.C. 1, 21, 759 F.2d 21, 41 (1985), cert. granted sub nom. Burke v. Barnes, . The District Court next rejected appellees' challenge that the Act violated the delegation doctrine. The court expressed no doubt that the Act delegated broad authority, but delegation of similarly broad authority has been upheld in past cases. The District Court observed that in Yakus v. United States, , this Court upheld a statute that delegated to an unelected "Price Administrator" the power "to promulgate regulations fixing prices of commodities." Moreover, in the District Court's view, the Act adequately confined the exercise of administrative discretion. The District Court concluded that "the totality of the Act's standards, definitions, context, and reference to past administrative practice provides an adequate `intelligible principle' to guide and confine administrative decision making." 626 F. Supp., at 1389.Although the District Court concluded that the Act survived a delegation doctrine challenge, it held that the role of the Comptroller General in the deficit reduction process violated the constitutionally imposed separation of powers. The court first explained that the Comptroller General exercises executive functions under the Act. However, the Comptroller General, while appointed by the President with the advice and consent of the Senate, is removable not by the President but only by a joint resolution of Congress or by impeachment. The District Court reasoned that this arrangement could not be sustained under this Court's decisions in Myers v. United States, , and Humphrey's Executor v. United States, . Under the separation of powers established by the Framers of the Constitution, the court concluded, Congress may not retain the power of removal over an officer performing executive functions. The congressional removal power created a "here-and-now subservience" of the Comptroller General to Congress. 626 F. Supp., at 1392. The District Court therefore held that "since the powers conferred upon the Comptroller General as part of the automatic deficit reduction process are executive powers, which cannot constitutionally be exercised by an officer removable by Congress, those powers cannot be exercised and therefore the automatic deficit reduction process to which they are are central cannot be implemented." Id., at 1403. Appeals were taken directly to this Court pursuant to 274(b) of the Act. We noted probable jurisdiction and expedited consideration of the appeals. . We affirm.IIA threshold issue is whether the Members of Congress, members of the National Treasury Employees Union, or the Union itself have standing to challenge the constitutionality of the Act in question. It is clear that members of the Union, one of whom is an appellee here, will sustain injury by not receiving a scheduled increase in benefits. See 252(a)(6)(C)(i); 626 F. Supp., at 1381. This is sufficient to confer standing under 274(a)(2) and Article III. We therefore need not consider the standing issue as to the Union or Members of Congress. See Secretary of Interior v. California, , n. 3 (1984). Cf. Automobile Workers v. Brock, ; Barnes v. Kline, supra. Accordingly, we turn to the merits of the case.IIIWe noted recently that "[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." INS v. Chadha, . The declared purpose of separating and dividing the powers of government, of course, was to "diffus[e] power the better to secure liberty." Youngstown Sheet & Tube Co. v. Sawyer, (Jackson, J., concurring). Justice Jackson's words echo the famous warning of Montesquieu, quoted by James Madison in The Federalist No. 47, that "`there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates' ... ." The Federalist No. 47, p. 325 (J. Cooke ed. 1961).Even a cursory examination of the Constitution reveals the influence of Montesquieu's thesis that checks and balances were the foundation of a structure of government that would protect liberty. The Framers provided a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people. The Framers also provided for a Judicial Branch equally independent with "[t]he judicial Power ... extend[ing] to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States." Art. III, 2.Other, more subtle, examples of separated powers are evident as well. Unlike parliamentary systems such as that of Great Britain, no person who is an officer of the United States may serve as a Member of the Congress. Art. I, 6. Moreover, unlike parliamentary systems, the President, under Article II, is responsible not to the Congress but to the people, subject only to impeachment proceedings which are exercised by the two Houses as representatives of the people. Art. II, 4. And even in the impeachment of a President the presiding officer of the ultimate tribunal is not a member of the Legislative Branch, but the Chief Justice of the United States. Art. I, 3.That this system of division and separation of powers produces conflicts, confusion, and discordance at times is inherent, but it was deliberately so structured to assure full, vigorous, and open debate on the great issues affecting the people and to provide avenues for the operation of checks on the exercise of governmental power.The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts. The President appoints "Officers of the United States" with the "Advice and Consent of the Senate ... ." Art. II. 2. Once the appointment has been made and confirmed, however, the Constitution explicitly provides for removal of Officers of the United States by Congress only upon impeachment by the House of Representatives and conviction by the Senate. An impeachment by the House and trial by the Senate can rest only on "Treason, Bribery or other high Crimes and Misdemeanors." Art. II, 4. A direct congressional role in the removal of officers charged with the execution of the laws beyond this limited one is inconsistent with separation of powers.This was made clear in debate in the First Congress in 1789. When Congress considered an amendment to a bill establishing the Department of Foreign Affairs, the debate centered around whether the Congress "should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate." Myers, 272 U.S., at 114. James Madison urged rejection of a congressional role in the removal of Executive Branch officers, other than by impeachment, saying in debate:"Perhaps there was no argument urged with more success, or more plausibly grounded against the Constitution, under which we are now deliberating, than that founded on the mingling of the Executive and Legislative branches of the Government in one body. It has been objected, that the Senate have too much of the Executive power even, by having a control over the President in the appointment to office. Now, shall we extend this connection between the Legislative and Executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the Executive?" 1 Annals of Cong. 380 (1789). Madison's position ultimately prevailed, and a congressional role in the removal process was rejected. This "Decision of 1789" provides "contemporaneous and weighty evidence" of the Constitution's meaning since many of the Members of the First Congress "had taken part in framing that instrument." Marsh v. Chambers, .3 This Court first directly addressed this issue in Myers v. United States, . At issue in Myers was a statute providing that certain postmasters could be removed only "by and with the advice and consent of the Senate." The President removed one such Postmaster without Senate approval, and a lawsuit ensued. Chief Justice Taft, writing for the Court, declared the statute unconstitutional on the ground that for Congress to "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power ... would be ... to infringe the constitutional principle of the separation of governmental powers." Id., at 161.A decade later, in Humphrey's Executor v. United States, , relied upon heavily by appellants, a Federal Trade Commissioner who had been removed by the President sought backpay. Humphrey's Executor involved an issue not presented either in the Myers case or in this case i. e., the power of Congress to limit the President's powers of removal of a Federal Trade Commissioner. 295 U.S. at 630.4 The relevant statute permitted removal "by the President," but only "for inefficiency, neglect of duty, or malfeasance in office." Justice Sutherland, speaking for the Court, upheld the statute, holding that "illimitable power of removal is not possessed by the President [with respect to Federal Trade Commissioners]." Id., at 628-629. The Court distinguished Myers, reaffirming its holding that congressional participation in the removal of executive officers is unconstitutional. Justice Sutherland's opinion for the Court also underscored the crucial role of separated powers in our system: "The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality." 295 U.S., at 629-630. The Court reached a similar result in Wiener v. United States, , concluding that, under Humphrey's Executor, the President did not have unrestrained removal authority over a member of the War Claims Commission.In light of these precedents, we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. As the District Court observed: "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." 626 F. Supp., at 1401. The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.Our decision in INS v. Chadha, , supports this conclusion. In Chadha, we struck down a one-House "legislative veto" provision by which each House of Congress retained the power to reverse a decision Congress had expressly authorized the Attorney General to make:"Disagreement with the Attorney General's decision on Chadha's deportation - that is, Congress' decision to deport Chadha - no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked." Id., at 954-955. To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over the execution of the laws, Chadha makes clear, is constitutionally impermissible.The dangers of congressional usurpation of Executive Branch functions have long been recognized. "[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches." Buckley v. Valeo, . Indeed, we also have observed only recently that "[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted." Chadha, supra, at 951. With these principles in mind, we turn to consideration of whether the Comptroller General is controlled by Congress.IVAppellants urge that the Comptroller General performs his duties independently and is not subservient to Congress. We agree with the District Court that this contention does not bear close scrutiny.The critical factor lies in the provisions of the statute defining the Comptroller General's office relating to removability.5 Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, see 31 U.S.C. 703 (a)(2),6 and confirmed by the Senate, he is removable only at the initiative of Congress. He may be removed not only by impeachment but also by joint resolution of Congress "at any time" resting on any one of the following bases:"(i) permanent disability;"(ii) inefficiency;"(iii) neglect of duty;"(iv) malfeasance; or"(v) a felony or conduct involving moral turpitude."31 U.S.C. 703(e)(1)B.7 This provision was included, as one Congressman explained in urging passage of the Act, because Congress "felt that [the Comptroller General] should be brought under the sole control of Congress, so that Congress at any moment when it found he was inefficient and was not carrying on the duties of his office as he should and as the Congress expected, could remove him without the long, tedious process of a trial by impeachment." 61 Cong. Rec. 1081 (1921).The removal provision was an important part of the legislative scheme, as a number of Congressmen recognized. Representative Hawley commented: "[H]e is our officer, in a measure, getting information for us ... . If he does not do his work properly, we, as practically his employers, ought to be able to discharge him from his office." 58 Cong. Rec. 7136 (1919). Representative Sisson observed that the removal provisions would give "[t]he Congress of the United States ... absolute control of the man's destiny in office." 61 Cong. Rec. 987 (1921). The ultimate design was to "give the legislative branch of the Government control of the audit, not through the power of appointment, but through the power of removal." 58 Cong. Rec. 7211 (1919) (Rep. Temple).JUSTICE WHITE contends: "The statute does not permit anyone to remove the Comptroller at will; removal is permitted only for specified cause, with the existence of cause to be determined by Congress following a hearing. Any removal under the statute would presumably be subject to post-termination judicial review to ensure that a hearing had in fact been held and that the finding of cause for removal was not arbitrary." Post, at 770. That observation by the dissenter rests on at least two arguable premises: (a) that the enumeration of certain specified causes of removal excludes the possibility of removal for other causes, cf. Shurtleft v. United States, ; and (b) that any removal would be subject to judicial review, a position that appellants were unwilling to endorse.8 Glossing over these difficulties, the dissent's assessment of the statute fails to recognize the breadth of the grounds for removal. The statute permits removal for "inefficiency," "neglect of duty," or "malfeasance." These terms are very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. The Constitutional Convention chose to permit impeachment of executive officers only for "Treason, Bribery, or other high Crimes and Misdemeanors." It rejected language that would have permitted impeachment for "maladministration," with Madison arguing that "[s]o vague a term will be equivalent to a tenure during pleasure of the Senate." 2 M. Farrand, Records of the Federal Convention of 1787, p. 550 (1911).We need not decide whether "inefficiency" or "malfeasance" are terms as broad as "maladministration" in order to reject the dissent's position that removing the Comptroller General requires "a feat of bipartisanship more difficult than that required to impeach and convict." Post, at 771 (WHITE, J., dissenting). Surely no one would seriously suggest that judicial independence would be strengthened by allowing removal of federal judges only by a joint resolution finding "inefficiency," "neglect of duty," or "malfeasance."JUSTICE WHITE, however, assures us that "[r]ealistic consideration" of the "practical result of the removal provision," post, at 774, 773, reveals that the Comptroller General is unlikely to be removed by Congress. The separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress. The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty. In constitutional terms, the removal powers over the Comptroller General's office dictate that he will be subservient to Congress.This much said, we must also add that the dissent is simply in error to suggest that the political realities reveal that the Comptroller General is free from influence by Congress. The Comptroller General heads the General Accounting Office (GAO), "an instrumentality of the United States Government independent of the executive departments," 31 U.S.C. 702(a), which was created by Congress in 1921 as part of the Budget and Accounting Act of 1921, 42 Stat. 23. Congress created the office because it believed that it "needed an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations." H. Mansfield, The Comptroller General: A Study in the Law and Practice of Financial Administration 65 (1939).It is clear that Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. The Reorganization Acts of 1945 and 1949, for example, both stated that the Comptroller General and the GAO are "a part of the legislative branch of the Government." 59 Stat. 616; 63 Stat. 205. Similarly, in the Accounting and Auditing Act of 1950, Congress required the Comptroller General to conduct audits "as an agent of the Congress." 64 Stat. 835.Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. In one of the early Annual Reports of Comptroller General, the official seal of his office was described as reflecting"the independence of judgment to be exercised by the General Accounting Office, subject to the control of the legislative branch... . The combination represents an agency of the Congress independent of other authority auditing and checking the expenditures of the Government as required by law and subjecting any questions arising in that connection to quasi-judicial determination." GAO Ann. Rep. 5-6 (1924). Later, Comptroller General Warren, who had been a Member of Congress for 15 years before being appointed Comptroller General, testified: "During most of my public life, ... I have been a member of the legislative branch. Even now, although heading a great agency, it is an agency of the Congress, and I am an agent of the Congress." To Provide for Reorganizing of Agencies of the Government: Hearings on H. R. 3325 before the House Committee on Expenditures, 79th Cong., 1st Sess., 69 (1945) (emphasis added). And, in one conflict during Comptroller General McCarl's tenure, he asserted his independence of the Executive Branch, stating:"Congress ... is ... the only authority to which there lies an appeal from the decision of this office... . "... I may not accept the opinion of any official, inclusive of the Attorney General, as controlling my duty under the law." 2 Comp. Gen. 784, 786-787 (1923) (disregarding conclusion of the Attorney General, 33 Op. Atty. Gen. 476 (1923), with respect to interpretation of compensation statute). Against this background, we see no escape from the conclusion that, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. The remaining question is whether the Comptroller General has been assigned such powers in the Balanced Budget and Emergency Deficit Control Act of 1985.VThe primary responsibility of the Comptroller General under the instant Act is the preparation of a "report." This report must contain detailed estimates of projected federal revenues and expenditures. The report must also specify the reductions, if any, necessary to reduce the deficit to the target for the appropriate fiscal year. The reductions must be set forth on a program-by-program basis.In preparing the report, the Comptroller General is to have "due regard" for the estimates and reductions set forth in a joint report submitted to him by the Director of CBO and the Director of OMB, the President's fiscal and budgetary adviser. However, the Act plainly contemplates that the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates. The Act also provides that the Comptroller General's report "shall explain fully any differences between the contents of such report and the report of the Directors." 251(b)(2).Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law. Under 251, the Comptroller General must exercise judgment concerning facts that affect the application of the Act. He must also interpret the provisions of the Act to determine precisely what budgetary calculations are required. Decisions of that kind are typically made by officers charged with executing a statute.The executive nature of the Comptroller General's functions under the Act is revealed in 252(a)(3) which gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the directive of the Comptroller General as to the budget reductions:"The [Presidential] order must provide for reductions in the manner specified in section 251(a)(3), must incorporate the provisions of the [Comptroller General's] report submitted under section 251(b), and must be consistent with such report in all respects. The President may not modify or recalculate any of the estimates, determinations, specifications, bases, amounts, or percentages set forth in the report submitted under section 251(b) in determining the reductions to be specified in the order with respect to programs, projects, and activities, or with respect to budget activities, within an account ... ." 252(a)(3) (emphasis added). See also 251(d)(3)(A).Congress of course initially determined the content of the Balanced Budget and Emergency Deficit Control Act; and undoubtedly the content of the Act determines the nature of the executive duty. However, as Chadha makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly - by passing new legislation. Chadha, 462 U.S., at 958. By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function. The Constitution does not permit such intrusion.VIWe now turn to the final issue of remedy. Appellants urge that rather than striking down 251 and invalidating the significant power Congress vested in the Comptroller General to meet a national fiscal emergency, we should take the lesser course of nullifying the statutory provisions of the 1921 Act that authorizes Congress to remove the Comptroller General. At oral argument, counsel for the Comptroller General suggested that this might make the Comptroller General removable by the President. All appellants urge that Congress would prefer invalidation of the removal provisions rather than invalidation of 251 of the Balanced Budget and Emergency Deficit Control Act.Severance at this late date of the removal provisions enacted 65 years ago would significantly alter the Comptroller General's office, possibly by making him subservient to the Executive Branch. Recasting the Comptroller General as an officer of the Executive Branch would accordingly alter the balance that Congress had in mind in drafting the Budget and Accounting Act of 1921 and the Balanced Budget and Emergency Deficit Control Act, to say nothing of the wide array of other tasks and duties Congress has assigned the Comptroller General in other statutes.9 Thus appellants' argument would require this Court to undertake a weighing of the importance Congress attached to the removal provisions in the Budget and Accounting Act of 1921 as well as in other subsequent enactments against the importance it placed on the Balanced Budget and Emergency Deficit Control Act of 1985.Fortunately this is a thicket we need not enter. The language of the Balanced Budget and Emergency Deficit Control Act itself settles the issue. In 274(f), Congress has explicitly provided "fallback" provisions in the Act that take effect "[i]n the event ... any of the reporting procedures described in section 251 are invalidated." 274(f)(1) (emphasis added). The fallback provisions are "`fully operative as a law,'" Buckley v. Valeo, 424 U.S., at 108 (quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, ). Assuming that appellants are correct in urging that this matter must be resolved on the basis of congressional intent, the intent appears to have been for 274(f) to be given effect in this situation. Indeed, striking the removal provisions would lead to a statute that Congress would probably have refused to adopt. As the District Court concluded:"[T]he grant of authority to the Comptroller General was a carefully considered protection against what the House conceived to be the pro-executive bias of the OMB. It is doubtful that the automatic deficit reduction process would have passed without such protection, and doubtful that the protection would have been considered present if the Comptroller General were not removable by Congress itself ... ." 626 F. Supp., at 1394. Accordingly, rather than perform the type of creative and imaginative statutory surgery urged by appellants, our holding simply permits the fallback provisions to come into play.10 VIINo one can doubt that Congress and the President are confronted with fiscal and economic problems of unprecedented magnitude, but "the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives - or the hallmarks - of democratic government ... ." Chadha, supra, at 944.We conclude that the District Court correctly held that the powers vested in the Comptroller General under 251 violate the command of the Constitution that the Congress play no direct role in the execution of the laws. Accordingly, the judgment and order of the District Court are affirmed.Our judgment is stayed for a period not to exceed 60 days to permit Congress to implement the fallback provisions. It is so ordered.
3	1. A material witness who is incarcerated because unable to give bail is entitled under 28 U.S.C. 1821 to the same $20 per diem compensation as is allowed a nonincarcerated witness during the trial or other proceeding at which he is in "attendance," i. e., has been summoned and is available to testify in a court in session, regardless of whether he is physically present in the courtroom. Pp. 582-587.2. The $1 statutory per diem plus subsistence in kind for incarcerated witnesses before trial does not violate the Just Compensation Clause, as detention of a material witness is not a "taking" under the Fifth Amendment; and the distinction between compensation for pretrial detention and for trial attendance is not so unreasonable as to violate the Due Process Clause of the Fifth Amendment, since Congress could determine that in view of the length of pretrial confinement and the costs necessarily borne by the Government, only minimal compensation for pretrial detention is justified, particularly since the witness has a public duty to testify. Pp. 588-591. 452 F.2d 951, vacated and remanded to District Court.STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, post, p. 591. DOUGLAS, J., filed a dissenting opinion, post, p. 600.Albert Armendariz, Sr., argued the cause and filed a brief for petitioners.Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Petersen, Deputy Solicitor General Lacovara, Harry R. Sachse, and Jerome M. Feit. MR. JUSTICE STEWART delivered the opinion of the Court.The petitioners, citizens of Mexico, entered the United States illegally. To assure their presence as material witnesses at the federal criminal trials of those accused of illegally bringing them into this country, they were required to post bond pursuant to former Rule 46 (b) of the Federal Rules of Criminal Procedure. Unable to make bail, they were incarcerated.1 The petitioners instituted the present class action in the United States District Court for the Western District of Texas on behalf of themselves and others similarly incarcerated as material witnesses. Their complaint alleged that they, and the other members of their class, had been paid only $1 for every day of their confinement; that the statute providing the compensation to be paid witnesses requires payment of total of $21 per day to material witnesses in custody; and that, alternatively, if the statute be construed to require payment of only $1 per day to detained witnesses, it violates the Fifth Amendment guarantees of just compensation and due process. They did not attack the validity or length of their incarceration as such, but sought monetary damages under the Tucker Act, 28 U.S.C. 1346 (a) (2), for the lost compensation claimed, and equivalent declaratory and injunctive relief.The statute in question, 28 U.S.C. 1821, provides that a "witness attending in any court of the United States ... shall receive $20 for each day's attendance and for the time necessarily occupied in going to and returning from the same ... ." A separate paragraph of the statute entitles "a witness ... detained in prison for want of security for his appearance, ... in addition to his subsistence, to a compensation of $1 per day."2 The petitioners' complaint was grounded upon the theory that they were "attending in ... court" throughout the period of their incarceration, since they were prevented from engaging in their normal occupations in order to be ready to testify. They argued that the $20 fee is compensation for the inconvenience and private loss suffered when a witness comes to testify, and that all of these burdens are borne by the incarcerated witness throughout his confinement. Urging that the compensation provisions should be applied as broadly as the problem they were designed to ameliorate, the petitioners argued that they were entitled to the $20 compensation for every day of confinement, in addition to the $1 a day that they viewed as a token payment for small necessities while in jail.While they pressed this broad definition of "attendance," the petitioners also pointed to a narrower and more acute problem in administering the statute. Their amended complaint alleged that nonincarcerated witnesses are paid $20 for each day after they have been summoned to testify - even for those days they are not needed in court and simply wait in the relative comfort of their hotel rooms to be called. By contrast, witnesses in jail are paid only $1 a day when they are waiting to testify - even when the trial for which they have been detained is in progress. In short, the amended complaint alleged that the Government has construed the statute to mean that incarcerated witnesses must be physically present in the courtroom before they are eligible for the $20 daily compensation, but that nonincarcerated witnesses need not be similarly present to receive that amount.3 In its answer, the Government conceded that each witness detained in custody is paid only $1 for every day of incarceration, and that the witness fee of $20 is paid only when such a witness is actually in attendance in court. The Government defended this practice as required by the literal words of the statute, and argued that the statute, as so construed, is constitutional.In an unreported order, the District Court granted the Government's motion for summary judgment, and the Court of Appeals for the Fifth Circuit affirmed. 452 F.2d 951. The Court of Appeals concluded that the $20 witness fee is properly payable only to those witnesses who are "in attendance" or traveling to and from court, and not to those who are incarcerated to assure their attendance. So interpreted, the court upheld the statute as constitutional. We granted certiorari, , to consider a question of seeming importance in the administration of justice in the federal courts.IBoth the petitioners and the Government adhere to their own quite contrary interpretations of 1821 - the petitioners maintaining that they are entitled to a $20 witness fee for every day of incarceration and the Government seeking to limit such payment to those days on which a detained witness is physically "in attendance" in court. We find both interpretations of the statute incorrect - the petitioners' too expansive, the Government's too restricted.4 The statute provides to a "witness attending in any court of the United States" $20 "for each day's attendance." This perforce means that a witness can be eligible for the $20 fee only when two requirements are satisfied - when there is a court in session that he is to attend, and when he is in necessary attendance on that court.The petitioners' interpretation of "attendance" as beginning with the first day of incarceration slights the statutory requirement that attendance be in court. A witness might be detained many days before the case in which he is to testify is called for trial. During that time, there is literally no court in session in which he could conceivably be considered to be in attendance. Over a century and a half ago Attorney General William Wirt rejected a similar construction of an almost identically worded law. He found that the then-current statute, which provided compensation to a witness "for each day he shall attend in court,"5 could not be construed to provide payment to incarcerated witnesses for every day of their detention: "There is no court, except it be a court in session. There are judges; but they do not constitute a court, except when they assemble to administer the law... . Now I cannot conceive with what propriety a witness can be said to be attending in court when there is no court, and will be no court for several months. "To consider a witness who has been committed to jail because he cannot give security to attend a future court, to be actually attending the court from the time of his commitment, and this for five months before there is any court in existence, would seem to me to be rather a forced and unnatural construction." 1 Op. Atty. Gen. 424, 427. The Government, on the other hand, would place a restrictive gloss on the statute's requirement of necessary attendance; it maintains that the $20 compensation need be paid only for the days a witness is in actual physical attendance in court, and it concludes that a witness confined during the trial need only be paid for those days on which he is actually brought into the courtroom. But 1821 does not speak in terms of "physical" or "actual" attendance, and we decline to engraft such a restriction upon the statute. Rather, the statute reaches those witnesses who have been summoned and are in necessary attendance on the court, in readiness to testify. There is nothing magic about the four walls of a courtroom. Once a witness has been summoned to testify, whether he waits in a witness room, a prosecutor's office, a hotel room, or the jail, he is still available to testify, and it is that availability that the statute compensates. Non-incarcerated witnesses are compensated under the statute for days on which they have made themselves available to testify but on which their physical presence in the courtroom is not required - for example, where the trial is adjourned or where their testimony is only needed on a later day.6 We cannot accept the anomalous conclusion that the same statutory language imposes a requirement of physical presence in the courtroom on witnesses who have been confined. Attorney General Wirt concluded that language similar to that at issue here, did not require any such physical presence:"But it was by no means my intention to authorize the inference ... that, in order to entitle a witness to his per diem allowance under the act of Congress, it was necessary that he should be every day corporeally present within the walls of the court-room, and that the court must be every day in actual session. Such a puerility never entered my mind. My opinion simply was, and is, that before compensation could begin to run, the court must have commenced its session; the session must be legally subsisting, and the witness attending on the court - not necessarily in the court-room, but within its power, whenever it may require his attendance... . I consider a witness as attending on court to the purpose of earning his compensation, so long as he is in the power of the court whensoever it may become necessary to call for his evidence, although he may not have entered the court-room until such call shall have been made; and I consider the court in session from the moment of its commencement until its adjournment sine die, notwithstanding its intermediate adjournments de die in diem." 1 Op. Atty. Gen., at 426-427. We conclude that a material witness who has been incarcerated is entitled to the $20 compensation for every day of confinement during the trial or other proceeding for which he has been detained.7 On each of those days, the two requirements of the statute are satisfied - there is a court in session and the witness is in necessary attendance. He is in the same position as a nonincarcerated witness who is summoned to appear on the first day of trial, but on arrival is told by the prosecutor that he is to hold himself ready to testify on a later day in the trial. The Government pays such a witness for every day he is in attendance on the court, and the statute requires it to pay the same per diem compensation to the incarcerated witness. Because the Court of Appeals upheld a construction of the statute that would allow the $20 to be paid to incarcerated witnesses only for those days they actually appear in the courtroom, its judgment must be set aside.8 IIThe petitioners argue that if 1821 provides incarcerated witnesses only a dollar a day for the period before the trial begins, then the statute is unconstitutional. We cannot agree.As noted at the outset, the petitioners do not attack the constitutionality of incarcerating material witnesses, or the length of such incarceration in any particular case.9 Rather, they say that when the Government incarcerates material witnesses, it has "taken" their property, and that one dollar a day is not just compensation for this "taking" under the Fifth Amendment. Alternatively, they argue that payment of only one dollar a day before trial, when contrasted with the $20 a day paid to witnesses attending a trial, is a denial of due process of law.But the Fifth Amendment does not require that the Government pay for the performance of a public duty it is already owed. See Monongahela Bridge Co. v. United States, (modification of bridge obstructing river); United States v. Hobbs, 450 F.2d 935 (Selective Service Act); United States v. Dillon, 346 F.2d 633, 635 (representation of indigents by court-appointed attorney); Roodenko v. United States, 147 F.2d 752, 754 (alternative service for conscientious objectors); cf. Kunhardt & Co. v. United States, . It is beyond dispute that there is in fact a public obligation to provide evidence, see United States v. Bryan, ; Blackmer v. United States, , and that this obligation persists no matter how financially burdensome it may be.10 The financial losses suffered during pretrial detention are an extension of the burdens borne by every witness who testifies. The detention of a material witness, in short, is simply not a "taking" under the Fifth Amendment, and the level of his compensation, therefore, does not, as such, present a constitutional question. "[I]t is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide. The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public." Blair v. United States, .11 Similarly, we are unpersuaded that the classifications drawn by 1821 as we have construed it are so irrational as to violate the Due Process Clause of the Fifth Amendment. Cf. Bolling v. Sharpe, . The statute provides $20 per diem compensation to a witness who is in necessary attendance on a court, but that fee is payable to any witness, incarcerated or not. During the period that elapses before his attendance on a court, a witness who is not incarcerated gets no compensation whatever from the Government. An incarcerated witness, on the other hand, gets one dollar a day during that period, in addition to subsistence in kind.We cannot say that there is no reasonable basis for distinguishing the compensation paid for pretrial detention from the fees paid for attendance at trial. Pretrial confinement will frequently be longer than the period of attendance on the court, and throughout that period of confinement the Government must bear the cost of food, lodging, and security for detained witnesses. Congress could thus reasonably determine that while some compensation should be provided during the pretrial detention period, a minimal amount was justified, particularly in view of the fact that the witness has a public obligation to testify. As the Court of Appeals correctly observed, "[G]overnmental recognition of its interest in having persons appear in court by paying them for that participation in judicial proceedings, does not require that it make payment of the same nature and extent to persons who are held available for participation in judicial proceedings should it prove to be necessary. That the government pays for one stage does not require that it pay in like manner for all stages." 452 F.2d, at 955. We do not pass upon the wisdom or ultimate fairness of the compensation Congress has provided for the pretrial detention of material witnesses. We do not decide "that a more just and humane system could not be devised." Dandridge v. Williams, . Indeed, even though it opposed granting the petition for certiorari in the present case, the Government found it "obvious" that "the situation is not a satisfactory one," and we were informed at oral argument that a legislative proposal to increase the per diem payment to detained witnesses will shortly be submitted by the Department of Justice to the Office of Management and Budget for review. But no matter how unwise or unsatisfactory the present rates might be, the Constitution provides no license to impose the levels of compensation we might think fair and just. That task belongs to Congress, not to us.The judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
0	The right to trial by jury preserved by the Seventh Amendment extends to a stockholder's derivative suit with respect to those issues as to which the corporation, had it been suing in its own right, would have been entitled to a jury trial. 403 F.2d 909, reversed.William E. Haudek argued the cause for petitioners. With him on the briefs were Richard M. Meyer and Stanley M. Grossman.Marvin Schwartz argued the cause for respondents. With him on the brief were Roger L. Waldman, William J. Manning, and E. Roger Frisch.MR. JUSTICE WHITE delivered the opinion of the Court.The Seventh Amendment to the Constitution provides that in "[s]uits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Whether the Amendment guarantees the right to a jury trial in stockholders' derivative actions is the issue now before us.Petitioners brought this derivative suit in federal court against the directors of their closed-end investment company, the Lehman Corporation, and the corporation's brokers, Lehman Brothers. They contended that Lehman Brothers controlled the corporation through an illegally large representation on the corporation's board of directors, in violation of the Investment Company Act of 1940, 54 Stat. 789, 15 U.S.C. 80a-1 et seq., and used this control to extract excessive brokerage fees from the corporation. The directors of the corporation were accused of converting corporate assets and of "gross abuse of trust, gross misconduct, willful misfeasance, bad faith, [and] gross negligence." Both the individual defendants and Lehman Brothers were accused of breaches of fiduciary duty. It was alleged that the payments to Lehman Brothers constituted waste and spoliation, and that the contract between the corporation and Lehman Brothers had been violated. Petitioners requested that the defendants "account for and pay to the Corporation for their profits and gains and its losses." Petitioners also demanded a jury trial on the corporation's claims.On motion to strike petitioners' jury trial demand, the District Court held that a shareholder's right to a jury on his corporation's cause of action was to be judged as if the corporation were itself the plaintiff. Only the shareholder's initial claim to speak for the corporation had to be tried to the judge. 275 F. Supp. 569. Convinced that "there are substantial grounds for difference of opinion as to this question and ... an immediate appeal would materially advance the ultimate termination of this litigation," the District Court permitted an interlocutory appeal. 28 U.S.C. 1292 (b). The Court of Appeals reversed, holding that a derivative action was entirely equitable in nature, and no jury was available to try any part of it. 403 F.2d 909. It specifically disagreed with DePinto v. Provident Security Life Ins. Co., 323 F.2d 826 (C. A. 9th Cir. 1963), cert. denied, , on which the District Court had relied. Because of this conflict, we granted certiorari. .We reverse the holding of the Court of Appeals that in no event does the right to a jury trial preserved by the Seventh Amendment extend to derivative actions brought by the stockholders of a corporation. We hold that the right to jury trial attaches to those issues in derivative actions as to which the corporation, if it had been suing in its own right, would have been entitled to a jury.The Seventh Amendment preserves to litigants the right to jury trial in suits at common law -"not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered ... . In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights." Parsons v. Bedford, 3 Pet. 433, 447 (1830). However difficult it may have been to define with precision the line between actions at law dealing with legal rights and suits in equity dealing with equitable matters, Whitehead v. Shattuck, , some proceedings were unmistakably actions at law triable to a jury. The Seventh Amendment, for example, entitled the parties to a jury trial in actions for damages to a person or property, for libel and slander, for recovery of land, and for conversion of personal property.1 Just as clearly, a corporation, although an artificial being, was commonly entitled to sue and be sued in the usual forms of action, at least in its own State. See Paul v. Virginia, 8 Wall. 168 (1869). Whether the corporation was viewed as an entity separate from its stockholders or as a device permitting its stockholders to carry on their business and to sue and be sued, a corporation's suit to enforce a legal right was an action at common law carrying the right to jury trial at the time the Seventh Amendment was adopted.2 The common law refused, however, to permit stockholders to call corporate managers to account in actions at law. The possibilities for abuse, thus presented, were not ignored by corporate officers and directors. Early in the 19th century, equity provided relief both in this country and in England. Without detailing these developments,3 it suffices to say that the remedy in this country, first dealt with by this Court in Dodge v. Woolsey, 18 How. 331 (1856), provided redress not only against faithless officers and directors but also against third parties who had damaged or threatened the corporate properties and whom the corporation through its managers refused to pursue. The remedy made available in equity was the derivative suit, viewed in this country as a suit to enforce a corporate cause of action against officers, directors, and third parties. As elaborated in the cases, one precondition for the suit was a valid claim on which the corporation could have sued; another was that the corporation itself had refused to proceed after suitable demand, unless excused by extraordinary conditions.4 Thus the dual nature of the stockholder's action: first, the plaintiff's right to sue on behalf of the corporation and, second, the merits of the corporation's claim itself.5 Derivative suits posed no Seventh Amendment problems where the action against the directors and third parties would have been by a bill in equity had the corporation brought the suit. Our concern is with cases based upon a legal claim of the corporation against directors or third parties. Does the trial of such claims at the suit of a stockholder and without a jury violate the Seventh Amendment?The question arose in this Court in the context of a derivative suit for treble damages under the antitrust laws. Fleitmann v. Welsbach Street Lighting Co., . Noting that the bill in equity set up a claim of the corporation alone, Mr. Justice Holmes observed that if the corporation were the plaintiff, "no one can doubt that its only remedy would be at law," and inquired "why the defendants' right to a jury trial should be taken away because the present plaintiff cannot persuade the only party having a cause of action to sue - how the liability which is the principal matter can be converted into an incident of the plaintiff's domestic difficulties with the company that has been wronged"? Id., at 28. His answer was that the bill did not state a good cause of action in equity. Agreeing that there were "cases in which the nature of the right asserted for the company, or the failure of the defendants concerned to insist upon their rights, or a different state system, has led to the whole matter being disposed of in equity," he concluded that when the penalty of triple damages is sought, the antitrust statute plainly anticipated a jury trial and should not be read as "attempting to authorize liability to be enforced otherwise than through the verdict of a jury in a court of common law." Id., at 28-29. Although the decision had obvious Seventh Amendment overtones, its ultimate rationale was grounded in the antitrust laws.6 Where penal damages were not involved, however, there was no authoritative parallel to Fleitmann in the federal system squarely passing on the applicability of the Seventh Amendment to the trial of a legal claim presented in a pre-merger derivative suit. What can be gleaned from this Court's opinions7 is not inconsistent with the general understanding, reflected by the state court decisions and secondary sources, that equity could properly resolve corporate claims of any kind without a jury when properly pleaded in derivative suits complying with the equity rules.8 Such was the prevailing opinion when the Federal Rules of Civil Procedure were adopted in 1938. It continued until 1963 when the Court of Appeals for the Ninth Circuit, relying on the Federal Rules as construed and applied in Beacon Theatres, Inc. v. Westover, , and Dairy Queen, Inc. v. Wood, , required the legal issues in a derivative suit to be tried to a jury.9 DePinto v. Provident Security Life Ins. Co., 323 F.2d 826. It was this decision that the District Court followed in the case before us and that the Court of Appeals rejected.Beacon and Dairy Queen presaged DePinto. Under those cases, where equitable and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to the equitable ones or by a court trial of a common issue existing between the claims. The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.10 See Simler v. Conner, . The principle of these cases bears heavily on derivative actions.We have noted that the derivative suit has dual aspects; first, the stockholder's right to sue on behalf of the corporation, historically an equitable matter; second, the claim of the corporation against directors or third parties on which, if the corporation had sued and the claim presented legal issues, the company could demand a jury trial. As implied by Mr. Justice Holmes in Fleitmann, legal claims are not magically converted into equitable issues by their presentation to a court of equity in a derivative suit. The claim pressed by the stockholder against directors or third parties "is not his own but the corporation's." Koster v. Lumbermens Mut. Cas. Co., . The corporation is a necessary party to the action; without it the case cannot proceed. Although named a defendant, it is the real party in interest, the stockholder being at best the nominal plaintiff. The proceeds of the action belong to the corporation and it is bound by the result of the suit.11 The heart of the action is the corporate claim. If it presents a legal issue, one entitling the corporation to a jury trial under the Seventh Amendment, the right to a jury is not forfeited merely because the stockholder's right to sue must first be adjudicated as an equitable issue triable to the court. Beacon and Dairy Queen require no less.If under older procedures, now discarded, a court of equity could properly try the legal claims of the corporation presented in a derivative suit, it was because irreparable injury was threatened and no remedy at law existed as long as the stockholder was without standing to sue and the corporation itself refused to pursue its own remedies. Indeed, from 1789 until 1938, the judicial code expressly forbade courts of equity from entertaining any suit for which there was an adequate remedy at law.12 This provision served "to guard the right of trial by jury preserved by the Seventh Amendment and to that end it should be liberally construed." Schoenthal v. Irving Trust Co., . If, before 1938, the law had borrowed from equity, as it borrowed other things, the idea that stockholders could litigate for their recalcitrant corporation, the corporate claim, if legal, would undoubtedly have been tried to a jury.Of course, this did not occur, but the Federal Rules had a similar impact. Actions are no longer brought as actions at law or suits in equity. Under the Rules there is only one action - a "civil action" - in which all claims may be joined and all remedies are available. Purely procedural impediments to the presentation of any issue by any party, based on the difference between law and equity, were destroyed. In a civil action presenting a stockholder's derivative claim, the court after passing upon the plaintiff's right to sue on behalf of the corporation is now able to try the corporate claim for damages with the aid of a jury.13 Separable claims may be tried separately, Fed. Rule Civ. Proc. 42 (b), or legal and equitable issues may be handled in the same trial. Fanchon & Marco, Inc. v. Paramount Pictures, Inc., 202 F.2d 731 (C. A. 2d Cir. 1953). The historical rule preventing a court of law from entertaining a shareholder's suit on behalf of the corporation is obsolete; it is no longer tenable for a district court, administering both law and equity in the same action, to deny legal remedies to a corporation, merely because the corporation's spokesmen are its shareholders rather than its directors. Under the rules, law and equity are procedurally combined; nothing turns now upon the form of the action or the procedural devices by which the parties happen to come before the court. The "expansion of adequate legal remedies provided by ... the Federal Rules necessarily affects the scope of equity." Beacon Theatres, Inc. v. Westover, 359 U.S., at 509.Thus, for example, before-merger class actions were largely a device of equity, and there was no right to a jury even on issues that might, under other circumstances, have been tried to a jury. 5 J. Moore, Federal Practice § 38.38 2. (2d ed. 1969); 3B id., § 23.02 1.. Although at least one post-merger court held that the device was not available to try legal issues,14 it now seems settled in the lower federal courts that class action plaintiffs may obtain a jury trial on any legal issues they present. Montgomery Ward & Co. v. Langer, 168 F.2d 182 (C. A. 8th Cir. 1948); see Oskoian v. Canuel, 269 F.2d 311 (C. A. 1st Cir. 1959), aff'g 23 F. R. D. 307; Syres v. Oil Workers Int'l Union, Local 23, 257 F.2d 479 (C. A. 5th Cir. 1958), cert. denied, . 2 W. Barron & A. Holtzoff, Federal Practice and Procedure 571 (Wright ed. 1961).Derivative suits have been described as one kind of "true" class action. Id., 562.1. We are inclined to agree with the description, at least to the extent it recognizes that the derivative suit and the class action were both ways of allowing parties to be heard in equity who could not speak at law.15 3 B J. Moore, Federal Practice §§ 23.02 1., 23.1.16 1. (2d ed. 1969). After adoption of the rules there is no longer any procedural obstacle to the assertion of legal rights before juries, however the party may have acquired standing to assert those rights. Given the availability in a derivative action of both legal and equitable remedies, we think the Seventh Amendment preserves to the parties in a stockholder's suit the same right to a jury trial that historically belonged to the corporation and to those against whom the corporation pressed its legal claims.In the instant case we have no doubt that the corporation's claim is, at least in part, a legal one. The relief sought is money damages. There are allegations in the complaint of a breach of fiduciary duty, but there are also allegations of ordinary breach of contract and gross negligence. The corporation, had it sued on its own behalf, would have been entitled to a jury's determination, at a minimum, of its damages against its broker under the brokerage contract and of its rights against its own directors because of their negligence. Under these circumstances it is unnecessary to decide whether the corporation's other claims are also properly triable to a jury. Dairy Queen, Inc. v. Wood, . The decision of the Court of Appeals is reversed. It is so ordered.
5	While in the custody of the Ohio Department of Rehabilitation and Correction, respondent Stewart and one Reese filed a suit in the District Court under 42 U.S.C. 1983 alleging violations of their First and Fourteenth Amendment rights by prison officials. After entering a judgment for the plaintiffs, the court entered an award of attorney's fees pursuant to 42 U.S.C. 1988. On appeal defendant argued that, because Reese had died and Stewart had been released, neither plaintiff had been in the State's custody on the day that the District Court had entered its underlying judgment. Nonetheless, the Court of Appeals upheld the fees award, concluding that the claim's mootness when the judgment was issued did not undermine Stewart's status as a prevailing party since he had won a declaratory judgment. It distinguished this Court's holding in Hewitt v. Helms, - that a plaintiff must receive some relief on the merits of his claim before he can be said to have prevailed within the meaning of 1988 - on the ground that the plaintiff in Hewitt, unlike Stewart, had not won such a judgment.Held: Stewart was not a prevailing party under the rule set forth in Hewitt v. Helms, supra, and therefore was not entitled to an award of fees pursuant to 1988. Nothing in Hewitt suggested that the entry of a declaratory judgment in a party's favor automatically renders that party prevailing. A declaratory judgment, like any other judgment, constitutes relief only if it affects the behavior of the defendant towards the plaintiff. There was no such result in this case, since the lawsuit was not brought as a class action, and since Stewart could not benefit from any changes in prison policies caused by his lawsuit. Certiorari granted; 845 F.2d 327, reversed.PER CURIAM.After entry of a judgment for the plaintiffs in a suit by two prisoners under 42 U.S.C. 1983, the District Court for the Southern District of Ohio, Eastern Division, ordered the defendants to pay the plaintiffs' attorney's fees pursuant to 42 U.S.C. 1988. There is no entitlement to attorney's fees, however, unless the requesting party prevails; and by the time the District Court entered its judgment in the underlying suit one of the plaintiffs had died and the other was no longer in custody. In this posture, the plaintiffs were not prevailing parties under the rule we set forth in Hewitt v. Helms, , and the Court of Appeals for the Sixth Circuit erred in affirming the award of fees by the District Court.IOn January 17, 1978, while in the custody of the Ohio Department of Rehabilitation and Correction, Albert Reese and Larry Stewart filed a complaint alleging violations of their First and Fourteenth Amendment rights by officials who refused them permission to subscribe to a magazine. On April 2, 1981, the District Court issued an opinion and an order, later amended in respects no longer pertinent to the case. The court ruled that correctional officials had not applied the proper procedural and substantive standards in denying the inmates their request, and ordered compliance with those standards.Two months later, the District Court entered an award of fees in favor of the attorneys for Reese and Stewart in the amount of $5,306.25. The Court of Appeals for the Sixth Circuit affirmed. 703 F.2d 566 (1982). We granted certiorari, vacated the judgment, and remanded the case to the Court of Appeals for further consideration in light of Hensley v. Eckerhart, . Rhodes v. Stewart, . On remand from the Court of Appeals, the District Court confirmed its earlier award.None of the opinions or orders cited thus far made reference to, or showed awareness of, two salient facts: Reese died on February 18, 1979; and Stewart, the sole respondent now before us, was paroled on March 15, 1978, and given a final release from parole on January 17, 1980. In consequence, when the District Court issued its original order on April 2, 1981, neither plaintiff was in the State's custody. For reasons that remain unexplained, petitioners here did not raise this matter until their appeal of the District Court's order after remand.A divided Court of Appeals upheld the award of fees, concluding that the mootness of the claim when the judgment was issued did not undermine respondent's status as a prevailing party eligible for attorney's fees. Affirmance order, 845 F.2d 327 (1988). In an unpublished opinion, the majority characterized the relief plaintiffs had received as declaratory relief. The panel majority noted our recent holding in Hewitt v. Helms, supra, that a plaintiff must receive some relief on the merits of his claim before he can be said to have prevailed within the meaning of 1988. It observed, however, that the plaintiff in Hewitt, unlike Stewart, had not won a declaratory judgment, and concluded that the declaratory judgment issued in this case justified the granting of attorney's fees.IIThe Court of Appeals misapprehended our holding in Hewitt. Although the plaintiff in Hewitt had not won a declaratory judgment, nothing in our opinion suggested that the entry of such a judgment in a party's favor automatically renders that party prevailing under 1988. Indeed, we confirmed the contrary proposition:"In all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces - the payment of damages, or some specific specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement - what makes it a proper judicial resolution of a `case or controversy' rather than an advisory opinion - is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff." 482 U.S., at 761 (emphasis in original). A declaratory judgment, in this respect, is no different from any other judgment. It will constitute relief, for purposes of 1988, if, and only if, it affects the behavior of the defendant toward the plaintiff. In this case, there was no such result. The lawsuit was not brought as a class action, but by two plaintiffs. A modification of prison policies on magazine subscriptions could not in any way have benefited either plaintiff, one of whom was dead and the other released before the District Court entered its order. This case is thus controlled by our holding in Hewitt, where the fact that the respondent had "long since been released from prison" and "could not get redress" from any changes in prison policy caused by his lawsuit compelled the conclusion that he was ineligible for an award of fees. 482 U.S., at 763. The case was moot before judgment issued, and the judgment therefore afforded the plaintiffs no relief whatsoever. In the absence of relief, a party cannot meet the threshold requirement of 1988 that he prevail, and in consequence he is not entitled to an award of attorney's fees.Certiorari is granted, and the decision of the Court of Appeals is reversed. It is so ordered. JUSTICE MARSHALL, dissenting.I continue to believe that it is unfair to litigants and damaging to the integrity and accuracy of this Court's decisions to reverse a decision summarily without the benefit of full briefing on the merits of the question decided. Buchanan v. Stanships, Inc., (MARSHALL, J., dissenting); Commissioner v. McCoy, (MARSHALL, J., dissenting); Montana v. Hall, (MARSHALL, J., dissenting).The Rules of this Court urge litigants filing petitions for certiorari to focus on the exceptional need for this Court's review rather than on the merits of the underlying case. Summary disposition thus flies in the face of legitimate expectations of the parties seeking review by this Court and deprives them of the opportunity to argue the merits of their claim before judgment. Moreover, briefing on the merits leads to greater accuracy in our decisions and helps this Court to reduce as much as is humanly possible the inevitable incidence of error in our opinions. Finally, the practice of summary disposition demonstrates insufficient respect for lower court judges and for our own dissenting colleagues on this Court.It is my view that when the Court is considering summary disposition of a case, it should, at the very least, so inform the litigants and invite them to submit supplemental briefs on the merits. I remain unconvinced that this slight modification of our practice would unduly burden the Court. The benefits of increasing the fairness and accuracy of our decisionmaking and the value of according greater respect to our colleagues on this and other courts more than outweigh any burden associated with such a modest accommodation.I dissent.JUSTICE BLACKMUN, with whom JUSTICE BRENNAN joins, dissenting.Because courts usually do not award remedies in cases that are moot, the novel legal issues presented here do not require this Court's plenary consideration, at least at this time. I therefore would just deny the petition for certiorari. Inasmuch, however, as the Court has chosen to grant the petition, I would give the case plenary consideration with full briefing and argument. Because I believe that summary reversal is inappropriate, I dissent.The Court summarily reverses the Court of Appeals' judgment for being contrary to "our holding in Hewitt [v. Helms, ," ante, at 3. That case clearly does not control here. In Hewitt, the plaintiff never obtained a "formal judgment in his favor," 482 U.S., at 761, and the question there was whether he nonetheless could qualify as a "prevailing party," thereby making him eligible for attorney's fees under 42 U.S.C. 1988. The Court ruled that he could not because nothing about his lawsuit changed the defendants' behavior towards him.Here, however, respondent did obtain a "formal judgment in his favor," although he no longer was incarcerated at the time. Thus, this case presents the question whether to be a "prevailing party" it is enough to win one's lawsuit. Hewitt did not decide this question, nor could it have, since it did not concern a plaintiff who had obtained "all or some of the relief he sought through a judgment." 482 U.S., at 760.The Court quotes a passage from Hewitt and construes it as stating that the entry of a declaratory judgment, without practical consequences, would not suffice for the purposes of 1988. Ante, at 3-4. In context, however, this passage simply bolsters the Court's point about when a nonfinal "statement of law" in a judicial opinion may be deemed the functional "equivalent of declaratory relief" under 1988. 482 U.S., at 761. Indeed, it would be ironic if this passage purported to resolve a question not before the Court in Hewitt, as it extols the "judicial pronouncement" limited to resolving the particular "case or controversy" at hand rather than rendering an "advisory opinion" on a question not presented by the facts of the immediate dispute. Ibid. Thus, I believe that the Hewitt opinion was not meant to tell us, or the Court of Appeals, how to decide this case. But even if it did, I would not summarily reverse the Court of Appeals on this basis for the very reason that our own pronouncements lose their controlling authority when they attempt to decide questions not before the Court at the time.1 Quite apart from the Court's interpretation of Hewitt, I have doubts about its interpretation of the term "prevailing party" in 1988. In ordinary usage, "prevailing" means winning. In the context of litigation, winning means obtaining a final judgment or other redress in one's favor. While the victory in this case may have been an empty one, it was a victory nonetheless. In the natural use of our language, we often speak of victories that are empty, hollow, or Pyrrhic. Thus, there is nothing anomalous about saying that respondent prevailed although he derived no tangible benefit from the judgment entered in his favor. Certainly the language of the statute does not so obviously compel a contrary conclusion as to warrant summary reversal.2 It is true that respondent here should not have obtained his judgment, since his case had become moot. But the fact that a party should not have "prevailed" ordinarily would not deprive him of attorney's fees.3 Perhaps an exception should be made when the defect in the judgment goes to the court's jurisdiction, as mootness does, but the resolution of this issue is not obvious.4 It surely is not one that should be decided without benefit of briefing and oral argument.I dissent from the Court's summary disposition of this case.
7	The Railway Labor Act applies to the State Belt Railroad, a common carrier owned and operated by the State of California and engaged in interstate commerce; and, notwithstanding the fact that the Railroad's employees are state employees appointed under the state civil service laws, the National Railroad Adjustment Board has jurisdiction over claims based on a collective-bargaining agreement between the Railroad and its employees which conflicts with the state civil service laws, as does the Railway Labor Act itself. Pp. 554-568. (a) Federal statutes regulating interstate railroads, or their employees, have consistently been held applicable to publicly owned or operated railroads, though they do not refer specifically to public railroads as being within their coverage. Pp. 561-563. (b) Nothing in the legislative history of the Act indicates that it should be treated differently from such other federal railway statutes, insofar as its applicability to a state-owned railroad is concerned. Pp. 563-564. (c) A different result is not required by the fact that, in certain other federal statutes governing employer-employee relationships, Congress has expressly exempted employees of the United States or a State. Pp. 564-566. (d) The fact that the Act's application will supersede state civil service laws which conflict with its policy of promoting collective bargaining does not detract from the conclusion that Congress intended it to apply to any common carrier by railroad engaged in interstate commerce, whether or not owned or operated by a State. Pp. 566-567. (e) By engaging in interstate commerce by rail, California has subjected itself to the commerce power of Congress, and Congress can regulate its relationships with the employees of its interstate railroad. P. 568. 233 F.2d 251, affirmed. Herbert E. Wenig, Assistant Attorney General of California, argued the cause for petitioner. With him on the brief were Edmund G. Brown, Attorney General, Richard S. L. Roddis, Deputy Attorney General, and Edward M. White.Burke Williamson argued the cause for respondents. With him on a brief was Jack A. Williamson for Taylor et al., respondents.Philip C. Wilkins filed a brief for the California State Employees' Association, as amicus curiae, in support of petitioner.Solicitor General Rankin, Assistant Attorney General Hansen and Charles H. Weston filed a brief for the United States, as amicus curiae, urging affirmance.MR. JUSTICE BURTON delivered the opinion of the Court.The question presented here is whether the Railway Labor Act of May 20, 1926, 44 Stat. 577, as amended. 45 U.S.C. 151 et seq., applies to the State Belt Railroad, a common carrier owned and operated by the State of California and engaged in interstate commerce. For the reasons hereafter stated, we hold that it does.The operations of the State Belt Railroad have been described by this Court in Sherman v. United States, ; United States v. California, ; and California v. Latimer, . It parallels the San Francisco waterfront, serves wharves and industrial plants, and connects with car ferries, steamship docks and three interstate railroads. It is a common carrier engaged in interstate commerce and files tariffs with the Interstate Commerce Commission.For over 65 years, the Belt Railroad has been owned by the State of California. It is operated by the Board of State Harbor Commissioners for San Francisco Harbor, composed of three Commissioners appointed by the Governor. Its employees number from 125 to 255 and are appointed in accordance with the civil service laws of the State. These laws prescribe procedures for hirings, promotions, layoffs and dismissals, and authorize the State Personnel Board to fix rates of pay and overtime.1 On September 1, 1942, the Board of State Harbor Commissioners entered into a collective-bargaining agreement with the Brotherhood of Locomotive Firemen and Enginemen and the Brotherhood of Railroad Trainmen as the representatives of the Belt Railroad's operating employees. This agreement established procedures for promotions, layoffs and dismissals. It also fixed rates of pay and overtime. Those procedures and rates differed from their counterparts under the state civil service laws.The collective-bargaining agreement conformed to the Railway Labor Act and was observed by the parties at least until January 1948. At that time, a successor Harbor Board instituted litigation in the state courts of California in which it contended that the Railway Labor Act had no application to the Belt Railroad, and that the wages and working conditions of the Railroad's employees were governed by the State's civil service laws rather than by the agreement. This contention was rejected by a local trial court and by the California District Court of Appeal. State v. Brotherhood of Railroad Trainmen, 222 P.2d 27. It was, however, accepted by the Supreme Court of California, with one justice dissenting, 37 Cal. 2d 412, 422, 232 P.2d 857, 864, certiorari denied, .Shortly thereafter, five employees of the Belt Railroad instituted the present action in the United States District Court for the Northern District of Illinois against the ten members of the National Railroad Adjustment Board, First Division, and its executive secretary. The employees alleged that they had filed with the First Division, pursuant to 3, First (i), of the Railway Labor Act, claims relating to their classifications, extra pay and seniority rights under the agreement. They charged that the five carrier members of the Division had refused to consider these claims on the ground that the Board was without jurisdiction, because, under the above decision of the Supreme Court of California, the Belt Railroad was not subject to the Railway Labor Act. The employees alleged that this refusal created an impasse in the ten-member Division and they sought a court order requiring action on their claims. The United States, answering on behalf of the First Division and its executive secretary, supported the complaint and prayer for relief. The carrier members, answering through their own attorneys, opposed the complaint, as did the present petitioner, the State of California, which intervened as a party defendant.The District Court granted California's motion for summary judgment and dismissed the complaint. 132 F. Supp. 356. The Court of Appeals reversed. 233 F.2d 251. It held that the Railway Labor Act applied to the Belt Railroad, and remanded the cause to the District Court with directions to enter a decree granting the relief sought. We granted certiorari to resolve the conflict between the United States Court of Appeals and the California Supreme Court as to the applicability of the Railway Labor Act to a railroad owned and operated by a State. .2 We invited the Solicitor General to file a brief as amicus curiae and in doing so, he urged that the Railway Labor Act was applicable to the State Belt Railroad.The Railway Labor Act of 1926, 44 Stat. 577, evolved from legislative experimentation beginning in 1888.3 The evolution of this railroad labor code was marked by a continuing attempt to bring about self-adjustment of disputes between rail carriers and their employees. To this end, specialized machinery of mediation and arbitration was established. The 1926 Act - unique in that it had been agreed upon by the majority of the railroads and their employees4 - incorporated practically every device previously used in settling disputes between carriers and their employees. These included (1) conferences between the parties; (2) appeal to a Board of Adjustment; (3) recourse to the permanent Board of Mediation; (4) submission of the controversy to a temporary Board of Arbitration; and (5) the establishment of an Emergency Board of Investigation appointed by the President.Dissatisfaction with the operation of this legislation led to its 1934 amendments. 48 Stat. 1185.5 One of the most significant changes was the creation of the National Railroad Adjustment Board composed of equal numbers of carrier representatives and representatives of unions national in scope. The Board was divided into four divisions, each with jurisdiction over particular crafts or classes and their disputes. 3. This arrangement made available a National Board to settle disputes in case the carrier and its employees could not agree upon a system, group or regional board. The National Board was given jurisdiction over "minor disputes," meaning those involving the interpretation of collective-bargaining agreements in a particular set of facts. Either party to such a dispute could bring the other before the Board in what was, in fact, compulsory arbitration. Brotherhood of Railroad Trainmen v. Chicago River & I. R. Co., . Provisions were made for the enforcement of a Board order against a carrier in a United States District Court. 3, First (p).Section 2, Fourth, of the 1934 amendments insured to railroad employees the right to organize their own unions and the right of a majority of any craft or class of employees to select the representative of that craft or class. Section 2, Ninth, authorized the newly created National Mediation Board to hold representation elections and to certify the representative with which the carrier must deal. Section 2, Fourth, provided that the employees shall have the right to bargain collectively through representatives of their own choosing. On numerous occasions, this Court has recognized that the Railway Labor Act protects and promotes collective bargaining. Virginian R. Co. v. System Federation No. 40, , 553; Switchmen's Union v. National Mediation Board, , 302; Order of Railroad Telegraphers v. Railway Express Agency, Inc., ; Steele v. Louisville & N. R. Co., ; Railway Employes' Dept. v. Hanson, , 235.6 If the Railway Labor Act applies to the Belt Railroad, then the carrier's employees can invoke its machinery established for adjustment of labor controversies, and the National Railway Adjustment Board has jurisdiction over respondents' claims. Moreover, the Act's policy of protecting collective bargaining comes into conflict with the rule of California law that state employees have no right to bargain collectively with the State concerning terms and conditions of employment which are fixed by the State's civil service laws.7 This state civil service relationship is the antithesis of that established by collectively bargained contracts throughout the railroad industry. "[E]ffective collective bargaining has been generally conceded to include the right of the representatives of the unit to be consulted and to bargain about the exceptional as well as the routine rates, rules, and working conditions." Order of Railroad Telegraphers v. Railway Express Agency, Inc., supra, at 347. If the Federal Act applies to the Belt Railroad, then the policy of the State must give way.8 "... a State may not prohibit the exercise of rights which the federal Acts protect. Thus, in Hill v. Florida, , the State enjoined a labor union from functioning until it had complied with certain statutory requirements. The injunction was invalidated on the ground that the Wagner Act included a `federally established right to collective bargaining' with which the injunction conflicted." Weber v. Anheuser-Busch, Inc., . Under the Railway Labor Act, not only would the employees of the Belt Railroad have a federally protected right to bargain collectively with their employer, but the terms of the collective-bargaining agreement that they have negotiated with the Belt Railroad would take precedence over conflicting provisions of the state civil service laws.9 In Railway Employes' Dept. v. Hanson, , involving 2, Eleventh, of the Railway Labor Act, which permits the negotiation of union-shop agreements notwithstanding any law of any State, we stated that "A union agreement made pursuant to the Railway Labor Act has, therefore, the imprimatur of the federal law upon it and, by force of the Supremacy Clause of Article VI of the Constitution, could not be made illegal nor vitiated by any provision of the laws of a State."We turn now to the applicability of the Railway Labor Act to the Belt Railroad. Section 1, First, of that Act defines generally the carriers to which it applies as "any carrier by railroad, subject to the Interstate Commerce Act ... ." (Emphasis supplied.) The Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. 1 (1), applies to all common carriers by railroad engaged in interstate transportation. The Belt Railroad concededly is a common carrier engaged in interstate transportation. It files its tariffs with the Interstate Commerce Commission, and the Commission has treated it and other state-owned interstate rail carriers as subject to its jurisdiction. See California Canneries Co. v. Southern Pacific Co., 51 I. C. C. 500, 502-503; United States v. Belt Line R. Co., 56 I. C. C. 121; Texas State Railroad, 34 I. C. C. Val. R. 276. Finally, this Court has recognized that practice. United States v. California, . See also, New Orleans v. Texas & P. R. Co., 195 F.2d 887, 889.With the exception of the Supreme Court of California's holding in State v. Brotherhood of Railroad Trainmen, 37 Cal. 2d 412, 232 P.2d 857, federal statutes regulating interstate railroads, or their employees, have consistently been held to apply to publicly owned or operated railroads. Yet none of these statutes referred specifically to public railroads as being within their coverage. In United States v. California, supra, the United States sought to recover a statutory penalty for the State's operation of this Belt Railroad in violation of the Safety Appliance Act, 27 Stat. 531-532, as amended, 45 U.S.C. 2, 6. That Act applied to "any common carrier engaged in interstate commerce by railroad ... ." (Emphasis supplied.) The State contended there, as it does here, that the Act was inapplicable to the Belt Railroad because a federal statute is presumed not to restrict a constituent sovereign State unless it expressly so provides. This Court said that this presumption "is an aid to consistent construction of statutes of the enacting sovereign when their purpose is in doubt, but it does not require that the aim of a statute fairly to be inferred be disregarded because not explicitly stated." 297 U.S., at 186. See also, California v. United States, ; Case v. Bowles, . The Court then held unequivocally that the Safety Appliance Act was applicable to the Belt Railroad. "We can perceive no reason for extending it [the presumption] so as to exempt a business carried on by a state from the otherwise applicable provisions of an act of Congress, all-embracing in scope and national in its purpose, which is as capable of being obstructed by state as by individual action." 297 U.S., at 186.Likewise, three courts have ruled that the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. 51, the coverage of which corresponded to that of the Safety Appliance Act, was applicable to public railroads. Mathewes v. Port Utilities Commission, 32 F.2d 913 (D.C. E. D. S. C.); Higginbotham v. Public Belt Railroad Commission, 192 La. 525, 188 So. 395 (Sup. Ct. La.); Maurice v. State, 43 Cal. App. 2d 270, 110 P.2d 706 (Cal. Dist. Ct. of App.) (involving the Belt Railroad now before us). Similarly, a Federal Court of Appeals has held that the Carriers Taxing Act of 1937, 50 Stat. 435, as amended, 45 U.S.C. (1946 ed.) 261 (a companion measure of the Railroad Retirement Act of 1937, 50 Stat. 307, as amended, 45 U.S.C. 228a), the coverage of which was identical with that of the Railway Labor Act, was applicable to this Belt Railroad. California v. Anglim, 129 F.2d 455. At least two federal courts have taken the position that the Railway Labor Act is applicable to railroads owned or operated by the public. National Council v. Sealy, 56 F. Supp. 720, 722-723, aff'd, 152 F.2d 500, 502; New Orleans Public Belt R. Commission v. Ward, 195 F.2d 829; and see the opinion of the Attorney General of California, n. 9, supra.Nothing in the legislative history of the Railway Labor Act indicates that it should be treated differently from the above-mentioned railway statutes, insofar as its applicability to a state-owned railroad is concerned. Congress apparently did not discuss the applicability of the Railway Labor Act to a state-owned railroad. This omission is readily explainable in view of the limited operations of publicly owned railroads. We are told by the parties that there are today 30 publicly owned railroads, all of which are switching or terminal roads, and only 11 of which are operated directly by the public. The fact that Congress chose to phrase the coverage of the Act in all-embracing terms indicates that state railroads were included within it. In fact, the consistent congressional pattern in railway legislation which preceded the Railway Labor Act was to employ all-inclusive language of coverage with no suggestion that state-owned railroads were not included.10 The State contends that doubts are created about congressional intent to make the Railway Labor Act applicable to state-owned railroads by the fact that in certain other federal statutes governing employer-employee relationships, Congress has expressly exempted employees of the United States or of a State.11 We believe, however, that this argument cuts the other way. When Congress wished to exclude state employees, it expressly so provided. Its failure to do likewise in the Railway Labor Act indicates a purpose not to exclude state employees.12 The Railway Labor Act is essentially an instrument of industry-wide government. See Elgin, J. & E. R. Co. v. Burley, , 751 (dissenting opinion). The railroad world for which the Act was designed has been described as "a state within a state. Its population of some three million, if we include the families of workers, has its own customs and its own vocabulary, and lives according to rules of its own making... . This state within a state has enjoyed a high degree of internal peace for two generations; despite the divergent interests of its component parts, the reign of law has been firmly established." Garrison, The National Railroad Adjustment Board; A Unique Administrative Agency, 46 Yale L. J. 567, 568-569 (1937). Congress has not only carved this singular industry out of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C. 182, but it has provided, by the Railway Labor Act, techniques peculiar to that industry. An extended period of congressional experimentation in the field of railway labor legislation resulted in the Railway Labor Act and produced its machinery for conciliation, mediation, arbitration and adjustments of disputes. A primary purpose of this machinery of railway government is "To avoid any interruption to commerce or to the operation of any carrier engaged therein ... ." 48 Stat. 1186 ( 2), 45 U.S.C. 151a. See Slocum v. Delaware, L. & W. R. Co., . Like the Safety Appliance Act, the Railway Labor Act is "all-embracing in scope and national in its purpose, which is as capable of being obstructed by state as by individual action." United States v. California, . The fact that, under state law, the employees of the Belt Railroad may have no legal right to strike13 reduces, but does not eliminate, the possibility of a work stoppage. It was to meet such a possibility that the Act's "reign of law" was established. A terminal railroad facility like the Belt Railroad is a vital link in the national transportation system. Its continuous operation is important to the national flow of commerce.The fact that the Act's application will supersede state civil service laws which conflict with its policy of promoting collective bargaining does not detract from the conclusion that Congress intended it to apply to any common carrier by railroad engaged in interstate transportation, whether or not owned or operated by a State. The principal unions in the railroad industry are national in scope, and their officials are intimately acquainted with the problems, traditions and conditions of the railroad industry. Bargaining collectively with these officials has often taken on a national flavor,14 and agreements are uniformly negotiated for an entire railroad system. "[B]reakdowns in collective bargaining will typically affect a region or the entire nation." Lecht, Experience under Railway Labor Legislation (1955), 4. It is by no means unreasonable to assume that Congress, aware of these characteristics of labor relations in the interconnected system which comprises our national railroad industry, intended that collective bargaining, as fostered and protected by the Railway Labor Act, should apply to all railroads. Congress no doubt concluded that a uniform method of dealing with the labor problems of the railroad industry would tend to eliminate inequities, and would promote a desirable mobility within the railroad labor force.15 Finally, the State suggests that Congress has no constitutional power to interfere with the "sovereign right" of a State to control its employment relationships on a state-owned railroad engaged in interstate commerce. In United States v. California, supra, this Court said that the State, although acting in its sovereign capacity in operating this Belt Railroad, necessarily so acted "in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government." 297 U.S., at 184. "California, by engaging in interstate commerce by rail, has subjected itself to the commerce power, and is liable for a violation of the Safety Appliance Act, as are other carriers ... ." Id., at 185. That principle is no less applicable here. If California, by engaging in interstate commerce by rail, subjects itself to the commerce power so that Congress can make it conform to federal safety requirements, it also has subjected itself to that power so that Congress can regulate its employment relationships. See also, California v. United States, ; cf. Railway Employes' Dept. v. Hanson, .16 The judgment of the Court of Appeals accordingly is Affirmed. THE CHIEF JUSTICE took no part in the consideration or decision of this case.
8	Because of respondent's felony conviction, he was prohibited by 18 U. S. C. §922(g)(1) from possessing, distributing, or receiving firearms or ammunition. Relying on §925(c), he applied to the Bureau of Alcohol, Tobacco, and Firearms (ATF) for relief from his firearms disabilities. ATF returned the application unprocessed, explaining that its annual appropriations law forbade it from expending any funds to investigate or act upon such applications. Invoking §925(c)'s judicial review provision, he filed suit, asking the District Court to conduct its own inquiry into his fitness to possess a gun and to issue a judicial order granting relief. The court granted the requested relief, and the Fifth Circuit affirmed.Held: The absence of an actual denial by ATF of a felon's petition precludes judicial review under §925(c). The Secretary of the Treasury is authorized to grant relief from a firearms disability if certain preconditions are met, and an applicant may seek federal-court review if the Secretary denies his application. Ibid. Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated this authority, from using appropriated funds to investigate or act upon the applications. Section 925(c)'s text and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction. Grammatically, the phrase "denied by the Secretary" references the Secretary's decision on whether an applicant "will not be likely to act in a manner dangerous to public safety," and whether "the granting of the relief would not be contrary to the public interest." Such determination can hardly be construed as anything but a decision actually denying the application. Under §925(c)'s procedure for those seeking relief, the Secretary, i.e., ATF, has broad authority to grant or deny relief, even when the statutory prerequisites are satisfied. This procedure shows that judicial review cannot occur without a dispositive decision by ATF. First, in the absence of a statutorily defined standard of review for action under §925(c), the Administrative Procedure Act (APA) supplies the applicable standard. 5 U. S. C. §§701(a), 706(2)(A). The APA's "arbitrary and capricious" test, by its nature, contemplates review of some action by another entity. Second, both parts of §925(c)'s standard for granting relief — whether an applicant is "likely to act in a manner dangerous to public safety" and whether the relief is in the "public interest"--are policy-based determinations and, hence, point to ATF as the primary decisionmaker. Third, §925(c) allows the admission of additional evidence in district court proceedings only in exceptional circumstances. Congressional assignment of such a circumscribed role to a district court shows that the statute contemplates that a court's determination will heavily rely on the record and the ATF's decision. Indeed, the very use in §925(c) of the word "review" to describe a court's responsibility in this statutory scheme signifies that it cannot grant relief on its own, absent an antecedent actual denial by ATF. Pp. 2-7.253 F. 3d 234, reversed. Thomas, J., delivered the opinion for a unanimous Court.UNITED STATES, et al., PETITIONERS v. THOMAS LAMAR BEANon writ of certiorari to the united states court of appeals for the fifth circuit[December 10, 2002] Justice Thomas delivered the opinion of the Court. We consider in this case whether, despite appropriation provisions barring the Bureau of Alcohol, Tobacco, and Firearms (ATF) from acting on applications for relief from firearms disabilities of persons convicted of a felony, a federal district court has authority under 18 U. S. C. §925(c) to grant such relief.I After attending a gun show in Laredo, Texas, respondent, Thomas Lamar Bean, a gun dealer, and his associates drove respondent's vehicle to Nuevo Laredo, Mexico, for dinner. Bean v. Bureau of Alcohol, Tobacco and Firearms, 253 F. 3d 234, 236 (CA5 2001). When Mexican officials stopped the vehicle at the border, they found in the back, in plain view, approximately 200 rounds of ammunition. Ibid. According to respondent, he had instructed his associates to remove any firearms and ammunition from his vehicle, but inexplicably one box remained. Ibid. Respondent was convicted in a Mexican court of importing ammunition into Mexico and sentenced to five years' imprisonment. Because of his felony conviction, respondent was prohibited by 18 U. S. C. §922(g)(1) from possessing, distributing, or receiving firearms or ammunition. Relying on §925(c), respondent applied to ATF for relief from his firearms disabilities. ATF returned the application unprocessed, explaining that its annual appropriations law forbade it from expending any funds to investigate or act upon applications such as respondent's. Respondent then filed suit in the United States District Court for the Eastern District of Texas. Relying on the judicial review provision in §925(c), respondent asked the District Court to conduct its own inquiry into his fitness to possess a gun, and to issue a judicial order granting relief from his firearms disabilities. Respondent attached various affidavits from persons attesting to his fitness to possess firearms. After conducting a hearing, the court entered judgment granting respondent the requested relief. The Court of Appeals for the Fifth Circuit affirmed, concluding that congressional refusal to provide funding to ATF for reviewing applications such as respondent's "is not the requisite direct and definite suspension or repeal of the subject rights." 253 F. 3d, at 239. The Fifth Circuit then proceeded to hold that the District Court had jurisdiction to review ATF's (in)action. We granted certiorari. 534 U. S. 1112 (2002).II Under federal law, a person who is convicted of a felony is prohibited from possessing firearms. See §922(g)(1). The Secretary of the Treasury is authorized to grant relief from that prohibition if it is established to his satisfaction that certain preconditions are met. See §925(c).1 An applicant may seek judicial review from a "United States district court" if his application "is denied by the Secretary." Ibid. Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated authority to act on §925(c) applications,2 from using "funds appropriated herein ... to investigate or act upon applications for relief from Federal firearms disabilities under 18 U. S. C. [§]925(c)." Treasury, Postal Service, and General Government Appropriations Act, 1993, Pub. L. 102-393, 106 Stat. 1732.3 Accordingly, ATF, upon receipt of respondent's petition, returned it, explaining that "[s]ince October 1992, ATF's annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities." App. 33-34. Respondent contends that ATF's failure to act constitutes a "denial" within the meaning of §925(c), and that, therefore, district courts have jurisdiction to review such inaction. We disagree. Inaction by ATF does not amount to a "denial" within the meaning of §925(c). The text of §925(c) and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction to act on an application. Grammatically, the phrase "denied by the Secretary" references the Secretary's decision on whether an applicant "will not be likely to act in a manner dangerous to public safety," and whether "the granting of the relief would not be contrary to the public interest." The determination whether an applicant is "likely to act in a manner dangerous to public safety" can hardly be construed as anything but a decision actually denying the application.4 And, in fact, respondent does not contend that ATF actually passed on his the application, but rather claims that "refusal to grant relief constitutes a literal, or at least a constructive, denial of the application because it has precisely the same impact on [the applicant] as denial on the merits." Brief for Respondent 35 (internal quotation marks and citations omitted). The procedure that §925(c) lays out for those seeking relief also leads us to conclude that an actual adverse action on the application by ATF is a prerequisite for judicial review. Section 925(c) requires an applicant, as a first step, to petition the Secretary and establish to the Secretary's satisfaction that the applicant is eligible for relief. The Secretary, in his discretion, may grant or deny the request based on the broad considerations outlined above. Only then, if the Secretary denies relief, may an applicant seek review in a district court. This broad authority of the Secretary, i. e., ATF, to grant or deny relief, even when the statutory prerequisites are satisfied, shows that judicial review under §925(c) cannot occur without a dispositive decision by ATF. First, in the absence of a statutorily defined standard of review for action under §925(c), the APA supplies the applicable standard. 5 U. S. C. §701(a). Under the APA, judicial review is usually limited to determining whether agency action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." §706(2)(A). Application of the APA standard of review here indicates that judicial review is predicated upon ATF's dispositive decision: the "arbitrary and capricious" test in its nature contemplates review of some action by another entity, rather than initial judgment of the court itself. Second, both parts of the standard for granting relief point to ATF as the primary decisionmaker. Whether an applicant is "likely to act in a manner dangerous to public safety" presupposes an inquiry into that applicant's background — a function best performed by the Executive, which, unlike courts, is institutionally equipped for conducting a neutral, wide-ranging investigation. Similarly, the "public interest" standard calls for an inherently policy-based decision best left in the hands of an agency. Third, the admission of additional evidence in district court proceedings is contemplated only in exceptional circumstances. See 18 U. S. C. §925(c) (allowing, "in [district court's] discretion," admission of evidence where "failure to do so would result in a miscarriage of justice"). Congressional assignment of such a circumscribed role to a district court shows that the statute contemplates thata district court's determination will heavily rely onthe record and the decision made by ATF. Indeed, the very use in §925(c) of the word "review" to describe adistrict court's responsibility in this statutory schemesignifies that a district court cannot grant reliefon its own, absent an antecedent actual denial by ATF. Accordingly, we hold that the absence of an actual denial of respondent's petition by ATF precludes judicial review under §925(c), and therefore reverse the judgment of the Court of Appeals.It is so ordered.FOOTNOTESFootnote 1 Title 18 U. S. C. §925(c) provides:"A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, 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. Any person whose application for relief from disabilities is denied by the Secretary may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector conducting operations under this chapter, who makes application for relief from the disabilities incurred under this chapter, shall not be barred by such disability from further operations under his license pending final action on an application for relief filed pursuant to this section. Whenever the Secretary grants relief to any person pursuant to this section he shall promptly publish in the Federal Register notice of such action, together with the reasons therefor."Footnote 2 Respondent contends that congressional denial of funds to ATF did not eliminate the Secretary's power to act on his application. In support, respondent notes that §925(c) refers to the action by "the Secretary." That claim, however, is waived, as respondent raised it for the first time in his brief on the merits to this Court. Even if considered on the merits, respondent's argument faces several difficulties. First, it appears that the Secretary delegated to ATF the exclusive authority to act on petitions brought under §925(c), see 27 CFR §§178.144(b) and (d) (2002); such delegation is not unreasonable. Second, even assuming the Secretary has retained the authority to act on such petitions, it is not clear that respondent would prevail were he to file a requisite action under 5 U. S. C. §706(1) (providing for judicial review to "compel agency action unlawfully withheld or unreasonably delayed"). Not only does the Secretary, by the explicit terms of the statute, possess broad discretion as to whether to grant relief, see infra, at 6-7, but congressional withholding of funds from ATF would likely inform his exercise of discretion.Footnote 3In each subsequent year, Congress has retained the bar on the use of appropriated funds to process applications filed by individuals. Treasury and General Government Appropriations Act, 2002, Pub. L. 107-67, 115 Stat. 519; Consolidated Appropriations Act, 2001, Pub. L. 106-554, 114 Stat. 2763A-129; Treasury and General Government Appropriations Act, 2000, Pub. L. 106-58, 113 Stat. 434; Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681-485; Treasury and General Government Appropriations Act, 1998, Pub. L. 105-61, 111 Stat. 1277; Treasury, Postal Service, and General Government Appropriations Act, 1997, Pub. L. 104-208, 110 Stat. 3009-319; Treasury, Postal Service, and General Government Appropriations Act, 1996, Pub. L. 104-52, 109 Stat. 471; Treasury, Postal Service and General Government Appropriations Act, 1995, Pub. L. 103-329, 108 Stat. 2385; Treasury, Postal Service, and General Government Appropriations Act, 1994, Pub. L. 103-123, 107 Stat. 1228.Footnote 4Also counseling against construing failure to act as a denial for purposes of §925(c) is the fact that while the Administrative Procedure Act (APA) draws a distinction between a "denial" and a "failure to act," see C. §551(13), an applicant may obtain judicial review under §925(c) only if an application is denied. See 2A N. Singer, Sutherland on Statutes and Statutory Construction §46.06, p. 194 (6th ed. 2000) ("The use of different words within related statutes generally implies that different meanings were intended").
0	The Bank Secrecy Act of 1970, 31 U.S.C. 1101, requires persons knowingly transporting monetary instruments exceeding $5,000 into the United States to file a report with the Customs Service declaring the amount transported. The Government is authorized under 31 U.S.C. 1102(a) to seize and forfeit any monetary instruments for which the required report was not filed. On September 10, 1975, claimant Vasquez, upon arrival at Los Angeles International Airport from Canada, declared that she was not carrying more than $5,000 in currency, but a customs inspector discovered and seized from her $8,850 in United States currency. On September 18, 1975, the Customs Service informed Vasquez by letter that the seized currency was subject to forfeiture and that she had a right to petition for remission or mitigation. A week later, she filed such a petition. Thereafter, from October 1975 to April 1976, the Customs Service, suspecting Vasquez of narcotics violations, conducted an investigation of the petition, but concluded, after contacting federal, state, and Canadian law enforcement officials, that there was no evidence of any violations. Vasquez, however, was indicted in June 1976 for, and convicted in December 1976 of, knowingly and willfully making false statements to a customs officer. In March 1977, a complaint seeking forfeiture of the currency under 31 U.S.C. 1102(a) was filed in Federal District Court. Vasquez claimed that the 18-month delay between the seizure of the currency and the filing of the forfeiture action violated her right to due process, but the District Court held that the time that had elapsed was reasonable under the circumstances and declared the currency forfeited. The Court of Appeals reversed and ordered dismissal of the forfeiture action.Held: On the facts, the Government's 18-month delay in filing a civil proceeding for forfeiture of the currency did not violate the claimant's right to due process of law. Pp. 562-570. (a) The balancing test of Barker v. Wingo, , developed to determine when Government delay has abridged the right to a speedy trial, provides the relevant framework for determining whether the delay in filing a forfeiture action was reasonable. That test involves a weighing of four factors: length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Pp. 562-565. (b) In this case, the balance of factors under the Barker test indicates that the Government's delay in instituting civil forfeiture proceedings was reasonable. Although the 18-month delay was a substantial period of time, it was justified where there is no evidence that the Government's investigation of the petition for remission or mitigation was not pursued with diligence or that the Government was responsible for the slow pace of the criminal proceedings. Nor is there any evidence that Vasquez desired early commencement of a civil forfeiture proceeding, she never having used the available remedies to seek return of the seized currency, and she has never alleged or shown that the delay prejudiced her ability to defend against the forfeiture. Pp. 565-570. 645 F.2d 836, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 570.Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, Carter G. Phillips, John Fichter De Pue, and David B. Smith.Victor Sherman argued the cause for claimant Vasquez. With him on the brief was Paul L. Gabbert.JUSTICE O'CONNOR delivered the opinion of the Court.United States Customs officials seized $8,850 in currency from the claimant as she passed through customs at Los Angeles International Airport. The question in this case is whether the Government's 18-month delay in filing a civil proceeding for forfeiture of the currency violates the claimant's right to due process of law. We conclude that the four-factor balancing test of Barker v. Wingo, , provides the relevant framework for determining whether the delay in filing a forfeiture action was reasonable. Applying the Barker test to the circumstances of this case, we find no unreasonable delay. IASection 231 of the Bank Secrecy Act of 1970, 84 Stat. 1122, 31 U.S.C. 1101, requires persons knowingly transporting monetary instruments exceeding $5,000 into the United States to file a report with the Customs Service declaring the amount being transported. Congress has authorized the Government to seize and forfeit any monetary instruments for which a required report was not filed. 31 U.S.C. 1102(a). Since the Bank Secrecy Act does not specify the procedures to be followed in seizing monetary instruments, the Customs Service generally follows the procedures governing forfeitures for violations of the customs laws, as set forth in 19 U.S.C. 1602 et seq. (1976 ed. and Supp. V), and the implementing regulations. Under these procedures, the Customs Service notifies any person who appears to have an interest in the seized property of the property's liability to forfeiture and of the claimant's right to petition the Secretary of the Treasury for remission or mitigation of the forfeiture.1 See 19 CFR 162.31(a) (1982). The regulations require a claimant to file the petition within 60 days. 19 CFR 171.12(b) (1982).If the claimant does not file a petition, or if the decision on a petition makes legal proceedings appear necessary,2 the appropriate customs officer must prepare a full report of the seizure for the United States Attorney. 19 U.S.C. 1603 (1976 ed., Supp. V).3 Upon receipt of a report, the United States Attorney is required "immediately to inquire into the facts" and, if it appears probable that a forfeiture has been incurred, "forthwith to cause the proper proceedings to be commenced and prosecuted, without delay." 19 U.S.C. 1604 (1976 ed., Supp. V). After a case is reported to the United States Attorney for institution of legal proceedings, no administrative action may be taken on any petition for remission or mitigation. 19 CFR 171.2(a) (1982).The Customs Service processes over 50,000 noncontraband forfeitures per year. U.S. Customs Service, Customs U.S. A. 36 (1982). In 90% of all seizures, the claimant files an administrative petition for remission or mitigation. Brief for United States 7. The Secretary in turn grants at least partial relief for an estimated 75% of the petitions. Ibid. Typically, this relief terminates the dispute without the filing of a forfeiture action in district court.BOn September 10, 1975, claimant Mary Josephine Vasquez and a companion arrived at Los Angeles International Airport after a short visit to Canada. During customs processing, Vasquez declared that she was not carrying more than $5,000 in currency. Nevertheless, a customs inspector discovered and seized $8,850 in United States currency from her. On September 18, 1975, the Customs Service officially informed Vasquez by letter that the seized currency was subject to forfeiture and that she had the right to petition for remission or mitigation. A week later, Vasquez filed a petition for remission or mitigation,4 asserting that the violation was unintentional because she had mistakenly believed she was required to declare only funds that had been obtained in another country and that she had brought the seized funds with her from the United States.On October 20, 1975, the Customs Office of Investigation assigned Special Agent Pompeo to investigate the petition. Within a few days, Agent Pompeo had interviewed the customs inspectors at the airport who were involved in the seizure. After several unsuccessful attempts to contact him, in mid-November Agent Pompeo contacted Vasquez' attorney to arrange an interview with Vasquez. The attorney was unable to meet at that time, and he desired to be present during the interview with his client. Around this time, Agent Pompeo also opened a criminal file because she suspected Vasquez of smuggling drugs. From November 1975 until April 1976, Agent Pompeo contacted various state, federal, and Canadian law enforcement officials to determine whether the seized currency was part of a narcotics transaction.5 In January 1976, Vasquez' attorney inquired about the status of the petition, and was informed it was still under investigation. On March 2, 1976, Agent Pompeo again contacted the attorney regarding an interview with Vasquez, and an interview took place three days later. On April 26, 1976, the attorney again inquired about the status of the petition and requested that it be acted on as soon as possible. Also in April 1976, Agent Pompeo received final reports from the law enforcement agencies. From these reports, Agent Pompeo concluded there was no evidence to support a charge of narcotics violations.In May 1976, Agent Pompeo submitted a report to the United States Attorney, recommending prosecution of Vasquez for the reporting violation. After Agent Pompeo re-interviewed the customs agents and reported her findings, the United States Attorney submitted the case to the grand jury. On June 15, 1976, a grand jury returned an indictment charging Vasquez with the felony of knowingly and willfully making false statements to a United States Customs officer, in violation of 18 U.S.C. 1001; and with the misdemeanor of knowingly and willfully transporting $8,850 into the United States without filing a report, in violation of 31 U.S.C. 1058 and 1101. The indictment sought forfeiture of the currency as part of the misdemeanor count.In August 1976, Agent Pompeo recommended that disposition of the remission petition be withheld until the currency was no longer needed as evidence at the criminal trial. On December 24, 1976, Vasquez was convicted on the felony count but acquitted on the misdemeanor charge of willfully failing to file a currency report.6 Four days after the criminal trial was completed, Vasquez' attorney again inquired whether there would be any further delay in acting on the petition.On March 10, 1977, the Customs Service informed Vasquez that the claim of forfeiture had been referred to the United States Attorney. Within two weeks, a complaint seeking forfeiture under 31 U.S.C. 1102 was filed in Federal District Court.7 In answer to the complaint, Vasquez admitted the factual allegations but asserted as one of several affirmative defenses that the Government's "dilatory processing" of her petition for remission or mitigation and "dilatory" commencement of the civil forfeiture action violated her right to due process. The District Court, after a 2-day bench trial held in January 1978, determined that the time which had elapsed was reasonable under the circumstances and therefore declared the currency forfeited under 31 U.S.C. 1102.A divided panel of the Court of Appeals for the Ninth Circuit reversed. 645 F.2d 836 (1981). Proceeding from the premise that the Government must bring forfeiture actions promptly because seizures infringe upon property rights, the Court of Appeals concluded that the Government's 18-month delay in filing its forfeiture action was unjustified. The Court of Appeals specifically held that pending administrative or criminal investigations cannot justify the delay when the necessary elements for a forfeiture were established at the time of the seizure and when the claimant seeks a speedy resolution of the claim. The Court of Appeals likewise rejected the Government's argument that the claimant should be required to show that the delay prejudiced her ability to present a defense to the forfeiture action. As a remedy for the due process violation, the Court of Appeals ordered dismissal of the Government's forfeiture action.8 Since other Circuits have determined that pending criminal9 or administrative10 investigations and prejudice to the claimant11 are relevant considerations in determining whether a delay in instituting forfeiture proceedings violates due process, we granted certiorari to resolve the conflict. . We reverse.IIThe due process issue presented here is a narrow one. Vasquez concedes that the Government could constitutionally seize her property without a prior hearing.12 Nor does Vasquez challenge the sufficiency of the judicial hearing that was eventually held. She argues only that the Government's delay in filing a civil forfeiture proceeding violated her due process right to a hearing "`at a meaningful time,'" Fuentes v. Shevin, , quoting Armstrong v. Manzo, . Unlike the situation where due process requires a prior hearing, there is no obvious bright line dictating when a postseizure hearing must occur. Because our prior cases in this area have wrestled with whether due process requires a preseizure hearing, we have not previously determined when a postseizure delay may become so prolonged that the dispossessed property owner has been deprived of a meaningful hearing at a meaningful time.13 The Government argues that there is no general due process requirement of prompt postseizure filing of a judicial forfeiture action. Rather, the Government urges that the standard for assessing the timeliness of the suit be the same as that employed for due process challenges to delay in instituting criminal prosecutions. As articulated in United States v. Lovasco, , such claims can prevail only upon a showing that the Government delayed seeking an indictment in a deliberate attempt to gain an unfair tactical advantage over the defendant or in reckless disregard of its probable prejudicial impact upon the defendant's ability to defend against the charges. The Government argues that in the absence of unfair conduct of this sort, the timeliness of the suit is controlled only by the applicable statute of limitations. Here, Congress has required the Government to institute forfeiture proceedings within five years. 19 U.S.C. 1621 (1976 ed., Supp. V).We reject the Government's suggestion that Lovasco provides the appropriate test for determining whether the delay violates the due process command. Lovasco recognized that the interests of the suspect and society are better served if, absent bad faith or extreme prejudice to the defendant, the prosecutor is allowed sufficient time to weigh and sift evidence to ensure that an indictment is well founded. While the value of allowing the Government time to pursue its investigation applies to the civil forfeiture situation as well as the criminal proceeding, a major distinction exists. A suspect who has not been indicted retains his liberty; a claimant whose property has been seized, however, has been entirely deprived of the use of the property.A more apt analogy is to a defendant's right to a speedy trial once an indictment or other formal process has issued. In that situation, the defendant no longer retains his complete liberty. Even if he is allowed to post bail, his liberty is subject to the conditions required by his bail agreement. In Barker v. Wingo, , we developed a test to determine when Government delay has abridged the right to a speedy trial. The Barker test involves a weighing of four factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Id., at 530.Of course, Barker dealt with the Sixth Amendment right to a speedy trial rather than the Fifth Amendment right against deprivation of property without due process of law. Nevertheless, the Fifth Amendment claim here - which challenges only the length of time between the seizure and the initiation of the forfeiture trial - mirrors the concern of undue delay encompassed in the right to a speedy trial. The Barker balancing inquiry provides an appropriate framework for determining whether the delay here violated the due process right to be heard at a meaningful time. We have often repeated the seminal statement from Morrissey v. Brewer, , that "due process is flexible and calls for such procedural protections as the particular situation demands." E. g., Schweiker v. McClure, ; Memphis Light, Gas & Water Division v. Craft, , n. 15 (1978). The flexible approach of Barker, which "necessarily compels courts to approach speedy trial cases on an ad hoc basis," 407 U.S., at 530, is thus an appropriate inquiry for determining whether the flexible requirements of due process have been met. As we stressed in Barker, none of these factors is a necessary or sufficient condition for finding unreasonable delay. Rather, these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case.14 IIIIn applying the Barker balancing test to this situation, the overarching factor is the length of the delay. As we said in Barker, the length of the delay "is to some extent a triggering mechanism." Ibid. Little can be said on when a delay becomes presumptively improper, for the determination necessarily depends on the facts of the particular case. Our inquiry is the constitutional one of due process; we are not establishing a statute of limitations. Obviously, short delays - of perhaps a month or so - need less justification than longer delays. We regard the delay here - some 18 months - as quite significant. Being deprived of this substantial sum of money for a year and a half is undoubtedly a significant burden.Closely related to the length of the delay is the reason the Government assigns to justify the delay. Id., at 531. The Government must be allowed some time to decide whether to institute forfeiture proceedings. The customs official's decision to seize property is of necessity a hasty one. Both the Government and the claimant have an interest in a rule that allows the Government some time to investigate the situation in order to determine whether the facts entitle the Government to forfeiture so that, if not, the Government may return the money without formal proceedings. Cf. Lovasco, supra, at 791. Normally, investigating officials can make such a determination fairly quickly, so that this reason alone could only rarely justify a lengthy delay.An important justification for delaying the initiation of forfeiture proceedings is to see whether the Secretary's decision on the petition for remission will obviate the need for judicial proceedings. This delay can favor both the claimant and the Government. Cf. Barker, supra, at 521; Lovasco, supra, at 794-795. In many cases, the Government's entitlement to the property is clear, and the claimant's only prospect for re-acquiring the property is that the Secretary will favorably exercise his discretion and allow remission or mitigation. If the Government were forced to initiate judicial proceedings without regard to administrative proceedings, the claimant would lose this benefit. Further, administrative proceedings are less formal and expensive than judicial forfeiture proceedings. Given the great percentage of successful petitions, allowing the Government to wait for action on administrative petitions eliminates unnecessary and burdensome court proceedings. Finally, a system whereby the judicial proceeding occurs after administrative action spares litigants and the Government from the burden of simultaneously participating in two forums.15 The Government takes the extreme position, however, that a pending administrative petition should completely toll the requirement of filing a judicial proceeding. Nothing in the statutory scheme or in our cases supports this argument. A claimant need not waive his right to a prompt judicial hearing simply because he seeks the additional remedy of an administrative petition for mitigation.16 Unreasonable delay in processing the administrative petition cannot justify prolonged seizure of his property without a judicial hearing. Rather, the pendency of an administrative petition is simply a weighty factor in the flexible balancing inquiry.Pending criminal proceedings present similar justifications for delay in instituting civil forfeiture proceedings. A prior or contemporaneous civil proceeding could substantially hamper the criminal proceeding, which - as here - may often include forfeiture as part of the sentence. A prior civil suit might serve to estop later criminal proceedings and may provide improper opportunities for the claimant to discover the details of a contemplated or pending criminal prosecution. Compare Federal Rule of Civil Procedure 26(b) with Federal Rule of Criminal Procedure 16. In some circumstances, a civil forfeiture proceeding would prejudice the claimant's ability to raise an inconsistent defense in a contemporaneous criminal proceeding. See, e. g., United States v. U.S. Currency, 626 F.2d 11 (CA6 1980). Again, however, the pendency of criminal proceedings is only an element to be considered in determining whether delay is unreasonable. Although federal criminal proceedings are generally fairly rapid since the advent of the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq. (1976 ed. and Supp. V), the pendency of a trial does not automatically toll the time for instituting a forfeiture proceeding.In this case the Government relies on both a pending petition for mitigation or remission and a pending criminal proceeding to justify the delay in filing civil forfeiture proceedings. During the initial seven months after the seizure the Customs Service was determining whether to grant the petition. This investigation required responses to inquiries to state, federal, and Canadian law enforcement officers. Such an investigation inherently is time consuming, and there is no indication that it was not pursued with diligence. The Customs Service then referred the matter to the United States Attorney, who obtained criminal indictments within two months. Importantly, one count of the indictment sought forfeiture as part of the sentence. If the Government had prevailed, a civil forfeiture would have been rendered unnecessary. There is no evidence in the record that the Government was responsible for the slow pace of the criminal proceedings, which reached a verdict five months later. After the criminal trial ended, the Secretary of the Treasury made a final decision within three months to deny the petition, and the United States Attorney promptly filed a civil forfeiture proceeding.We are impressed by the assessment made by the District Court that the Government had acted with all due speed. Indeed, in an oral colloquy during trial the District Judge commented:"I have been anxious to see in this case whether there has been a lot of dilitory [sic] conduct that the government has really not done what it should do in order to push this thing with all reasonable speed, and, frankly, I don't see any point in which the government has been lax. "If I had found such, and I found it an unreasonable length of time, I would have been happy to so hold ... . "But, in view of the evidence here, I just cannot see any way in which this Court can say that the government has not pursued their claim in all reasonable diligence." App. 77. In sum, the Government's diligent pursuit of pending administrative and criminal proceedings indicates strongly that the reasons for its delay in filing a civil forfeiture proceeding were substantial.The third element to be considered in the due process balance is the claimant's assertion of the right to a judicial hearing. A claimant is able to trigger rapid filing of a forfeiture action if he desires it. First, the claimant can file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property. See Slocum v. Mayberry, 2 Wheat. 1, 10 (1817) (Marshall, C. J.). Less formally, the claimant could simply request that the Customs Service refer the matter to the United States Attorney. If the claimant believes the initial seizure was improper, he could file a motion under Federal Rule of Criminal Procedure 41(e) for a return of the seized property. Vasquez did none of these things and only occasionally inquired about the result of the petition for mitigation or remission and asked that the Secretary reach a decision promptly. The failure to use these remedies can be taken as some indication that Vasquez did not desire an early judicial hearing.The final element is whether the claimant has been prejudiced by the delay. The primary inquiry here is whether the delay has hampered the claimant in presenting a defense on the merits, through, for example, the loss of witnesses or other important evidence. Such prejudice could be a weighty factor indicating that the delay was unreasonable. Here, Vasquez has never alleged or shown that the delay affected her ability to defend against the impropriety of the forfeiture on the merits. On the contrary, Vasquez conceded that the elements necessary for a forfeiture under 1102(a) were present in her case.IVIn this case, the balance of factors indicates that the Government's delay in instituting civil forfeiture proceedings was reasonable. Although the 18-month delay was a substantial period of time, it was justified by the Government's diligent efforts in processing the petition for mitigation or remission and in pursuing related criminal proceedings. Vasquez never indicated that she desired early commencement of a civil forfeiture proceeding, and she has not asserted or shown that the delay prejudiced her ability to defend against the forfeiture. Therefore, the claimant was not denied due process of law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered.
7	Respondent husband and wife filed suit against the United States and the Director of the Central Intelligence Agency (CIA), asserting estoppel and due process claims for the CIA's alleged failure to provide them with financial assistance it had promised in return for their espionage services during the Cold War. The District Court denied the Government's motions to dismiss and for summary judgment, finding that respondents' claims were not barred by the rule of Totten v. United States, 92 U. S. 105, prohibiting suits against the Government based on covert espionage agreements. Affirming in relevant part, the Ninth Circuit reasoned that Totten posed no bar to reviewing some of respondents' claims and thus the case could proceed to trial, subject to the Government's asserting the evidentiary state secrets privilege and the District Court's resolving that issue.Held: Respondents' suit is barred by the Totten rule. In Totten, this Court concluded with no difficulty that the President had the authority to bind the United States to contracts with secret agents, observed that the very essence of such a contract was that it was secret and had to remain so, and found that allowing a former spy to bring suit to enforce such a contract would be entirely incompatible with the contract's nature. The Ninth Circuit was quite wrong in holding that Totten does not require dismissal of respondents' claims. It reasoned that Totten developed merely a contract rule, prohibiting breach-of-contract claims seeking to enforce an espionage agreement's terms but not barring due process or estoppel claims. However, Totten was not so limited. It precludes judicial review in cases such as respondents' where success depends on the existence of their secret espionage relationship with the Government. Id., at 107. The Ninth Circuit also claimed that Totten had been recast simply as an early expression of the evidentiary "state secrets" privilege, rather than a categorical bar to respondents' claims, relying mainly on United States v. Reynolds, 345 U. S. 1, in which widows of civilians killed in a military plane crash sought privileged military information in their wrongful death action against the Government. While the Reynolds Court looked to Totten in invoking the "well established" state secrets privilege, it in no way signaled a retreat from Totten's broader holding that lawsuits premised on alleged espionage agreements are altogether forbidden. The Court later credited Totten's more sweeping holding in Weinberger v. Catholic Action of Haw./Peace Ed. Project, 454 U. S. 139, 146-147, thus confirming its continued validity. Reynolds therefore cannot plausibly be read to have replaced Totten's categorical bar in the distinct class of cases that depend upon clandestine spy relationships. Nor does Webster v. Doe, 486 U. S. 592, which addressed constitutional claims made by acknowledged (though covert) CIA employees, support respondents' claim. Only in the case of an alleged former spy is Totten's core concern implicated: preventing the existence of the plaintiff's relationship with the Government from being revealed. The state secrets privilege and the use of in camera judicial proceedings simply cannot provide the absolute protection the Court found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed is unacceptable. Forcing the Government to litigate these claims would also make it vulnerable to "graymail," i.e., individual lawsuits brought to induce the CIA to settle a case out of fear that litigation would reveal classified information that might undermine covert operations. And requiring the Government to invoke the privilege on a case-by-case basis risks the perception that it is either confirming or denying relationships with individual plaintiffs. Pp. 5-10.329 F. 3d 1135, reversed. Rehnquist, C. J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. Scalia, J., filed a concurring opinion.GEORGE J. TENET, INDIVIDUALLY, PORTER J.GOSS, DIRECTOR OF CENTRAL INTELLI-GENCE AND DIRECTOR OF THE CEN-TRAL INTELLIGENCE AGENCY, ANDUNITED STATES, PETITIONERS v.JOHN DOE et ux.on writ of certiorari to the united states court ofappeals for the ninth circuit[March 2, 2005] Chief Justice Rehnquist delivered the opinion of the Court. In Totten v. United States, 92 U. S. 105 (1876), we held that public policy forbade a self-styled Civil War spy from suing the United States to enforce its obligations under their secret espionage agreement. Respondents here, alleged former Cold War spies, filed suit against the United States and the Director of the Central Intelligence Agency (CIA), asserting estoppel and due process claims for the CIA's alleged failure to provide respondents with the assistance it had promised in return for their espionage services. Finding that Totten did not bar respondents' suit, the District Court and the Court of Appeals for the Ninth Circuit held that the case could proceed. We reverse because this holding contravenes the longstanding rule, announced more than a century ago in Totten, prohibiting suits against the Government based on covert espionage agreements. Respondents, a husband and wife who use the fictitious names John and Jane Doe, brought suit in the United States District Court for the Western District of Washington.1 According to respondents, they were formerly citizens of a foreign country that at the time was considered to be an enemy of the United States, and John Doe was a high-ranking diplomat for the country. After respondents expressed interest in defecting to the United States, CIA agents persuaded them to remain at their posts and conduct espionage for the United States for a specified period of time, promising in return that the Government "would arrange for travel to the United States and ensure financial and personal security for life." App. to Pet. for Cert. 122a. After "carrying out their end of the bargain" by completing years of purportedly high-risk, valuable espionage services, id., at 123a, respondents defected (under new names and false backgrounds) and became United States citizens, with the Government's help. The CIA designated respondents with "PL-110" status and began providing financial assistance and personal security.2 With the CIA's help, respondent John Doe obtained employment in the State of Washington. As his salary increased, the CIA decreased his living stipend until, at some point, he agreed to a discontinuation of benefits while he was working. Years later, in 1997, John Doe was laid off after a corporate merger. Because John Doe was unable to find new employment as a result of CIA restrictions on the type of jobs he could hold, respondents contacted the CIA for financial assistance.3 Denied such assistance by the CIA, they claim they are unable to properly provide for themselves. Thus, they are faced with the prospect of either returning to their home country (where they say they face extreme sanctions), or remaining in the United States in their present circumstances. Respondents assert, among other things, that the CIA violated their procedural and substantive due process rights by denying them support and by failing to provide them with a fair internal process for reviewing their claims. They seek injunctive relief ordering the CIA to resume monthly financial support pending further agency review. They also request a declaratory judgment stating that the CIA failed to provide a constitutionally adequate review process, and detailing the minimal process the agency must provide. Finally, respondents seek a mandamus order requiring the CIA to adopt agency procedures, to give them fair review, and to provide them with security and financial assistance. The Government moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), principally on the ground that Totten bars respondents' suit. The District Court dismissed some of respondents' claims but denied the Government's Totten objection, ruling that the due process claims could proceed. 99 F. Supp. 2d 1284, 1289-1294 (WD Wash. 2000). After minimal discovery, the Government renewed its motion to dismiss based on Totten, and it moved for summary judgment on respondents' due process claims. Apparently construing the complaint as also raising an estoppel claim, the District Court denied the Government's motions, ruled again that Totten did not bar respondents' claims, and found there were genuine issues of material fact warranting a trial on respondents' due process and estoppel claims. App. to Pet. for Cert. 85a-94a. The District Court certified an order for interlocutory appeal and stayed further proceedings pending appeal. Id., at 79a-83a. A divided panel of the Court of Appeals for the Ninth Circuit affirmed in relevant part. 329 F. 3d 1135 (2003). It reasoned that Totten posed no bar to reviewing some of respondents' claims and thus that the case could proceed to trial, subject to the Government's asserting the evidentiary state secrets privilege and the District Court's resolving that issue. 329 F. 3d, at 1145-1155. Over dissent, the Court of Appeals denied a petition for rehearing en banc. 353 F. 3d 1141 (CA9 2004). The Government sought review, and we granted certiorari.4 542 U. S. ___ (2004). In Totten, the administrator of William A. Lloyd's estate brought suit against the United States to recover compensation for services that Lloyd allegedly rendered as a spy during the Civil War. 92 U. S. 105. Lloyd purportedly entered into a contract with President Lincoln in July 1861 to spy behind Confederate lines on troop placement and fort plans, for which he was to be paid $200 a month. Id., at 105-106. The lower court had found that Lloyd performed on the contract but did not receive full compensation. Id., at 106. After concluding with "no difficulty," ibid., that the President had the authority to bind the United States to contracts with secret agents, we observed that the very essence of the alleged contract between Lloyd and the Government was that it was secret, and had to remain so:"The service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed. Both employer and agent must have understood that the lips of the other were to be for ever sealed respecting the relation of either to the matter. This condition of the engagement was implied from the nature of the employment, and is implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent." Ibid.Thus, we thought it entirely incompatible with the nature of such a contract that a former spy could bring suit to enforce it. Id., at 106-107. We think the Court of Appeals was quite wrong in holding that Totten does not require dismissal of respondents' claims. That court, and respondents here, reasoned first that Totten developed merely a contract rule, prohibiting breach-of-contract claims seeking to enforce the terms of espionage agreements but not barring claims based on due process or estoppel theories. In fact, Totten was not so limited: "[P]ublic policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential." Id., at 107 (emphasis added); see also ibid. ("The secrecy which such contracts impose precludes any action for their enforcement" (emphasis added)). No matter the clothing in which alleged spies dress their claims, Totten precludes judicial review in cases such as respondents' where success depends upon the existence of their secret espionage relationship with the Government. Relying mainly on United States v. Reynolds, 345 U. S. 1 (1953), the Court of Appeals also claimed that Totten has been recast simply as an early expression of the evidentiary "state secrets" privilege, rather than a categorical bar to their claims. Reynolds involved a wrongful-death action brought under the Federal Tort Claims Act, 28 U. S. C. §1346, by the widows of three civilians who died in the crash of a military B-29 aircraft. 345 U. S., at 2-3. In the course of discovery, the plaintiffs sought certain investigation-related documents, which the Government said contained "highly secret," privileged military information. Id., at 3-4. We recognized "the privilege against revealing military secrets, a privilege which is well established in the law of evidence," id., at 6-7, and we set out a balancing approach for courts to apply in resolving Government claims of privilege, id., at 7-11. We ultimately concluded that the Government was entitled to the privilege in that case. Id., at 10-12. When invoking the "well established" state secrets privilege, we indeed looked to Totten. Reynolds, supra, at 7, n. 11 (citing Totten, supra, at 107). See also Brief for United States in United States v. Reynolds, O. T. 1952, No. 21, pp. 36, 42 (citing Totten in support of a military secrets privilege). But that in no way signaled our retreat from Totten's broader holding that lawsuits premised on alleged espionage agreements are altogether forbidden. Indeed, our opinion in Reynolds refutes this very suggestion: Citing Totten as a case "where the very subject matter of the action, a contract to perform espionage, was a matter of state secret," we declared that such a case was to be "dismissed on the pleadings without ever reaching the question of evidence, since it was so obvious that the action should never prevail over the privilege." 345 U. S., at 11, n. 26 (emphasis added). In a later case, we again credited the more sweeping holding in Totten, thus confirming its continued validity. See Weinberger v. Catholic Action of Haw./Peace Ed. Project, 454 U. S. 139, 146-147 (1981) (citing Totten in holding that "whether or not the Navy has complied with [§102(2)(C) of the National Environmental Policy Act of 1969, 83 Stat. 853, 42 U. S. C. §4332(2)(C)] 'to the fullest extent possible' is beyond judicial scrutiny in this case," where, "[d]ue to national security reasons," the Navy could "neither admit nor deny" the fact that was central to the suit, i.e., "that it propose[d] to store nuclear weapons" at a facility). Reynolds therefore cannot plausibly be read to have replaced the categorical Totten bar with the balancing of the state secrets evidentiary privilege in the dis-tinct class of cases that depend upon clandestine spy relationships. Nor does Webster v. Doe, 486 U. S. 592 (1988), support respondents' claim. There, we held that §102(c) of the National Security Act of 1947, 61 Stat. 498, 50 U. S. C. §403(c), may not be read to exclude judicial review of the constitutional claims made by a former CIA employee for alleged discrimination. 486 U. S., at 603. In reaching that conclusion, we noted the " 'serious constitutional question' that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim." Ibid. (citation omitted). But there is an obvious difference, for purposes of Totten, between a suit brought by an acknowledged (though covert) employee of the CIA and one filed by an alleged former spy. Only in the latter scenario is Totten's core concern implicated: preventing the existence of the plaintiff's relationship with the Government from being revealed.5 That is why the CIA regularly entertains Title VII claims concerning the hiringand promotion of its employees, as we noted in Webster, supra, at 604, yet Totten has long barred suits such as respondents'. There is, in short, no basis for respondents' and the Court of Appeals' view that the Totten bar has been reduced to an example of the state secrets privilege. In a far closer case than this, we observed that if the "precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). We adhere to Totten. The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection we found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable: "Even a small chance that some court will order disclosure of a source's identity could well impair intelligence gathering and cause sources to 'close up like a clam.' " CIA v. Sims, 471 U. S. 159, 175 (1985). Forcing the Government to litigate these claims would also make it vulnerable to "graymail," i.e., individual lawsuits brought to induce the CIA to settle a case (or prevent its filing) out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations. And requiring the Government to invoke the privilege on a case-by-case basis risks the perception that it is either confirming or denying relationships with individual plaintiffs. The judgment of the Court of Appeals is reversed.It is so ordered.GEORGE J. TENET, INDIVIDUALLY, PORTER J.GOSS, DIRECTOR OF CENTRAL INTELLI-GENCE AND DIRECTOR OF THE CEN-TRAL INTELLIGENCE AGENCY, ANDUNITED STATES, PETITIONERS v.JOHN DOE et ux.on writ of certiorari to the united states court ofappeals for the ninth circuit[March 2, 2005] Justice Stevens, with whom Justice Ginsburg joins, concurring. In Totten v. United States, 92 U. S. 105 (1876), the Court held that an alleged oral agreement between a deceased spy and President Lincoln was unenforceable. There may be situations in which the national interest would be well served by a rule that permitted similar commitments made by less senior officers to be enforced in court, subject to procedures designed to protect sensitive information. If that be so, Congress can modify the federal common-law rule announced in Totten. For the purposes of today's decision, which I join, the doctrine of stare decisis provides a sufficient justification for concluding that the complaint is without merit. The Court wisely decides that the absence of an enforceable agreement requires that respondents' constitutional and other claims be dismissed without first answering an arguably antecedent jurisdictional question. See ante, at 5, n. 4; see also Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 117-123 (1998) (Stevens, J., concurring in judgment).GEORGE J. TENET, INDIVIDUALLY, PORTER J.GOSS, DIRECTOR OF CENTRAL INTELLI-GENCE AND DIRECTOR OF THE CEN-TRAL INTELLIGENCE AGENCY, ANDUNITED STATES, PETITIONERS v.JOHN DOE et ux.on writ of certiorari to the united states court ofappeals for the ninth circuit[March 2, 2005] Justice Scalia, concurring. I join the Court's opinion because I do not agree with Justice Stevens's concurrence, painting today's action as a vindication of his opinion concurring in the judgment in Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 112 (1998), in which he would have held that a jurisdictional bar does not prevent the resolution of a merits issue. When today's opinion refers to the issue in Totten v. United States, 92 U. S. 105 (1876), as "the sort of 'threshold question' we have recognized may be resolved before addressing jurisdiction," ante, at 5, n. 4, it is surely not referring to the run-of-the-mill, nonthreshold merits question whether a cause of action exists. And when it describes "the unique and categorical nature of the Totten bar — a rule designed not merely to defeat the asserted claims, but to preclude judicial inquiry," ibid., it is assuredly not describing the mere everyday absence of a cause of action. As applied today, the bar of Totten is a jurisdictional one. Of course even if it were not, given the squarely applicable precedent of Totten, the absence of a cause of action is so clear that respondents' claims are frivolous — establishing another jurisdictional ground for dismissal that the Steel Co. majority opinion acknowledges. See 523 U. S., at 89.FOOTNOTESFootnote 1 The Government has neither confirmed nor denied any of respondents' allegations. We therefore describe the facts as asserted in respondents' second amended complaint. See App. to Pet. for Cert. 128a-136a. They are, of course, no more than allegations.Footnote 2 While the Government neither confirms nor denies that respondents are part of any "PL-110" program, the parties agree this reference is to 50 U. S. C. §403h, a provision enacted as part of the Central Intelligence Agency Act of 1949, §8, 63 Stat. 212 (renumbered §7, 72 Stat. 337). This provision allows a limited number of aliens and members of their immediate families per year to be admitted to the United States for permanent residence, regardless of their admissibility under the immigration laws, upon a determination by the Director of the CIA, the Attorney General, and the Commissioner of Immigration that admission of the particular alien "is in the interest of national security or essential to the furtherance of the national intelligence mission." §403h. However, nothing in this statute, nor anything in the redacted CIA regulations and related materials respondents cite, see Brief for Respondents 41-43; App. to Brief in Opposition 41-50, represents an enforceable legal commitment by the CIA to provide support to spies that may be admitted into the United States under §403h. See also App. to Pet. for Cert. 145a (decl. of William McNair ¶5 (Information Review Officer for the CIA's Directorate of Operations) (stating, based on his search of regulations and internal CIA policies, that he "can inform the court unequivocally that there are no Agency or other US federal regulations that require the CIA to provide lifetime subsistence assistance to individuals brought into the United States under the authority of PL-110" (emphasis in original))).Footnote 3 Respondents document their alleged series of contacts with the CIA. See id., at 128a-136a (Second Amended Complaint). For instance, respondents allegedly received a letter from the CIA in June 1997, expressing regret that the agency no longer had funds available to provide assistance. Id., at 128a. Later, respondents claim they were told the agency determined "the benefits previously provided were adequate for the services rendered." Id., at 129a. Although the CIA apparently did not disclose to respondents the agency's appeals process, respondents were permitted to appeal the initial determination both to the Director of the CIA and to a panel of former agency officials called the Helms Panel; both appeals were denied. Id., at 129a-132a.Footnote 4 Preliminarily, we must address whether Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998), prevents us from resolving this case based on the Totten issue. In Steel Co., we adhered to the requirement that a court address questions pertaining to its or a lower court's jurisdiction before proceeding to the merits. 523 U. S., at 94-95. In the lower courts, in addition to relying on Totten, the Government argued that the Tucker Act, 28 U. S. C. §1491(a)(1), required that respondents' claims be brought in the Court of Federal Claims, rather than in the District Court. The District Court and the Court of Appeals rejected this argument, and the Government did not seek review on this question in its petition for certiorari. Pet. for Cert. 8, n. 2. We may assume for purposes of argument that this Tucker Act question is the kind of jurisdictional issue that Steel Co. directs must be resolved before addressing the merits of a claim. Cf. United States v. Mitchell, 463 U. S. 206, 212, 215 (1983) (holding that "the Tucker Act effects a waiver of sovereign immunity" and observing that "the existence of consent [to be sued] is a prerequisite for jurisdiction"). Nevertheless, application of the Totten rule of dismissal, like the abstention doctrine of Younger v. Harris, 401 U. S. 37 (1971), or the prudential standing doctrine, represents the sort of "threshold question" we have recognized may be resolved before addressing jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 585 (1999) ("It is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits"); see also Kowalski v. Tesmer, 543 U. S. ___, ___ (2004) (slip op., at 3) (assuming Article III standing in order to "address the alternative threshold question whether" attorneys had third-party standing); Steel Co., supra, at 100, n. 3 (approving a decision resolving Younger abstention before addressing subject-matter jurisdiction). It would be inconsistent with the unique and categorical nature of the Totten bar — a rule designed not merely to defeat the asserted claims, but to preclude judicial inquiry — to first allow discovery or other proceedings in order to resolve the jurisdictional question. Thus, whether or not the Government was permitted to waive the Tucker Act question, we may dismiss respondents' cause of action on the ground that it is barred by Totten.Footnote 5 The Court of Appeals apparently believed that the plaintiff's relationship with the CIA was secret in Webster, just as in this case. See 329 F. 3d 1135, 1153 (CA9 2003). It is true that the plaintiff in Webster proceeded under a pseudonym because "his status as a CIA employee cannot be publicly acknowledged." Brief for United States in Webster v. Doe, O. T. 1987, No. 86-1294, p. 3, n. 1. But the fact that the plaintiff in Webster kept his identity secret did not mean that the employment relationship between him and the CIA was not known and admitted by the CIA.
1	The Education of the Handicapped Act (Act) provides federal money to assist state and local agencies in educating handicapped children. To qualify for federal assistance, a State must demonstrate, through a detailed plan submitted for federal approval, that it has in effect a policy that assures all handicapped children the right to a "free appropriate public education," which policy must be tailored to the unique needs of the handicapped child by means of an "individualized educational program" (IEP). The IEP must be prepared (and reviewed at least annually) by school officials with participation by the child's parents or guardian. The Act also requires that a participating State provide specified administrative procedures by which the child's parents or guardian may challenge any change in the evaluation and education of the child. Any party aggrieved by the state administrative decisions is authorized to bring a civil action in either a state court or a federal district court. Respondents - a child with only minimal residual hearing who had been furnished by school authorities with a special hearing aid for use in the classroom and who was to receive additional instruction from tutors, and the child's parents - filed suit in Federal District Court to review New York administrative proceedings that had upheld the school administrators' denial of the parents' request that the child also be provided a qualified sign-language interpreter in all of her academic classes. Entering judgment for respondents, the District Court found that although the child performed better than the average child in her class and was advancing easily from grade to grade, she was not performing as well academically as she would without her handicap. Because of this disparity between the child's achievement and her potential, the court held that she was not receiving a "free appropriate public education," which the court defined as "an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children." The Court of Appeals affirmed. Held: 1. The Act's requirement of a "free appropriate public education" is satisfied when the State provides personalized instruction with sufficient support services to permit the handicapped child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate grade levels used in the State's regular education, and must comport with the child's IEP, as formulated in accordance with the Act's requirements. If the child is being educated in regular classrooms, as here, the IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Pp. 187-204. (a) This interpretation is supported by the definitions contained in the Act, as well as by other provisions imposing procedural requirements and setting forth statutory findings and priorities for States to follow in extending educational services to handicapped children. The Act's language contains no express substantive standard prescribing the level of education to be accorded handicapped children. Pp. 187-190. (b) The Act's legislative history shows that Congress sought to make public education available to handicapped children, but did not intend to impose upon the States any greater substantive educational standard than is necessary to make such access to public education meaningful. The Act's intent was more to open the door of public education to handicapped children by means of specialized educational services than to guarantee any particular substantive level of education once inside. Pp. 191-197. (c) While Congress sought to provide assistance to the States in carrying out their constitutional responsibilities to provide equal protection of the laws, it did not intend to achieve strict equality of opportunity or services for handicapped and nonhandicapped children, but rather sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education. The Act does not require a State to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Pp. 198-200. 2. In suits brought under the Act's judicial-review provisions, a court must first determine whether the State has complied with the statutory procedures, and must then determine whether the individualized program developed through such procedures is reasonably calculated to enable the child to receive educational benefits. If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. Pp. 204-208. (a) Although the judicial-review provisions do not limit courts to ensuring that States have complied with the Act's procedural requirements, the Act's emphasis on procedural safeguards demonstrates the legislative conviction that adequate compliance with prescribed procedures will in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP. Pp. 204-207. (b) The courts must be careful to avoid imposing their view of preferable educational methods upon the States. Once a court determines that the Act's requirements have been met, questions of methodology are for resolution by the States. Pp. 207-208. 3. Entrusting a child's education to state and local agencies does not leave the child without protection. As demonstrated by this case, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act. Pp. 208-209. 4. The Act does not require the provision of a sign-language interpreter here. Neither of the courts below found that there had been a failure to comply with the Act's procedures, and the findings of neither court will support a conclusion that the child's educational program failed to comply with the substantive requirements of the Act. Pp. 209-210. 632 F.2d 945, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and POWELL, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 210. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 212.Raymond G. Kuntz argued the cause for petitioners. With him on the briefs were Robert D. Stone, Jean M. Coon, Paul E. Sherman, Jr., and Donald O. Meserve.Michael A. Chatoff argued the cause and filed a brief for respondents.Elliott Schulder argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Lee, Assistant Attorney General Reynolds, Walter W. Barnett, and Louise A. Lerner.* [Footnote *] Briefs of amici curiae urging affirmance were filed by Charles S. Sims for the American Civil Liberties Union; by Jane Bloom Yohalem, Norman S. Rosenberg, Daniel Yohalem, and Marian Wright Edelman for the Association for Retarded Citizens of the United States et al.; by Ralph J. Moore, Jr., and Franklin D. Kramer for the Maryland Advocacy Unit for the Developmentally Disabled, Inc., et al.; by Marc Charmatz, Janet Stotland, and Joseph Blum for the National Association of the Deaf et al; by Minna J. Kotkin and Barry Felder for the New York State Commission on the Quality of Care for the Mentally Disabled, Protection and Advocacy System; and by Michael A. Rebell for the United Cerebral Palsy Associations, Inc., et al. Norman H. Gross, Gwendolyn H. Gregory, Thomas A. Shannon, and August W. Steinhilber filed a brief for the National School Boards Association et al. as amici curiae. JUSTICE REHNQUIST delivered the opinion of the Court.This case presents a question of statutory interpretation. Petitioners contend that the Court of Appeals and the District Court misconstrued the requirements imposed by Congress upon States which receive federal funds under the Education of the Handicapped Act. We agree and reverse the judgment of the Court of Appeals.IThe Education of the Handicapped Act (Act), 84 Stat. 175, as amended, 20 U.S.C. 1401 et seq. (1976 ed. and Supp. IV), provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State's compliance with extensive goals and procedures. The Act represents an ambitious federal effort to promote the education of handicapped children, and was passed in response to Congress' perception that a majority of handicapped children in the United States "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to `drop out.'" H. R. Rep. No. 94-332, p. 2 (1975) (H. R. Rep.). The Act's evolution and major provisions shed light on the question of statutory interpretation which is at the heart of this case.Congress first addressed the problem of educating the handicapped in 1966 when it amended the Elementary and Secondary Education Act of 1965 to establish a grant program "for the purpose of assisting the States in the initiation, expansion, and improvement of programs and projects ... for the education of handicapped children." Pub. L. 89-750, 161, 80 Stat. 1204. That program was repealed in 1970 by the Education of the Handicapped Act, Pub. L. 91-230, 84 Stat. 175, Part B of which established a grant program similar in purpose to the repealed legislation. Neither the 1966 nor the 1970 legislation contained specific guidelines for state use of the grant money; both were aimed primarily at stimulating the States to develop educational resources and to train personnel for educating the handicapped.1 Dissatisfied with the progress being made under these earlier enactments, and spurred by two District Court decisions holding that handicapped children should be given access to a public education,2 Congress in 1974 greatly increased federal funding for education of the handicapped and for the first time required recipient States to adopt "a goal of providing full educational opportunities to all handicapped children." Pub. L. 93-380, 88 Stat. 579, 583 (1974 statute). The 1974 statute was recognized as an interim measure only, adopted "in order to give the Congress an additional year in which to study what if any additional Federal assistance [was] required to enable the States to meet the needs of handicapped children." H. R. Rep., at 4. The ensuing year of study produced the Education for All Handicapped Children Act of 1975.In order to qualify for federal financial assistance under the Act, a State must demonstrate that it "has in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. 1412(1). That policy must be reflected in a state plan submitted to and approved by the Secretary of Education,3 1413, which describes in detail the goals, programs, and timetables under which the State intends to educate handicapped children within its borders. 1412, 1413. States receiving money under the Act must provide education to the handicapped by priority, first "to handicapped children who are not receiving an education" and second "to handicapped children ... with the most severe handicaps who are receiving an inadequate education," 1412(3), and "to the maximum extent appropriate" must educate handicapped children "with children who are not handicapped." 1412(5).4 The Act broadly defines "handicapped children" to include "mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, [and] other health impaired children, [and] children with specific learning disabilities." 1401(1).5 The "free appropriate public education" required by the Act is tailored to the unique needs of the handicapped child by means of an "individualized educational program" (IEP). 1401(18). The IEP, which is prepared at a meeting between a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, where appropriate, the child, consists of a written document containing"(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved." 1401(19). Local or regional educational agencies must review, and where appropriate revise, each child's IEP at least annually. 1414(a)(5). See also 1413(a)(11).In addition to the state plan and the IEP already described, the Act imposes extensive procedural requirements upon States receiving federal funds under its provisions. Parents or guardians of handicapped children must be notified of any proposed change in "the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to such child," and must be permitted to bring a complaint about "any matter relating to" such evaluation and education. 1415(b)(1)(D) and (E).6 Complaints brought by parents or guardians must be resolved at "an impartial due process hearing," and appeal to the state educational agency must be provided if the initial hearing is held at the local or regional level. 1415(b)(2) and (c).7 Thereafter, "[a]ny party aggrieved by the findings and decision" of the state administrative hearing has "the right to bring a civil action with respect to the complaint ... in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." 1415(e)(2).Thus, although the Act leaves to the States the primary responsibility for developing and executing educational programs for handicapped children, it imposes significant requirements to be followed in the discharge of that responsibility. Compliance is assured by provisions permitting the withholding of federal funds upon determination that a participating state or local agency has failed to satisfy the requirements of the Act, 1414(b)(2)(A), 1416, and by the provision for judicial review. At present, all States except New Mexico receive federal funds under the portions of the Act at issue today. Brief for United States as Amicus Curiae 2, n. 2.IIThis case arose in connection with the education of Amy Rowley, a deaf student at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, N. Y. Amy has minimal residual hearing and is an excellent lip-reader. During the year before she began attending Furnace Woods, a meeting between her parents and school administrators resulted in a decision to place her in a regular kindergarten class in order to determine what supplemental services would be necessary to her education. Several members of the school administration prepared for Amy's arrival by attending a course in sign-language interpretation, and a teletype machine was installed in the principal's office to facilitate communication with her parents who are also deaf. At the end of the trial period it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM hearing aid which would amplify words spoken into a wireless receiver by the teacher or fellow students during certain classroom activities. Amy successfully completed her kindergarten year.As required by the Act, an IEP was prepared for Amy during the fall of her first-grade year. The IEP provided that Amy should be educated in a regular classroom at Furnace Woods, should continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP but insisted that Amy also be provided a qualified sign-language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy's kindergarten class for a 2-week experimental period, but the interpreter had reported that Amy did not need his services at that time. The school administrators likewise concluded that Amy did not need such an interpreter in her first-grade classroom. They reached this conclusion after consulting the school district's Committee on the Handicapped, which had received expert evidence from Amy's parents on the importance of a sign-language interpreter, received testimony from Amy's teacher and other persons familiar with her academic and social progress, and visited a class for the deaf.When their request for an interpreter was denied, the Rowleys demanded and received a hearing before an independent examiner. After receiving evidence from both sides, the examiner agreed with the administrators' determination that an interpreter was not necessary because "Amy was achieving educationally, academically, and socially" without such assistance. App. to Pet. for Cert. F-22. The examiner's decision was affirmed on appeal by the New York Commissioner of Education on the basis of substantial evidence in the record. Id., at E-4. Pursuant to the Act's provision for judicial review, the Rowleys then brought an action in the United States District Court for the Southern District of New York, claiming that the administrators' denial of the sign-language interpreter constituted a denial of the "free appropriate public education" guaranteed by the Act.The District Court found that Amy "is a remarkably well-adjusted child" who interacts and communicates well with her classmates and has "developed an extraordinary rapport" with her teachers. 483 F. Supp. 528, 531 (1980). It also found that "she performs better than the average child in her class and is advancing easily from grade to grade," id., at 534, but "that she understands considerably less of what goes on in class than she could if she were not deaf" and thus "is not learning as much, or performing as well academically, as she would without her handicap," id., at 532. This disparity between Amy's achievement and her potential led the court to decide that she was not receiving a "free appropriate public education," which the court defined as "an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children." Id., at 534. According to the District Court, such a standard "requires that the potential of the handicapped child be measured and compared to his or her performance, and that the resulting differential or `shortfall' be compared to the shortfall experienced by nonhandicapped children." Ibid. The District Court's definition arose from its assumption that the responsibility for "giv[ing] content to the requirement of an `appropriate education'" had "been left entirely to the [federal] courts and the hearing officers." Id., at 533.8 A divided panel of the United States Court of Appeals for the Second Circuit affirmed. The Court of Appeals "agree[d] with the [D]istrict [C]ourt's conclusions of law," and held that its "findings of fact [were] not clearly erroneous." 632 F.2d 945, 947 (1980).We granted certiorari to review the lower courts' interpretation of the Act. . Such review requires us to consider two questions: What is meant by the Act's requirement of a "free appropriate public education"? And what is the role of state and federal courts in exercising the review granted by 20 U.S.C. 1415? We consider these questions separately.9 IIIAThis is the first case in which this Court has been called upon to interpret any provision of the Act. As noted previously, the District Court and the Court of Appeals concluded that "[t]he Act itself does not define `appropriate education,'" 483 F. Supp., at 533, but leaves "to the courts and the hearing officers" the responsibility of "giv[ing] content to the requirement of an `appropriate education.'" Ibid. See also 632 F.2d, at 947. Petitioners contend that the definition of the phrase "free appropriate public education" used by the courts below overlooks the definition of that phrase actually found in the Act. Respondents agree that the Act defines "free appropriate public education," but contend that the statutory definition is not "functional" and thus "offers judges no guidance in their consideration of controversies involving `the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education.'" Brief for Respondents 28. The United States, appearing as amicus curiae on behalf of respondents, states that "[a]lthough the Act includes definitions of a `free appropriate public education' and other related terms, the statutory definitions do not adequately explain what is meant by `appropriate.'" Brief for United States as Amicus Curiae 13.We are loath to conclude that Congress failed to offer any assistance in defining the meaning of the principal substantive phrase used in the Act. It is beyond dispute that, contrary to the conclusions of the courts below, the Act does expressly define "free appropriate public education": "The term `free appropriate public education' means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title." 1401(18) (emphasis added)."Special education," as referred to in this definition, means "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions." 1401(16). "Related services" are defined as "transportation, and such developmental, corrective, and other supportive services ... as may be required to assist a handicapped child to benefit from special education." 1401(17).10 Like many statutory definitions, this one tends toward the cryptic rather than the comprehensive, but that is scarcely a reason for abandoning the quest for legislative intent. Whether or not the definition is a "functional" one, as respondents contend it is not, it is the principal tool which Congress has given us for parsing the critical phrase of the Act. We think more must be made of it than either respondents or the United States seems willing to admit.According to the definitions contained in the Act, a "free appropriate public education" consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child "to benefit" from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act.Other portions of the statute also shed light upon congressional intent. Congress found that of the roughly eight million handicapped children in the United States at the time of enactment, one million were "excluded entirely from the public school system" and more than half were receiving an inappropriate education. 89 Stat. 774, note following 1401. In addition, as mentioned in Part I, the Act requires States to extend educational services first to those children who are receiving no education and second to those children who are receiving an "inadequate education." 1412(3). When these express statutory findings and priorities are read together with the Act's extensive procedural requirements and its definition of "free appropriate public education," the face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child.Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly the language of the statute contains no requirement like the one imposed by the lower courts - that States maximize the potential of handicapped children "commensurate with the opportunity provided to other children." 483 F. Supp., at 534. That standard was expounded by the District Court without reference to the statutory definitions or even to the legislative history of the Act. Although we find the statutory definition of "free appropriate public education" to be helpful in our interpretation of the Act, there remains the question of whether the legislative history indicates a congressional intent that such education meet some additional substantive standard. For an answer, we turn to that history.11 B (i) As suggested in Part I, federal support for education of the handicapped is a fairly recent development. Before passage of the Act some States had passed laws to improve the educational services afforded handicapped children,12 but many of these children were excluded completely from any form of public education or were left to fend for themselves in classrooms designed for education of their nonhandicapped peers. As previously noted, the House Report begins by emphasizing this exclusion and misplacement, noting that millions of handicapped children "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to `drop out.'" H. R. Rep., at 2. See also S. Rep., at 8. One of the Act's two principal sponsors in the Senate urged its passage in similar terms: "While much progress has been made in the last few years, we can take no solace in that progress until all handicapped children are, in fact, receiving an education. The most recent statistics provided by the Bureau of Education for the Handicapped estimate that ... 1.75 million handicapped children do not receive any educational services, and 2.5 million handicapped children are not receiving an appropriate education." 121 Cong. Rec. 19486 (1975) (remarks of Sen. Williams). This concern, stressed repeatedly throughout the legislative history,13 confirms the impression conveyed by the language of the statute: By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful. Indeed, Congress expressly "recognize[d] that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome." S. Rep., at 11. Thus, the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.Both the House and the Senate Reports attribute the impetus for the Act and its predecessors to two federal-court judgments rendered in 1971 and 1972. As the Senate Report states, passage of the Act "followed a series of landmark court cases establishing in law the right to education for all handicapped children." S. Rep., at 6.14 The first case, Pennsylvania Assn. for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (ED Pa. 1971) and 343 F. Supp. 279 (1972) (PARC), was a suit on behalf of retarded children challenging the constitutionality of a Pennsylvania statute which acted to exclude them from public education and training. The case ended in a consent decree which enjoined the State from "deny[ing] to any mentally retarded child access to a free public program of education and training." 334 F. Supp., at 1258 (emphasis added).PARC was followed by Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC 1972), a case in which the plaintiff handicapped children had been excluded from the District of Columbia public schools. The court's judgment, quoted in S. Rep., at 6, provided that"no [handicapped] child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular school assignment by a Rule, policy, or practice of the Board of Education of the District of Columbia or its agents unless such child is provided (a) adequate alternative educational services suited to the child's needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child's status, progress, and the adequacy of any educational alternative." 348 F. Supp., at 878 (emphasis added). Mills and PARC both held that handicapped children must be given access to an adequate, publicly supported education. Neither case purports to require any particular substantive level of education.15 Rather, like the language of the Act, the cases set forth extensive procedures to be followed in formulating personalized educational programs for handicapped children. See 348 F. Supp., at 878-883; 334 F. Supp., at 1258-1267.16 The fact that both PARC and Mills are discussed at length in the legislative Reports17 suggests that the principles which they established are the principles which, to a significant extent, guided the drafters of the Act. Indeed, immediately after discussing these cases the Senate Report describes the 1974 statute as having "incorporated the major principles of the right to education cases." S. Rep., at 8. Those principles in turn became the basis of the Act, which itself was designed to effectuate the purposes of the 1974 statute. H. R. Rep., at 5.18 That the Act imposes no clear obligation upon recipient States beyond the requirement that handicapped children receive some form of specialized education is perhaps best demonstrated by the fact that Congress, in explaining the need for the Act, equated an "appropriate education" to the receipt of some specialized educational services. The Senate Report states: "[T]he most recent statistics provided by the Bureau of Education for the Handicapped estimate that of the more than 8 million children ... with handicapping conditions requiring special education and related services, only 3.9 million such children are receiving an appropriate education." S. Rep., at 8.19 This statement, which reveals Congress' view that 3.9 million handicapped children were "receiving an appropriate education" in 1975, is followed immediately in the Senate Report by a table showing that 3.9 million handicapped children were "served" in 1975 and a slightly larger number were "unserved." A similar statement and table appear in the House Report. H. R. Rep., at 11-12. It is evident from the legislative history that the characterization of handicapped children as "served" referred to children who were receiving some form of specialized educational services from the States, and that the characterization of children as "unserved" referred to those who were receiving no specialized educational services. For example, a letter sent to the United States Commissioner of Education by the House Committee on Education and Labor, signed by two key sponsors of the Act in the House, asked the Commissioner to identify the number of handicapped "children served" in each State. The letter asked for statistics on the number of children "being served" in various types of "special education program[s]" and the number of children who were not "receiving educational services." Hearings on S. 6 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess., 205-207 (1975). Similarly, Senator Randolph, one of the Act's principal sponsors in the Senate, noted that roughly one-half of the handicapped children in the United States "are receiving special educational services." Id., at 1.20 By characterizing the 3.9 million handicapped children who were "served" as children who were "receiving an appropriate education," the Senate and House Reports unmistakably disclose Congress' perception of the type of education required by the Act: an "appropriate education" is provided when personalized educational services are provided.21 (ii) Respondents contend that "the goal of the Act is to provide each handicapped child with an equal educational opportunity." Brief for Respondents 35. We think, however, that the requirement that a State provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child's potential "commensurate with the opportunity provided other children." Respondents and the United States correctly note that Congress sought "to provide assistance to the States in carrying out their responsibilities under ... the Constitution of the United States to provide equal protection of the laws." S. Rep., at 13.22 But we do not think that such statements imply a congressional intent to achieve strict equality of opportunity or services.The educational opportunities provided by our public school systems undoubtedly differ from student to student, depending upon a myriad of factors that might affect a particular student's ability to assimilate information presented in the classroom. The requirement that States provide "equal" educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons. Similarly, furnishing handicapped children with only such services as are available to nonhandicapped children would in all probability fall short of the statutory requirement of "free appropriate public education"; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child's potential is, we think, further than Congress intended to go. Thus to speak in terms of "equal" services in one instance gives less than what is required by the Act and in another instance more. The theme of the Act is "free appropriate public education," a phrase which is too complex to be captured by the word "equal" whether one is speaking of opportunities or services.The legislative conception of the requirements of equal protection was undoubtedly informed by the two District Court decisions referred to above. But cases such as Mills and PARC held simply that handicapped children may not be excluded entirely from public education. In Mills, the District Court said:"If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom." 348 F. Supp., at 876. The PARC court used similar language, saying "[i]t is the commonwealth's obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child's capacity ... ." 334 F. Supp., at 1260. The right of access to free public education enunciated by these cases is significantly different from any notion of absolute equality of opportunity regardless of capacity. To the extent that Congress might have looked further than these cases which are mentioned in the legislative history, at the time of enactment of the Act this Court had held at least twice that the Equal Protection Clause of the Fourteenth Amendment does not require States to expend equal financial resources on the education of each child. San Antonio Independent School Dist. v. Rodriguez, ; McInnis v. Shapiro, 293 F. Supp. 327 (ND Ill. 1968), aff'd sub nom. McInnis v. Ogilvie, .In explaining the need for federal legislation, the House Report noted that "no congressional legislation has required a precise guarantee for handicapped children, i. e. a basic floor of opportunity that would bring into compliance all school districts with the constitutional right of equal protection with respect to handicapped children." H. R. Rep., at 14. Assuming that the Act was designed to fill the need identified in the House Report - that is, to provide a "basic floor of opportunity" consistent with equal protection - neither the Act nor its history persuasively demonstrates that Congress thought that equal protection required anything more than equal access. Therefore, Congress' desire to provide specialized educational services, even in furtherance of "equality," cannot be read as imposing any particular substantive educational standard upon the States.The District Court and the Court of Appeals thus erred when they held that the Act requires New York to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Desirable though that goal might be, it is not the standard that Congress imposed upon States which receive funding under the Act. Rather, Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education. (iii) Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education. The statutory definition of "free appropriate public education," in addition to requiring that States provide each child with "specially designed instruction," expressly requires the provision of "such ... supportive services ... as may be required to assist a handicapped child to benefit from special education." 1401(17) (emphasis added). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.23 The determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act presents a more difficult problem. The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation.The Act requires participating States to educate handicapped children with nonhandicapped children whenever possible.24 When that "mainstreaming" preference of the Act has been met and a child is being educated in the regular classrooms of a public school system, the system itself monitors the educational progress of the child. Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been "educated" at least to the grade level they have completed, and access to an "education" for handicapped children is precisely what Congress sought to provide in the Act.25 CWhen the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.26 IVAAs mentioned in Part I, the Act permits "[a]ny party aggrieved by the findings and decision" of the state administrative hearings "to bring a civil action" in "any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." 1415(e)(2). The complaint, and therefore the civil action, may concern "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 1415(b)(1)(E). In reviewing the complaint, the Act provides that a court "shall receive the record of the [state] administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 1415(e)(2).The parties disagree sharply over the meaning of these provisions, petitioners contending that courts are given only limited authority to review for state compliance with the Act's procedural requirements and no power to review the substance of the state program, and respondents contending that the Act requires courts to exercise de novo review over state educational decisions and policies. We find petitioners' contention unpersuasive, for Congress expressly rejected provisions that would have so severely restricted the role of reviewing courts. In substituting the current language of the statute for language that would have made state administrative findings conclusive if supported by substantial evidence, the Conference Committee explained that courts were to make "independent decision[s] based on a preponderance of the evidence." S. Conf. Rep. No. 94-455, p. 50 (1975). See also 121 Cong. Rec. 37416 (1975) (remarks of Sen. Williams).But although we find that this grant of authority is broader than claimed by petitioners, we think the fact that it is found in 1415, which is entitled "Procedural safeguards," is not without significance. When the elaborate and highly specific procedural safeguards embodied in 1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e. g., 1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.Thus the provision that a reviewing court base its decision on the "preponderance of the evidence" is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review. The very importance which Congress has attached to compliance with certain procedures in the preparation of an IEP would be frustrated if a court were permitted simply to set state decisions at nought. The fact that 1415(e) requires that the reviewing court "receive the records of the [state] administrative proceedings" carries with it the implied requirement that due weight shall be given to these proceedings. And we find nothing in the Act to suggest that merely because Congress was rather sketchy in establishing substantive requirements, as opposed to procedural requirements for the preparation of an IEP, it intended that reviewing courts should have a free hand to impose substantive standards of review which cannot be derived from the Act itself. In short, the statutory authorization to grant "such relief as the court determines is appropriate" cannot be read without reference to the obligations, largely procedural in nature, which are imposed upon recipient States by Congress.Therefore, a court's inquiry in suits brought under 1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act?27 And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?28 If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.BIn assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States.29 The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child. The Act expressly charges States with the responsibility of "acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and [of] adopting, where appropriate, promising educational practices and materials." 1413(a)(3). In the face of such a clear statutory directive, it seems highly unlikely that Congress intended courts to overturn a State's choice of appropriate educational theories in a proceeding conducted pursuant to 1415(e)(2).30 We previously have cautioned that courts lack the "specialized knowledge and experience" necessary to resolve "persistent and difficult questions of educational policy." San Antonio Independent School Dist. v. Rodriguez, 411 U.S., at 42. We think that Congress shared that view when it passed the Act. As already demonstrated, Congress' intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.VEntrusting a child's education to state and local agencies does not leave the child without protection. Congress sought to protect individual children by providing for parental involvement in the development of state plans and policies, supra, at 182-183, and n. 6, and in the formulation of the child's individual educational program. As the Senate Report states:"The Committee recognizes that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome. By changing the language [of the provision relating to individualized educational programs] to emphasize the process of parent and child involvement and to provide a written record of reasonable expectations, the Committee intends to clarify that such individualized planning conferences are a way to provide parent involvement and protection to assure that appropriate services are provided to a handicapped child." S. Rep., at 11-12. See also S. Conf. Rep. No. 94-445, p. 30 (1975); 34 CFR 300.345 (1981). As this very case demonstrates, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act.31 VIApplying these principles to the facts of this case, we conclude that the Court of Appeals erred in affirming the decision of the District Court. Neither the District Court nor the Court of Appeals found that petitioners had failed to comply with the procedures of the Act, and the findings of neither court would support a conclusion that Amy's educational program failed to comply with the substantive requirements of the Act. On the contrary, the District Court found that the "evidence firmly establishes that Amy is receiving an `adequate' education, since she performs better than the average child in her class and is advancing easily from grade to grade." 483 F. Supp., at 534. In light of this finding, and of the fact that Amy was receiving personalized instruction and related services calculated by the Furnace Woods school administrators to meet her educational needs, the lower courts should not have concluded that the Act requires the provision of a sign-language interpreter. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.32 So ordered.
7	Rehearing Denied Oct. 11, 1948. See . [ Comstock v. Group of Institutional Investors ], 212] Mr. Maxwell Brandwen, of New York City, for petitioners. Mr. Charles W. McConaughy, of New York City, for respondents, Group of Institutional Investors, etc., and others., 213] Mr. Harry Kirshbaum, of New York City, for respondents, Bondholders group. Mr. Leonard P. Moore, of New York City, for respondents, Manufacturers Trust Co., trustee. Mr. Justice JACKSON delivered the opinion of the Court. Since 1933 the Missouri Pacific, the New Orleans, Texas and Mexico Railway Co. and a number of affiliated railroad corporations have been in reorganization under the Bankruptcy Act, 11 U.S.C. 205, 11 U.S.C.A. 205. A second plan of reorganization, approved by the Interstate Commerce Commission, was before the District Court for the Eastern District of Missouri. Comstock then, in 1944, made objection to allowance of a claim of approximately 10 million dollars by the Missouri Pacific, one debtor corporation, against another, the New Orleans, which, during the 10 years of proceedings, had been unchallenged. The issues raised by his objection were severed from other problems of reorganization which do not concern us here. After full hearing the District Court made findings and wrote an opinion, In re Missouri Pacific R. Co., D.C., 64 F.Supp. 64, overruling his objections. The Circuit Court of Appeals for the Eighth Circuit affirmed. Comstock v. Group of Institutional Investors, 8 Cir., 163 F.2d 350. The issues of fact, contested in a long hearing, are not before us for review. Petitioner assured us, in support of the petition for certiorari here, that 'there is no factual controversy before this Court' and 'we assume the findings of the District Court. Our challenge is directed only to the legal import of these unchallenged facts.' Much of petitioner's argument seems to depart from these assumptions and to invite us to reach conclusions from the voluminous record in the case, contrary to those reached by the two courts below. This we cannot do. , 214] A seasoned and wise rule of this Court makes concurrent findings of two courts below final here in the absence of very exceptional showing of error. Stuart v. Hayden, ; Brainard v. Buck, ; First National Bank v. Littlefield, ; Baker v. Schofield, ; Second Russian Insurance Co. v. Miller, ; Texas & N.O.R. Co. v. Brotherhood of R. & S. S. Clerks, ; Page v. Arkana Natural Gas Corp., ; Pick Mfg. Co. v. General Motors Corp., ; Virginian R. Co. v. System Federation No. 40, ; United States v. O'Donnell, ; Anderson v. Abbott, , 151 A.L.R. 1146; Allen v. Trust Co., ; United States v. Dickinson, . No. such error is claimed by petitioner. Since we are concluded by such concurrent findings, we can do no better than to adopt the statement of facts made in the opinion of the Court of Appeals, 163 F.2d 350, 352, on the basis of which petitioner's propositions of law are predicated and must be decided. The essential facts so recited are:'It appears that the Missouri Pacific acquire the controlling interest in the capital stock of the New Orleans at the end of 1924 and at times relevant here owned from 58 to 93 percent of the total $15,000,000 par value of such stock, and from January, 1925, until simultaneous commencement of reorganization proceedings in bankruptcy of both corporations in 1933, it managed the affairs of the New Orleans through Missouri Pacific officers who were given corresponding positions in the New Orleans corporation. An expansion program for both companies was carried on and throughout the course of operations the Missouri Pacific made advancements for improvements and betterments to the New Orleans. Some were repaid, but in February 1933, the , 215] New Orleans filed its application with the Interstate Commerce Commission under Section 20a(2) of the Transportation Act, 49 U.S.C.A. 20a(2), showing that it was indebted to the Missouri Pacific for an accumulation of such advances over a period of years remaining unpaid in the sum of $10, 355,226.78, and that it had been requested by the Missouri Pacific to issue demand notes therefor in the amount of $9,955,226.78 to the Missouri Pacific. It had partially complied by issuing one such note for $400,000. 00, and one for.$2,498,500, and after hearing the Commission made its finding as required by the statute,1 49 U.S.C.A. 20a(2), and authorized New Orleans to issue to the Missouri Pacific a note for the remaining $7, 456,726.78. So that at the time of the bankruptcy of the New Orleans on the same date as that of the Missouri Pacific the notes of the New Orleans to the Missouri Pacific in the sum of $10,355,226.78 were outstanding and unpaid. Under authorization of the Interstate Commerce Commission, granted after hearing, the Missouri Pacific had pledged two of the notes aggregating $9,955,226.78 as security for loans made to it by the Reconstruction Finance Corporation. An additional pledge was made to Railroad Finance Corporation.'After appointment of the trustees for the railroads , 216] and on August 29, 1938, an officer of the Missouri Pacific filed claim for that company against the New Orleans for the amount of the notes, plus an item of advancement of $210,000.00, aggregating the amount of $10,565,226. 78, describing the consideration as 'cash advances for operation, interest payments, etc., at various times from March 1929 to February 1933, both inclusive.' The items which made up the total $10,565,226.78 were clearly specified and evd ence of the validity of the debt as consideration for the notes was adduced before the Commission at an early stage of these Section 77 proceedings (11 U.S.C.A. 205), and the obligation was deemed to be valid and ahead of New Orleans' stockholder interest in all of the accountings, computations and adjustments resulting in the plan of reorganization determined by the Commission and approved by the court in 1940. It has also been so considered by the Commission in the plan of reorganization before the court at the time of the hearing and order now appealed from.'It appears that in 1926 the Missouri Pacific issued and caused to be sold to the public its 5 1/4% Secured Serial Bonds in the amount of $13, 156,000, secured by the pledge of.$1000.00 par value of New Orleans capital stock for each.$1000.00 principal amount of outstanding bonds, so that the officers who were put in charge of the affairs of both corporations came under fiduciary obligation to the creditors and the stockholders of each company to handle honestly the affairs of each.'Comstock owns some of said 5 1/4% Secured Serial Bonds so secured by the pledge of the New Orleans capital stock, and by virtue of his ownership of said bonds he has an interest as a creditor of the Missouri Pacific in the payment of his bonds and the interest , 217] thereon, and also an interest in the capital stock of the New Orleans pledged to secure the bonds. On November 22, 1944, he filed his objections to the plan of reorganization and plea for equitable treatment on the basis of those interests. Certain of his objections contained charges of mismanagement of the Missouri Pacific to his detriment as a bondholding creditor of that corporation, but the separately numbered objections here involved relate to wrongs which he alleges were done by the Missouri Pacific to the New Orleans to the detriment of his interest in the pledged stock of that company.'By his objections 'Numbered 19 and related objections,' Comstock charged that during the period when the affairs of the New Orleans were controlled by its majority stockholder the Missouri Pacific, between the end of 1924 and the bankruptcy in 1933, the Missouri Pacific management caused the New Orleans to pay dividends illegally out of capital and to improvidently declare and pay dividends unjustified by the business and condition of the New Orleans; improperly loaned money to it for the purpose of enabling it to pay dividends; involved it (the New Orleans) in expansion and improperly made advancements to it and caused it to assume indebtedness growing out of expansion; caused it to be operated with unfair advantage to the Missouri Pacific and loss to itself, and generally mismanaged it and committed spoliation and waste of its property and interests to the financial detriment of the New Orleans and for the benefit of the Missouri Pacific. There is also a charge that the trustee for the New Orleans, who is also trustee for the Missouri Pacific, failed to perform his duties as trustee for the New Orleans, to the detriment of New Orleans stock , 218] interest. Although an Exhibit 'A' attached to the objections assumed to set forth details, the charges remained sweeping and general in form with few exceptions.2'The objector prayed that the Missouri Pacific claim for $10,565,227 and interest against the New Orleans be disallowed; that it be determined that the New Orleans was not indebted to the Missouri Pacific, and in the alternative, that all claims of the Missouri Pacific against the New Orleans be subordinated in the reorganization to the New Orleans capital stock interest.'The allegations of breaches of obligations on the part of the Missouri Pacific were traversed in pled ings of other parties in interest. The main burden of producing witnesses and evidence to justify the handling of the affairs of the New Orleans by the Missouri Pacific during the period of Missouri Pacific management and to prove the $10,565,226.78 indebtedness of the New Orleans to the Missouri Pacific was carried at the trial by the Group of Institutional Investors Holding First and Refunding Mortgage Bonds of Missouri Pacific Railroad Company and The Protective Committee for the holders of General Mortgage Bonds of Missouri Pacific Railroad Company. They recognized fully the fiduciary nature of the obligation which law and equity attributed to the Missouri Pacific by reason of its pledge of the capital stock of the New Orleans to secure the 5 1/4% Serial Bonds while the New Orleans was under its management as majority stockholder, and that by the terms , 219] of the pledge the Missouri Pacific was entitled to receive itself only the dividends (lawfully and properly declared) of the New Orleans stock was required as to the corpus of said stock to honestly manage the corporate affairs and to exercise honest judgment and good faith to preserve the stock interest inviolate.'Comstock did not question or deny that the New Orleans had executed its negotiable promissory notes to the Missouri Pacific which were outstanding at the time of the trial drawing interest, and conceded that the Reconstruction Finance Corporation as an innocent holder thereof in pledge could hold the New Orleans for their face amount and interest, but his contention was that by reason of its wrongdoings the Missouri Pacific either had no valid claim or that such claim as it had should be subordinated to the capital stock interest. He did not assert or tender evidence to show that any specified individuals working for the New Orleans or the Missouri Pacific, or both companies, had misappropriated or wrongfully diverted to their own use any of the assets or business of the New Orleans to the detriment of stockholders. He tendered no evidence to show that the plan of Missouri Pacific system expansion, including expansion and improvement of the New Orleans, and for the financing thereof, adopted and carried through by the Missouri Pacific, was in itself fraudulent or reckless and improvement. As to the New Orleans, the plan contemplated that the Missouri Pacific would advance money to the New Orleans for betterments and additions on short time loans, and that at intervals when the indebtedness became of sufficient size bond issues would be sold to refund it. The worst of the depression came coincidentally with the time when such refunding was expected to be made and made the refunding impossible. , 220] 'From testimony frankly given by himself, and on the face of the record, it clearly appears as to the case Comstock presented to the court on the objections herein involved that after the report of the Senate subcommittee which criticized the Missouri Pacific management of the New Orleans, and in 1940, Comstock bought a few of the 5 1/4% Serial bonds at about 10 cents on the dollar and then employed an accountant to make studies of the accounts, records and reports of Missouri Pacific management of the New Orleans and based his charges on the accountant's studies. He tendered no extraneous or newly discovered evidence. As the period of Missouri Pacific alleged mismanagement of the New Orleans (1925 to 1933) had expired many years before Comstock acquired his interest in New Orleans stock, a court would not ordinarily have felt obliged at his instance to try the merits of charges of mismanagement committed in long past years and claimed to be provable by contemporaneous records which were at all times accessible. It would not sanction such buying into a lawsuit.'But here the plan for Missouri Pacific reorganization was before the court to be approved or disapproved, according to whether it was or was not fair and equitable. The proposed plan included as one of its essential postulates tha the New Orleans was indebted to the Missouri Pacific in a sum which with accumulated interest amounted to around eighteen million dollars. No judicial determination upon the validity of the debt had ever been made in any adversary proceedings throughout the thirteen year course of the Section 77 proceedings and bonds like Comstock's are outstanding in many hands aggregating some $13,500,000. Although the court was of opinion that not only Comstock but all other owners , 221] of the Missouri Pacific 5 1/4% Serial Bonds secured by New Orleans stock who had at all times trustee representation and in great part representation by counsel, had been guilty of laches in failing for so many years to assert and present proof and try out before the Commission and the court the alleged invalidity of the debt almost entirely evidenced by the notes,3 it concluded that judicial adjudication should be made as to the debt and that the court should, and therefore it did, hear the evidence covering the whole period of management of the New Orleans by the Missouri Pacific, and it tried out the whole case and all the charges presented by Comstock on the merits.'The expert accountant called by Comstock produced a large number of exhibits which he had prepared from the books, records and reports of the individual companies and explained in connection with them the inferences he had drawn from his studies and expressed his opinions tending to support the Comstock charges. He centered his attack largely on that part of the accounting system of the railroads through which the New Orleans and its fourteen subsidiary railroads had been treated as a unit for financing purposes and the financial condition indicated by consolidated balance sheets. By disregarding the system character of all the Gulf Coast Lines held under New Orleans ownership he inferred a much less favorable financial position for the New Orleans than was shown by its consolidated balance sheets. He had no personal knowledge of the railroad operations or transactions covered by his testimony. , 222] 'The Group of Institutional Investors Holding First and Refunding Mortgage Bonds of Missouri Pacific and The Protective Committee for the holders of General Mortgage bonds of Missouri Pacific to sustain the burden of Missouri Pacific defense called as their witnesses on the trial the railroad men who had engaged, each in his own department, in all of the transactions and railroad operations and the records made thereof throughout the period involved, and they testified of and concerning matters with which they were intimately familiar. Also Mr. William Wyer, who after his graduation from Yale and Massachusetts Institute of Technology served in railroad construction and operation for the government during World War I, and in U.S. Railroad Administration during Federal Control, and afterwards in various positions in the Division of Operations, Division of Accounts and Assistant to the Comptroller. From 1920 to 1927 he occupied important positions with the Southern Railroad Company and the Denver Rio Grande and Western, the latter being 'fifty percent. owned by the Missouri Pacific so it was considered a part of the Missouri Pacific System.' In February, 1929, he became Assistant to the Chairman of the Board of Directors of the Missouri Pacific who was also Chairman of the Board of the New Orleans, and later in the year he became Secretary and Treasurer of the Missouri Pacific and an officer on all the subsidiaries, except as to the Texas and Pacific he was such officers for only six years. He handled a great many of the financial matters involving the Missouri Pacific and the New Orleans under the supervision of the Chairman of the Board of the Missouri Pacific. In 1933 he started studies which have provided substantially all of the studies upn which the various plans of reorganization have been based. He was at the , 223] time of testifying the chief executive officer of the Central Railroad of New Jersey. He was thoroughly informed and conversant with the Missouri Pacific policies of system operation and of expanding and financing, and with the railroad operations and the financial transactions upon which the validity or invalidity of the debt in controversy depend, as well as the accounting and reporting system maintained for disclosing and reporting them. He had an important part in what was done, was in touch with substantially the whole course of the management of the New Orleans under attack and he gave his extensive testimony upon direct and cross examination with obvious understanding of its relevancy and importance. His testimony, supported by many accounting and summarizing exhibits, was to the effect that Missouri Pacific management of New Orleans was honest and was beneficial to New Orleans.'Judge Moore, presiding at the trial, has exercised the jurisdiction in these Section 77 proceedings through most of their course, and his questions, comments and directions reflect his close attention to and understanding of the testimony and its application through the trial. His written opinion is reported In re Missouri Pac. R. Co., D.C., 64 F.Supp. 64. His findings of facts and conclusions of law were drawn with care and thoroughness, and appear to us to be responsive to all the issues presented by the objections here involved and the evidence that was adduced, and the appellant has not called our attention to any refusal on the part of the court to make findings in respect to any other issues claimed to have been presented. The vast extent of the railroad business carried on by the Missouri Pacific and the New Orleans during the long past period of alleged mismanagement and the intricate corporate structures of the railroads, inevitably presented most , 224] serious problems in the attempts of accountants to picture what their course of operations and financial transactions had been. The New Orleans had in some respects the character of a holding company in that it operated itself only a small fraction (around 11%) of the railroad mileage of its railroad system but owned the stocks and securities of some fourteen other railroad companies and was the only one of the group of railroads comprising its railroad system which had any relatively substantial amount of securities outstanding in the hands of the public. For financing purposes the individual roads in the group were dependent upon the New Orleans which, acting for the group in respect to financing, presented the necessary unitary functioning principal. There was fundamental controversy as to what inferences should be drawn from the available accounts to establish the true financial condition of the New Orleans at different times within the period and to establish and present the financial results of the railroad operations that were carried on. Mr. Wyer testified that the identified consolidated balance sheets compiled under direction of the Missouri Pacific and New Orleans officers were the summarizing records which were submitted to the Board of Directors to keep its members informed in the discharge of their duties. It was through the use of the consolidated balance sheets that the New Orleans and its affiliated railroads were treated as a unit in the financing of the companies throughout Missouri Pacific management. Though he could not say what went on in the minds of others, his testimony leaves no room to doubt that the Board members well understood how the computations were arrived at and that the members relied on them in the usual course of the financing of the business. He was intimately familiar with all phases of the ac- , 225] counting in which they culminate, and although he admitted that perfection was never attained, his testimony together with that of the railroad officers and employees who did the work, fuly justified the trial court's reliance upon the consolidated balance sheets in his findings and conclusions. But the disputes and conflicts of testimony in respect to the accounts and the inferences to be drawn were all issues of fact. The court recognized fully all the burden of obligation imposed by law upon the Missouri Pacific in respect to its management of the New Orleans and that if the Comstock charges could be proved and the indebtedness in issue was invalid or ought not in equity to be enforced against New Orleans stockholders, the then pending plan of reorganization could not stand.'Comstock's contention that the court erroneously put the burden of proving his charges on him rather than requiring the Missouri Pacific to proceed first to disprove them, is without merit. As the execution of the promissory notes was admitted and at least formal proof of all of the items of advancements making up the debt had been in the record of the Section 77 proceedings for many years before the hearing, the court required only that all the records of the transactions that were questioned be made available for the hearing so that there was the equivalent of a full disclosure by the Missouri Pacific before Comstock was required to proceed with his proof of the charges. In its findings the court stated the facts as it found them to be proven by the whole evidence. It found in detail and in effect that the Missouri Pacific had administered the affairs of the New Orleans in good faith to the advantage of that company; had made the advancements to it for proper purposes; had not caused dividends to be paid out of capital or im- , 226] providently in bad faith, and that the asserted indebtedness arose from advancement made by Missouri Pacific to New Orleans for betterments and additions and was valid and should be allowed in items specified, and that the plan of reorganization based as it was in part on recognition of the existence of the debt in question, was fair and equitable and conformable to the requirements of law regarding the participation of the various classes of creditors and stockholders.' We are confronted at the outset with petitioner's delay and conduct and its effect on the duty of this Court and that below to pass on the merits of his objections. Comstock, apparently with general knowledge of the conduct he alleges to be a wrong toward the securities which he now holds, bought them at about 10 cents on the dollar nearly seven years after the alleged misconduct had ended. Thus, it was not Comstock who was a victim of any wrongdoing but those in whose hands the securities depreciated to the low point at which Comstock bought. It is apparent that Comstock bought a grievance to exploit and to reap the advantage of its rectification. Those who realized the loss through sales to Comstock could, in no event, the indemnified in this proceeding. From every viewpoint, the delay in asserting these claims is unusual. The District Court found it also prejudicial due to the death of six named witnesses and participants, among others, whose testimony would be important. While it considered the objections barred by laches, it nonetheless adjudged their merits. We think that, in the reorganization proceeding, the courts may entertain on their merits objections to a plan even if made by one who might be barred from asserting a cause of action in his own behalf, if the subject matter of the objection is such that it goes beyond the objector's individual interests and affects the fairness and equity , 227] of the plan. In view of the amount and position of the claim involved, we do not disagree with the Court of Appeals that such was the case here. It also is true, as the court below indicates, that this objector made no effort to exhaust or to avail himself of administrative remedies in support of his objection. Neither the objection nor the evidentiary support for it were laid before the Interstate Commerce Commission in its hearings on successive plans of reora nization. The requirement that the Commission 'hold public hearings, at which opportunity shall be given to any interested party to be heard and following which the Commission shall render a report' to the court is not provided without a purpose and is not to be ignored by persons with claims or objections to be heard. This issue involved matters with which the Commission and its staff are especially qualified to deal. It has had no opportunity to express a view on this issue, which was allowed to go by default before it, and the courts do not have the benefit of the Commission's informed judgment on the matter involved. To by-pass the Commission and make the court the original forum for such contentions is not to be encouraged. But the court did not refuse to hear the objections on their merits. In view of the functions cast upon the court in such cases, we cannot say that it may not, in its discretion, consider objections on their merits even though they have not been presented to the Commission. Some circumstances might be disclosed to indicate a remand for their consideration by the Commission. They might indicate that the courts would withhold approval, not out of deference to the objecting parties' rights but because of the broad responsibility laid upon the court for the equity and fairness of the plan as a whole. The court will be diligent to protect itself and the public from approval of unfair plans, even by default, and may take for its own use evidence no party would have a right , 228] to force upon it. The court below evidently considered the circumstances of this case to warrant such inquiry into the merits, and we do not require whether the discretion was wisely exercised. The case on the merits presents, as to several different and complicated transactions, a single question of law. It is said that our decision in Taylor v. Standard Gas & Electric Co., , 59 S. Ct. 543, requires that the claim of Missouri Pacific against the New Orleans be disallowed and petitioner's objections sustained. In that case this Court reformulated for application to reorganization cases a wholesome equity doctrine to the effect that a claim against a debtor subsidiary be disallowed or at least subordinated when the claimant corporation has wholly dominated and controlled the subsidiary and in the transactions creating the debt has breached its fiduciary duty and acted both to its own benefit and to the detriment of the debtor. As we later said of the decision, 'This was based on the equities of the case-the history of spoliation, mismanagement, and faithless stewardship of the affairs of the subsidiary by Standard to the detriment of the public investors.' Pepper v. Litton, , 246. Petitioner asks us to declare the same result in this case despite explicit and unchallenged findings that, in its dealings with New Orleans during the period involved, 'the Missouri Pacific acted in good faith and with due regard to its obligations, legal and equitable, to the New Orleans and its security holders,' that the 'effect of the control by the Missouri Pacific of the Gulf Coast Lines was beneficial and advantageous to the New Orleans and the holders and pledges of its securities,' that all dividends in question 'were paid either out of the earned surplus of the New Orleans available for dividends or out of the net income of the New Orleans after payment of all prior charges against income,' and that the sub- , 229] ordination of the claim as asked 'would unjustly enrich the holders of the capital stock of the New Orleans and the holders of the Secured Serial Bonds,' as well as other more detailed findings to the same effect. In the case before us there was domination of the subsidiary, a relationship between corporations which the law has not seen fit to proscribe. By the application of long-standing principles of equity this Court fashioned the rule in the Taylor case to prevent a fiduciary i such a position from enriching itself by breach of its trust. It is not mere existence of an opportunity to do wrong that brings the rule into play; it is the unconscionable use of the opportunity afforded by the domination to advantage itself at the injury of the subsidiary that deprives the wrongdoer of the fruits of his wrong. On the findings in this case, the claim of Missouri Pacific was the outgrowth of complicated but legitimate good faith business transactions, neither in design or effect producing injury to the petitioner or the interests for which he speaks. Special emphasis has been placed on the fact that under control of the Missouri Pacific dividends were paid by the subsidiary at a time when it was borrowing money represented by this claim. It is clear from the findings that the dividends were paid out of current earnings or surplus, and not in violation of law or contract. Only in 1929 did New Orleans earn currently sufficient to pay its dividends. Nevertheless in all three years there was sufficient earned surplus legally to permit dividends. Heavy investments in improvements may require borrowings for dividends; but no law or public policy requires a corporation to finance capital additions out of earnings or to pass dividends because of low current earnings when past earnings are available for dividend purposes. These past earnings may be used to compensate the capital that produced them, and capital additions may be made from funds borrowed or raised by issues of capital securities, , 230] so long as the authorizations required in the case of railroads are obtained. No question is raised as to the authority to borrow. While the contemporaneous borrowing to pay for capital additions, and payment of dividends, is not in itself illegal, it would, of course, come under the ban of the Taylor decision if it were carried out in breach of good faith for the advantage of the holding company to the detriment of the subsidiary. But the findings of good faith, fair dealing and freedom from fraud or overreaching over the dividend policy as well as other questioned transactions. Such being the facts, the allowance of the claim is not error of law. The findings here do not stop with holding that the questioned transactions were intended to and did benefit the system as a whole. An over-all benefit to the system might be attained at the injury of one of its units and the security holders of that unit. But here the finding of good faith and of benefit applies to the New Orleans and its security holders as well as to the system generally. The finding is unequivocal that the control of Missouri Pacific not only 'was in good faith and with due regard to its obligations, legal and equitable, to the New Orleans and its security holders,' but also that its control of the Gulf Coast Lines 'was beneficial and advantageous to the New Orleans and the holders and pledgees of its securities.' The criticised transactions are thus not only exonerated of evil or illegal intent but are also established as beneficial rather than injurious to the interests which now challenge them. The findings to that effect are entitled to special weight where, as here, they are based on the District Judge's complete familiarity with the case. Reconstruction Finance Corporation v. Denver & Rio Grande Western R. Co., , 1301, 1302, 1384. Affirmed by the Circuit Court of Appeals, they are, under the rule concerning concurrent findings, and on the basis of our grant of certiorari, conclusive in this Court. , 231] Disallowance of petitioner's objections on such findings was not error of law. In this view of the case we need not consider questions tendered as to validity or effect of the issuance of notes or of their pledge. The judgment below in No. 451 is affirmed. Affirmed. Petitions in Nos. 452, 453 and 454, were addressed to dismissals by the Court of Appeals from the same order as No. 451 but taken in different names. Thep etitions were filed as safeguards against procedural objections to review of the order. The writs in these cases are dismissed. Writs dismissed. Mr. Justice MURPHY, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice RUTLEDGE agree, dissenting. The rule that makes concurrent findings of fact by two courts below binding on us in the absence of some very exceptional error is a wise one. But it is not a rule to be applied in a blind manner simply because a case involves a complex factual situation. In my view, there is an exceptional error involved in the conclusions reached by the District Court and affirmed by the Circuit Court of Appeals, an error that is apparent on the face of the District Court's findings. And since this error is not sufficiently illuminated by the opinion of the Circuit Court of Appeals, 163 F.2d 350 as quoted by the majority in this Court, I deem it essential to make an independent statement of the relevant facts as found by the District Court. This case grows out of the joint reorganization of the Missouri Pacific Railroad Company and affiliated railroad corporations under 77 of the Bankruptcy Act, 11 U.S.C. 205, 11 U.S.C.A. 205. It involves a claim of $10,565,226.78 filed by the Missouri Pacific against one of its subsidiaries which was also undergoing reorganization and the application to that claim of the so-called Deep Rock doctrine enunciated in Taylor v. Standard Gas & Electric Co., . , 232] It is unnecessary for present purposes to detail the long, complicated and still unfinished proceedings which have marked the reorganization of the Missouri Pacific railway system. The instant proceeding is directly related to a revised plan of reorganization approved in 1944 by the Interstate Commerce Commission. The District Court below then heard objections to the plan by various parties in interest. Included among them was the petitioner Comstock. He stated that he owned $ 80,000 principal amount of the 5 1/4% Secured Serial Gold Bonds of the Missouri Pacific. His objections were filed on behalf of himself, of fourteen other public investors holding in excess of $900,000 additional principal amount of these bonds, and of all other owners and holders of the bonds. A committee of these bondholders, representing an additional $ 315,000 principal amount of the bonds, also joined in Comstock's objections. Of the total principal amount of these bonds publicly outstanding, about 11 1/2% were specifically represented by Comstock. Comstock's objection No. 19, which is our sole concern, related to the validity and priority of a $10,565,226.78 claim filed by the Missouri Pacific (hereinafter called MOP) against its subsidiary New Orleans, Texas and Mexico Railway Co. (hereinafter called NOTM) in the joint reorganization proceedings. It appears that MOP had acquired the controlling interest in NOTM's common stock in 1924 and had completely dominated and controlled NOTM until the reorganization proceedings began in 1933. MOP's claim against NOTM was based upon 'cash advances for operation, interest payments, etc., at various times from March, 1929, to February, 1933, both inclusive.' Most of the NOTM stock which MOP held was pledged as security for the class of MOP 5 1/4% secured bonds which Comstock owned, the pledge constituting 82% of the outstanding shares of NOTM's sole class of stock. MOP sought to put its claim against , 233] NOTM ahead of the claims of the holders of these MOP bonds who looked to the NOTM common stock for security. The revised plan of reorganization gave effect to MOP's desire in this respect. A separate hearing was held by the District Court on Comstock's objection No. 19. After carefully considering the voluminous and complicated evidence adduced at this hearing, the court entered a separate order overruling the objection and holding that the $10,565,226.78 claim should be allowed in full; with interest, this claim now aggregates more than $18,000,0 0. The court further held that this claim, so allowed, was entitled to priority over the claims of the public investors holding MOP 5 1/4% secured bonds. In addition, the court felt that objection No. 19 was not timely and should be barred from consideration under the doctrine of laches. At the same time, the District Court entered another order overruling the other objections raised by Comstock and the other parties in interest and approving the revised plan of reorganization. An opinion was then filed detailing the reasons for the two orders. In re Missouri Pacific R. Co., D.C., 64 F.Supp. 64. Comstock appealed from the order dismissing his objection No. 19.1 The Eighth Circuit Court of Appeals affirmed the District Court's , 234] action on this objection, holding that the findings of that court were not clearly erroneous. Comstock v. Group of Institutional Investors, 163 F.2d 350. At the suggestion of the Interstate Commerce Commission, the Circuit Court of Appeals then remanded the revised plan of reorganization back to the Commission for reconsideration and revision. Wright v. Group of Institutional Investors, 8 cir., 163 F.2d 1022. The Commission has not yet disposed of the matter. I. For somewhat different reasons than those advanced by the Court, I agree that a judicial consideration of Comstock's objection No. 19 is not now precluded by the doctrine of laches. The joint reorganization proceedings commenced in 1933. Comstock did not purchase any of the MOP 5 1/4% secured bonds until 1940, soon after a Senate subcommittee investigating railroads issued a report criticizing the MOP management of NOTM. S.Rep. No. 25, Part 9, 76th Cong., 3d Sess. He then bought some of the bonds at about 10 cents on the dollar and employed an accountant to study the relationships between MOP and NOTM prior to 1933. Not until 1943 did Comstock suggest that there might have been some irregularities on the part of MOP. And not until November, 1944, when he filed his objection No. 19 to the revised plan of reorganization, did he really press his allegations. Prior to Comstock's objection, more than a decade of the reorganization process had produced no charge or revelation of impropriety as to MOP's $10,565,226.78 claim against NOTM. Numerous investigations and hearings had been held during that long period concerning the pre- reorganization administration of the affairs of MOP and its subsidiaries. The public holders of the MOP 5 1/4% secured bonds and other creditors had ample , 235] opportunity to question the allowance of the claim. But no charges were made until after Comstock purchased his bonds and conducted his own investigation. Many of the events to which objection No. 19 relates took place more than twenty years ago; and some of the persons who had personal knowledge of those events and who might have been able to testify in regard thereto are now dead. I do not believe, however, that the doctrine of laches is properly applicable to the facts of this case. The District Court had before it a revised plan of reorganization of MOP and its subsidiaries, a plan which recognized that NOTM was indebted to MOP and which permittedM OP to collect that debt without subordination to other creditors. That court was duty bound to test this portion of the plan by the fair and equitable rule and to approve it only if the rule was found to be satisfied. American United Mut. Life Ins. Co. v. Avon Park, , 145, 146, 161, 162, 136 A.L.R. 860. The court's duty was nonetheless existent because an attack on the MOP claim came late in the day. Comstock's objection served only to emphasize the circumstances surrounding this indebtedness and to give the court an opportunity to inquire into the matter more fully than it might otherwise have done. Moreover, the fact that this objection had not previously been raised and adjudicated in the 77 proceedings added to the appropriateness of a judicial determination of the validity of the debt at this juncture. Only by examining the matter now could the court be certain whether the treatment accorded the debt the reorganization plan was fair and equitable. The motives which led Comstock to acquire his bond holdings and to raise his objection No. 19 are not pertinent to the performance of the District Court's duty of testing the fairness of the reorganization plan. Nor is it decisive under these circumstances that the objection might have been raised earlier by Comstock or some other , 236] bondholder. It is enough that the matter was presented in an appropriate fashion at a time when the court was compelled to pass judgment upon the reorganization plan and at a time when no prejudicial change in the position of other parties had yet occurred. In this connection, it is noteworthy that that the Interstate Commerce Commission at an early stage in the 77 proceedings held that the validity of the MOP claim is a matter 'for litigation in the Courts.' Thus Comstock would likely have been unsuccessful had he attempted to secure a determination of his objection by the Commission before going to court. The Court today, however, expressly holds that the Deep Rock issues raised by Comstock involve matters over which the Commission has jurisdiction and with which it is especially qualified to deal. See Schwabacher v. United States, . On this phase of the case, I am in agreement with the Court. The Commission should determine the applicability of the Deep Rock doctrine to railroad reorganization plans which it formulates. But since the Commission had previously refused to adjudicate the merits of the MOP claim and since Comstock's objection has been thoroughly aired in the District Court, it is inappropriate to remand the case now to the Commission for an expression of its views. Despite the claimed difficulties due to the age of the pertinent events and the death of some of the witnesses, the District Court was able to give a comprehensive treatment to Comstock's objection and to render an informed judgment on the fairness of MOP's claim against NOTM. Many of the issues revolved about written evidence and statistics. And the court was able to draw upon its intimate knowledge of the MOP-NOTM relationships, knowledge gained from long association with the reorganization proceedings. Hence the court could and did perform fully its function as to that portion of , 237] the revised reorganization plan with which objection No. 19 was concerned. In this situation, the desirability and necessity of determining the fairness and equitableness of MOP's claim far outweigh any possible inconvenience caused by the late presentation of the matter. II. In Taylor v. Standard Gas & Electric Co., supra, this Court established the principle that where a parent corporation has not only dominated but has mismanaged a subsidiary corporation, which is presently in bankruptcy or reorganization, and where the parent has a claim which is intimately related to the mismanagement, a court may refuse to permit the parent to assert the claim as a creditor except in subordination to the claims of the subsidiary's other creditor and preferred stockholders. This principle, which has become known as the Deep Rock doctrine, is equitable in nature. As explained in Pepper v. Litton, , 246, the doctrine was applied in the Taylor case on the basis of 'the equities of the case-the history of spoliation, mismanagement, and faithless stewardship of the affairs of the subsidiary by Standard to the detriment of the public investors.' The fulcrum of Comstock's objection No. 19 is the Deep Rock doctrine. The argument is that the items constituting the $10,565,276.78 claim filed by MOP against NOTM are impregnated with MOP's alleged mismanagement of NOTM and that the claim should therefore be subordinated to the claim of the public investors in the MOP 5 1/4% secured bonds, who are secured by MOP's pledge of the NOTM common stock. It is no answer to Comstock's claim that the District Court found that the transactions giving rise to the MOP claim were carried out in good faith. The equities which form the Deep Rock doctrine relate not alone to matters , 238] of bad faith. They are also concerned with the essential fairness and propriety of transactions from an objective standpoint. Pepper v. Litton, supraat page 306, 60 S.Ct. at page 245. Like negligence, inequity may be present where there is the utmost subjective good faith. If there is mismanagement and if there is undue harm to the creditors and preferred stockholders of the subsidiary, the Deep Rock doctrine dictates subordination of the parent's claim. And if there be good faith on the part of the parent's officers, if hardly justifies ignoring the injury to the subsidiary's creditors and stockholders. Equity looks in all directions. Only in that way can the various interests in the corporate community be adequately protected. Moreover, the issues raised by Comstock are not resolved by the District Court's finding that operational benefits accrued to NOTM and its subsidiaries by virtue of the transactions underlying MOP's cliam. These transactions were undoubtedly tied in with the expansion program which MOP was undertaking during this period. But a breach of fiduciary obligations is not to be condoned by the presence of accompanying benefits where the subsidiary's assets are depleted to the injury of the stockholders and creditors of the subsidiary. Nor does the fact that MOP, the parent, is insolvent bar an application of the Deep Rock doctrine to the facts of this case. The insolvency of the parent and the consequent effect of subordination upon the parent's innocent creditors are certainly factors to be considered. See Consolidated Rock Products Co. v. DuBois, , 684; Prudence Realization Corp. v. Geist, , 983. But they are not necessarily decisive in all cases. The equities of a particular situation may turn upon something more than the solvency or insolvency of the parent. It may well be that a balancing of competing equities reveals that it is unjust to permit the advantages arising from , 239] the parent's breach of fiduciary duties to adhere to the benefit of the innocent creditors of the insolvent parent. Some other innocent parties may have an overriding interest which justifies subordination of the claim. Or the claim itself may be so tainted with inequity and unenforceability as to require subordination regardless of the parent's insolvency. And so the Deep Rock doctrine is as broad and as narrow as the equities in each case. In this instance, I believe that the public holders of the MOP 5 1/4% secured bonds have a sufficiently direct and overriding interest in the financial well-being of NOTM to justify subordinating the MOP claim should it appear that this claim is intimately associated with a breach of MOP's fiduciary duties. MOP secured these bonds with a pledge of the NOTM common stock and expressly undertook not to impeach the pledge. Any wrongful conduct by MOP which dimii shed the size of NOTM assets would impair the value of the NOTM stock. Subordination of the claim would thus tend to make the NOTM stock more valuable and to make possible a realization of MOP's express pledge to its bondholders. True, creditors of MOP other than the bondholders would be unable to benefit from whatever could be collected on the claim. But they were not the recipients of a pledge of NOTM stock and they lacked the immediate interest that the bondholders had in a proper performance of MOP's fiduciary duties. The indirect loss they would suffer by subordination is outweighed by the direct injury to the bondholders as a result of allowing the claim. It is therefore essential to study the various transactions in detail to determine whether they represent the type of mismanagement by a parent which leads to subordination of the resulting claim against the subsidiary. , 240] III. The District Court found that during the period from March, 1929, to February, 1933, MOP advanced to NOTM the net sum, after deducting principal payments, of $10,565,226.78-which constitutes the claim in issue. Included in these advances was the greater portion of the $2,795,000 loaned to NOTM between November 30, 1928, and November 27, 1931, to make additions and improvements to the railroad properties of NOTM and other related subsidiaries. But each time one of these advances was made, there was an almost simultaneous payment of a dividend by NOTM on its stock, which was largely owned by MOP. This phenomenon is demonstrated in the following table:[] Dates of Dividends by NOTM Advances by MOP Total Amount to Advances Dividends to NOTM amount MOP [] Nov. 30, 1928 Dec. 1, 1928 $300,000 $259,576 $233,231 Feb. 28, 1929 Mar. 1, 1929 250,000 259,576 234,237 Aug. 31, 1929 Sept. 3, 1929 275,000 259,576 239,429 Nov. 29, 1929 Dec. 1, 1929 310,000 259,576 241,529 Feb. 28, 1930 Mar. 1, 1930 260,000 259,576 242,072 May 31, 1930 June 1, 1930 275,000 259,576 242,212 Nov. 29, 1930 Dec. 1, 1930 300,000 259,576 243,360 Feb. 25, 1931 Feb. 28, 1931 75,000 259,576 243,510 May 27, 1931 June 1, 1931 200,000 259,576 244,387 Aug. 29, 1931 Aug. 31, 1931 250,000 259,576 244,527 Nov. 27, 1931 Nov. 30, 1931- 300,000 259,576 244,527 Dec. 1, 1931. ------------- -------------- -------------- * $2,795,000 $2,855,336 $2,653,021 [] * It is contended by the respondents that this figure should be reduced to $2,082,456, since the first two advances in November 1928, and February 1929, were repaid and since the excess of the advances over the dividends should not be counted. It is said, however, that MOP's action in making these loans and receiving back the dividends followed a natural pattern of a company devoted to improving the properties of its subsidiaries, there being merely a 'near coincidence as to the dates of certain dividends and advances.' , 241] Reference is made in this respect to the relationship which MOP bears to the various companies in the Gulf Coast Lines system (hereinafter called GCL). In 1924, MOP acquired a controlling interest in NOTM and thereby inherited complete control of the GCL system, the rail lines of which are interlaced with others in the MOP system. NOTM at all times has been primarily a holding company owning all the stocks and bonds of the fourteen subsidiary companies constituting the GCL group, NOTM itself operating only about 11% of the total GCL mileage. Of the GCL operating companies, the St. Louis, Brownsville and Mexico Railway Co. (hereinafter called Brownsville) is the most important, operating about one-third of the GCL mileage and group's income during the period in question. NOTM is the only one of the GCL contributing from 61% to 84% of the group which has securities outstanding in the hands of the public. According to the District Court fini ngs, MOP's policy in advancing the $2,795,000 to NOTM was to reimburse NOTM's treasury for additions and betterments to the properties of GCL system. NOTM acted as banker for that system. The GCL subsidiaries were not in a position from 1925 to 1930 to finance their own improvements except out of earnings and by borrowing from NOTM. Most of their freight revenues were cleared through NOTM; as these items were received by NOTM, they were credited against the obligations created by the loans from NOTM to the subsidiaries. But since the total requirements of the subsidiaries for operating expenses, dividends and improvements were in excess of the receipts, the unpaid accounts mounted. Finally MOP had to begin loaning money to NOTM to cover these accounts. It is in this way that MOP's advances are said to have been directed toward the improvement program of the GCL system. , 242] It is vigorously denied that these MOP advances were in any way used to pay for the almost simultaneous dividends from NOTM to MOP, such a contention being termed 'superficial' and contrary to 'basic principles of accounting.' In support of that denial, an illustration is used. Assume that NOTM receives $200,000 cash from net earnings on January 31, when it is known that this amount will be needed to pay a bill for a new freight yard for a subsidiary. NOTM also knows that on April 1 a $100,000 cash dividend to MOP will be due. Instead of borrowing to pay for the new freight yard, NOTM uses the $200,000 cash for that purpose. Then, three days prior to the dividend date, NOTM borrows $100,000 from MOP to reimburse the NOTM treasury in part for the investment in the new freight yard. This saves NOTM about two months' interest on $100,000 of the money spent for the freight yard. The fact that a $100,000 cash dividend is paid three days after the $100,000 loan is thought to be a mere coincidence, the dividend and the loan having no connection. But in this illustration it is obvious that NOTM has insufficient cash to finance both the $200,000 freight yard and the $100,000 dividend. It has to borrow money for one purpose or the other. But to say that it here borrows $100,000 to help pay for the freight yard is unrealistic. NOTM has enough cash to pay for the freight yard and it uses the cash just for that purpose. Two months later it has the choice of (1) borrowing $100, 000 and paying the dividend, or (2) not borrowing the money and not paying the dividend. It chooses the former course of action. By such action, NOTM has borrowed money to pay a dividend. The foregoing illustration indicates what the record in this case amply demonstrates-namely, that the MOP advances found by the District Court to have been for the payment of GCL improvements were in reality ad- , 243] vances for the payment of dividends by NOTM, dividends which for the most part went to MOP. Considered as a separate entity, NOTM rarely had enough income from the time MOP acquired control in 1924 to the start of reorganization in 1933 to pay the regular dividends; loans were essential if MOP was to continue to receive its share of these dividends.[] Year Net Income Dividends [] 1925 $839,679.00 $1,038,198 1926 1,393,806.58 1,038,198 1927 937,098.90 1,038,198 1928 742,058.00 1,038,198 1929 1,153,257.54 1,038,198 1930 854,139.71 1,038,198 1931 * 399,487.80 1,038,198 1932 (- 951,607.76) None [] * After deduction of $3,155,000 for that portion of the dividends on Brownsville stock held by NOTM which was unpaid in 1931. After studying these dividends from NOTM to MOP, the subcommittee of the Senate Committee on Interstate Commerce investigating railroads ( composed of Senators Wheeler and Truman) concluded as follows:'The N.O.T. & M. itself never earned enough to pay these dividends. In none of the 6 years, 1926 through 1931, did the N.O.T. & M. earn more than $605,000 (exclusive of dividends from its subsidiary,t he St. Louis, Brownsville & Mexico). In 3 of the 6 years, the road showed a deficit after fixed charges. For the 6-year period considered as a whole its stated net income totaled a bare $90,000 (as against dividend declarations totaling $6,300,000).'Even the $90,000 net income figure was a considerable overstatement. Each year the N.O.T. & M. regularly included in its operating expenses a certain sum for depreciation of its equipment. Consistently, year after year, the amount charged for depreciation was inadequate. A , 244] statement from the files of the railroad itself shows that for the period 1926 through 1930 the N.O.T. & M.'s net income was overstated (through understatement of depreciation) by more than $411,000. If the railroad's depreciation had been adequately charged, it would have shown a deficit for the 6 years 1926-1931 of $321,000 after fixed charges. Yet during this period the Missouri Pacific took $5,580,000 in dividends out of the N.O.T . & M.' S.Rep. No. 25, Part 9, 76th Cong., 3d Sess., pp. 2-3. The consolidated pricture of NOTM and its GCL subsidiaries was equally indicative of the lack of an ability to pay dividends to MOP without borrowing.[] Year Net Income Dividends [] 1925 $2,547,633 $1,038,198 1926 1,783,287 1,038,198 1927 (- 202,438) 1,038,198 1928 956,433 1,038,198 1929 845,064 1,038,198 1930 674,950 1,038,198 1931 (- 1,122,422) 1,038,198 [] Care was taken, however, to avoid the appearance of borrowing from MOP to pay dividends to MOP, a practice of doubtful legality. Whenever it was found that NOTM had inadequate income to meet a prospective dividend payment, MOP officers would direct Brownsville, NOTM's principal subsidiary, to take steps to declare a dividend on its stock, all of which was held by NOTM. Usually this dividend was the precise amount by which NOTM lacked money to pay its own dividend. 2 But Brownsville invariably was unable to , 245] make a cash payment of its dividends to NOTM and many of its pre-1931 dividend declarations were considered collected by NOTM only at the expense of leaving unpaid Brownsville's debts to NOTM for essential supplies. These paper dividend declarations were capped in 1931 when Brownsville was ordered to declare dividends to NOTM of $4,155,000; in that year Brownsville earned but $398,000. The Bureau of Accounts of the Interstate Commerce Commission in 1936 informed NOTM that these 1931 dividends were declared at a time when NOTM was aware that Brownsville 'was without funds to pay it, and even on the basis of past experience the earnings of the company, had business continued good, would not have been adequate to make the payment until some future date.' This fact rendered the divi- , 246] dends improper under Commission rules. And while it was too late to correct the income accounts of NOTM which had already been closed, NOTM was directed to write off the unpaid portion of the 1931 dividends (some $ 1,400,000) through profit and loss. This 1931 incident grew out of the fact that NOTM was operating that year at a great loss. It began that year with a profit-and-loss balance of only $709,000 and operated at a loss of $606,000. It also had to charge off $875,000 to correct its former inadequate depreciation accruals. By the end of 1931, NOTM would have shown a debit profit-and-loss balance of $ 772,000 or more. MOP, of course, was demanding payment of the usual $1,038, 000 dividend for the year. 'The problem was solved as it had been solved in previous years-by milking the Brownsville. But this time the milking would have to be thorough. * * * The solution found was to cause the Brownsville to declare an extraordinary dividend of $3,500,000-a dividend seven times the par value of the stock upon which it was declared. Other Brownsville dividends to the N.O.T & M. brought the total for the year to $ 4,155,000, enough to fill up the N.O.T.M.'s profit-and-loss deficit and to enable the latter to declare a $1,038,000 dividend in favor chiefly of the Missouri Pacific.' S.Rep. No. 25, Part 9, 76th Cong., 3d Sess., p. 10. Thus the Brownsville dividend declarations gave NOTM earned surpluses on paper without giving it any cash with which to pay its dividends to MOP. Dividends declared by Brownsville were entered as income to NOTM even though they were not paid. An ostensible legal basis was thereby established for a declaration of dividends to MOP. NOTM would then borrow money from MOP to pay for those dividends. This again was largely a paper transaction. The earned surplus upon which the Court today places great reliance in affirming the District Court's findings was but a figment of the , 247] MOP imagination. 'The intricate accounting devices evolved by railroad and holding company officials in an attempt to legalize dividend payments unjustified by earnings resulted, both in 1930 and 1931, in the payment of N.O.T. & M. devidends out of capital, a procedure disguised in 1930 behind faulty bookkeeping and in 1931 behind an out-and-out violation of Interstate Commerce Commission accounting regulations.' S.Rep. No. 25, Part 9, 76th Cong., 3d Sess., p. 14. By advancing to NOTM $2,795,000, MOP received back $2,654,000 in dividends within a few days after the various loans, making a total net advance of $141,000. MOP's cash position was unaffected by these various transactions, the NOTM dividends merely giving it a paper profit and loss balance out of which to declare its own dividends. Hence MOP, like NOTM, was forced to borrow money; it did so from outside sources. Yet MOP now seeks to claim nearly all of the $2,795,000 plus interest, an aggregate of about $4,795,000, for engaging in these bookkeeping transactions and for extending credit to the extent of $141,000. NOTM's fiscal affairs in this respect have certainly not 'been conducted with an eye single to its own interests' within the meaning of the Deep Rock doctrine. Taylor v. Standard Gas & Electric Co., supraat page 323, 59 S.Ct. at page 550. Now can these transactions be said to meet the test of 'inherent fairness' and the requirement of an 'arm's length bargain,' which are essential ingredients of that doctrine. Pepper v. Litton, supraat pages 306, 307, 60 S.Ct. at page 245. Here, as in the Taylor case, dividends were declared in the face of the fact the NOTM had not the cash available to pay them and was, at the time, borrowing in large amounts from MOP. And see In re Commonwealth Light & Power Co., Cir., 141 F.2d 734, 738. Compelling a subsidiary to pay dividends under these circumstances is the type of mismanagement by a parent which leads to the subordination of the resulting indebtedness. , 248] IV. Another part of the $10,565,226.78 MOP claim related to an intercompany adjustment of $1,261,009.84 made during October, 1932, at the height of the depression and shortly before the 77 proceedings began. The International-Great Northern Railroad Co. (hereinafter called the I-GN) was a subsidiary of NOTM, although not deemed a part of the GCL system. I-GN had advanced cash or delivered materials to ten of NOTM's GCL subsidiaries; as of October 31, 1932, these ten companies were indebted to I-GN in the sum of $1,261,009.84 on account of these transactions. On the same date, I-GN was indebted to MOP in an amount in excess of $1,261,009. 84. It was known at this time that the I-GN claims against the NOTM subsidiaries were presently uncollectible. It was also apparent that NOTM was in better financial health than I-GN. MOP, which was then in need of loans from outside sources, sought to improve its own financial condition by shifting debtors. It did this by increasing its claim against NOTM by $ 1,261,009.84 and by decreasing its claim against I-GN by that same figure. To make this bookkeeping shuffle possible, I-GN credited NOTM and its other subsidiaries with the payment of the $1,261,009.84 debt which those subsidiaries owed. MOP then credited I-GN with payment of a like amount, crediting it against I-GN's debt to MOP. NOTM thereby found itself obligated to pay MOP an additional $1,261,009.84. Appropriate entries were made, of course, in the journals of the affected companies. NOTM had not previously been liable to pay this amount to MOP; nor did it receive anything of value from MOP in return for assuming the debt. Yet no valid reason is suggested why NOTM should have been forced to shoulder this obligation, thereby decreasing the assets available to its creditors and stockholders. Cer- , 249] tainly it was not essential, as has been claimed, that NOTM acquire the debt to protect its ownership and control of its GCL subsidiaries. NOTM was invulnerable in that respect, owning all the securities of the subsidiaries, and the addition of this debt added no new protection. The contention is also made that NOTM owed a fiduciary obligation to I-GN, its subsidiary, and that it was NOTM's duty to relieve I-GN of any uncollectible items owed by other NOTM subsidiaries. The fiduciary obligation grows out of the fact that NOTM owned all the securities of its GCL subsidiaries. This contention is closely allied to the theory that NOTM and the subsidiaries are a single financial entity and that it is immaterial which company within that entity is liable for the debt. But the close relationship of NOTM and its GCL subsidiaries does not legitimatize the intercompany adjustment from an equitable point of view. In this situation, we are dealing with the rights of creditors and stockholders who are directly interested in the financial well-being of NOTM as an enterprise separate and distinct from its subsidiaries. Hence it is necessary here to recognize and give effect to the corporate distinctions between NOTM and its GCL subsidiaries. The resulting picture is one of a bookkeeping write-up of NOTM indebtedness at a time when NOTM was on the threshold of reorganization. NOTM received nothing whatever to compensate for the increase in its debt structure. The increase served only to enable MOP, the parent, to possess what was thought to be a more favorable vorable creditor's position. Such treatment of a subsidiary's debt structure does not square with a parent's fiduciary position. A subsidiary is entitled to be saddled by a parent only with those debts which may fairly be allocated to it, debts which grow out of legitimate business transactions. To transfer debts promiscuously from one subsidiary to another merely to augment the parent's , 250] creditor status is to inflict an injustice upon the creditors and stockholders of the subsidiary to which the debt is shifted. It is a type of mismanagement of a subsidiary which properly calls the Deep Rock doctrine into operation, causing the subordination of the parent's claim for the amount of the transferred debt. V. The remainder of the $10,565,226.78 claim concerned the advances made by MOP to NOTM to acquire five Texas 'feeder' railroad lines at a cost of over $5,500,000. Comstock's contention in this respect is that the acquisition of these lines was for the sole benefit of MOP and I-GN, rather than for NOTM or the GCL system. Reference is made to a statement of the Interstate Commerce Commission that these 'feeder' lines 'were really acquired for the benefit of the entire MOP system. They have usually been operated at a deficit since acquisition.' Missouri Pacific R. Co. Reorganization, 239 I. C.C. 7, 71. Moreover, some of the 'feeder' lines are said not to connect at all with the lines of NOTM or its GCL subsidiaries. And it is thought that some of the MOP advances were used to cover operating deficits of the acquired property. Such is the basis of the objection to the recognition of MOP's claim against NOTM for the cost of the 'feeder' lines. There is nothing in the record to support an application of the Deep Rock doctrine to this aspect of MOP's claim. The use of NOTM to acquire subsidiary rail lines which have subsequently been operated at a loss does not necessarily indicate improper action by MOP; a mere mistake in business judgment may be all that was involved. And the fact that the acquisition may have been primarily for the benefit of some part of the MOP system other than the GCL companies does not necessarily mean that the , 251] acquisition was outside the legitimate scope of the functions of NOTM, a holding company in the MOP system. Indeed, the main thrust of Comstock's objection to this segment of the MOP claim is directed toward the entire history of MOP's management of NOTM. The thought is that the relationship of the parent and the subsidiary has been so complex and so saturated with mismanagement as to warrant subordination of the entire claim of the parent without bothering to differentiate between particular transactions. See Taylor v. Standard Gas & Electric Co., supraat page 323, 59 S.Ct. at page 550. But the record does not support such an approach to the MOP-NOTM relationship. There have been, as we have seen, two examples of mismanagement on MOP's part that warrant the application of the Deep Rock doctrine. But those situations are separable in nature from the other transactions between MOP and NOTM. And the Deep Rock doctrine is not one that operates to bar an entire parental claim if only a separable portion of it is inequitable. It is only where, as in the Taylor case, the parent-subsidiary relationship has been so complex that it is impossible to restore the subsidiary to the position it would have been in but for the parent's mismanagement that the entire claim may be subordinated without distinguishing the good transactions from the bad. Such is not the situation in this case. VI. From the findings of the District Court and the uncontested facts in the record, I can only conclude that of the $10,565,226.78 MOP claim, the portion of the $2,795,000 relating to dividend advances during the period in question and the $1,261,009.84 relating to the intercompany bookkeeping transaction should be subordinated to the claims of the pledgees of NOTM stock. In holding otherwise, the District Court committed an error which this Court should not overlook.
0	At petitioner's Kentucky state robbery trial, which resulted in his conviction, the trial court instructed the jury as to the prosecutor's burden of proof beyond a reasonable doubt but refused, inter alia, petitioner's requested instruction on the presumption of innocence. The robbery victim was the prosecution's only witness, and petitioner was the sole defense witness. The prosecutor in his opening statement related the circumstances of petitioner's arrest and indictment. In his closing statement, the prosecutor made observations suggesting that petitioner's status as a defendant tended to establish his guilt. The Kentucky Court of Appeals affirmed the conviction, rejecting petitioner's argument that he was entitled to the requested instruction as a matter of due process under the Fourteenth Amendment. Held: On the facts, the trial court's refusal to give petitioner's requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. Howard v. Fleming, , distinguished. Pp. 483-490. (a) While the legal scholar may understand that the presumption of innocence and the prosecution's burden of proof are logically similar, the ordinary citizen may draw significant additional guidance from an instruction on the presumption of innocence. Pp. 483-485. (b) An instruction on the presumption is one way of impressing upon the jury the importance of an accused's right to have his guilt or innocence determined solely on the basis of evidence introduced at trial and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. Pp. 485-486. (c) The prosecutor's remarks during his opening and closing statements, together with the skeletal instructions of the trial court, gave rise to a genuine risk that the jury would convict petitioner on the basis of extraneous considerations, rather than on the proof adduced at the trial, a risk heightened by the fact that the trial was essentially a swearing contest between victim and accused. Pp. 486-488. (d) That the trial court instructed as to the burden of proof beyond a reasonable doubt did not obviate the necessity for a presumption-of-innocence instruction in view of both the special purpose of such an instruction and the particular need for it in this case. P. 488. (e) Nor did the fact that defense counsel argued the presumption of innocence in both his opening and closing statements dispense with the need for a presumption-of-innocence instruction, since arguments of counsel cannot substitute for instructions by the court. Pp. 488-489. 551 S. W. 2d 813, reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, J., filed a concurring statement, post, p. 490. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 491.J. Vincent Aprile II argued the cause and filed briefs for petitioner.Guy C. Shearer, Assistant Attorney General of Kentucky, argued the cause for respondent. With him on the brief were Robert F. Stephens, Attorney General, Robert L. Chenoweth, Assistant Attorney General, and James M. Ringo, Assistant Deputy Attorney General.MR. JUSTICE POWELL delivered the opinion of the Court.Only two Terms ago, this Court observed that the "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, . In this felony case, the trial court instructed the jury as to the prosecution's burden of proof beyond a reasonable doubt, but refused petitioner's timely request for instructions on the presumption of innocence and the indictment's lack of evidentiary value. We are asked to decide whether the Due Process Clause of the Fourteenth Amendment requires that either or both instructions be given upon timely defense motions.IPetitioner was tried for robbery in 1976, allegedly having forced his way into the home of James Maddox and stolen a house key and a billfold containing $10 to $15. During voir dire of the jury, defense counsel questioned the panel about their understanding of the presumption of innocence,1 the burden of proof beyond a reasonable doubt,2 and the fact that an indictment is not evidence.3 The prosecutor then read the indictment to the jury.4 The Commonwealth's only witness was Maddox. He testified that he had known petitioner for several years and had entertained petitioner at his home on several occasions. According to Maddox, petitioner and a friend knocked on his door on the evening of February 16, 1976, asking to be admitted. Maddox refused, saying he had to go to bed. The two left, but returned 15 minutes later. They forced their way in, hit Maddox over the head, and fled with his billfold and house key, which were never recovered.Petitioner then took the stand as the only witness for the defense. He admitted having been at Maddox's home on other occasions, but denied going there on February 16 or participating in the robbery. He stated that he had spent that night with two friends sitting in a parked car, watching a rainstorm and a power failure. Defense counsel requested the trial court to instruct the jury that "[t]he law presumes a defendant to be innocent of a crime,"5 and that the indictment, previously read to the jury, was not evidence to be considered against the defendant.6 The court declined to give either instruction, and did not convey their substance in its charge to the jury. It did instruct the jury as to the Commonwealth's burden of proving petitioner's guilt beyond a reasonable doubt.7 Petitioner was found guilty and sentenced to five years of imprisonment. The Kentucky Court of Appeals affirmed, one judge dissenting. 551 S. W. 2d 813 (1977). Petitioner argued8 - and the Commonwealth denied9 - that he was entitled as a matter of due process under the Fourteenth Amendment to instructions that he was presumed to be innocent10 and that his indictment was not evidence of guilt. Both sides briefed federal decisions at some length. Nevertheless, the Court of Appeals rejected petitioner's presumption-of-innocence contention by citing Kentucky case law for the proposition "that as long as the trial court instructs the jury on reasonable doubt an instruction on the presumption of innocence is not necessary." Id., at 814. Without citing any authority, the court also declared that there was no merit in the position "that failure to give ... an instruction [on the indictment's lack of evidentiary value] denies the defendant due process of the law." Ibid. Because petitioner had not made a contemporaneous objection, the court refused to consider petitioner's additional contention that the prosecutor's closing argument had been improper.11 The Supreme Court of Kentucky denied discretionary review, and we granted certiorari, . We now reverse.II"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, . The Coffin Court traced the venerable history of the presumption from Deuteronomy through Roman law, English common law, and the common law of the United States. While Coffin held that the presumption of innocence and the equally fundamental principle that the prosecution bears the burden of proof beyond a reasonable doubt were logically separate and distinct, id., at 458-461, sharp scholarly criticism demonstrated the error of that view, see, e. g., J. Thayer, A Preliminary Treatise on Evidence 551-576 (1898) (hereafter Thayer); 9 J. Wigmore, Evidence 2511 (3d ed. 1940) (hereafter Wigmore); C. McCormick, Evidence 805-806 (2d ed. 1972) (hereafter McCormick).12 Nevertheless, these same scholars advise against abandoning the instruction on the presumption of innocence, even when a complete explanation of the burden of proof beyond a reasonable doubt is provided. Thayer 571-572; Wigmore 407; McCormick 806. See also ALI, Model Penal Code 1.12 (1) (Proposed Off. Draft 1962). This admonition derives from a perceived salutary effect upon lay jurors. While the legal scholar may understand that the presumption of innocence and the prosecution's burden of proof are logically similar, the ordinary citizen well may draw significant additional guidance from an instruction on the presumption of innocence. Wigmore described this effect as follows:"[I]n a criminal case the term [presumption of innocence] does convey a special and perhaps useful hint over and above the other form of the rule about the burden of proof, in that it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced. In other words, the rule about burden of proof requires the prosecution by evidence to convince the jury of the accused's guilt; while the presumption of innocence, too, requires this, but conveys for the jury a special and additional caution (which is perhaps only an implied corollary to the other) to consider, in the material for their belief, nothing but the evidence, i. e., no surmises based on the present situation of the accused. This caution is indeed particularly needed in criminal cases." Wigmore 407. This Court has declared that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. See, e. g., Estelle v. Williams, . And it long has been recognized that an instruction on the presumption is one way of impressing upon the jury the importance of that right. See, e. g., United States v. Thaxton, 483 F.2d 1071, 1073 (CA5 1973); Reynolds v. United States, 238 F.2d 460, 463, and n. 4 (CA9 1956); People v. Hill, 182 Colo. 253, 257-258, 512 P.2d 257, 259 (1973); Carr v. State, 192 Miss. 152, 157, 4 So.2d 887, 888 (1941); State v. Rivers, 206 Minn. 85, 93, 287 N. W. 790, 794 (1939); Commonwealth v. Madeiros, 255 Mass. 304, 316, 151 N. E. 297, 300 (1926); Reeves v. State, 29 Fla. 527, 542, 10 So. 901, 905 (1892). See also Holt v. United States, ; Agnew v. United States, . While use of the particular phrase "presumption of innocence" - or any other form of words - may not be constitutionally mandated, the Due Process Clause of the Fourteenth Amendment must be held to safeguard "against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt." Estelle v. Williams, supra, at 503. The "purging" effect of an instruction on the presumption of innocence, Thaxton, supra, at 1073, simply represents one means of protecting the accused's constitutional right to be judged solely on the basis of proof adduced at trial.13 IIIPetitioner argues that in the circumstances of this case, the purging effect of an instruction on the presumption of innocence was essential to a fair trial. He points out that the trial court's instructions were themselves skeletal, placing little emphasis on the prosecution's duty to prove the case beyond a reasonable doubt and none at all on the jury's duty to judge petitioner only on the basis of the testimony heard at trial.Against the background of the court's rather Spartan instructions, the prosecutor's closing argument ranged far and wide, asking the jury to draw inferences about petitioner's conduct from "facts" not in evidence, but propounded by the prosecutor. For example, he described the reasonable-doubt standard by declaring that petitioner, "like every other defendant who's ever been tried who's in the penitentiary or in the reformatory today, has this presumption of innocence until proved guilty beyond a reasonable doubt." App. 45 (emphasis added). This statement linked petitioner to every defendant who turned out to be guilty and was sentenced to imprisonment. It could be viewed as an invitation to the jury to consider petitioner's status as a defendant as evidence tending to prove his guilt. Similarly, in responding to defense counsel's rhetorical query as to the whereabouts of the items stolen from Maddox, the prosecutor declared that "[o]ne of the first things defendants do after they rip someone off, they get rid of the evidence as fast and as quickly as they can." Ibid. (emphasis added). This statement also implied that all defendants are guilty and invited the jury to consider that proposition in determining petitioner's guilt or innocence.14 Additionally, the prosecutor observed in his opening statement that Maddox "took out" a warrant against petitioner and that the grand jury had returned an indictment, which the prosecutor read to the jury. Thus, the jury not only was invited to consider the petitioner's status as a defendant, but also was permitted to draw inferences of guilt from the fact of arrest and indictment.15 The prosecutor's description of those events was not necessarily improper, but the combination of the skeletal instructions, the possible harmful inferences from the references to the indictment, and the repeated suggestions that petitioner's status as a defendant tended to establish his guilt created a genuine danger that the jury would convict petitioner on the basis of those extraneous considerations, rather than on the evidence introduced at trial. That risk was heightened because the trial essentially was a swearing contest between victim and accused.16 IVAgainst the need for a presumption-of-innocence instruction, the Commonwealth argues first that such an instruction is not required where, as here, the jury is instructed as to the burden of proof beyond a reasonable doubt. The trial court's truncated discussion of reasonable doubt, however, was hardly a model of clarity. It defined reasonable doubt as "a substantial doubt, a real doubt." Id., at 40. This definition, though perhaps not in itself reversible error, often has been criticized as confusing. See, e. g., United States v. Muckenstrum, 515 F.2d 568, 571 (CA5), cert. denied, ; United States v. Christy, 444 F.2d 448, 450 (CA6), cert. denied, . And even if the instruction on reasonable doubt had been more clearly stated, the Commonwealth's argument ignores both the special purpose of a presumption-of-innocence instruction and the particular need for such an instruction in this case.The Commonwealth also contends that no additional instructions were required, because defense counsel argued the presumption of innocence in both his opening and closing statements. But arguments of counsel cannot substitute for instructions by the court. United States v. Nelson, 498 F.2d 1247 (CA5 1974). Petitioner's right to have the jury deliberate solely on the basis of the evidence cannot be permitted to hinge upon a hope that defense counsel will be a more effective advocate for that proposition than the prosecutor will be in implying that extraneous circumstances may be considered. It was the duty of the court to safeguard petitioner's rights, a duty only it could have performed reliably. See Estelle v. Williams, 425 U.S., at 503.17 Finally, the Commonwealth argues that Howard v. Fleming, , established that the Fourteenth Amendment does not require instructions on the presumption of innocence. In Howard, however, the trial court had instructed the jury to consider only the evidence and the law as received from the court.18 The argument in Howard was not that failure to give an explicit instruction on the presumption of innocence raised a danger that the jury might judge defendants on matters other than the evidence. Instead, plaintiffs-in-error relied on Coffin for the erroneous proposition that the presumption of innocence is "evidence" to be weighed in the accused's favor. Brief for Appellants in Howard v. Fleming, O. T. 1903, Nos. 44 and 45, pp. 111-113. The Court had discarded this view some years before. See n. 12, supra. Thus, Howard held only that the accused is not entitled to an instruction that the presumption of innocence is "evidence." It did not cast doubt upon the additional function of the presumption as an admonition to consider only the evidence actually introduced, since such an instruction had been given.VWe hold that on the facts of this case the trial court's refusal to give petitioner's requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. The judgment of conviction is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. l1 App. 19, 21.[Footnote 2] Id., at 19-21.[Footnote 3] Id., at 17.[Footnote 4] Id., at 23.[Footnote 5] Petitioner's requested instruction on this point read as follows:"The law presumes a defendant to be innocent of a crime. Thus a defendant, although accused, begins the trial with a `clean slate.' That is, with no evidence against him. The law permits nothing but legal evidence presented before a jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant, unless you are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case." Id., at 53. This instruction is nearly identical to one contained in 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions 11.14, p. 310 (3d ed. 1977). See also United States v. AlstonApp. D.C. 129, 132-133, 551 F.2d 315, 318-319 (1976); United States v. Cummings, 468 F.2d 274, 280 (CA9 1972).[Footnote 6] Petitioner's proposed instruction on this point read as follows:"The jury is instructed that an indictment is in no way any evidence against the defendant and no adverse inference can be drawn against the defendant from a finding of the indictment. The indictment is merely a written accusation charging the defendant with the commission of a crime. It has no probative force and carries with it no implication of guilt." App. 53.[Footnote 7] The trial court's instructions, in their entirety, were as follows:"All right. These are your instructions as to the law applicable to the facts you've heard in evidence from the witness stand in this case."Number one, you will find the defendant guilty under this instruction if and only if you believe from the evidence beyond a reasonable doubt all of the following: A. That in this county on or about February 16, 1976 and before the finding of the indictment herein, he the defendant stole a sum of money and a house key from James Maddox, 249 Rosewood, Frankfort, Kentucky; and B. in the course of so doing he used physical force on James Maddox. If you find the defendant guilty under this instruction you will fix his punishment at confinement in the penitentiary for not less than five nor more than ten years in your discretion."Number two, if upon the whole case you have a reasonable doubt as to the defendant's guilt you will find him not guilty. The term `reasonable doubt' as used in these instructions means a substantial doubt, a real doubt, in that you must ask yourself not whether a better case might have been proved but whether after hearing all the evidence you actually doubt that the defendant is guilty."Number three, the verdict of the jury must be unanimous and be signed by one of you as foreman. You may use the form provided at the end of these instructions for writing your verdict."There is appended to these instructions a form with alternate verdicts, one of which you will use: A. We the jury find the defendant not guilty; B. We the jury find the defendant guilty under instruction number one and fix his punishment at blank years in the penitentiary." Id., at 40-41.[Footnote 8] E. g., 3 Record 15, 86-87.[Footnote 9] E. g., id., at 56.[Footnote 10] Although the Commonwealth does not challenge our jurisdiction to entertain petitioner's claims, we have examined the record and satisfied ourselves that jurisdiction exists. Petitioner's contemporaneous objection to the refusal of his request for an instruction on the presumption of innocence invoked "fundamental principle[s] of judicial fair play." App. 51. This should have sufficed to alert the trial judge to petitioner's reliance on due process principles. And in the face of petitioner's exclusive, explicit reliance on the Fourteenth Amendment in the Kentucky Court of Appeals, the Commonwealth has not argued that he has forfeited his right to raise federal claims.The short opinion of the Kentucky Court of Appeals did not discuss federal decisions, relying instead on Kentucky authority. 551 S. W. 2d, at 813-814. This reliance on state law apparently was due to the fact that the highest court of Kentucky settled the issue for that State almost 50 years ago. See, e. g., Mink v. Commonwealth, 228 Ky. 674, 15 S. W. 2d 463 (1929). By way of contrast, the Court of Appeals quite explicitly refused to consider petitioner's argument that he was prejudiced by improper prosecutorial comments, on the ground that petitioner's failure to make a contemporaneous objection operated as a bar to appellate review. Thus, the Court of Appeals clearly denoted the one issue it refused to consider because of a procedural default. In view of both petitioner's contemporaneous objection to the failure to give the presumption-of-innocence charge, and the Kentucky Court of Appeals' apparent consideration of petitioner's federal claim, we will not strain the record in an effort to divest petitioner of his federal forum at this late date. See Cicenia v. Lagay, , n. 2 (1958).[Footnote 11] The Kentucky court remanded for resentencing because of the trial court's failure to order a statutorily required presentencing investigation. 551 S. W. 2d, at 814.[Footnote 12] The Coffin Court viewed the presumption of innocence as "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." 156 U.S., at 459. As actual "evidence in favor of the accused," id., at 460, it was distinguished from the reasonable-doubt standard, which merely described "the condition of mind produced by the proof resulting from the evidence in the cause." Ibid. Professor Thayer ably demonstrated the error of this distinction, pointing out that the so-called "presumption" is not evidence - not even an inference drawn from a fact in evidence - but instead is a way of describing the prosecution's duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt. Thayer 560-563. Shortly after the appearance of Thayer's criticism, the Court, in a case in which the presumption-of-innocence instruction was given, retreated from its conclusion that the presumption of innocence is evidence to be weighed by the jury. See Agnew v. United States, .It is now generally recognized that the "presumption of innocence" is an inaccurate, shorthand description of the right of the accused to "remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; i. e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it." Wigmore 407. The principal inaccuracy is the fact that it is not technically a "presumption" - a mandatory inference drawn from a fact in evidence. Instead, it is better characterized as an "assumption" that is indulged in the absence of contrary evidence. Carr v. State, 192 Miss. 152, 156, 4 So.2d 887, 888 (1941); accord, McCormick 806.[Footnote 13] Estelle v. Williams quite clearly relates the concept of presumption of innocence to the cognate requirements of finding guilt only on the basis of the evidence and beyond a reasonable doubt. 425 U.S., at 503. In this sense, it is possible to interpret the extended historical discussion of the presumption of innocence in Coffin v. United States, , as supporting the conclusion that an instruction emphasizing for the jury the first of those two requirements is an element of Fourteenth Amendment due process, an essential of a civilized system of criminal procedure. See Johnson v. Louisiana, n. 2 (1972).[Footnote 14] We do not suggest that such prosecutorial comments, standing alone, would rise to the level of reversible error, an issue not raised in this case. But they are relevant to the need for carefully framed instructions designed to assure that the accused be judged only on the evidence.[Footnote 15] As noted above, see supra, at 480-481, the trial court also refused petitioner's request for an instruction that the indictment was not evidence. This permitted the prosecutor's reference to the indictment to serve as one more extraneous, negative circumstance which may have influenced the jury's deliberations. Because of our conclusion that the cumulative effect of the potentially damaging circumstances of this case violated the due process guarantee of fundamental fairness in the absence of an instruction as to the presumption of innocence, we do not reach petitioner's further claim that the refusal to instruct that an indictment is not evidence independently constituted reversible error.[Footnote 16] While we do not necessarily approve of the presumption-of-innocence instruction requested by petitioner, it appears to have been well suited to forestalling the jury's consideration of extraneous matters, that is, to performing the purging function described in Part II, above. The requested instruction noted that petitioner, "although accused, [began] the trial with a `clean slate.'" It emphasized that the law would permit "nothing but legal evidence presented before a jury to be considered in support of any charge against the accused."[Footnote 17] See ABA Project on Standards for Criminal Justice, Function of the Trial Judge 1.1 (a) (App. Draft 1972):"The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The only purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose."[Footnote 18] The trial court had given the following instructions:"Now, gentlemen, in the trial of this cause the court admonishes you to divest yourselves of any possible feeling or prejudice which you might have against the defendants as well as any sympathy that you might entertain for them on account of their misfortune, and try this case upon the law and the evidence as the court has endeavored to lay it down to you. When you do this you have responded to the high responsibilities which rest upon you as jurors. It matters not whether your verdict accords with public sentiment or not. You are supposed to be indifferent to any such influences and for such to influence you would be a failure to perform your duty. I need not say to you that the offense with which the defendants are charged is a grave one under the law, and if guilty they should be convicted, but while this is true they are entitled under the constitution and laws of your State to a fair and honest trial at your hands, and I feel sure that you will give them such." Record in Howard v. Fleming, O. T. 1903, Nos. 44 and 45, p. 120.MR. JUSTICE BRENNAN, concurring.I join the Court's opinion because in reversing petitioner's conviction it reaffirms that "the `presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice,'" ante, at 479, quoting Estelle v. Williams, . It follows from this proposition, as is clear from the Court's opinion, that trial judges should instruct the jury on a criminal defendant's entitlement to a presumption of innocence in all cases where such an instruction is requested.MR. JUSTICE STEVENS, with whom MR. JUSTICE REHNQUIST joins, dissenting.In a federal court it is reversible error to refuse a request for a proper instruction on the presumption of innocence. Coffin v. United States, .1 That is not, however, a sufficient reason for holding that such an instruction is constitutionally required in every criminal trial.2 The function of the instruction is to make it clear that the burden of persuasion rests entirely on the prosecutor. The same function is performed by the instruction requiring proof beyond a reasonable doubt.3 One standard instruction adds emphasis to the other. Neither should be omitted, but an "omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, . In some cases the omission may be fatal, but the Court wisely avoids a holding that this is always so. In this case the omission did not violate a specific constitutional guarantee, such as the privilege against compulsory self-incrimination.4 Nor did it deny the defendant his fundamental right to a fair trial. An instruction on reasonable doubt, admittedly brief, was given. The voir dire had made clear to each juror the defendant's right to be presumed innocent despite his indictment.5 The prosecutor's closing argument did not precipitate any objection from defense counsel who listened to it; it may not, therefore, provide the basis for a reversal. Cf. Estelle v. Williams, . Although the Court's appraisal is not unreasonable, for this was by no means a perfect trial, I do not believe that constitutional error was committed. Accordingly, I respectfully dissent.
2	Certiorari granted; reversed.Ephraim London for petitioner.Frank S. Hogan for respondent.PER CURIAM.The petition for a writ of certiorari is granted and the judgment of the Court of Appeals of New York is reversed. Redrup v. New York, .THE CHIEF JUSTICE, MR. JUSTICE CLARK, and MR. JUSTICE BRENNAN would affirm.MR. JUSTICE HARLAN adheres to the views expressed in his separate opinions in Roth v. United States, , and Memoirs v. Massachusetts, , and on the basis of the reasoning set forth therein would affirm.
8	The Commissioner of Food and Drugs, by delegation from the Secretary of Health, Education, and Welfare, issued three regulations under the Color Additive Amendments of 1960 to the Federal Food, Drug, and Cosmetic Act, which the respondents challenge in a pre-enforcement action on the ground that the Commissioner impermissibly expanded the reach of the statute. The regulations (1) amplified the statutory definition of color additives by including diluents therein, (2) included certain cosmetics within the scope of color additives, and (3) limited the exemption for hair dyes to those as to which the "patch test" is effective and excluded from the exemption certain components other than the coloring ingredient of the dye. The Court of Appeals affirmed the District Court's judgment that it had jurisdiction to hear the suit. See Toilet Goods Assn. v. Gardner, ante, p. 158. Held: Under the standards set forth in Abbott Laboratories v. Gardner, ante, p. 136, namely, the appropriateness of the issues for judicial determination and the immediate severity of the regulations' impact on the respondents, the pre-enforcement challenge to these regulations is ripe for judicial review. Pp. 170-174. (a) The issue as framed by the parties, what general classifications of ingredients fall within the coverage of the Color Additive Amendments, is a straightforward legal one, the consideration of which would not necessarily be facilitated if it were raised in the context of a specific attempt to enforce the regulations. Pp. 170-171. (b) These regulations, which are self-executing, have an immediate and substantial impact on the respondents, providing extensive penalties and substantial preliminary paper work, scientific testing, and recordkeeping for the cosmetic manufacturers. Pp. 171-174. 360 F.2d 677, affirmed.Nathan Lewin argued the cause for petitioners. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg, Jerome M. Feit and William W. Goodrich.Edward J. Ross argued the cause and filed a brief for respondents.MR. JUSTICE HARLAN delivered the opinion of the Court.In Toilet Goods Assn. v. Gardner, ante, p. 158, we affirmed a judgment of the Court of Appeals for the Second Circuit holding that judicial review of a regulation concerning inspection of cosmetics factories was improper in a pre-enforcement suit for injunctive and declaratory judgment relief. The present case is brought here by the Government seeking review of the Court of Appeals' further holding that review of three other regulations in this type of action was proper. 360 F.2d 677. We likewise affirm.For reasons stated in our opinion in Abbott Laboratories v. Gardner, ante, p. 136, we find nothing in the Federal Food, Drug, and Cosmetic Act (52 Stat. 1040, as amended), 21 U.S.C. 301 et seq., that precludes resort to the courts for pre-enforcement relief under the Administrative Procedure Act, 5 U.S.C. 701-704 (1964 ed., Supp. II), and the Declaratory Judgment Act, 28 U.S.C. 2201. And for reasons to follow, we believe the Court of Appeals was correct in holding that the District Court did not err when it refused to dismiss the complaint with respect to these regulations.The regulations challenged here were promulgated under the Color Additive Amendments of 1960, 74 Stat. 397, 21 U.S.C. 321-376. These statutory provisions, in brief, allow the Secretary of Health, Education, and Welfare and his delegate, the Commissioner of Food and Drugs, 22 Fed. Reg. 1051, 25 Fed. Reg. 8625, to prescribe conditions for the use of color additives in foods, drugs, and cosmetics. The Act requires clearance of every color additive in the form of a regulation prescribing conditions for use of that particular additive, and also certification of each "batch" unless exempted by regulation. A color additive is defined as "a dye, pigment, or other substance ... [which] when added or applied to a food, drug, or cosmetic, or to the human body or any part thereof, is capable (alone or through reaction with other substance) of imparting color thereto ...," 21 U.S.C. 321 (t) (1).Under his general rule-making power, 701 (a). 21 U.S.C. 371 (a), the Commissioner amplified the statutory definition to include as color additives all diluents, that is, "any component of a color additive mixture that is not of itself a color additive and has been intentionally mixed therein to facilitate the use of the mixture in coloring foods, drugs, or cosmetics or in coloring the human body." 21 CFR 8.1 (m). By including all diluents as color additives, the Commissioner in respondents' view unlawfully expanded the number of items that must comply with the premarketing clearance procedure.The Commissioner also included as a color additive within the coverage of the statute any "substance that, when applied to the human body results in coloring ... unless the function of coloring is purely incidental to its intended use, such as in the case of deodorants. Lipstick, rouge, eye makeup colors, and related cosmetics intended for coloring the human body are `color additives.'" 21 CFR 8.1 (f). Respondents alleged that in promulgating this regulation the Commissioner again impermissibly expanded the reach of the statute beyond the clear intention of Congress.A third regulation challenged by these respondents concerns the statutory exemption for hair dyes that conform to a statutory requirement set out in 601 (e), 21 U.S.C. 361 (e). That requirement provides that hair dyes are totally exempt from coverage of the statute if they display a certain cautionary notice on their labels prescribing a "patch test" to determine whether the dye will cause skin irritation on the particular user. The Commissioner's regulation recognizes that the exemption applies to the Color Additive Amendments, but goes on to declare: "If the poisonous or deleterious substance in the `hair dye' is one to which the caution is inapplicable and for which patch-testing provides no safeguard, the exemption does not apply; nor does the exemption extend to the poisonous or deleterious diluents that may be introduced as wetting agents, hair conditioners, emulsifiers, or other components in a color shampoo, rinse, tint, or similar dual-purpose cosmetics that alter the color of the hair." 21 CFR 8.1 (u).Respondents contend that this regulation too is irreconcilable with the statute: whereas the statute grants an across-the-board exemption to all hair dyes meeting the patch-test notice requirement, the regulation purports to limit that exemption to cover only those dyes as to which the test is "effective." Moreover, it is said, the regulation appears to limit the exemption only to the coloring ingredient of the dye, and to require clearance for all other components of a particular hair dye.We agree with the Court of Appeals that respondents' challenge to these regulations is ripe for judicial review under the standards elaborated in Abbott Laboratories v. Gardner, supra, namely the appropriateness of the issues for judicial determination and the immediate severity of the regulations' impact upon the plaintiffs.The issue as framed by the parties is a straightforward legal one: what general classifications of ingredients fall within the coverage of the Color Additive Amendments? Both the Government and the respondents agree that for any color additive, distribution is forbidden unless the additive is (1) listed in a Food and Drug Administration regulation as safe for use under prescribed conditions, and (2) comes from a "certified" batch, unless specifically exempted from the certification requirement. The only question raised is what sort of items are "color additives." The three regulations outlined above purport to elaborate the statutory definition; they include within the statutory term certain classes of items, e. g., diluents, finished cosmetics, and hair dyes, that respondents assert are not within the purview of the statute at all. We agree with the District Court and the Court of Appeals that this is not a situation in which consideration of the underlying legal issues would necessarily be facilitated if they were raised in the context of a specific attempt to enforce the regulations.1 Rather, "to the extent that they purport to apply premarketing requirements to broad categories like finished products and non-coloring ingredients and define the hair-dye exemption, they appear, prima facie, to be susceptible of reasoned comparison with the statutory mandate without inquiry into factual issues that ought to be first ventilated before the agency." 360 F.2d, at 685.For these reasons we find no bar to consideration by the courts of these issues in their present posture. Abbott Laboratories v. Gardner, supra; United States v. Storer Broadcasting Co., ; Frozen Food Express v. United States, .This result is supported as well by the fact that these regulations are self-executing, and have an immediate and substantial impact upon the respondents. See Abbott Laboratories v. Gardner, ante, pp. 152-153. The Act, as noted earlier, prescribes penalties for the distribution of goods containing color additives unless they have been cleared both by listing in a regulation and by certification of the particular batch. Faced with these regulations the respondents are placed in a quandary. On the one hand they can, as the Government suggests, refuse to comply, continue to distribute products that they believe do not fall within the purview of the Act, and test the regulations by defending against government criminal, seizure, or injunctive suits against them. We agree with the respondents that this proposed avenue of review is beset with penalties and other impediments rendering it inadequate as a satisfactory alternative to the present declaratory judgment action.The penalties to which cosmetics manufacturers might be subject are extensive. A color additive that does not meet the premarketing clearance procedure is declared to be "unsafe," 706 (a), 21 U.S.C. 376 (a), and hence "adulterated," 601, 21 U.S.C. 361 (e). It is a "prohibited act" to introduce such material into commerce, 301, 21 U.S.C. 331, subject to injunction, 302, 21 U.S.C. 332, criminal penalties, 303, 21 U.S.C. 333, and seizure of the goods, 304 (a), 21 U.S.C. 334 (a). The price of noncompliance is not limited to these formal penalties. Respondents note the importance of public good will in their industry, and not without reason fear the disastrous impact of an announcement that their cosmetics have been seized as "adulterated."The alternative to challenging the regulations through noncompliance is, of course, to submit to the regulations and present the various ingredients embraced in them for premarketing clearance. We cannot say on this record that the burden of such a course is other than substantial, accepting, as we must on a motion to dismiss on the pleadings, the allegations of the complaint and supporting affidavits as true. The regulations in this area require separate petitions for listing each color additive, 21 CFR 8.1 (f), 8.1 (m), 8.4 (c), at an initial fee, subject to refunds, of $2,600 a listing. 21 CFR 8.50 (c). One respondent, Kolmar Laboratories, Inc., in affidavits submitted to the District Court, asserted that more than 2,700 different formulae would fall under the Commissioner's regulations and would cost some $7,000,000 in listing fees alone. According to the allegations the company also uses 264 diluents which under the challenged regulations must be included as color additives as well. Moreover, a listing is not obtained by mere application alone. Physical and chemical tests must be made and their results submitted with each petition, 21 CFR 8.4 (c), at a cost alleged by Kolmar of up to $42,000,000. Detailed records must be maintained for each listed ingredient, 21 CFR 8.26, and batches of listed items must ultimately be certified, again at a substantial fee, 21 CFR 8.51.Whether or not these cost estimates are exaggerated2 it is quite clear that if respondents, failing judicial review at this stage, elect to comply with the regulations and await ultimate judicial determination of the validity of them in subsequent litigation, the amount of preliminary paper work, scientific testing, and recordkeeping will be substantial. The District Court found in denying the motion to dismiss: "I conclude that in a substantial and practical business sense plaintiffs are threatened with irreparable injury by the obviously intended consequences of the challenged regulations, and that to resort to later piecemeal resolution of the controversy in the context of individual enforcement proceedings would be costly and inefficient, not only for the plaintiffs but as well for the public as represented by the defendants." 235 F. Supp. 648, 651.Like the Court of Appeals, we think that this record supports those findings and conclusions. And as in Abbott Laboratories, supra, we have been shown no substantial governmental interest that should lead us to reach a conclusion different from the one we have reached in that case. We hold that this action is maintainable. Affirmed.MR. JUSTICE BRENNAN took no part in the consideration or decision of this case.
8	After respondent ConAgra warned companies selling equipment and processes for browning precooked meats that it intended to protect its rights under its patent for that process, petitioner Unitherm, whose president had invented the process six years before ConAgra filed its patent application, and one of ConAgra's direct competitors jointly filed suit in an Oklahoma federal court. As relevant here, they sought a declaration that ConAgra's patent was invalid and unenforceable and alleged that ConAgra had violated §2 of the Sherman Act by attempting to enforce a patent obtained by fraud on the Patent and Trademark Office, see Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 174. The District Court found the patent invalid and allowed the Walker Process claim to proceed to trial. Before the case was submitted to the jury, ConAgra moved for a directed verdict under Federal Rule of Civil Procedure 50(a) based on legal insufficiency of the evidence. The court denied the motion, the jury returned a verdict for Unitherm, and ConAgra neither renewed its motion for judgment as a matter of law pursuant to Rule 50(b) nor moved for a new trial on antitrust liability pursuant to Rule 59. On appeal to the Federal Circuit, ConAgra maintained that there was insufficient evidence to sustain the Walker Process verdict. The court applied Tenth Circuit law, under which a party that has failed to file a postverdict sufficiency of the evidence challenge may nonetheless raise such a claim on appeal, so long as the party filed a Rule 50(a) motion before submission of the case to the jury. The only available relief in such a circumstance is a new trial. Freed to examine the sufficiency of the evidence, the Federal Circuit vacated the judgment and ordered a new trial. Held: Since respondent failed to renew its preverdict motion as specified in Rule 50(b), the Federal Circuit had no basis for reviewing respondent's sufficiency of the evidence challenge. Rule 50 sets forth the requirements, establishing two stages, for challenging the sufficiency of the evidence in a civil jury trial. Rule 50(a) allows a challenge prior to the case's submission to the jury, authorizing the district court to grant the motion at the court's discretion. Rule 50(b), by contrast, sets forth the requirements for renewing the challenge after the jury verdict and entry of judgment. A party's failure to file a Rule 50(b) postverdict motion deprives an appellate court of the "power to direct the District Court to enter judgment contrary to the one it had permitted to stand." Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 218. It also deprives an appellate court of the power to order the entry of judgment in favor of that party where the district court directed the jury's verdict, Globe Liquor Co. v. San Roman, 332 U. S. 571, and where the district court expressly reserved a party's preverdict directed verdict motion and then denied it after the verdict, Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48. A postverdict motion is necessary because determining "whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart." Cone, supra, at 216. Moreover, the requirement "is not an idle motion" but "an essential part of the rule, firmly grounded in principles of fairness." Johnson, supra, at 53. These authorities require reversal of the judgment below. This Court's observations about the postverdict motion's necessity and the benefits of the district court's input at that stage apply with equal force whether a party is seeking judgment as a matter of law or simply a new trial. Contrary to respondent's argument, the Cone, Globe Liquor, and Johnson outcomes underscore this holding. Those litigants all secured new trials, but they had moved for a new trial postverdict in the district court and did not seek to establish their entitlement to a new trial based solely on a denied Rule 50(a) motion. This result is further validated by the purported basis of respondent's appeal, namely the District Court's denial of its Rule 50(a) motion. Cone, Globe Liquor, and Johnson unequivocally establish that the precise subject matter of a party's Rule 50(a) motion cannot be appealed unless that motion is renewed pursuant to Rule 50(b). Respondent, rather than seeking to appeal the claim raised in its Rule 50(a) motion, seeks a new trial based on legal insufficiency of the evidence. If a litigant that has failed to file a Rule 50(b) motion is foreclosed from seeking the relief sought in its Rule 50(a) motion, then surely respondent is foreclosed from seeking relief it did not and could not seek in its preverdict motion. Rule 50(b)'s text confirms that respondent's Rule 50(a) motion did not give the District Court the option of ordering a new trial, for it provides that a district court may only order a new trial based on issues raised in a Rule 50(a) motion when "ruling on a renewed motion" under Rule 50(b). If the District Court lacked such power, then the Court of Appeals was similarly powerless. Rule 50(a)'s text and application also support this result. A district court may enter judgment as a matter of law when it concludes that the evidence is legally insufficient, but it is not required to do so. Thus, the denial of respondent's Rule 50(a) motion was not error, but merely an exercise of the District Court's discretion. Pp. 4-12.375 F. 3d 1341, reversed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and O'Connor, Scalia, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined.UNITHERM FOOD SYSTEMS, INC., PETITIONER v.SWIFT-ECKRICH, INC., dba CONAGRAREFRIGERATED FOODSon writ of certiorari to the united states court ofappeals for the federal circuit[January 23, 2006] Justice Thomas delivered the opinion of the Court. Ordinarily, a party in a civil jury trial that believes the evidence is legally insufficient to support an adverse jury verdict will seek a judgment as a matter of law by filing a motion pursuant to Federal Rule of Civil Procedure 50(a) before submission of the case to the jury, and then (if the Rule 50(a) motion is not granted and the jury subsequently decides against that party) a motion pursuant to Rule 50(b). In this case, however, the respondent filed a Rule 50(a) motion before the verdict, but did not file a Rule 50(b) motion after the verdict. Nor did respondent request a new trial under Rule 59. The Court of Appeals nevertheless proceeded to review the sufficiency of the evidence and, upon a finding that the evidence was insufficient, remanded the case for a new trial. Because our cases addressing the requirements of Rule 50 compel a contrary result, we reverse.I The genesis of the underlying litigation in this case was ConAgra's attempt to enforce its patent for "A Method for Browning Precooked Whole Muscle Meat Products," U. S. Patent No. 5,952,027 ('027 patent). In early 2000, ConAgra issued a general warning to companies who sold equipment and processes for browning precooked meats explaining that it intended to " 'aggressively protect all of [its] rights under [the '027] patent.' " 375 F. 3d 1341, 1344 (CA Fed. 2004). Petitioner Unitherm sold such processes, but did not receive ConAgra's warning. ConAgra also contacted its direct competitors in the precooked meat business, announcing that it was " 'making the '027 Patent and corresponding patents that may issue available for license at a royalty rate of 10&breve; per pound.' " Id., at 1345. Jennie-O, a direct competitor, received ConAgra's correspondence and undertook an investigation to determine its rights and responsibilities with regard to the '027 patent. Jennie-O determined that the browning process it had purchased from Unitherm was the same as the process described in the '027 patent. Jennie-O further determined that the '027 patent was invalid because Unitherm's president had invented the process described in that patent six years before ConAgra filed its patent application. Consistent with these determinations, Jennie-O and Unitherm jointly sued ConAgra in the Western District of Oklahoma. As relevant here, Jennie-O and Unitherm sought a declaration that the '027 patent was invalid and unenforceable, and alleged that ConAgra had violated §2 of the Sherman Act, 15 U. S. C. §2, by attempting to enforce a patent that was obtained by committing fraud on the Patent and Trademark Office (PTO). See Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 174 (1965) (holding that "the enforcement of a patent procured by fraud on the Patent Office may be violative of §2 of the Sherman Act provided the other elements necessary to a §2 case are present"). The District Court construed the '027 patent and determined that it was invalid based on Unitherm's prior public use and sale of the process described therein. 35 U. S. C. §102(b). After dismissing Jennie-O for lack of antitrust standing, the District Court allowed Unitherm's Walker Process claim to proceed to trial. Prior to the court's submission of the case to the jury, ConAgra moved for a directed verdict under Rule 50(a) based on legal insufficiency of the evidence. The District Court denied that motion.1 The jury returned a verdict for Unitherm, and ConAgra neither renewed its motion for judgment as a matter of law pursuant to Rule 50(b), nor moved for a new trial on antitrust liability pursuant to Rule 59.2 On appeal to the Federal Circuit, ConAgra maintained that there was insufficient evidence to sustain the jury's Walker Process verdict. Although the Federal Circuit has concluded that a party's "failure to present the district court with a post-verdict motion precludes appellate review of sufficiency of the evidence," Biodex Corp. v. Loredan Biomedical, Inc., 946 F. 2d 850, 862 (1991), in the instant case it was bound to apply the law of the Tenth Circuit. 375 F. 3d, at 1365, n. 7 ("On most issues related to Rule 50 motions ... we generally apply regional circuit law unless the precise issue being appealed pertains uniquely to patent law"). Under Tenth Circuit law, a party that has failed to file a postverdict motion challenging the sufficiency of the evidence may nonetheless raise such a claim on appeal, so long as that party filed a Rule 50(a) motion prior to submission of the case to the jury. Cummings v. General Motors Corp., 365 F. 3d 944, 950-951 (2004). Notably, the only available relief in such a circumstance is a new trial. Id., at 951. Freed to examine the sufficiency of the evidence, the Federal Circuit concluded that, although Unitherm had presented sufficient evidence to support a determination that ConAgra had attempted to enforce a patent that it had obtained through fraud on the PTO, 375 F. 3d, at 1362, Unitherm had failed to present evidence sufficient to support the remaining elements of its antitrust claim. Id., at 1365 ("Unitherm failed to present any economic evidence capable of sustaining its asserted relevant antitrust market, and little to support any other aspect of its Section 2 claim"). Accordingly, it vacated the jury's judgment in favor of Unitherm and remanded for a new trial. We granted certiorari, 543 U. S. 1186 (2005), and now reverse.II Federal Rule of Civil Procedure 50 sets forth the procedural requirements for challenging the sufficiency of the evidence in a civil jury trial and establishes two stages for such challenges — prior to submission of the case to the jury, and after the verdict and entry of judgment. Rule 50(a) allows a party to challenge the sufficiency of the evidence prior to submission of the case to the jury, and authorizes the District Court to grant such motions at the court's discretion:"(a) Judgment as a Matter of Law. "(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. "(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment."Rule 50(b), by contrast, sets forth the procedural requirements for renewing a sufficiency of the evidence challenge after the jury verdict and entry of judgment. "(b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may: "(1) if a verdict was returned: "(A) allow the judgment to stand, "(B) order a new trial, or "(C) direct entry of judgment as a matter oflaw ... ." This Court has addressed the implications of a party's failure to file a postverdict motion under Rule 50(b) on several occasions and in a variety of procedural contexts. This Court has concluded that, "[i]n the absence of such a motion" an "appellate court [is] without power to direct the District Court to enter judgment contrary to the one it had permitted to stand." Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 218 (1947). This Court has similarly concluded that a party's failure to file a Rule 50(b) motion deprives the appellate court of the power to order the entry of judgment in favor of that party where the district court directed the jury's verdict, Globe Liquor Co. v. San Roman, 332 U. S. 571 (1948), and where the district court expressly reserved a party's preverdict motion for a directed verdict and then denied that motion after the verdict was returned. Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48 (1952). A postverdict motion is necessary because "[d]etermination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart."3 Cone, supra, at 216. Moreover, the "requirement of a timely application for judgment after verdict is not an idle motion" because it "is ... an essential part of the rule, firmly grounded in principles of fairness." Johnson, supra, at 53. The foregoing authorities lead us to reverse the judgment below. Respondent correctly points out that these authorities address whether an appellate court may enter judgment in the absence of a postverdict motion, as opposed to whether an appellate court may order a new trial (as the Federal Circuit did here). But this distinction is immaterial. This Court's observations about the necessity of a postverdict motion under Rule 50(b), and the benefits of the district court's input at that stage, apply with equal force whether a party is seeking judgment as a matter of law or simply a new trial. In Cone, this Court concluded that, because Rule 50(b) permits the district court to exercise its discretion to choose between ordering a new trial and entering judgment, its "appraisal of the bona fides of the claims asserted by the litigants is of great value in reaching a conclusion as to whether a new trial should be granted." 330 U. S., at 216 (emphasis added). Similarly, this Court has determined that a party may only pursue on appeal a particular avenue of relief available under Rule 50(b), namely the entry of judgment or a new trial, when that party has complied with the Rule's filing requirements by requesting that particular relief below. See Johnson, supra, at 54 ("Respondent made a motion to set aside the verdict and for new trial within the time required by Rule 50(b). It failed to comply with permission given by 50(b) to move for judgment n. o. v. after the verdict. In this situation respondent is entitled only to a new trial, not to a judgment in its favor").4 Despite the straightforward language employed in Cone, Globe Liquor, and Johnson, respondent maintains that those cases dictate affirmance here, because in each of those cases the litigants secured a new trial. But in each of those cases the appellants moved for a new trial postverdict in the District Court, and did not seek to establish their entitlement to a new trial solely on the basis of a denied Rule 50(a) motion. See Cone, supra, at 213 (noting that respondent moved for a new trial);5 Globe Liquor, 332 U. S., at 572 ("The respondents ... moved for a new trial on the ground ... that there were many contested issues of fact"). Indeed, Johnson concluded that respondent was only entitled to a new trial by virtue of its motion for such "within the time required by Rule 50(b)." 344 U. S., at 54. Accordingly, these outcomes merely underscore our holding today — a party is not entitled to pursue a new trial on appeal unless that party makes an appropriate postverdict motion in the district court. Our determination that respondent's failure to comply with Rule 50(b) forecloses its challenge to the sufficiency of the evidence is further validated by the purported basis of respondent's appeal, namely the District Court's denial of respondent's preverdict Rule 50(a) motion. As an initial matter, Cone, Globe Liquor, and Johnson unequivocally establish that the precise subject matter of a party's Rule 50(a) motion — namely, its entitlement to judgment as a matter of law — cannot be appealed unless that motion is renewed pursuant to Rule 50(b). Here, respondent does not seek to pursue on appeal the precise claim it raised in its Rule 50(a) motion before the District Court — namely, its entitlement to judgment as a matter of law. Rather, it seeks a new trial based on the legal insufficiency of the evidence. But if, as in Cone, Globe Liquor, and Johnson, a litigant that has failed to file a Rule 50(b) motion is foreclosed from seeking the relief it sought in its Rule 50(a) motion — i.e., the entry of judgment — then surely respondent is foreclosed from seeking a new trial, relief it did not and could not seek in its preverdict motion. In short, respondent never sought a new trial before the District Court, and thus forfeited its right to do so on appeal. Yakus v. United States, 321 U. S. 414, 444 (1944) ("No procedural principle is more familiar to this Court than that a ... right may be forfeited ... by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it"). The text of Rule 50(b) confirms that respondent's preverdict Rule 50(a) motion did not present the District Court with the option of ordering a new trial. That text provides that a district court may only order a new trial on the basis of issues raised in a preverdict Rule 50(a) motion when "ruling on a renewed motion" under Rule 50(b). Accordingly, even if the District Court was inclined to grant a new trial on the basis of arguments raised in respondent's preverdict motion, it was without the power to do so under Rule 50(b) absent a postverdict motion pursuant to that Rule. Consequently, the Court of Appeals was similarly powerless. Similarly, the text and application of Rule 50(a) support our determination that respondent may not challenge the sufficiency of the evidence on appeal on the basis of the District Court's denial of its Rule 50(a) motion. The Rule provides that "the court may determine" that "there is no legally sufficient evidentiary basis for a reasonable jury to find for [a] party on [a given] issue," and "may grant a motion for judgment as a matter of law against that party ... ." (Emphasis added.) Thus, while a district court is permitted to enter judgment as a matter of law when it concludes that the evidence is legally insufficient, it is not required to do so. To the contrary, the district courts are, if anything, encouraged to submit the case to the jury, rather than granting such motions. As Wright and Miller explain: "Even at the close of all the evidence it may be desirable to refrain from granting a motion for judgment as a matter of law despite the fact that it would be possible for the district court to do so. If judgment as a matter of law is granted and the appellate court holds that the evidence in fact was sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is expedited greatly. If the jury agrees with the court's appraisal of the evidence, and returns a verdict for the party who moved for judgment as a matter of law, the case is at an end. If the jury brings in a different verdict, the trial court can grant a renewed motion for judgment as a matter of law. Then if the appellate court holds that the trial court was in error in is appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. For this reason the appellate courts repeatedly have said that it usually is desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion." 9A Federal Practice §2533, at 319 (footnote omitted).Thus, the District Court's denial of respondent's preverdict motion cannot form the basis of respondent's appeal, because the denial of that motion was not error. It was merely an exercise of the District Court's discretion, in accordance with the text of the Rule and the accepted practice of permitting the jury to make an initial judgment about the sufficiency of the evidence. The only error here was counsel's failure to file a postverdict motion pursuant to Rule 50(b).6* * * For the foregoing reasons, we hold that since respondent failed to renew its preverdict motion as specified in Rule 50(b), there was no basis for review of respondent's sufficiency of the evidence challenge in the Court of Appeals. The judgment of the Court of Appeals is reversed.7It is so ordered.UNITHERM FOOD SYSTEMS, INC., PETITIONER v.SWIFT-ECKRICH, INC., dba CONAGRAREFRIGERATED FOODSon writ of certiorari to the united states court ofappeals for the federal circuit[January 23, 2006] Justice Stevens, with whom Justice Kennedy joins, dissenting. Murphy's law applies to trial lawyers as well as pilots. Even an expert will occasionally blunder. For that reason Congress has preserved the federal appeals courts' power to correct plain error, even though trial counsel's omission will ordinarily give rise to a binding waiver. This is not a case, in my view, in which the authority of the appellate court is limited by an explicit statute or controlling rule. The spirit of the Federal Rules of Civil Procedure favors preservation of a court's power to avoid manifestly unjust results in exceptional cases. See Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48, 62 (1952) (Frankfurter, J., dissenting) (" 'Procedure is the means; full, equal and exact enforcement of substantive law is the end' " (quoting Pound, The Etiquette of Justice, 3 Proceedings Neb. St. Bar Assn. 231 (1909))). Moreover, we have an overriding duty to obey statutory commands that unambiguously express the intent of Congress even in areas such as procedure in which we may have special expertise. Today, relying primarily on a case decided in March 1947, Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, and a case decided in January 1948, Globe Liquor Co. v. San Roman, 332 U. S. 571, the Court holds that the Court of Appeals was "powerless" to review the sufficiency of the evidence supporting the verdict in petitioner's favor because respondent failed to file proper postverdict motions pursuant to Rules 50(b) and 59 of the Federal Rules of Civil Procedure in the trial court. Ante, at 10. The majority's holding is inconsistent with a statute enacted just months after Globe Liquor was decided. That statute, which remains in effect today, provides:"The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." 28 U. S. C. §2106. Nothing in Rule 50(b) limits this statutory grant of power to appellate courts; while a party's failure to make a Rule 50(b) motion precludes the district court from directing a verdict in that party's favor, the Rule does not purport to strip the courts of appeals of the authority to review district court judgments or to order such relief as "may be just under the circumstances." Nor do general principles of waiver or forfeiture have that effect. Cf. ante, at 9-10. It is well settled that a litigant's waiver or forfeiture of an argument does not, in the absence of a contrary statutory command, preclude the courts of appeals from considering those arguments. See Singleton v. Wulff, 428 U. S. 106, 121 (1976). Arguments raised for the first time on appeal may be entertained, for example, if their consideration would prevent manifest injustice. Ibid. For the reasons articulated by the Court in Cone, 330 U. S., at 216, it may be unfair or even an abuse of discretion for a court of appeals to direct a verdict in favor of the party that lost below if that party failed to make a timely Rule 50(b) motion. Likewise, it may not be "just under the circumstances" for a court of appeals to order a new trial in the absence of a proper Rule 59 motion. Finally, a court of appeals has discretion to rebuff, on grounds of waiver or forfeiture, a challenge to the sufficiency of the evidence absent a proper Rule 50(b) or Rule 59 motion made in the district court. None of the foregoing propositions rests, however, on a determination that the courts of appeals lack "power" to review the sufficiency of the evidence and order appropriate relief under these circumstances, and I can divine no basis for that determination. I respectfully dissent.FOOTNOTESFootnote 1 Petitioner contends that respondent's Rule 50(a) motion pertained only to the fraud element of petitioner's Walker Process claim, and that it did not encompass the remaining antitrust elements of that claim. Because we conclude that petitioner is entitled to prevail irrespective of the scope of respondent's Rule 50(a) motion, we assume without deciding that that motion pertained to all aspects of petitioner's §2 claim. But see Amendments to Federal Rules of Civil Procedure, 134 F. R. D. 525, 687 (1991) ("A post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion").Footnote 2 While ConAgra did file a postverdict motion seeking a new trial on antitrust damages, that motion did not seek to challenge the sufficiency of the evidence establishing antitrust liability and thus has no bearing on the instant case. Footnote 3 Neither Neely v. Martin K. Eby Constr. Co., 386 U. S. 317 (1967), nor Weisgram v. Marley Co., 528 U. S. 440 (2000), undermine our judgment about the benefit of postverdict input from the district court. In those cases this Court determined that an appellate court may, in certain circumstances, direct the entry of judgment when it reverses the district court's denial of a Rule 50(b) motion. But in such circumstances the district court will have had an opportunity to consider the propriety of entering judgment or ordering a new trial by virtue of the postverdict motion. Moreover, these cases reiterate the value of the district court's input, cautioning the courts of appeals to be " 'constantly alert' to 'the trial judge's first-hand knowledge of witnesses, testimony, and issues.' " Id., at 443 (quoting Neely, supra, at 325).Footnote 4 The dissent's suggestion that 28 U. S. C. §2106 permits the Courts of Appeals to consider the sufficiency of the evidence underlying a civil jury verdict notwithstanding a party's failure to comply with Rule 50 is foreclosed by authority of this Court. While the dissent observes that §2106 was enacted after Cone and Globe Liquor Co. v. San Roman, 332 U. S. 571 (1948), post, at 2 (opinion of Stevens, J.), it fails to note that it was enacted prior to Johnson. Johnson explicitly reaffirmed those earlier cases, concluding that "in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict [Rule 50] forbids the trial judge or an appellate court to enter such judgment." 344 U. S., at 50. Moreover, in Neely, this Court observed that §2106 is "broad enough to include the power to direct entry of judgment n. o. v. on appeal," 386 U. S., at 322, but nonetheless reaffirmed that Cone, Globe Liquor, and Johnson "make it clear that an appellate court may not order judgment n. o. v. where the verdict loser has failed to strictly comply with the procedural requirements of Rule 50(b)." 386 U. S., at 325. Contrary to the dissent's suggestion, Neely confirms that the broad grant of authority to the Courts of Appeals in §2106 must be exercised consistent with the requirements of the Federal Rules of Civil Procedure as interpreted by this Court. The dissent's approach is not only foreclosed by authority of this Court, it also may present Seventh Amendment concerns. The implication of the dissent's interpretation of §2106 is that a court of appeals would be free to examine the sufficiency of the evidence regardless of whether the appellant had filed a Rule 50(a) motion in the district court and, in the event the appellant had filed a Rule 50(a) motion, regardless of whether the district court had ever ruled on that motion. The former is squarely foreclosed by Slocum v. New York Life Ins. Co., 228 U. S. 364 (1913), and the latter is inconsistent with this Court's explanation of the requirements of the Seventh Amendment in Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 658 (1935) (explaining that "under the pertinent rules of the common law the court of appeals could set aside the verdict for error of law, such as the trial court's ruling respecting the sufficiency of the evidence, and direct a new trial, but could not itself determine the issues of fact and direct a judgment for the defendant, for this would cut off the plaintiff's unwaived right to have the issues of fact determined by a jury" (emphasis added)). Indeed, Rule 50 was drafted with such concerns in mind. See 9A C. Wright & A. Miller, Federal Practice and Procedure §2522, pp. 244-246 (2d ed. 1995) (hereinafter Federal Practice).Footnote 5 While the precise nature of the new trial motion at issue in Cone is difficult to ascertain from this Court's description of that motion, the Court of Appeals opinion in that case confirms that the movant had properly objected to the admission of certain evidence, and then moved postverdict "for a new trial [on the basis of the inadmissible evidence] and later renewed this motion upon the basis of newly-discovered evidence." West Virginia Pulp & Paper Co. v. Cone, 153 F. 2d 576, 580 (CA4 1946). This Court did not disturb the Court of Appeals holding that formed the basis of the movant's entitlement to a new trial, namely "the Circuit Court of Appeals' holding that there was prejudicial error in the admission of evidence." 330 U. S., at 215.Footnote 6 Respondent claims that its failure to renew its Rule 50(a) motion was in reliance on the Tenth Circuit's determination that it could order a new trial in the absence of a Rule 50(b) motion. But respondent cannot credibly maintain that it wanted the Court of Appeals to order a new trial as opposed to entering judgment. And, as the Tenth Circuit has recognized, respondent could not obtain the entry of judgment unless it complied with Rule 50(b). Cummings v. General Motors Corp., 365 F. 3d 944, 951 (2004). Respondent therefore had every incentive to comply with that Rule's requirements. Accordingly, we reject its contention that our application of Rule 50(b) to the instant case is impermissibly retroactive. See also Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97 (1993) ("[W]e can scarcely permit the substantive law to shift and spring according to the particular equities of individual parties' claims of actual reliance on an old rule and of harm from a retroactive application of the new rule" (internal quotation marks and brackets omitted)).Footnote 7 We reject respondent's contention that it is entitled to a remand for reconsideration in light of Phillips v. AWH Corp., 415 F. 3d 1303 (CA Fed. 2005). The Federal Circuit has already denied respondent's petition for rehearing raising this issue.FOOTNOTESFootnote The Court suggests that the Seventh Amendment limits appellate courts' power to review judgments under 28 U. S. C. §2106. See ante, at 7, n.4. I disagree with the Court's analysis in two respects. First, although the right to trial by jury might be implicated if no Rule 50(a) motion had been made, such a motion was made in this case. The Rule 50(a) motion triggered the automatic reservation of "legal questions," Fed. Rule Civ. Proc. 50(b), and that reservation, in turn, averted any Seventh Amendment problem, see Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654 (1935). Second, the Seventh Amendment imposes no greater restriction on appellate courts than it does on district courts in these circumstances; "[a]s far as the Seventh Amendment's right to jury trial is concerned, there is no greater restriction on the province of the jury when an appellate court enters judgment n. o. v. than when a trial court does." Neely v. Martin K. Eby Constr. Co., 386 U. S. 317, 322 (1967).
7	Petitioner, a former automobile dealer, brought suit against respondent automobile manufacturer in Federal District Court, alleging that respondent's "sales incentive" programs over a certain period violated the price-discrimination prohibition of 2 (a) of the Clayton Act, as amended by the Robinson-Patman Act. Under its programs, respondent paid a bonus to its dealers if they exceeded their quotas - set by respondent for each dealer - of cars to be sold at retail or purchased from respondent. Petitioner alleged that respondent set petitioner's quotas higher than those of its competitors; that to the extent it failed to meet its quotas, and to the extent its competitors met their lower quotas, petitioner received fewer bonuses; and that the net effect was that it paid more for its automobiles than did its competitors. Petitioner contended that the amount of the price discrimination - the amount of the price difference multiplied by the number of petitioner's purchases - was $81,248, and that when petitioner went out of business, the going-concern value of the business ranged between $50,000 and $170,000. Respondent maintained that the sales incentive programs were nondiscriminatory, and that they did not injure petitioner or adversely affect competition. The jury returned a verdict awarding petitioner $111,247.48 in damages, which the District Court trebled. The Court of Appeals reversed, holding that it was unnecessary to consider whether a violation of 2 (a) had been proved, since petitioner had failed to introduce substantial evidence of injury attributable to the programs, much less substantial evidence of the amount of such injury, as was required in order to recover treble damages under 4 of the Clayton Act.Held: 1. Petitioner's contention that once it has proved a price discrimination in violation of 2 (a) it is entitled at a minimum to so-called "automatic damages" in the amount of the price discrimination is without merit. Section 2 (a), a prophylactic statute which is violated merely upon a showing that "the effect of such discrimination may be substantially to lessen competition," does not require, for purposes of injunctive actions, that the discrimination must in fact have harmed competition. Corn Products Co. v. FTC, ; FTC v. Morton Salt Co., . However, under 4 of the Clayton Act, which is essentially a remedial statute providing treble damages to any person "who shall be injured in his business or property by reason of anything forbidden in the antitrust laws," a plaintiff must make some showing of actual injury attributable to something the antitrust laws were designed to prevent. Thus it must prove more than a violation of 2 (a), since such proof establishes only that injury may result. Cf. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., . Pp. 561-563. 2. The rule excusing antitrust plaintiffs from an unduly rigorous standard of proving antitrust injury, see, e. g., Zenith Radio Corp. v. Hazeltine Research, Inc., , will not be applied here to determine whether petitioner, though not entitled to "automatic damages," has produced enough evidence of actual injury to sustain recovery. While it is a close question whether petitioner's evidence would be sufficient to support a jury award even under such rule, a more fundamental difficulty is that the cases relied upon by petitioner all depend in greater or lesser part on the inequity of a wrongdoer defeating the recovery of damages against him by insisting upon a rigorous standard of proof. In this case, it cannot be said with assurance that respondent is a "wrongdoer" since the Court of Appeals went directly to the issue of damages after bypassing the question whether respondent in fact violated 2 (a). The proper course is to remand the case so that the Court of Appeals may pass upon respondent's contention that the evidence was insufficient to support a finding of such violation. If the court determines that respondent did violate the Act, it should then consider the sufficiency of petitioner's evidence of injury. Pp. 563-568. 607 F.2d 1133, vacated and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, and STEVENS, JJ., joined. POWELL, J., filed an opinion dissenting in part, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 569.C. Lee Reeves argued the cause and filed briefs for petitioner.J. Ross Forman III argued the cause and filed a brief for respondent.* [Footnote *] Robert H. Whaley filed a brief for Ricky Hasbrouck et al. as amici curiae urging reversal.Briefs of amici curiae were filed by Thomas E. Deacy, Jr., E. Houston Harsha, and Alan I. Becker, for Cessna Aircraft Co., and by John T. Cusack and Gordon B. Nash, Jr., for Vanco Beverage, Inc. JUSTICE REHNQUIST delivered the opinion of the Court.The question presented in this case is the appropriate measure of damages in a suit brought under 2 (a) of the Clayton Act, as amended by the Robinson-Patman Act.1 Petitioner, for several decades a Chrysler-Plymouth dealer in Birmingham, Ala., went out of business in 1974. It subsequently brought suit against respondent in the United States District Court for the Northern District of Alabama, alleging that from January 1970 to May 1974 respondent's various "sales incentive" programs violated 2 (a). Under one type of program, respondent assigned to each participating dealer a sales objective and paid to the dealer a bonus on each car sold in excess of that objective. Under another type of program, respondent required each dealer to purchase from it a certain quota of automobiles before it would pay a bonus on the sale of automobiles sold at retail. The amount of the bonus depended on the number of retail sales (or wholesale purchases) made in excess of the dealer's objective, and could amount to several hundred dollars. Respondent set petitioner's objectives higher than those of its competitors, requiring it to sell (or purchase) more automobiles to obtain a bonus than its competitors. To the extent petitioner failed to meet those objectives and to the extent its competitors met their lower objectives, petitioner received fewer bonuses. The net effect of all this, according to petitioner, was that it paid more money for its automobiles than did its competitors. It contended that the amount of the price discrimination - the amount of the price difference multiplied by the number of petitioner's purchases - was $81,248. It also claimed that the going-concern value of the business as of May 1974 ranged between $50,000 and $170,000.Respondent maintained that the sales incentive programs were nondiscriminatory, and that they did not injure petitioner or adversely affect competition. The District Court denied respondent's motion for a directed verdict. The jury returned a verdict against respondent and awarded petitioner $111,247.48 in damages, which the District Court trebled.The Court of Appeals for the Fifth Circuit reversed with instructions to dismiss the complaint. 607 F.2d 1133 (1979). It found that in order to recover treble damages under 4 of the Clayton Act, a plaintiff must prove (1) a violation of the antitrust laws, (2) cognizable injury attributable to the violation, and (3) at least the approximate amount of damage. It found it unnecessary to consider whether petitioner proved that respondent's incentive programs violated 2 (a) because, in its view, petitioner had "failed to introduce substantial evidence of injury attributable to the programs, much less substantial evidence of the amount of such injury." Id., at 1135. Rejecting petitioner's theory of "automatic damages." under which mere proof of discrimination establishes the fact and amount of injury, the court held that injury must be proved by more than mere "[c]onclusory statements by the plaintiff, without evidentiary support." Id., at 1136-1137. The court concluded that the District Court erred in refusing respondent's motion for a directed verdict and in denying its motion for judgment notwithstanding the verdict. We granted certiorari, , to review the decision of the Court of Appeals.IPetitioner first contends that once it has proved a price discrimination in violation of 2 (a) it is entitled at a minimum to so-called "automatic damages" in the amount of the price discrimination. Petitioner concedes that in order to recover damages it must establish cognizable injury attributable to an antitrust violation and some approximation of damage. Brief for Petitioner 9. It insists, however, that the jury should be permitted to infer the requisite injury and damage from a showing of a substantial price discrimination. Petitioner notes that this Court has consistently permitted such injury to be inferred in injunctive actions brought to enforce 2 (a), e. g., FTC v. Morton Salt Co., , and argues that private suits for damages under 4 should be treated no differently. We disagree.2 By its terms 2 (a) is a prophylactic statute which is violated merely upon a showing that "the effect of such discrimination may be substantially to lessen competition." (Emphasis supplied.) As our cases have recognized, the statute does not "require that the discriminations must in fact have harmed competition." Corn Products Refining Co. v. FTC, ; FTC v. Morton Salt Co., supra, at 46 ("the statute does not require the Commission to find that injury has actually resulted"). Section 4 of the Clayton Act, in contrast, is essentially a remedial statute. It provides treble damages to "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws ... ." (Emphasis supplied.) To recover treble damages, then, a plaintiff must make some showing of actual injury attributable to something the antitrust laws were designed to prevent. Perkins v. Standard Oil Co., (plaintiff "must, of course, be able to show a causal connection between the price discrimination in violation of the Act and the injury suffered"). It must prove more than a violation of 2 (a), since such proof establishes only that injury may result.Our decision here is virtually governed by our reasoning in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., . There we rejected the contention that the mere violation of 7 of the Clayton Act, which prohibits mergers which may substantially lessen competition, gives rise to a damages claim under 4. We explained that "to recover damages [under 4] respondents must prove more than that the petitioner violated 7, since such proof establishes only that injury may result." Id., at 486. Likewise in this case, proof of a violation does not mean that a disfavored purchaser has been actually "injured" within the meaning of 4.The legislative history buttresses this view. Both the Patman bill, H. R. 8442, 2 (d), 74th Cong., 1st Sess. (1935), as introduced in the House, and the Robinson bill, S. 3154, 2 (d), 74th Cong., 2d Sess. (1935), as introduced in the Senate, provided that a plaintiff's damages for a violation of 2 (a) shall be presumed to be the amount of the price discrimination. The provision, however, encountered such strong opposition in both Houses that the House Committee eliminated it from its bill, H. R. Rep. No. 2287, 74th Cong., 2d Sess., 16 (1936), and the Senate Committee modified the provision to authorize presumptive damages in the amount of the discrimination only when plaintiff shows the "fact of damage." S. Rep. No. 1502, 74th Cong., 2d Sess., 8 (1936). The Conference Committee eliminated even that compromise, and 2 (a) was passed in its present form. Congress thus has rejected the very concept which petitioner seeks to have the Court judicially legislate. Gulf Oil Corp. v. Copp Paving Co., .3 IIPetitioner next contends that even though it may not be entitled to "automatic damages" upon a showing of a violation of 2 (a), it produced enough evidence of actual injury to survive a motion for a directed verdict. That evidence consisted primarily of the testimony of petitioner's owner, Mr. Payne, and an expert witness, a professor of economics. Payne testified that the price discrimination was one of the causes of the dealership going out of business. In support of that contention, he testified that his salesmen told him that the dealership lost sales to its competitors, and that its market share of retail Chrysler-Plymouth sales in the Birmingham area was 24% in 1970, 27% in 1971, 23% in 1972, and 25% in 1973. Payne contended that it was proper to infer that the 4% drop in 1972 was a result of the incentive programs. He also testified that the discrimination caused him to "force" business so that he could meet his assigned quotas. That is, his desire to make a sale induced him to "overallow" on trade-ins, thus reducing his profits on his used car operation. App. 51-52. Payne adduced evidence showing that his average gross profit on used car sales was below that of his competitors, though that same evidence revealed that his average gross profit on new sales was higher. Id., at 269.Neither Payne nor petitioner's expert witness offered documentary evidence as to the effect of the discrimination on retail prices. Although Payne asserted that his salesmen and customers told him that the dealership was being undersold, id., at 35-37, 92, 95, he admitted he did not know if his competitors did in fact pass on their lower costs to their customers. Id., at 44, 57. Petitioner's expert witness took a somewhat different position. He believed that the discrimination would ultimately cause retail prices to be held at an artificially high level since petitioner's competitors would not reduce their retail prices as much as they would have done if petitioner received an equal bonus from respondent. Id., at 103, 135. He also testified that petitioner was harmed by the discrimination even if the favored purchasers did not lower their retail prices, since petitioner in that case would make less money per car.4 Id., at 139. Even construed most favorably to petitioner, the evidence of injury is weak. Petitioner nevertheless asks us to consider the sufficiency of its evidence in light of our traditional rule excusing antitrust plaintiffs from an unduly rigorous standard of proving antitrust injury. In Zenith Radio Corp. v. Hazeltine Research, Inc., , for example, the Court discussed at some length the fixing of damages in a case involving market exclusion. We accepted the proposition that damages could be awarded on the basis of plaintiff's estimate of sales it could have made absent the violation: "[D]amage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts. The Court has repeatedly held that in the absence of more precise proof, the fact-finder may `conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs.' Bigelow v. RKO Pictures, Inc., supra, at 264. See also Eastman Kodak Co. v. Southern Photo Materials Co., ; Story Parchment Co. v. Paterson Parchment Paper Co., ." Ibid. In Bigelow v. RKO Radio Pictures, Inc., , relied on in Zenith, film distributors had conspired to deny the plaintiff theater access to first-run films. The jury awarded damages based on a comparison of plaintiff's actual profits with the contemporaneous profits of a competing theater with access to first-run films. Plaintiff had also adduced evidence comparing his actual profits during the conspiracy with his profits when he had been able to obtain first-runs. The lower court thought the evidence too imprecise to support the award, but we reversed because the evidence was sufficient to support a "just and reasonable inference" of damage. We explained:"[A]ny other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery." 327 U.S., at 264-265. Our willingness to accept a degree of uncertainty in these cases rests in part on the difficulty of ascertaining business damages as compared, for example, to damages resulting from a personal injury or from condemnation of a parcel of land. The vagaries of the marketplace usually deny us sure knowledge of what plaintiff's situation would have been in the absence of the defendant's antitrust violation. But our willingness also rests on the principle articulated in cases such as Bigelow, that it does not "`come with very good grace'" for the wrongdoer to insist upon specific and certain proof of the injury which it has itself inflicted. Hetzel v. Baltimore & Ohio R. Co., (quoting United States Trust Co. v. O'Brien, 143 N. Y. 284, 289, 38 N. E. 266, 267 (1894). Accord, Story Parchment Co. v. Paterson Parchment Paper Co., ("Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts"); Eastman Kodak Co. v. Southern Photo Materials Co., .Applying the foregoing principles to this case is not without difficulty. In the first place, it is a close question whether petitioner's evidence would be sufficient to support a jury award even under our relaxed damages rules. In those cases where we have found sufficient evidence to permit a jury to infer antitrust injury and approximate the amount of damages, the evidence was more substantial than the evidence presented here. In Zenith, for example, plaintiff compared its sales in Canada, where it was subject to a violation, with its sales in the United States, where it was not. And in Bigelow, plaintiff adduced evidence not only comparing its profits with a competitor not subject to the violation but also comparing its profits during the time of the violation with the period immediately preceding the violation.5 But a more fundamental difficulty confronts us in this case. The cases relied upon by petitioner all depend in greater or lesser part on the inequity of a wrongdoer defeating the recovery of damages against him by insisting upon a rigorous standard of proof. In this case, however, we cannot say with assurance that respondent is a "wrongdoer." Because the court below bypassed the issue of liability and went directly to the issue of damages, we simply do not have the benefit of its views as to whether respondent in fact violated 2 (a). Absent such a finding, we decline to apply to this case the lenient damages rules of our previous cases. Had the court below found a violation, we could more confidently consider the adequacy of petitioner's evidence.Accordingly, we think the proper course is to remand the case so that the Court of Appeals may pass upon respondent's contention that the evidence adduced at trial was insufficient to support a finding of violation of the Robinson-Patman Act. We do not ordinarily address for the first time in this Court an issue which the Court of Appeals has not addressed, and we think this would be a poor case in which to depart from that practice. If the court determines on remand that respondent did violate the Act, the court should then consider the sufficiency of petitioner's evidence of injury in light of the cases discussed above. We, of course, intimate no views as to how that issue should be decided. We emphasize that even if there has been a violation of the Robinson-Patman Act, petitioner is not excused from its burden of proving antitrust injury and damages. It is simply that once a violation has been established, that burden is to some extent lightened. For the foregoing reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
7	Petitioners' decedents were passengers on an airliner which collided with a jet trainer assigned to the Maryland Air National Guard. The only survivor was the jet trainer pilot, whose negligence is not disputed. The pilot held a commission from the Governor of Maryland as an officer in the Maryland Air National Guard where he served on alternate Saturdays as a fighter pilot and Squadron Maintenance Officer. He was otherwise employed by the Guard as a civilian Aircraft Maintenance Chief under 32 U.S.C. 709, as a so-called "caretaker" of Guard property. This suit was brought against the United States under the Federal Tort Claims Act. The principal issue below was whether the pilot was in his military or civilian capacity at the time of the accident. The District Court found he was in a civilian status and awarded judgment for petitioners, but the Court of Appeals reversed. Held: In both his civilian and military capacities the pilot was an employee of the State of Maryland and thus the United States is not liable under the Federal Tort Claims Act for his negligence in either capacity. Pp. 46-53. (a) Except when called into federal service, the Guard is in charge of the Governor of the State and its military members are state employees. Pp. 47-48. (b) Civilian caretakers, while meeting federal requirements and receiving payment from the United States, are under the jurisdiction of the State Adjutant General and are performing a state function. Pp. 48-49. (c) United States v. Holly, 192 F.2d 221, which held that civilian caretakers were employees of the United States, was decided on an incorrect construction of the National Defense Act. P. 50. (d) Congressional enactments, despite the Holly line of cases, treat both military and civilian employees of the National Guard as state employees. Pp. 51-52. 329 F.2d 722, affirmed. Theodore E. Wolcott argued the cause and filed briefs for petitioners.David L. Rose argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Douglas, Nathan Lewin and Morton Hollander.Louis G. Davidson, Richard W. Galiher, William E. Stewart, Jr., and Peter J. McBreen filed a brief as amici curiae, urging reversal.MR. JUSTICE HARLAN delivered the opinion of the Court.The question we decide here is whether a civilian employee and military member of the National Guard is an "employee" of the United States for purposes of the Federal Tort Claims Act when his National Guard unit is not in active federal service.1 Petitioners' decedents were passengers on a Capital Airlines plane that collided over Maryland with a jet trainer assigned to the Maryland Air National Guard. The only survivor of the accident was the pilot of the trainer, Captain McCoy, and it is not disputed that the collision was caused by his negligence. The estates of the pilot and co-pilot of the Capital plane, and Capital Airlines itself, filed suit against the United States under the Federal Tort Claims Act in the District Court for the District of Columbia, and recovered judgments. The Court of Appeals for the District of Columbia Circuit affirmed. United States v. Maryland for the use of MeyerApp. D.C. 259, 322 F.2d 1009, cert. denied, , motion for leave to file petition for rehearing pending, No. 543, 1963 Term. Meanwhile, petitioners filed a similar suit in the Western District of Pennsylvania, and all parties agreed to proceed solely on the record made in the Meyer case. The District Court rendered judgment for petitioners, but the Court of Appeals for the Third Circuit reversed. 329 F.2d 722. We granted certiorari, , to resolve the conflict between the two Circuits on this single record, and, more broadly, to settle authoritatively the basic question stated at the outset of this opinion which is at the core of other litigation arising out of this same disaster, now pending in a number of courts in different parts of the country.2 Captain McCoy held a commission from the Governor of Maryland as an officer in the Maryland Air National Guard, and he served on alternate Saturdays as a fighter pilot and Squadron Maintenance Officer with the 104th Fighter Interceptor Squadron. During the rest of the month Captain McCoy was employed by the Guard in a civilian capacity as Aircraft Maintenance Chief under 32 U.S.C. 709 (1958 ed.), the so-called federal "caretaker" statute.3 In his civilian capacity Captain McCoy supervised the maintenance of the squadron aircraft assigned to the Air National Guard but owned by the United States. On the day of the accident, Captain McCoy had obtained permission from his superior to take a passenger on a flight in order to interest the passenger in joining the Air National Guard. The principal factual dispute below was whether at the time of the accident Captain McCoy was performing his duties with the Guard in a military or civilian capacity. A line of cases in the courts of appeals beginning with United States v. Holly, 192 F.2d 221 (C. A. 10th Cir., 1951), has held that civilian "caretakers" are employees of the United States for purposes of suit under the Federal Tort Claims Act.4 Another line of cases has been equally consistent in treating military members of the Guard as employees of the States, not the Federal Government.5 We do not deal with the factual question, on which the decision below turned.6 since, in agreement with the views of Judge Smith7 and in disagreement with the Court of Appeals in the Meyer case, we hold that in both capacities Captain McCoy was an employee of the State of Maryland, and not of the United States. Hence the United States cannot be held liable under the Tort Claims Act for his negligence in either capacity.I.The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution.8 It has only been in recent years that the National Guard has been an organized force, capable of being assimilated with ease into the regular military establishment of the United States. From the days of the Minutemen of Lexington and Concord until just before World War I, the various militias embodied the concept of a citizen army, but lacked the equipment and training necessary for their use as an integral part of the reserve force of the United States Armed Forces.9 The passage of the National Defense Act of 191610 materially altered the status of the militias by constituting them as the National Guard. Pursuant to power vested in Congress by the Constitution (see n. 8), the Guard was to be uniformed, equipped, and trained in much the same way as the regular army, subject to federal standards and capable of being "federalized" by units, rather than by drafting individual soldiers.11 In return, Congress authorized the allocation of federal equipment to the Guard, and provided federal compensation for members of the Guard, supplementing any state emoluments. The Governor, however, remained in charge of the National Guard in each State except when the Guard was called into active federal service; in most instances the Governor administered the Guard through the State Adjutant General,12 who was required by the Act to report periodically to the National Guard Bureau, a federal organization, on the Guard's reserve status.13 The basic structure of the 1916 Act has been preserved to the present day.Section 90 of the National Defense Act authorized the payment of federal funds for the employment by the Guard of civilian "caretakers" to be responsible for the upkeep of federal equipment allocated to the National Guard.14 This section was later amended to make explicit that employment as a caretaker could be held by officers in the Guard, who would receive a full-time salary as civilian caretakers, and in addition would receive compensation for service as military members of the Guard.15 The legislative history of these amendments makes clear that the State Adjutant General could appoint officers of the Guard to serve as civilian caretakers, provided only that the appointees met the requirements established by the federal authorities.16 II.It is not argued here that military members of the Guard are federal employees, even though they are paid with federal funds and must conform to strict federal requirements in order to satisfy training and promotion standards. Their appointment by state authorities and the immediate control exercised over them by the States make it apparent that military members of the Guard are employees of the States, and so the courts of appeals have uniformly held. See n. 5. supra. Civilian caretakers should not be considered as occupying a different status. Caretakers, like military members of the Guard, are also paid with federal funds and must observe federal requirements in order to maintain their positions.17 Although they are employed to maintain federal property, it is property for which the States are responsible, and its maintenance is for the purpose of keeping the state militia in a ready status. The National Defense Act of 1916 authorized the allocation of federal property to the National Guard, but provided"That as a condition precedent to the issue of any property as provided for by this Act, the State, Territory, or the District of Columbia desiring such issue shall make adequate provision, to the satisfaction of the Secretary of War, for the protection and care of such property ... ."18 The Act also provided that damage or loss of federal property would be charged to the States, unless the Secretary of War determined that the damage or loss was unavoidable.19 Caretakers appointed under 90 of the Act were thus to perform a state function, the maintenance of federal equipment allocated to the Guard.20 The caretakers have been termed the "backbone" of the Guard,21 and are the only personnel on duty with Guard units during the greater part of the year. Like their military counterpart, caretakers are appointed by the State Adjutant General,22 and are responsible to him in the performance of their daily duties. They can be discharged and promoted only by him.23 Civilian caretakers are treated as state employees for purposes of the Social Security Act,24 for state retirement funds,25 and under the regulations issued by the Department of the Air Force.26 As early as 1920 the Comptroller of the Treasury ruled that a civilian caretaker was not a federal employee entitled to the annual leave provisions applicable to the War Department,27 an opinion that was reiterated in 1941 by the Comptroller General28 and that reflects the consistent position of the Department of Defense.29 United States v. Holly, supra, decided in 1951, held that civilian caretakers were employees of the United States, and has since been followed in other courts of appeals (n. 4, supra). Holly rested on a construction of the National Defense Act which, in our view, is not supported by the legislative history. Although the original section provided that caretakers were to "be detailed by the battery or troop commander" (who was a state employee), n. 14, supra, in 1935 Congress amended the statute to provide that the Secretary of the military establishment concerned (here the Secretary of the Air Force) "shall designate the person to employ" the caretaker.30 The court in Holly read this amendment to mean that caretakers could be employed directly by federal authorities or by the State Adjutant General acting as a federal agent. However, the purpose of the amendment was simply to permit a State to pool its caretakers, and not to restrict the employment of such personnel only to those on the military roster of the unit where the equipment was allotted. The Senate report indicates that Congress envisaged that caretakers would continue to be employed only by the state authorities. It stated: "Section 6 of S. 2710 will authorize the pooling of National Guard caretakers. Under present law States are required to select the caretakers from the units that have the material. Section 6 will permit the handling under the adjutant general or other proper State official of the caretakers as a pool."31 It seems clear, then, that no significant distinction was intended between the method of employing military and civilian personnel of the National Guard.Congress again in 1954 accepted the Defense Department understanding that civilian caretakers were employees of the States. In amending the Social Security Act (68 Stat. 1059, 42 U.S.C. 418 (b) (5) (1958 ed.)) to provide coverage for civilian caretakers as state employees, the committee reports stated:"This provision would establish as a separate coverage group civilian employees of State National Guard units who are employed pursuant to section 90 of the National Defense Act ... and paid from funds allotted to such units by the Department of Defense. These employees would also be deemed to be employees of the State. The Department of Defense does not regard these employees as Federal employees ... ."32 In 1956 Congress authorized federal disbursing officers to withhold from the salaries of civilian caretakers amounts needed by the States for their retirement systems. Although Congress was aware of the Holly line of cases,33 the Senate report stated that authority was necessary since "[t]hese employees, although paid from Federal funds, are considered to be State rather than Federal employees. Accordingly, State authorities have been unable to make the usual deduction of the employee's contribution into the retirement system." S. Rep. No. 2045, 84th Cong., 2d Sess. (1956).In 1960 it was proposed to extend the coverage of the Federal Tort Claims Act to include civilian and military personnel of the National Guard.34 This proposal was rejected, and the bill that finally passed provides an administrative procedure whereby the proper Secretary can pay claims up to $5,000 for damage to persons or property caused by National Guard personnel.35 The Act includes liability for personal injury caused by civilian caretakers, even though the Justice Department called to the attention of Congress the line of cases indicating that acts of civilian caretakers were already covered under the Federal Tort Claims Act.36 The committee reports of both the House and Senate reflect acceptance of the position advocated by the Department of the Army that civilian caretakers should be included in the bill along with their military counterparts.37 In sum, we conclude that the congressional purpose in authorizing the employment by state authorities of civilian caretakers, the administrative practice of the Defense Department in treating caretakers as state employees, the consistent congressional recognition of that status, and the like supervision exercised by the States over both military and civilian personnel of the National Guard, unmistakably lead in combination to the view that civilian as well as military personnel of the Guard are to be treated for the purposes of the Tort Claims Act as employees of the States and not of the Federal Government. This requires a decision that the United States is not liable to petitioners for the negligent conduct of McCoy.38 In so holding we are not unmindful that this doubtless leaves those who suffered from this accident without effective legal redress for their losses.39 It is nevertheless our duty to take the law as we find it, remitting those aggrieved to whatever requirement may be deemed appropriate by Congress. which in affording the administrative remedies, unfortunately not available here (see n. 37), has shown itself not impervious to the moral demands of such distressing situations. Affirmed.MR. JUSTICE DOUGLAS dissents.
8	Appeal from the District Court of the United States for the District of Hawaii. [ Stainback v. Mo Hock Ke Lok Po ], 369] No. 52: Mr. Thomas W. Flynn, Jr., of Honolulu. T.H., for appellants., 370] Messrs. N. Wai Yuen Char, of Honolulu, T.H., and A. L. Wirin, of Los Angeles, Cal., for appellees.No. 474: Mr. C. Nils Tavares, of Honolulu, T.H., for petitioners. Messrs. A. L. Wirin and Fred Okrano, both of Los Angeles, Cal., for respondents. Mr. Justice REED delivered the opinion of the Court. The appeal in No. 52, Stainback, Governor of the Territory of Hawaii, et al. v. Mo Hock Ke Lok Po, An Eleemosynary Corporation, et al., and the writ of certiorari in No. 474, a case with the same short title, seek review of a judgment of the District Court of the United States for the District of Hawaii. This judgment was passed by a special three-judge court that was called pursuant to Judicial Code 266 and by that section's provision was brought directly here on May 7, 1948, in case No. 52. To guard against a frustration of review by this Court's refusal to accept jurisdiction, a timely appeal by the petitioners here in No. 52 has been taken by them in No. 474 to the Court of Appeals for the Ninth Circuit. No judgment on that appeal has been entered by the Court of Appeals and appellants there, the Governor of Hawaii et al., petitioned here on December 21, 1948, for , 371] the allowance of a writ of certiorari under 28 U.S.C. 1254(1), 28 U.S.C. A. 1254(1).1 A jurisdictional question as to whether Judicial Code 266 was applicable in the Territory of Hawaii arises in No. 52. It was postponed by order of this Court on June 1, 1948, to the hearing of that case on the merits. This Court postponed action on the petition for certiorari in No. 474 until the hearing of No. 52 on the merits. As the record, arguments and briefs here and the opinions below fully present the case decided by the District Court, to avoid further futile proceedings we now grant the petition for the writ of certiorari to the Court of Appeals before its decree and proceed in No. 474 to a review of the judgment of the District Court of Hawaii. The opinions appeal in 74 F.Supp. 852, Mo Hock Ke Lok Po v. Stainback. Respondents here were plaintiffs in the trial court. They are Chinese School Associations, a Chinese school, all giving instruction in Chinese, and a teacher of Chinese in Chinese language schools. After December 7, 1941, these schools closed and have not reopened. Prior to that date they had more than 2,000 pupils, several hundred of whom were in the first and second grade, and numerous teachers. Under J.C. 266 they sought an injunction against officers of the Territory of Hawaii charged by law with the administration of an Act of the Territory 'Regulating the Teaching of Foreign Languages to Children,'2 from enforcing it in any particular against , 372] the teaching of foreign languages to the respondents' pupils. The Act was grounded on a legislative finding 'that the study and persistent use of foreign languages by children of average intelligence in their earl and formative years definitely detract from their ability properly to understand and assimilate their normal studies in the English language.' Revised Laws of Hawaii 1945, 1871. 'School' was defined as any teaching regularly of two or more persons in a group. 3 Requirements for pupils and teachers in foreign language schools were set out. 4 Visitation of the foreign language schools by appropriate officials for enforcement purposes was authorized. 1875. The only sanction for enforcement is by injunction. 5 , 373] This lack of coercion by fine or imprisonment and the limitation of enforcement to injunction are important factors in our conclusion upon No. 474. The complaint alleged that in violation of the Fifth Amendment the Act deprived plaintiff schools of the right to manage their property by contracting with instructors and parents for the teaching of Chinese, and the plaintiff teacher of Chinese of his right to follow his occupation. 6 See Farrington v. T. Tokushige, , 409. The judgment of the special district court granted a sweeping permanent injunction against enforcement of the Hawaiian Act. As our conclusions are based solely upon procedural issues, any further discussion of the facts or of the law applicable to the merits is not appropriate. , 374] The complaint asked for and obtained a three-judge court under the provisions of the Judicial Code 266.7 The minute entries of proceedings and trial and the opinion re applicability of 266, Judicial Code, 74 F. Supp. at , 375] page 858, show suggestions that a special district court under Judicial Code 266 cannot be called for Hawaii. The statement of jurisdiction laid bare the problem with commendable frankness. It lies at the threshold of any consideration of this appeal. 8 Within the present decade, this Court summarized in Phillips v. United States, , the purpose and effect of 266 and extracted from its history and the precedents for the section's application a congressional requirement of strict construction to protect our appellate docket while assuring the states that exceptionally careful judicial consideration would guard them against all assaults, through federal courts against their legislative statutes or administrative board orders by applications for injunction when those assaults were based on the Federal Constitution. at pages 250-251, 61 S.Ct. at page 483. While we take judicial notice that since the Phillips case air carriage has brought Hawaii closer to the continent,9 the interference with the normal adjudicatory and appellate processes of the federal judicial system and our docket persists. The power , 376] to call a panel of judges under 266 in Hawaii is to be examined in the light of the Phillips case. Hawaii is still a territory but a territory in which the Constitution and laws of the United States generally are applicable. 31 Stat. 141, 5, as amended, 48 U.S.C. 495, 48 U.S.C.A. 495; Duncan v. Kahanamoku, , 612. Not only its federal courts but also its territorial courts are of course subject to congressional legislation. 48 U.S.C. 631, et seq., 48 U.S.C.A. 631 et seq. The Organic Act for Hawaii, 86,10 provided in 1900:'The there shall be established in said Territory a district court to consist of one judge, * * . Said court shall have, in addition to the ordinary jurisdiction of district courts of the United States, jurisdiction of all cases cognizable in a circuit court of the United States, and shall proceed therein in the same manner as a circuit court ; * .' 31 Stat. 158. When incorporated into the Code, this Court was given 'the jurisdiction of district courts of the United States, and shall proceed therein in the same manner as a district court.' 48 U.S.C. 642, 48 U.S.C. A. 642. It now has that jurisdiction. 11 The only change that could be considered significant is the more definite integration of the district court for Hawaii into the federal judicial system by definition. 12 As jurisdiction of this Court on appeal depends upon whether or not a special three-judge court was properly called13 and not upon the power of this Court to review under , 377] Judicial Code 266, we need not analyze the method of review of the judgments of the District Court of Hawaii. 14 Our issue is narrowed to the inquiry of whether Congress intended that Judicial Code 266 should apply in the Territory of Hawaii under circumstances that would require its application in a similar suit in a state. Congress in discussing an amendment to the Mann-Elkins Act, which amendment evolved into this section, considered the geographical difficulties inherent in the requirement of a three-judge court and the burden thus place on the functioning of the federal judicial system, but decided that such considerations were outweighed by the desirability of having the constitutionality of a state statute passed on by a court comparable to the court of last resort of the state. 45 Cong.Rec. 7253-57. It is to be noted that nowhere in 266 is mention made of territories nor as far as has been called to our attention in the congressional debates and reports relating to this section and its amendments. While, of course, great respect is to be paid to the enactments of a territorial legislature by all courts as it is to the adjudications of territorial courts,15 the predominant reason for the enactment of Judicial Code 266 does not exist as respects territories. This reason was a con- , 378] gressional purpose to avoid unnecessary interference with the laws of a sovereign state. 16 In our dual system of government, the position of the state as sovereign over matters not ruled by the Constitution requires a deference to state legislative action beyond that required for the laws of a territory. 17 A territory is subject to congressional regulation. 18 When the long-established rule of strict construction of Judicial Code 266 and that of protection of the docket of this Court is also considered in conjunction with the necessary interference with the normal operations of the federal judicial system by the establishment of the three-judge requirement in Hawaii, we are not persuaded that Congress intended 266 to cover Hawaii. See 45 Cong.Rec. 7253-57. Despite its generality the words of 266 have been strictly construed so that 'statute of a State' does not include ordinances; 'officer of such State' means one with authority to execute or administer a state-wide policy. 19 It is not merely the absence of the word 'territory' from 266 that leads us to this conclusion. We recognize that in some situations the word 'state' includes territory. Andres v. United States, . In that , 379] case we thought the purpose of Congress would be frustrated by a holding that the word 'state' in a federal statute providing for execution of a criminal in 'the manner prescribed by the laws of the State within which the sentence is imposed' did not include 'Territory.' There we held state included territory. 20 Here the purpose of the statute to protect state sovereignty is not furthered by an interpretation of state to include territory. A former opinion of this Court lends strength of this interpretation. In Farrington v. T. Tokushige, , decided in the United States District Court of Hawaii on July 21, 1925, a temporary injunction forbidding territorial officers from enforcing a territorial statute somewhat similar to the one here involved was granted by a single district judge on the ground of the invalidity of the territorial statute under the Federal Constitution. 11 F.2d 710. The Circuit Court of Appeals for the Ninth Circuit affirmed on the same ground and so did this Court on certiorari. No question was raised in any court as to the applicability of the requirement of 266 that no such injunction should be granted against a state without three judges. If 266 applied to Hawaii, the interlocutory order of injunction was entered without jurisdiction. The Court of Appeals and this Court were without jurisdiction over the appeal. While it is sometimes said that action, where the power to act is unquestioned, can hardly be said to be a precedent for a future case,21 where as here the responsibility was on the courts to see that the three- , 380] judge judge rule was followed, we think it significant that no one sought to apply 266 to Hawaii. 22 We hold that Judicial Code 266 is not applicable to Hawaii, that we are without jurisdiction in case No. 52 and that the appeal therein must be dismissed. We turn now to No. 474, here on writ of certiorari to the Cou t of Appeals of the Ninth Circuit before the entry of a decree in that court. 28 U.S.C. 2101(d), 28 U.S.C.A. 2101(d). What we have said concerning the final judgment in the District Court of Hawaii establishes that the judgment was entered by a court improperly constituted under Judicial Code 266. Nevertheless this order is subject , 381] to review in the Court of Appeals. 23 It is the final order of a district court although erroneously heard by three judges instead of one and not appealable directly here because not covered by 266. But as a final order of the District Court, it is reviewable in the Court of Appeals,24 and can be considered here. Another procedural matter leads us to refuse consideration of case No. 474 on the merits. Respondents in the United States District Court sought and obtained injunctive relief from the enforcement of a territorial law by a proceeding under 28 U.S.C. 41(1) on the plea that the law violates the due process clause of the Fifth Amendment because respondents by the law were deprived of liberty and of property. 25 The allegations of irreparable injury consist of an assertion that it will be necessary to incur a comparatively large liability for building repairs and employment of teachers on the part of the respondent schools before the Act will be violated, sums that will be lost if the Act can be enforced constitutionally. The teacher claims to suffer irreparable injury because he cannot follow his occupation. As the District Court found irreparable injury to all respondents , 382] in the jurisdictional amount, we assume there is both federal and equitable jurisdiction. 26 Furthermore, there is no problem as to whether or not there is an adequate legal remedy in the federal courts. 27 There is none. The sole sanction, see note 5 supra, is by the institution of proceedings in equity in territorial courts whereby the extraordinary remedies of prohibitory and mandatory injunctions are utilized to stop violations of the Act. The , 383] respondents here, if such proceedings were brought, would have such defenses as the laws of the territory allow, including of course, defenses based upon the present issues of unconstitutionality under the Federal Constitution. We are of the view, however, that the United States District Court for Hawaii, as a matter of its discretion, should have refused to grant this injunction. The complaint called for broad consideration of the application of the Act to foreign language schools and teachers. It had not been construed by the Hawaiian courts. Judge McLaughlin pointed out in his conclusions of law on a motion for preliminary injunction before the request for a three-judge court that this law' * * carries no criminal penalties for infractions. Enforcement is in equity in the circuit courts of the Territory. Plaintiffs have no reason to fear a court of equity, and there is every reason to believe that their constitutional rights would be fully protected in the equity courts of the Territory and that an appeal, if need be, eventually could be had to the United States Supreme Court.' The statement applies as well to the final injunction. Entirely aside from the question of the propriety of an injunction in any court,28 territorial like state courts are the natural sources for the interpretation and application of the acts of their legislatures and equally of the propriety of interference by injunction. 29 We think that where equitable interference with state and territorial acts is sought in federal courts, judicial consideration of acts of importance primarily to the people of a state , 384] or territory should, as a matter of discretion, be left by the federal courts to the courts of the legislating authority unless exceptional circumstances command a different course. We find no such circumstances in this case. The appeal in No. 52 is dismissed. The judgment in No. 474 is reversed and the cause remanded to the District Court with directions to dismiss the complaint. Appeal dismissed in No. 52. Judgment reversed and cause remanded in No. 474. Mr. Justice FRANKFURTER, with whom Mr. Justice RUTLEDGE joins, concurring in part and dissenting in part. As to No. 52, I join the Court's opinion. As to No. 474, I would leave the appeal now pending in the Court of Appeals for the Ninth Circuit to its adjudication there and not grant the petition for certiorari. The power which Congress has given to this Court to short-circuit the Courts of Appeals should not be exercised except for some compelling reason of wise judicial administration. No reason is here present that would not be equally available in almost every case which, even though a constitutional issue may be involved, cannot come here directly, but must first go to a Court of Appeals. Congress decided not to provide for such direct appeals here and we should not exercise our discretionary power to grant what Congress has withheld. This discretionary power should come into play only for those exceptional circumstances for which Congress designed it. After finding that we are without jurisdiction to review directly the decree of the District Court of Hawaii, the Court in effect allows such direct review by not requiring the appeal now pending in the Court of Appeals to run its normal course of adjudication in that court. This is justified on the ground that the case has been fully presented in the District Court and here. But if we , 385] would not have brought here an appeal undecided in the Court of Appeals merely because it had been adjudicated on its merits in the District Court, there is no more reason for doing so when a direct appeal from the District Court has been improvidently sought here. Moreover, the Court is not disposing of the case on its merits. By lifting the case out of the Court of Appeals the Court is assuming the burden of canvassing issues not dealt with below. This entails the study of new questions and the task of opinion writing. These are precisely the burdens from which the Court asked to be saved and from which Congress saved the Court by the Judiciary Act of 1925. If the regular course of proceeding were followed and the matter were to be disposed of by the Court of Appeals, as it is now being disposed of here, the necessity for future consideration here might never arise beyond that involved in finding no reason for granting a petition for certiorari were one to be applied for. Drains on the Court's time through jurisdictional misconceptions should be strongly discouraged. We should follow the honored practice of this Court in dismissing a proceeding that should not be here ab initio, even though the Court's time and effort had been expended after full argument in concluding that a case should never have been brought here. 1 , 386] If the attempt had been made to bring No. 474 here prematurely it would surely have failed. It should not succeed because No. 52 was improperly brought here. Accordingly I agree with the Court in dismissing No. 52 for want of jurisdiction, and in No. 474 I would deny the petition for certiorari.
0	Petitioner Tome was charged with sexually abusing his daughter A. T. when she was four years old. The Government theorized that he committed the assault while A. T. was in his custody and that the crime was disclosed while she was spending vacation time with her mother. The defense countered that the allegations were concocted so A. T. would not be returned to her father, who had primary physical custody. A. T. testified at the trial, and, in order to rebut the implicit charge that her testimony was motivated by a desire to live with her mother, the Government presented six witnesses who recounted out-of-court statements that A. T. made about the alleged assault while she was living with her mother. The District Court admitted the statements under, inter alia, Federal Rule of Evidence 801(d)(1)(B), which provides that prior statements of a witness are not hearsay if they are consistent with the witness' testimony and offered to rebut a charge against the witness of "recent fabrication or improper influence or motive." Tome was convicted, and the Court of Appeals affirmed, adopting the Government's argument that A. T.'s statements were admissible even though they had been made after her alleged motive to fabricate arose. Reasoning that the premotive requirement is a function of relevancy, not the hearsay rules, the court balanced A. T.'s motive to lie against the probative value of one of the statements and determined that the District Court had not erred in admitting the statements.Held: The judgment is reversed, and the case is remanded. 3 F.3d 342, reversed and remanded. JUSTICE KENNEDY delivered the opinion of the Court, except as to Part II-B, concluding: 1. Rule 801(d)(1)(B) permits the introduction of a declarant's Page II consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged fabrication, influence, or motive, conditions that were not established here. Pp. 4-9, 12-16. (a) Rule 801(d)(1)(B) embodies the prevailing common-law rule in existence for more than a century before the Federal Rules of Evidence were adopted: A prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being but was inadmissible if made afterwards. The Rule's language speaks of rebutting charges of recent fabrication and improper influence and motive to the exclusion of other forms of impeachment, and it bears close similarity to the language used in many of the common-law premotive requirement cases. Pp. 4-9. (b) The Government's argument that the common-law rule is inconsistent with the Federal Rules' liberal approach to relevancy misconceives the design of the Rules' hearsay provisions. Hearsay evidence is often relevant. But if relevance were the sole criterion of admissibility, it would be difficult to account for the Rules' general proscription of hearsay testimony or the traditional analysis of hearsay that the Rules, for the most part, reflect. The Government's reliance on academic commentators critical of excluding a witness' out-of-court statements is also misplaced. The Advisory Committee rejected the balancing approach such commentators proposed when the Rules were adopted. The approach used by the Court of Appeals here creates the precise dangers the Advisory Committee sought to avoid: It involves considerable judicial discretion, reduces predictability, and enhances the difficulties of trial preparation because parties will have difficulty knowing in advance whether or not particular out-of-court statements will be admitted. Pp. 12-14. (c) The instant case illustrates some of the important considerations supporting the foregoing interpretation. Permitting the introduction of prior statements as substantive evidence to rebut every implicit charge that a witness' in-court testimony results from recent fabrication or improper influence or motive would shift the trial's whole emphasis to the out-of-court, rather than the in-court, statements. It may be difficult to ascertain when a particular fabrication, influence, or motive arose in some cases. However, a majority of common-law courts were performing this task for over a century, and the Government has presented no evidence that those courts or the courts that adhere to the rule today have been unable to make the determination. Pp. 15-16. Page III 2. The admissibility of A. T.'s statements under Rule 803(24) or any other evidentiary principle is left for the Court of Appeals to decide in the first instance. P. 16. KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-C, and III, in which STEVENS, SCALIA, SOUTER, and GINSBURG, JJ., joined, and an opinion with respect to Part II-B, in which STEVENS, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment. BREYER, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR and THOMAS, JJ., joined. [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 1] JUSTICE KENNEDY delivered the opinion of the Court, except as to Part IIB. Various federal Courts of Appeals are divided over the evidence question presented by this case. At issue is the interpretation of a provision in the Federal Rules of Evidence bearing upon the admissibility of statements, made by a declarant who testifies as a witness, that are consistent with the testimony and are offered to rebut a charge of a "recent fabrication or improper influence or motive." Fed. Rule Evid. 801(d)(1)(B). The question is whether out-of-court consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are admissible under the Rule.I Petitioner Tome was charged in a one-count indictment with the felony of sexual abuse of a child, his own daughter, aged four at the time of the alleged crime. The case having arisen on the Navajo Indian Reservation, Tome was tried by a jury in the United States District Court for the District of New Mexico, where he was found guilty of violating 18 U.S.C. 1153, 2241(c), and 2245(2)(A) and (B). Tome and the child's mother had been divorced in 1988. A tribal court awarded joint custody of the [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 2] daughter, A. T., to both parents, but Tome had primary physical custody. In 1989 the mother was unsuccessful in petitioning the tribal court for primary custody of A. T., but was awarded custody for the summer of 1990. Neither parent attended a further custody hearing in August 1990. On August 27, 1990, the mother contacted Colorado authorities with allegations that Tome had committed sexual abuse against A. T. The prosecution's theory was that Tome committed sexual assaults upon the child while she was in his custody and that the crime was disclosed when the child was spending vacation time with her mother. The defense argued that the allegations were concocted so the child would not be returned to her father. At trial A. T., then six and one half years old, was the Government's first witness. For the most part, her direct testimony consisted of one- and two-word answers to a series of leading questions. Cross-examination took place over two trial days. The defense asked A. T. 348 questions. On the first day A. T. answered all the questions posed to her on general, background subjects. The next day there was no testimony, and the prosecutor met with A. T. When cross-examination of A. T. resumed, she was questioned about those conversations but was reluctant to discuss them. Defense counsel then began questioning her about the allegations of abuse, and it appears she was reluctant at many points to answer. As the trial judge noted, however, some of the defense questions were imprecise or unclear. The judge expressed his concerns with the examination of A. T., observing there were lapses of as much as 40-55 seconds between some questions and the answers and that on the second day of examination the witness seemed to be losing concentration. The trial judge stated, "We have a very difficult situation here." After A. T. testified, the Government produced six witnesses who testified about a total of seven statements [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 3] made by A. T. describing the alleged sexual assaults: A. T.'s babysitter recited A. T.'s statement to her on August 22, 1990, that she did not want to return to her father because he "gets drunk and he thinks I'm his wife"; the babysitter related further details given by A. T. on August 27, 1990, while A. T.'s mother stood outside the room and listened after the mother had been unsuccessful in questioning A. T. herself; the mother recounted what she had heard A. T. tell the babysitter; a social worker recounted details A. T. told her on August 29, 1990 about the assaults; and three pediatricians, Drs. Kuper, Reich and Spiegel, related A. T.'s statements to them describing how and where she had been touched by Tome. All but A. T.'s statement to Dr. Spiegel implicated Tome. (The physicians also testified that their clinical examinations of the child indicated that she had been subjected to vaginal penetrations. That part of the testimony is not at issue here.) A. T.'s out-of-court statements, recounted by the six witnesses, were offered by the Government under Rule 801(d)(1)(B). The trial court admitted all of the statements over defense counsel's objection, accepting the Government's argument that they rebutted the implicit charge that A. T.'s testimony was motivated by a desire to live with her mother. The court also admitted A. T.'s August 22d statement to her babysitter under Rule 803(24), and the statements to Dr. Kuper (and apparently also to Dr. Reich) under Rule 803(4) (statements for purposes of medical diagnosis). The Government offered the testimony of the social worker under both Rules 801(d)(1)(B) and 803(24), but the record does not indicate whether the court ruled on the latter ground. No objection was made to Dr. Spiegel's testimony. Following trial, Tome was convicted and sentenced to 12 years imprisonment. On appeal, the Court of Appeals for the Tenth Circuit affirmed, adopting the Government's argument that all [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 4] of A. T.'s out-of-court statements were admissible under Rule 801(d)(1)(B) even though they had been made after A. T.'s alleged motive to fabricate arose. The court reasoned that "the pre-motive requirement is a function of the relevancy rules, not the hearsay rules" and that as a "function of relevance, the pre-motive rule is clearly too broad ... because it is simply not true that an individual with a motive to lie always will do so." 3 F.3d 342, 350 (CA10 1993). "Rather, the relevance of the prior consistent statement is more accurately determined by evaluating the strength of the motive to lie, the circumstances in which the statement is made, and the declarant's demonstrated propensity to lie." Ibid. The court recognized that some Circuits require that the consistent statements, to be admissible under the Rule, must be made before the motive or influence arose, see, e.g., United States v. Guevara, 598 F.2d 1094, 1100 (CA7 1979); United States v. Quinto, 582 F.2d 224, 234 (CA2 1978), but cited the Ninth Circuit's decision in United States v. Miller, 874 F.2d 1255, 1272 (1989), in support of its balancing approach. Applying this balancing test to A. T.'s first statement to her babysitter, the Court of Appeals determined that although A. T. might have had "some motive to lie, we do not believe that it is a particularly strong one." 3 F.3d, at 351. The court held that the district judge had not abused his discretion in admitting A. T.'s out-of-court statements. It did not analyze the probative quality of A. T.'s six other out-of-court statements, nor did it reach the admissibility of the statements under any other rule of evidence. We granted certiorari___ (1994), and now reverse. II The prevailing common-law rule for more than a century before adoption of the Federal Rules of Evidence [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 5] was that a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being, but it was inadmissible if made afterwards. As Justice Story explained: "[W]here the testimony is assailed as a fabrication of a recent date ... in order to repel such imputation, proof of the antecedent declaration of the party may be admitted." Ellicott v. Pearl (emphasis supplied). See also People v. Singer, 300 N.Y. 120, 124-125, 89 N.E.2d 710, 712 (1949). McCormick and Wigmore stated the rule in a more categorical manner: "[T]he applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated." E. Cleary, McCormick on Evidence 49, p. 105 (2d ed. 1972) (hereafter McCormick). See also 4 J. Wigmore, Evidence 1128, p. 268 (J. Chadbourn rev. 1972) (hereafter Wigmore) ("A consistent statement, at a time prior to the existence of a fact said to indicate bias ... will effectively explain away the force of the impeaching evidence" (emphasis in original))." The question is whether Rule 801(d)(1)(B) embodies this temporal requirement. We hold that it does.A Rule 801 provides:"(d) Statements which are not hearsay. - A statement is not hearsay if -"(1) Prior statement by witness. - The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 6] "(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Rule 801 defines prior consistent statements as nonhearsay only if they are offered to rebut a charge of "recent fabrication or improper influence or motive." Fed. Rule Evid. 801(d)(1)(B). Noting the "troublesome" logic of treating a witness' prior consistent statements as hearsay at all (because the declarant is present in court and subject to cross-examination), the Advisory Committee decided to treat those consistent statements, once the preconditions of the Rule were satisfied, as nonhearsay and admissible as substantive evidence, not just to rebut an attack on the witness' credibility. See Advisory Committee Notes on Fed. Rule Evid. 801(d)(1), 28 U.S.C. App., p. 773. A consistent statement meeting the requirements of the Rule is thus placed in the same category as a declarant's inconsistent statement made under oath in another proceeding, or prior identification testimony, or admissions by a party opponent. See Fed. Rule Evid. 801. The Rules do not accord this weighty, nonhearsay status to all prior consistent statements. To the contrary, admissibility under the Rules is confined to those statements offered to rebut a charge of "recent fabrication or improper influence or motive," the same phrase used by the Advisory Committee in its description of the "traditiona[l]" common law of evidence, which was the background against which the Rules were drafted. See Advisory Committee Notes, supra, at 773. Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because she has been discredited. In the present context, the question is whether A. T.'s out-of-court statements rebutted the alleged link between her [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 7] desire to be with her mother and her testimony, not whether they suggested that A. T.'s in-court testimony was true. The Rule speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told. This limitation is instructive, not only to establish the preconditions of admissibility but also to reinforce the significance of the requirement that the consistent statements must have been made before the alleged influence, or motive to fabricate arose. That is to say, the forms of impeachment within the Rule's coverage are the ones in which the temporal requirement makes the most sense. Impeachment by charging that the testimony is a recent fabrication or results from an improper influence or motive is, as a general matter, capable of direct and forceful refutation through introduction of out-of-court consistent statements that predate the alleged fabrication, influence or motive. A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. By contrast, prior consistent statements carry little rebuttal force when most other types of impeachment are involved. McCormick 49, p. 105 ("When the attack takes the form of impeachment of character, by showing misconduct, convictions or bad reputation, it is generally agreed that there is no color for sustaining by consistent statements. The defense does not meet the assault." (footnote omitted)); see also 4 Wigmore 1131, p. 293 ("The broad rule obtains in a few courts that consistent statements may be admitted after impeachment of any sort - in particular after any impeachment by cross-examination. But there is no reason for such a loose rule" (footnote omitted)). There may arise instances when out-of-court statements that postdate the alleged fabrication have some probative force in rebutting a charge of fabrication or improper influence or motive, but those statements [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 8] refute the charged fabrication in a less direct and forceful way. Evidence that a witness made consistent statements after the alleged motive to fabricate arose may suggest in some degree that the in-court testimony is truthful, and thus suggest in some degree that that testimony did not result from some improper influence; but if the drafters of Rule 801(d)(1)(B) intended to countenance rebuttal along that indirect inferential chain, the purpose of confining the types of impeachment that open the door to rebuttal by introducing consistent statements becomes unclear. If consistent statements are admissible without reference to the time frame we find imbedded in the Rule, there appears no sound reason not to admit consistent statements to rebut other forms of impeachment as well. Whatever objections can be leveled against limiting the Rule to this designated form of impeachment and confining the rebuttal to those statements made before the fabrication or improper influence or motive arose, it is clear to us that the drafters of Rule 801(d)(1)(B) were relying upon the common-law temporal requirement. The underlying theory of the Government's position is that an out-of-court consistent statement, whenever it was made, tends to bolster the testimony of a witness and so tends also to rebut an express or implied charge that the testimony has been the product of an improper influence. Congress could have adopted that rule with ease, providing, for instance, that "a witness' prior consistent statements are admissible whenever relevant to assess the witness's truthfulness or accuracy." The theory would be that, in a broad sense, any prior statement by a witness concerning the disputed issues at trial would have some relevance in assessing the accuracy or truthfulness of the witness's in-court testimony on the same subject. The narrow Rule enacted by Congress, however, cannot be understood to incorporate the Government's theory. [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 9] Our analysis is strengthened by the observation that the somewhat peculiar language of the Rule bears close similarity to the language used in many of the common law cases that describe the premotive requirement. "Rule 801(d)(1)(B) employs the precise language `rebut[ting] ... charge[s] ... of recent fabrication or improper influence or motive' - consistently used in the panoply of pre-1975 decisions." E. O. Ohlbaum, The Hobgoblin of the Federal Rules of Evidence: An Analysis of Rule 801(d)(1)(B), Prior Consistent Statements and a New Proposal, 1987 B. Y. U. L. Rev. 231, 245. See, e.g., Ellicott v. Pearl; Hanger v. United States, 398 F.2d 91, 104 (CA8 1968); People v. Singer, 300 N.Y. 120, 89 N.E.2d 710 (1949). The language of the Rule, in its concentration on rebutting charges of recent fabrication, improper influence and motive to the exclusion of other forms of impeachment, as well as in its use of wording which follows the language of the common-law cases, suggests that it was intended to carry over the common-law premotive rule.B Our conclusion that Rule 801(d)(1)(B) embodies the common-law premotive requirement is confirmed by an examination of the Advisory Committee Notes to the Federal Rules of Evidence. We have relied on those well-considered Notes as a useful guide in ascertaining the meaning of the Rules. See, e. g., Huddleston v. United States, ; United States v. Owens, . Where, as with Rule 801(d)(1)(B), "Congress did not amend the Advisory Committee's draft in any way ... the Committee's commentary is particularly relevant in determining the meaning of the document Congress enacted." Beech Aircraft Corp. v. Rainey, , at 165-166, n. 9 [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 10] (1988). The Notes are also a respected source of scholarly commentary. Professor Cleary was a distinguished commentator on the law of evidence, and he and members of the Committee consulted and considered the views, criticisms, and suggestions of the academic community in preparing the Notes. The Notes disclose a purpose to adhere to the common law in the application of evidentiary principles, absent express provisions to the contrary. Where the Rules did depart from their common-law antecedents, in general the Committee said so. See, e.g., Notes on Rule 804(b)(4), 28 U.S.C. App., p. 790 ("The general common law requirement that a declaration in this area must have been made ante litem motam has been dropped, as bearing more appropriately on weight than admissibility"); 804(b)(2), id., at 789 ("The exception is the familiar dying declaration of the common law, expanded somewhat beyond its traditionally narrow limits"); 804(b)(3), ibid. ("The exception discards the common law limitation and expands to the full logical limit."). The Notes give no indication, however, that Rule 801(d)(1)(B) abandoned the premotive requirement. The entire discussion of Rule 801(d)(1)(B) is limited to the following comment:"Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence. The prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally." Notes on Rule 801(d)(1)(B); id., at 773. Throughout their discussion of the Rules, the Advisory Committee Notes rely on Wigmore and McCormick as authority for the common-law approach. In light of the [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 11] categorical manner in which those authors state the premotive requirement, see supra, at ___, it is difficult to imagine that the drafters, who noted the new substantive use of prior consistent statements, would have remained silent if they intended to modify the premotive requirement. As we observed with respect to another provision of the Rules, "[w]ith this state of unanimity confronting the drafters of the Federal Rules of Evidence, we think it unlikely that they intended to scuttle entirely [the common-law requirement]." United States v. Abel, . Here, we do not think the drafters of the Rule intended to scuttle the whole premotive requirement and rationale without so much as a whisper of explanation. Observing that Edward Cleary was the Reporter of the Advisory Committee that drafted the Rules, the Court has relied upon his writings as persuasive authority on the meaning of the Rules. See Daubert v. Merrell Dow Pharmaceuticals, Inc.___ (1993); Abel, supra, at 51-52. Cleary also was responsible for the 1972 revision of McCormick's treatise, which included an examination of the changes introduced by the proposed federal rules to the common-law practice of impeachment and rehabilitation. The discussion, which occurs only three paragraphs after the treatise's categorical description of the common-law premotive rule, also lacks any indication that the proposed rules were abandoning that temporal limitation. See McCormick 50, p. 107. Our conclusion is bolstered by the Advisory Committee's stated "unwillingness to countenance the general use of prior prepared statements as substantive evidence." See Notes on Rule 801(d)(1), 28 U.S.C. App., p. 773. Rule 801(d), which "enumerates three situations in which the statement is excepted from the category of hearsay," ibid., was expressly contrasted by the Committee with Uniform Rule of Evidence 63(1) (1953), "which allows any out-of-court statement of a [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 12] declarant who is present at the trial and available for cross-examination." Notes on Rule 801(d)(1), supra, at 773 (emphasis added). When a witness presents important testimony damaging to a party, the party will often counter with at least an implicit charge that the witness has been under some influence or motive to fabricate. If Rule 801 were read so that the charge opened the floodgates to any prior consistent statement that satisfied Rule 403, as the Tenth Circuit concluded, the distinction between rejected Uniform Rule 63 (1) and Rule 801(d)(1)(B) would all but disappear. That Rule 801(d)(1)(B) permits prior consistent statements to be used for substantive purposes after the statements are admitted to rebut the existence of an improper influence or motive makes it all the more important to observe the preconditions for admitting the evidence in the first place. The position taken by the Rules reflects a compromise between the views expressed by the "bulk of the case law ... against allowing prior statements of witnesses to be used generally as substantive evidence" and the views of the majority of "writers ... [who] ha[d] taken the opposite position." Ibid. That compromise was one that the Committee candidly admitted was a "judgment ... more of experience than of logic." Ibid."A party contending that legislative action changed settled law has the burden of showing that the legislature intended such a change." Green v. Bock Laundry Machine Co., (applying that presumption in interpreting Federal Rule of Evidence 609). Nothing in the Advisory Committee's Notes suggests that it intended to alter the common-law premotive requirement. C The Government's final argument in favor of affirmance is that the common-law premotive rule advocated [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 13] by petitioner is inconsistent with the Federal Rules' liberal approach to relevancy and with strong academic criticism, beginning in the 1940's, directed at the exclusion of out-of-court statements made by a declarant who is present in court and subject to cross-examination. This argument misconceives the design of the Rules' hearsay provisions. Hearsay evidence is often relevant. "The only way in which the probative force of hearsay differs from the probative force of other testimony is in the absence of oath, demeanor, and cross-examination as aids in determining credibility." Advisory Committee's Introduction to Article VIII, 28 U.S.C. App., p. 771. That does not resolve the matter, however. Relevance is not the sole criterion of admissibility. Otherwise, it would be difficult to account for the Rules' general proscription of hearsay testimony (absent a specific exception), see Fed. Rule Evid. 802, let alone the traditional analysis of hearsay that the Rules, for the most part, reflect. Ibid. ("The approach to hearsay in these rules is that of the common law... . The traditional hearsay exceptions are drawn upon for the exceptions ..."). That certain out-of-court statements may be relevant does not dispose of the question whether they are admissible. The Government's reliance on academic commentators critical of excluding out-of-court statements by a witness, see Brief for United States 40, is subject to like criticism. To be sure, certain commentators in the years preceding the adoption of the Rules had been critical of the common-law approach to hearsay, particularly its categorical exclusion of out-of-court statements offered for substantive purposes. See, e.g., Weinstein, The Probative Force of Hearsay, 46 Iowa L. Rev. 331, 344-345 (1961) (gathering sources). General criticism was directed to the exclusion of a declarant's out-of-court statements where the declarant testified at trial. See, e.g., Weinstein, supra, at 333 ("treating the out of court [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 14] statement of the witness himself as hearsay" is a "practical absurdity in many instances"); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L. Rev. 177, 192-196 (1948). As an alternative, they suggested moving away from the categorical exclusion of hearsay and toward a case-by-case balancing of the probative value of particular statements against their likely prejudicial effect. See Weinstein, supra, at 338; Ladd, The Relationship of the Principles of Exclusionary Rules of Evidence to the Problem of Proof, 18 Minn. L. Rev. 606 (1934). The Advisory Committee, however, was explicit in rejecting this balancing approach to hearsay:"The Advisory Committee has rejected this approach to hearsay as involving too great a measure of judicial discretion, minimizing the predictability of rulings, [and] enhancing the difficulties of preparation for trial." Advisory Committee's Introduction, supra, at 771 (emphasis added). Given the Advisory Committee's rejection of both the general balancing approach to hearsay, and of Uniform Rule 63 (1), see supra, ___, the Government's reliance on the views of those who advocated these positions is misplaced. The statement-by-statement balancing approach advocated by the Government and adopted by the Tenth Circuit creates the precise dangers the Advisory Committee noted and sought to avoid: It involves considerable judicial discretion; it reduces predictability; and it enhances the difficulties of trial preparation because parties will have difficulty knowing in advance whether or not particular out-of-court statements will be admitted See Advisory Committee's Introduction, supra, at 771. [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 15] D The case before us illustrates some of the important considerations supporting the Rule as we interpret it, especially in criminal cases. If the Rule were to permit the introduction of prior statements as substantive evidence to rebut every implicit charge that a witness' in-court testimony results from recent fabrication or improper influence or motive, the whole emphasis of the trial could shift to the out-of-court statements, not the in-court ones. The present case illustrates the point. In response to a rather weak charge that A. T.'s testimony was a fabrication created so the child could remain with her mother, the Government was permitted to present a parade of sympathetic and credible witnesses who did no more than recount A. T.'s detailed out-of-court statements to them. Although those statements might have been probative on the question whether the alleged conduct had occurred, they shed but minimal light on whether A. T. had the charged motive to fabricate. At closing argument before the jury, the Government placed great reliance on the prior statements for substantive purposes but did not once seek to use them to rebut the impact of the alleged motive. We are aware that in some cases it may be difficult to ascertain when a particular fabrication, influence, or motive arose. Yet, as the Government concedes, a majority of common-law courts were performing this task for well over a century, see Brief for United States 39, and the Government has presented us with no evidence that those courts, or the judicial circuits that adhere to the rule today, have been unable to make the determination. Even under the Government's hypothesis, moreover, the thing to be rebutted must be identified, so the date of its origin cannot be that much more difficult to ascertain. By contrast, as the Advisory Committee commented, see supra, at ___, the Government's approach, which would require the trial court to weigh all [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 16] of the circumstances surrounding a statement that suggest its probativeness against the court's assessment of the strength of the alleged motive, would entail more of a burden, with no guidance to attorneys in preparing a case or to appellate courts in reviewing a judgment.III Courts must be sensitive to the difficulties attendant upon the prosecution of alleged child abusers. In almost all cases a youth is the prosecution's only eye witness. But "[t]his Court cannot alter evidentiary rules merely because litigants might prefer different rules in a particular class of cases." United States v. Salerno___, ___ (1992) (slip op., at 4). When a party seeks to introduce out-of-court statements that contain strong circumstantial indicia of reliability, that are highly probative on the material questions at trial, and that are better than other evidence otherwise available, there is no need to distort the requirements of Rule 801(d)(1)(B). If its requirements are met, Rule 803(24) exists for that eventuality. We intimate no view, however, concerning the admissibility of any of A. T.'s out-of-court statements under that section, or any other evidentiary principle. These matters, and others, are for the Court of Appeals to decide in the first instance. Our holding is confined to the requirements for admission under Rule 801(d)(1)(B). The Rule permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive. These conditions of admissibility were not established here. The judgment of the Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 1] JUSTICE SCALIA, concurring in part and concurring in the judgment. I concur in the judgment of the Court, and join its opinion except for Part II-B. That Part, which is devoted entirely to a discussion of the Advisory Committee's Notes pertinent to Rule 801(d)(1)(B), gives effect to those Notes not only because they are "a respected source of scholarly commentary," ante, at 9-10, but also because they display the "purpose," ante, at 10, or "inten[t]," ante, at 11, of the draftsmen. I have previously acquiesced in, see, e.g., Beech Aircraft Corp. v. Rainey, , and indeed myself engaged in, see United States v. Owens, , similar use of the Advisory Committee Notes. More mature consideration has persuaded me that is wrong. Having been prepared by a body of experts, the Notes are assuredly persuasive scholarly commentaries - ordinarily the most persuasive - concerning the meaning of the Rules. But they bear no special authoritativeness as the work of the draftsmen, any more than the views of Alexander Hamilton (a draftsman) bear more authority than the views of Thomas Jefferson (not a draftsman) with regard to the meaning of the Constitution. It is the words of the Rules that have been authoritatively adopted - by this Court, or by Congress if it makes a statutory [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 2] change. See 28 U.S.C. 2072, 2074 (1988 ed. and Supp. IV). In my view even the adopting Justices' thoughts, unpromulgated as Rules, have no authoritative (as opposed to persuasive) effect, any more than their thoughts regarding an opinion (reflected in exchanges of memoranda before the opinion issues) authoritatively demonstrate the meaning of that opinion. And the same for the thoughts of congressional draftsmen who prepare statutory amendments to the Rules. Like a judicial opinion and like a statute, the promulgated Rule says what it says, regardless of the intent of its drafters. The Notes are, to be sure, submitted to us and to the Members of Congress as the thoughts of the body initiating the recommendations, see 2073(d); but there is no certainty that either we or they read those thoughts, nor is there any procedure by which we formally endorse or disclaim them. That being so, the Notes cannot, by some power inherent in the draftsmen, change the meaning that the Rules would otherwise bear. In the present case, the merely persuasive force of the Advisory Committee Notes suffices. Indeed, in my view the case can be adequately resolved without resort to the Advisory Committee at all. It is well established that "`"the body of common law knowledge"'" must be "`"a source of guidance"'" in our interpretation of the Rules. Daubert v. Merrell Dow Pharmaceuticals, Inc.___, ___ (1993) (slip op., at 7) (quoting United States v. Abel, (quoting Cleary, Preliminary Notes on Reading the Rules of Evidence, 57 Neb. L. Rev. 908, 915 (1978))). Rule 801(d)(1)(B) uses language that tracks common-law cases and prescribes a result that makes no sense except on the assumption that that language indeed adopts the common-law rule. As the Court's opinion points out, only the premotive-statement limitation makes it rational to admit a prior corroborating statement to rebut a charge of recent fabrication or improper motive, but not to rebut a charge that the witness' memory is playing tricks. [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 1] JUSTICE BREYER, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR and JUSTICE THOMAS join, dissenting. The basic issue in this case concerns, not hearsay, but relevance. As the majority points out, the common law permitted a lawyer to rehabilitate a witness (after a charge of improper motive) by pointing to the fact that the witness had said the same thing earlier - but only if the witness made the earlier statement before the motive to lie arose. The reason for the time limitation was that, otherwise, the prior consistent statement had no relevance to rebut the charge that the in-court testimony was the product of the motive to lie. The treatises, discussing the matter under the general heading of "impeachment and support" (McCormick) or "relevancy" (Wigmore), and not "hearsay," make this clear, stating, for example, that a"`prior consistent statement has no relevancy to refute [a] charge [of recent fabrication, etc.,] unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.'" Ante, at 5 (quoting E. Cleary, McCormick on Evidence 49, p. 105 (2d ed. 1972)). The majority believes that a hearsay-related rule, Federal Rule of Evidence 801(d)(1)(B), codifies this [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 2] absolute timing requirement. I do not. Rule 801(d)(1)(B) has nothing to do with relevance. Rather, that Rule carves out a subset of prior consistent statements that were formerly admissible only to rehabilitate a witness (a nonhearsay use that relies upon the fact that the statement was made). It then says that members of that subset are "not hearsay." This means that, if such a statement is admissible for a particular rehabilitative purpose (to rebut a charge of recent fabrication, improper influence or motive), its proponent now may use it substantively, for a hearsay purpose (i.e., as evidence of its truth), as well. The majority is correct in saying that there are different kinds of categories of prior consistent statements that can rehabilitate a witness in different ways, including statements (a) placing a claimed inconsistent statement in context; (b) showing that an inconsistent statement was not made; (c) indicating that the witness' memory is not as faulty as a cross-examiner has claimed; and (d) showing that the witness did not recently fabricate his testimony as a result of an improper influence or motive. See United States v. Rubin, 609 F.2d 51, 68 (CA2 1979) (Friendly, J., concurring). But, I do not see where, in the existence of several categories, the majority can find the premise, which it seems to think is important, that the reason the drafters singled out one category (category (d)) was that category's special probative force in respect to rehabilitating a witness. Nor, in any event, do I understand how that premise can help the majority reach its conclusion about the common-law timing rule. I doubt the premise because, as McCormick points out, other categories of prior consistent statements (used for rehabilitation) also, on occasion, seem likely to have strong probative force. What, for example, about such statements introduced to rebut a charge of faulty memory (category (c) above)? McCormick says about [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 3] such statements: "[i]f the witness's accuracy of memory is challenged, it seems clear common sense that a consistent statement made shortly after the event and before he had time to forget, should be received in support." McCormick on Evidence 49, at 105, n. 88 (emphasis added). Would not such statements (received in evidence to rehabilitate) often turn out to be highly probative as well? More important, the majority's conclusion about timing seems not to follow from its "especially probative force" premise. That is because probative force has little to do with the concerns underlying hearsay law. Hearsay law basically turns on an out-of-court declarant's reliability, as tested through cross-examination; it does not normally turn on the probative force (if true) of that declarant's statement. The "timing" circumstance (the fact that a prior consistent statement was made after a motive to lie arose) may diminish probative force, but it does not diminish reliability. Thus, from a hearsay perspective, the timing of a prior consistent statement is basically beside the point. At the same time, one can find a hearsay-related reason why the drafters might have decided to restrict the Rule to a particular category of prior consistent statements. Juries have trouble distinguishing between the rehabilitative and substantive use of the kind of prior consistent statements listed in Rule 801 (d)(1)(B). Judges may give instructions limiting the use of such prior consistent statements to a rehabilitative purpose, but, in practice, juries nonetheless tend to consider them for their substantive value. See 4 J. Weinstein & M. Berger, Weinstein's Evidence § 801(d)(1)(B)01., p. 801-188 (1994) ("[A]s a practical matter, the jury in all probability would misunderstand or ignore a limiting instruction [with respect to the class of prior consistent statements covered by the Rule] anyway, so there is no good reason for giving one."). It is possible that the [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 4] Advisory Committee made them "nonhearsay" for that reason, i.e., as a concession "more of experience than of logic." Advisory Committee's Notes on Fed. Rule Evid. 801(d)(1)(B), 28 U.S.C. App., p. 773 (also noting that the witness is available for cross-examination in the courtroom in any event). If there was a reason why the drafters excluded from Rule 801(d)(1)(B)'s scope other kinds of prior consistent statements (used for rehabilitation), perhaps it was that the drafters concluded that those other statements caused jury confusion to a lesser degree. On this rationale, however, there is no basis for distinguishing between pre and postmotive statements, for the confusion with respect to each would very likely be the same. In sum, because the Rule addresses a hearsay problem and one can find a reason, unrelated to the premotive rule, for why it does so, I would read the Rule's plain words to mean exactly what they say: if a trial court properly admits a statement that is "consistent with the declarant's testimony" for the purpose of "rebut[ting] an express or implied charge ... of recent fabrication or improper influence or motive," then that statement is "not hearsay," and the jury may also consider it for the truth of what it says. Assuming Rule 801(d)(1)(B) does not codify the absolute timing requirement, I must still answer the question whether, as a relevance matter, the common-law statement of the premotive rule stands as an absolute bar to a trial court's admission of a postmotive prior consistent statement for the purpose of rebutting a charge of recent fabrication or improper influence or motive. The majority points to statements of the timing rule that do suggest that, for reasons of relevance, the law of evidence never permits their admission. Ante, at 5. Yet, absolute-sounding rules often allow exceptions. And, there are sound reasons here for permitting [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 5] an exception to the timing rule where circumstances warrant. For one thing, one can find examples where the timing rule's claim of "no relevancy" is simply untrue. A postmotive statement is relevant to rebut, for example, a charge of recent fabrication based on improper motive, say, when the speaker made the prior statement while affected by a far more powerful motive to tell the truth. A speaker might be moved to lie to help an acquaintance. But, suppose the circumstances also make clear to the speaker that only the truth will save his child's life. Or, suppose the postmotive statement was made spontaneously, or when the speaker's motive to lie was much weaker than it was at trial. In these and similar situations, special circumstances may indicate that the prior statement was made for some reason other than the alleged improper motivation; it may have been made not because of, but despite, the improper motivation. Hence, postmotive statements can, in appropriate circumstances, directly refute the charge of fabrication based on improper motive, not because they bolster in a general way the witness' trial testimony, see ante, at 8, but because the circumstances indicate that the statements are not causally connected to the alleged motive to lie. For another thing, the common law premotive rule was not as uniform as the majority suggests. Cf. United States v. Abel, (stating that where the common law was unanimous, the drafters of the Federal Rules likely intended to preserve it). A minority of courts recognized that postmotive statements could be relevant to rebut a charge of recent fabrication, improper influence or motive under the right circumstances. See, e.g, United States v. Gandy, 469 F.2d 1134, 1135 (CA5 1972); Copes v. United States, 345 F.2d 723, 726 (CADC 1964); State v. George, 30 N.C. 324, 328 (1848). I concede that the majority of courts [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 6] took the rule of thumb as absolute. But, I have searched the cases (and the commentators) in vain for an explanation of why that should be so. See, e.g., McCormick on Evidence 49, at 105, and n. 88 (citing cases). One can imagine a possible explanation: Trial judges may find it easier to administer an absolute rule. Yet, there is no indication in any of the cases that trial judges would, or do, find it particularly difficult to administer a more flexible rule in this context. And, there is something to be said for the greater authority that flexibility grants the trial judge to tie rulings on the admissibility of rehabilitative evidence more closely to the needs and circumstances of the particular case. 1 Weinstein's Evidence § 40101., pp. 401-8 to 401-9 ("A flexible approach ... is more apt to yield a sensible result than the application of a mechanical rule."). Furthermore, the majority concedes that the premotive rule, while seemingly bright-line, poses its own administrative difficulties. Ante, at 15. This Court has acknowledged that the Federal Rules of Evidence worked a change in common-law relevancy rules in the direction of flexibility. See Daubert v. Merrell Dow Pharmaceuticals, Inc.___ (1993). Article IV of the Federal Rules, which concerns relevance, liberalizes the rules for admission of relevant evidence. See id., at ___ (slip op., at 7). The Rules direct the trial judge generally to admit all evidence having "any tendency" to make the existence of a material fact "more probable or less probable than it would be without the evidence." Fed. Rules Evid. 401, 402. The judge may reject the evidence (assuming compliance with other rules) only if the probative value of the evidence is substantially outweighed by its tendency to prejudice a party or delay a trial. Rule 403. The codification, as a general matter, relies upon the trial judge's administration of Rules 401, 402, and 403 [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 7] to keep the barely relevant, the time wasting, and the prejudicial from the jury. See, e.g., Abel, supra, at 54 ("A district court is accorded a wide discretion in ... [a]ssessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility."); 1 Weinstein's Evidence § 40101. (discussing broad discretion accorded trial judge); 22 C. Wright & K. Graham, Federal Practice and Procedure 5162 (1978 and 1994 Supp.). In Daubert, this Court considered the rule of Frye v. United States, 293 F. 1013 (CADC 1923), which had excluded scientific evidence that had not gained general acceptance in the relevant field. 509 U.S., at ___ (slip op., at 5). Like the premotive rule here at issue, the Frye rule was "rigid," setting forth an "absolute prerequisite to admissibility," which the Court said was "at odds with the `liberal thrust' of the Federal Rules." Id., at ___ (slip op., at 8). Daubert suggests that the liberalized relevancy provisions of the Federal Rules can supersede a pre-existing rule of relevance, at least where no compelling practical or logical support can be found for the pre-existing rule. It is difficult to find any strong practical or logical considerations for making the premotive rule an absolute condition of admissibility here. Perhaps there are other circumstances in which categorical common-law rules serve the purposes of Rules 401, 402, and 403, and should, accordingly, remain absolute in the law. But, for the reasons stated above, this case, like Daubert, does not present such a circumstance. Thus, considered purely as a matter of relevancy law (and as though Rule 801(d)(1)(B) had not been written), I would conclude that the premotive rule did not survive the adoption of the Rules. Irrespective of these arguments, one might claim that, nonetheless, the drafters, in writing Rule 801(d)(1)(B), relied on the continued existence of the common-law relevancy rule, and that Rule 801(d)(1)(B) therefore [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 8] reflects a belief that the common-law relevancy rule would survive. But, I would reject that argument. For one thing, if the drafters had wanted to insulate the common-law rule from the Rules' liberalizing effect, this would have been a remarkably indirect (and therefore odd) way of doing so - both because Rule 801(d)(1)(B) is utterly silent about the premotive rule and because Rule 801(d)(1)(B) is a rule of hearsay, not relevancy. For another thing, there is an equally plausible reason why the drafters might have wanted to write Rule 801(d)(1)(B) the way they did - namely, to allow substantive use of a particular category of prior consistent statements that, when admitted as rehabilitative evidence, was especially impervious to a limiting instruction. See supra, at 3-4. Accordingly, I would hold that the Federal Rules authorize a district court to allow (where probative in respect to rehabilitation) the use of postmotive prior consistent statements to rebut a charge of recent fabrication, improper influence or motive (subject of course to, for example, Rule 403). Where such statements are admissible for this rehabilitative purpose, Rule 801(d)(1)(B), as stated above, makes them admissible as substantive evidence as well (provided, of course, that the Rule's other requirements, such as the witness' availability for cross-examination, are satisfied). In most cases, this approach will not yield a different result from a strict adherence to the premotive rule for, in most cases, postmotive statements will not be significantly probative. And, even in cases where the statement is admitted as significantly probative (in respect to rehabilitation), the effect of admission on the trial will be minimal because the prior consistent statements will (by their nature) do no more than repeat in-court testimony. In this case, the Court of Appeals, applying an approach consistent with what I have described above, decided that A. T.'s prior consistent statements were [ TOME v. UNITED STATES, ___ U.S. ___ (1995), 9] probative on the question of whether her story as a witness reflected a motive to lie. There is no reason to reevaluate this factbound conclusion. Accordingly, I would affirm the judgment of the Court of Appeals. Page I
7	In 1958 Pabst Brewing Company, the country's tenth largest brewer, acquired Blatz Brewing Company, the eighteenth largest, thus becoming the fifth largest with 4.49% of the total industry sales. The Government brought this action charging that the acquisition violated 7 of the Clayton Act because its effect "may be substantially to lessen competition" in the production and sale of beer in the United States, in Wisconsin, and in the three-state area comprising Wisconsin, Illinois and Michigan. The Government introduced evidence to establish a marked decline in the number of brewers and a sharp rise in the share of the market controlled by the leading brewers, both prior to and following this merger. It also showed that the combined share of the two companies in Wisconsin in 1957 was 23.95%, and in the three-state area was 11.32%. At the close of the Government's case, the District Court dismissed the case, finding that the Government had not shown that Wisconsin or the three-state area was a relevant geographic market within which the probable effect of the acquisition should be tested and had not shown that the merger might substantially lessen competition in the continental United States, the only relevant geographic market. Held: 1. By the language of the Act the Government must only prove that the effect of the merger may be substantially to lessen competition in any line of commerce "in any section of the country." Pp. 548-550. (a) A violation of 7 would be proved by evidence showing that competition may be substantially lessened throughout the country or only in one or more sections of the Nation, and failure to prove a relevant "economic" or "geographic" market is not an adequate ground for dismissal. P. 549. (b) Proof of the section of the country where the anticompetitive effect exists is entirely subsidiary to the crucial 7 question which is whether the merger may substantially lessen competition anywhere in the country. Pp. 549-550. 2. The evidence as to the probable effect of the merger of these two large corporations, in an industry which is rapidly becoming more concentrated, on competition in Wisconsin, in the three-state area, and in the entire country, was ample to show a violation of 7 in all these areas. Pp. 550-552. 3. The Act is concerned with arresting concentration of the economy, whatever its cause, in its incipiency, and the Government has no duty to show that the trend towards concentration in the beer industry is due to mergers. Pp. 552-553. 233 F. Supp. 475, reversed and remanded.Edwin M. Zimmerman argued the cause for the United States. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Turner, Richard A. Posner, Robert B. Hummel and Irwin A. Seibel.John T. Chadwell argued the cause for appellees. With him on the brief were Glenn W. McGee, David A. Nelson, Joseph R. Gray and Ray T. McCann.Thomas E. O'Neill filed a brief for the Brewers' Association of America, as amicus curiae, urging reversal.MR. JUSTICE BLACK delivered the opinion of the Court.In 1958 Pabst Brewing Company, the Nation's tenth largest brewer, acquired the Blatz Brewing Company, the eighteenth largest. In 1959 the Government brought this action charging that the acquisition violated 7 of the Clayton Act as amended by the Celler-Kefauver Anti-Merger amendment.1 That section makes it unlawful for one corporation engaged in commerce to acquire the stock or assets of another "where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." (Emphasis supplied.) The Government's complaint charged that "The effect of this acquisition may be substantially to lessen competition or to tend to create a monopoly in the production and sale of beer in the United States and in various sections thereof, including the State of Wisconsin and the three state area encompassing Wisconsin, Illinois and Michigan ... ."2 At the close of the Government's case, the District Court dismissed the case under Rule 41 (b) of the Fed. Rules Civ. Proc., holding that the Government's proof had not shown that either Wisconsin or the three-state area of Wisconsin, Michigan and Illinois was a "relevant geographic market within which the probable effect of the acquisition of Blatz by Pabst should be tested." The District Court also ruled that the Government had not shown that "the effect of the acquisition ... may be substantially to lessen competition or to tend to create a monopoly in the beer industry in the continental United States, the only relevant geographic market." 233 F. Supp. 475, 481, 488.I.We first take up the court's dismissal based on its conclusion that the Government failed to prove either Wisconsin or the three-state area constituted "a relevant section of the country within the meaning of Section 7." Apparently the District Court thought that in order to show a violation of 7 it was essential for the Government to show a "relevant geographic market" in the same way the corpus delicti must be proved to establish a crime. But when the Government brings an action under 7 it must, according to the language of the statute, prove no more than that there has been a merger between two corporations engaged in commerce and that the effect of the merger may be substantially to lessen competition or tend to create a monopoly in any line of commerce "in any section of the country." (Emphasis supplied.) The language of this section requires merely that the Government prove the merger may have a substantial anticompetitive effect somewhere in the United States - "in any section" of the United States. This phrase does not call for the delineation of a "section of the country" by metes and bounds as a surveyor would lay off a plot of ground.3 The Government may introduce evidence which shows that as a result of a merger competition may be substantially lessened throughout the country, or on the other hand it may prove that competition may be substantially lessened only in one or more sections of the country. In either event a violation of 7 would be proved. Certainly the failure of the Government to prove by an army of expert witnesses what constitutes a relevant "economic" or "geographic" market is not an adequate ground on which to dismiss a 7 case. Compare United States v. Continental Can Co., . Congress did not seem to be troubled about the exact spot where competition might be lessened; it simply intended to outlaw mergers which threatened competition in any or all parts of the country. Proof of the section of the country where the anticompetitive effect exists is entirely subsidiary to the crucial question in this and every 7 case which is whether a merger may substantially lessen competition anywhere in the United States.II.The Government's evidence, consisting of documents, statistics, official records, depositions, and affidavits by witnesses, related principally to the competitive position of Pabst and Blatz in the beer industry throughout the Nation, in the three-state area of Wisconsin, Illinois, and Michigan, and in the State of Wisconsin. The record in this case, including admissions by Pabst in its formal answer to the Government's complaint, the evidence introduced by the Government, the findings of fact and opinion of the District Judge, shows among others the following facts. In 1958, the year of the merger, Pabst was the tenth largest brewer in the Nation and Blatz ranked eighteenth. The merger made Pabst the Nation's fifth largest brewer with 4.49% of the industry's total sales. By 1961, three years after the merger, Pabst had increased its share of the beer market to 5.83% and had become the third largest brewer in the country. In the State of Wisconsin, before the merger, Blatz was the leading seller of beer and Pabst ranked fourth. The merger made Pabst the largest seller in the State with 23.95% of all the sales made there. By 1961 Pabst's share of the market had increased to 27.41%. This merger took place in an industry marked by a steady trend toward economic concentration. According to the District Court the number of breweries operating in the United States declined from 714 in 1934 to 229 in 1961, and the total number of different competitors selling beer has fallen from 206 in 1957 to 162 in 1961. In Wisconsin the number of companies selling beer has declined from 77 in 1955 to 54 in 1961. At the same time the number of competitors in the industry were becoming fewer and fewer, the leading brewers were increasing their shares of sales. Between 1957 and 1961 the Nation's 10 leading brewers increased their combined shares of sales from 45.06% to 52.60%. In Wisconsin the four leading sellers accounted for 47.74% of the State's sales in 1957 and by 1961 this share had increased to 58.62%. In the three-state area the evidence showed that in 1957 Blatz was the sixth largest seller with 5.84% of the total sales there and Pabst ranked seventh with 5.48%. As was true in the beer industry throughout the Nation, there was a trend toward concentration in the three-state area. From 1957 to 1961 the number of major brewers selling there dropped from 104 to 86 and during the same period the eight leading sellers increased their combined shares of beer sales from 58.93% to 67.65%.These facts show a very marked thirty-year decline in the number of brewers and a sharp rise in recent years in the percentage share of the market controlled by the leading brewers. If not stopped, this decline in the number of separate competitors and this rise in the share of the market controlled by the larger beer manufacturers are bound to lead to greater and greater concentration of the beer industry into fewer and fewer hands. The merger of Pabst and Blatz brought together two very large brewers competing against each other in 40 States. In 1957 these two companies had combined sales which accounted for 23.95% of the beer sales in Wisconsin, 11.32% of the sales in the three-state area of Wisconsin, Illinois, and Michigan, and 4.49% of the sales throughout the country. In accord with our prior cases,4 we hold that the evidence as to the probable effect of the merger on competition in Wisconsin, in the three-state area, and in the entire country was sufficient to show a violation of 7 in each and all of these three areas.We have not overlooked Pabst's contention that we should not consider the steady trend toward concentration in the beer industry because the Government has not shown that the trend is due to mergers. There is no duty on the Government to make such proof. It would seem fantastic to assume that part of the concentration in the beer industry has not been due to mergers but even if the Government made no such proof, it would not aid Pabst. Congress, in passing 7 and in amending it with the Celler-Kefauver Anti-Merger amendment, was concerned with arresting concentration in the American economy, whatever its cause, in its incipiency. To put a halt to what it considered to be a "rising tide" of concentration in American business, Congress, with full power to do so, decided "to clamp down with vigor on mergers." United States v. Von's Grocery Co., ante, at 276. It passed and amended 7 on the premise that mergers do tend to accelerate concentration in an industry. Many believe that this assumption of Congress is wrong, and that the disappearance of small businesses with a correlative concentration of business in the hands of a few is bound to occur whether mergers are prohibited or not. But it is not for the courts to review the policy decision of Congress that mergers which may substantially lessen competition are forbidden, which in effect the courts would be doing should they now require proof of the congressional premise that mergers are a major cause of concentration. We hold that a trend toward concentration in an industry, whatever its causes, is a highly relevant factor in deciding how substantial the anticompetitive effect of a merger may be. Reversed and remanded.
0	The two respondents are federal prison inmates whose requests for copies of their presentence investigation reports were denied by the Parole Commission. Pursuant to Federal Rule of Criminal Procedure 32(c), a probation officer prepares the presentence report, which contains background information about the defendant and the circumstances of his offense, for use by the district court at sentencing. Under the Rule, the court, before imposing sentence, must permit the defendant and his counsel to read the report, except portions, inter alia, containing diagnostic opinions, confidential sources of information, or information that, if disclosed, might cause harm to the defendant or others. After sentencing, the reports are typically transmitted to the Bureau of Prisons for its use, and then - pursuant to the Parole Commission and Reorganization Act of 1976 (Parole Act) - are sent to the Parole Commission for eventual use in determining whether a prisoner should be paroled. The Parole Act provides that before a scheduled parole hearing is held, the prisoner must be given reasonable access to the report, but exempts the same three categories of information as Rule 32(c). After the Parole Commission denied their disclosure requests, respondents filed separate suits under the Freedom of Information Act (FOIA), and the District Courts ordered disclosure. Consolidating petitioners' appeals, the Court of Appeals affirmed. It rejected petitioners' contentions that presentence reports are exempt from disclosure under both Exemption 3 and Exemption 5 of the FOIA. Exemption 3 pertains to matters that are "specifically exempt[ed] from disclosure" by another statute that "refers to particular types of matters to be withheld." Exemption 5 makes the FOIA inapplicable to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."Held: The FOIA requires that the presentence reports be disclosed by petitioners, except as to matters relating to confidential sources, diagnostic opinions, and possibly harmful information. Pp. 8-14. (a) Beyond protecting from disclosure the matters noted above, neither Rule 32(c) nor the Parole Act satisfies Exemption 3's requirements. Recent changes, leading to their present provisions, have been made in both the Rule and the Parole Act, not to protect the presentence report from disclosure, but to ensure that it would be disclosed to the defendant who is about to be sentenced or who is up for parole. Although Rule 32's provision requiring that all copies of reports furnished under the Rule be returned to the court, unless it directs otherwise, qualifies somewhat the defendant's access to the presentence report when it is furnished by the district court in the context of sentencing, it does not convert the Rule, a part of which is essentially designed to mandate disclosure, into a statute that "specifically exempt[s] from disclosure" for purposes of Exemption 3. Moreover, the Parole Act does not contain a similar provision. Pp. 8-11. (b) Exemption 5 of the FOIA does not support withholding of the presentence reports. The Exemption incorporates the privileges which the Government enjoys under relevant statutory and case law in the pretrial discovery context. The test under the Exemption is whether the documents would be "routinely" or "normally" disclosed upon a showing of relevance. Although in both civil and criminal cases the courts have been reluctant to give a third party access to the presentence report prepared for some other individual in the absence of a showing of special need, a similar restriction on discovery is not applicable when the individual requesting discovery is the subject of the report. The thrust of the disclosure portions of Rule 32(c) and the Parole Act speaks strongly against the existence of a Government privilege when the disclosure request is from the subject of the report. In this context, nothing in the case law or Exemption 5 prevents the conclusion that disclosure of presentence reports to the individual who is the subject of the report is "routine." FTC v. Grolier Inc., , distinguished. Pp. 11-14. 806 F.2d 1411, affirmed. REHNQUIST, C. J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p. 15. KENNEDY, J., took no part in the consideration or decision of the case.Edwin S. Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Cohen, Leonard Schaitman, and Sandra Wien Simon.Eric R. Glitzenstein argued the cause for respondents. With him on the briefs were Katherine A. Meyer and Alan B. Morrison.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Respondents in this case are prison inmates who sued under the Freedom of Information Act (FOIA), 5 U.S.C. 552, for disclosure of their presentence investigation reports. These reports are prepared by a probation officer for use by the district court at sentencing; they contain background information about a defendant and the circumstances of his offense. After sentencing, the reports are typically transmitted to the Bureau of Prisons and then to the Parole Commission for eventual use in determining whether a prisoner should be released on parole. The courts below ordered petitioners - the Department of Justice and the Parole Commission - to disclose the reports. The question we are now called on to decide is whether the FOIA requires that these presentence investigation reports be disclosed by petitioners or whether the reports fall under one of the FOIA's statutory exemptions.Rule 32(c) of the Federal Rules of Criminal Procedure outlines the requirements for preparation and disclosure of a presentence report for a criminal defendant who has been adjudged guilty. Rule 32(c)(1) provides that before imposition of sentence the probation service of the district court shall make an investigation into the defendant's background and the circumstances of the offense.1 The results of the investigation are compiled into a report, which under Rule 32(c)(2) must contain the defendant's prior criminal record, a description of the circumstances of the offense and the defendant's behavior, a discussion of the loss or harm suffered by any victims of the offense, and any other information that might aid the court in sentencing, including the restitution needs of the victim.The Rule also specifies the procedure by which the court is to disclose the report and its contents to a defendant. Rule 32(c)(3)(A) states that "[a]t a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the report ... exclusive of any recommendation as to sentence." The court may not disclose, however, portions of the report that contain "diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons." Ibid. If the report does contain this type of information, the court is required to give orally or in writing a summary of the factual information that has been withheld and that is to be relied on in determining an appropriate sentence. Once the report has been disclosed, the defendant and his counsel are to be given an opportunity to comment on the report and to introduce evidence showing that the report contains factual inaccuracies. Rule 32(c)(3)(E) also provides that "[a]ny copies of the presentence investigation report made available to the defendant and his counsel and the attorney for the government shall be returned to the probation officer immediately following the imposition of sentence or the granting of probation, unless the court, in its discretion otherwise directs."After the defendant is sentenced, a copy of the presentence report is typically transmitted to the Bureau of Prisons, where it may be used in determining a defendant's classification as an inmate, see 28 CFR 524.10, 524.12(e) (1987), choosing an appropriate treatment program, or deciding eligibility for various privileges. See Brief for Petitioners 7 (citing Fennell & Hall, Due Process at Sentencing, 93 Harv. L. Rev. 1615, 1679 (1980)).2 A copy of the presentence report is also transmitted to the United States Parole Commission pursuant to 2(e) of the Parole Commission and Reorganization Act of 1976 (Parole Act),3 18 U.S.C. 4205(e), which makes it the "duty of the ... probation officers" to furnish "information available to such officer ... concerning any eligible prisoner or parolee" to the Commission upon request. The Parole Commission is then required by statute to consider the report, among other documents, in making a parole decision. 4207(3).The Parole Act also requires that, at least 30 days before a scheduled parole hearing, the prisoner be provided with "reasonable access to [the] report or other document to be used by the Commission in making" its parole determination. 4208(b). As in Rule 32(c)(3)(A), however, the Act exempts from this disclosure requirement the same three categories of information - diagnostic opinions, confidential information, and potentially harmful information - that were protected from disclosure by the district court. The Act also requires that if any such information is excluded from disclosure, it is the duty of the Commission (or any other agency) "to summarize the basic contents of the material withheld ... and furnish such summary to the inmate." 4208(c)(3); see also 28 CFR 2.55(c) (1987).4 The Parole Act does not contain, however, any express requirement that the inmate return all or any copies of the documents to which he is given "reasonable access."The present case stems from two separate requests by individual inmates for copies of their presentence reports. In 1984, respondent Kenneth Michael Julian, an inmate in federal prison in Arizona, asked the Parole Commission to furnish him with a copy of his presentence report. When his request was denied, Julian brought this FOIA suit against the Department of Justice in the United States District Court for the District of Arizona. In a brief order, the District Court granted Julian's motion for summary judgment and ordered the Government to comply with his request. In 1984, respondent Margaret J. Wallace, then an inmate in federal prison in California, filed a FOIA request with the Parole Commission for all of the Commission's records pertaining to her. The Commission honored her request in large part, but refused to turn over a copy of her presentence report. Wallace then filed suit against the Parole Commission5 in the United States District Court for the Northern District of California. This court, too, ordered that the presentence report be released.The two cases were consolidated on appeal before the United States Court of Appeals for the Ninth Circuit, which affirmed the judgment in each. 806 F.2d 1411 (1986). After first stating that the presentence reports are "agency records" for purposes of the FOIA,6 the court rejected the Government's contentions that presentence reports are exempt from disclosure under both 5 U.S.C. 552(b)(3) (Exemption 3) and 552(b)(5) (Exemption 5). While certain parts of the presentence reports may be withheld pursuant to Rule 32(c)(3) and the Parole Act, 18 U.S.C. 4208(c), the court found that "neither Exemption 3 nor Exemption 5 provides a blanket exemption for presentence investigation reports" when the FOIA request is made by the subject of the presentence report. 806 F.2d, at 1416. The court also rejected the Government's argument that the FOIA's disclosure requirements were superseded by the special statutory procedures for obtaining presentence reports set out in Rule 32(c) and the Parole Act. Because this decision of the Court of Appeals conflicts with an earlier decision of the United States Court of Appeals for the District of Columbia Circuit, see Durns v. Bureau of PrisonsApp. D.C. 156, 804 F.2d 701, rehearing en banc deniedApp. D.C. 30, 806 F.2d 1122 (1986), cert. pending, No. 86-6550, and because it raises several important statutory issues, we granted certiorari, , and we now affirm.The system of disclosure established by the FOIA is simple in theory. A federal agency must disclose agency records unless they may be withheld pursuant to one of the nine enumerated exemptions listed in 552(b). See United States v. Weber Aircraft Corp., . Congress created these exemptions because it "realized that legitimate governmental and private interests could be harmed by release of certain types of information." FBI v. Abramson, ; see also CIA v. Sims, . Nonetheless, "[t]he mandate of the FOIA calls for broad disclosure of Government records," id., at 166, and for this reason we have consistently stated that FOIA exemptions are to be narrowly construed, see Abramson, supra, at 630; Department of Air Force v. Rose, . With this principle in mind, we turn to consider whether, as the Government contends, presentence investigation reports are exempted from disclosure under either FOIA Exemption 3 or Exemption 5.Exemption 3 of the FOIA permits agencies to withhold matters that are"specifically exempted from disclosure by statute ..., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 552(b)(3). The Government argues that this Exemption applies to presentence reports because Rule 32(c) and the Parole Act are statutes that specifically exempt the reports from disclosure and that "refer to particular types of matters to be withheld." To some extent this is clearly true: both the Rule and the Parole Act specifically exempt from disclosure any information in the report that relates to confidential sources, diagnostic opinions, and other information that may cause harm to the defendant or to third parties. See Rule 32(c)(3)(A); 18 U.S.C. 4208(c). This information is thus exempt from disclosure under the FOIA.Beyond this, however, neither the Rule nor the Act satisfies the requirements of Exemption 3. Both provisions have been recently changed, not to protect the presentence report from disclosure, but to ensure that it would be disclosed to the defendant who is about to be sentenced or who is up for parole. For example, in 1966, Rule 32(c) was amended to give sentencing courts the discretion to disclose the reports to defense attorneys and prosecutors. The Advisory Committee Notes indicate that the purpose of this amendment was:"[T]o make it clear that courts may disclose all or part of the presentence report to the defendant or to his counsel. It is hoped that courts will make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences." 18 U.S.C. App., p. 625, 39 F. R. D. 69, 194 (1966). Congress amended the Rule again in 1974,7 this time changing it to state that "[b]efore imposing sentence the court shall upon request permit the defendant, or his counsel ..., to read the report of the presentence investigation," Pub. L. 94-64, 89 Stat. 376 (emphasis added). In 1983, after an empirical study revealed that "the extent and nature of disclosure of the presentence investigation report in federal courts under current rule 32 is insufficient to ensure accuracy of sentencing information," Advisory Committee Notes, 18 U.S.C. App., p. 996 (1982 ed., Supp. IV), 97 F. R. D. 245, 307 (1983), Congress made additional changes in the Rule. It made disclosure of the report mandatory by eliminating the request requirement; it authorized disclosure to both the defendant and defense counsel; and it required that disclosure be made at a reasonable time before sentencing.All of this makes clear that the Rule serves two purposes: it prevents disclosure of the three categories of information described above, but it facilitates disclosure of the balance of the report to the defendant. Similarly, the provision of the Parole Act dealing with presentence reports is also designed to ensure that much of the information on which a parole decision is to be based, including the presentence report, be disclosed to the potential parolee. In line with this intent, Congress expressly required that all prisoners be furnished with "reasonable access" to the pertinent documents at least 30 days before a parole hearing. 4208(b).The Government argues that while Congress did intend that defendants be given some access to their presentence reports, it also sought to limit that access by requiring that all copies of reports that are furnished pursuant to Rule 32(c) be returned to the court, unless the court directs otherwise. Fed. Rule Crim. Proc. 32(c)(3)(E). As stated in the Advisory Committee Notes, the purpose of this provision was "to insure that [the reports] do not become available to unauthorized persons." 18 U.S.C. App., p. 627, 62 F. R. D. 271, 325 (1974). Admittedly this provision does qualify somewhat the defendant's access to his or her presentence report when that report is furnished by the district court in the context of sentencing, but in our opinion it does not convert the Rule, a part of which is essentially designed to mandate disclosure, into a statute that "specifically exempt[s] from disclosure" for purposes of Exemption 3 of the FOIA. And, the Parole Act, which governs the Parole Commission's duties in regard to disclosure of presentence reports, does not itself contain a similar provision. The Act only requires that "reasonable access" to the report be given; there is no express limitation on an inmate's power to retain a copy of the report. Even if we assume, as the Government suggests, that the Parole Act implicitly adopts the restriction contained in Rule 32(c)(3)(E), this would still not convert 4208 into an Exemption 3 statute. Exemption 3 permits an agency to withhold only those parts of a presentence report that are expressly protected by Rule 32(c)(3)(A) or 18 U.S.C. 4208(c); the remaining parts of the reports are not covered by this exemption, and thus must be disclosed8 unless there is some other exemption which applies to them.The Government also relies on Exemption 5 of the FOIA to support withholding of the requested documents. This Exemption makes the FOIA inapplicable to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. 552(b)(5).9 In the past, we have interpreted this somewhat Delphic provision as "incorporat[ing] the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context." Renegotiation Board v. Grumman Aircraft Engineering Corp., ; see also FTC v. Grolier Inc., ; Weber Aircraft Corp., 465 U.S., at 799. As we stated in NLRB v. Sears, Roebuck & Co., , Exemption 5 "exempt[s] those documents, and only those documents, normally privileged in the civil discovery context." See also H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966) (the purpose of Exemption 5 is to ensure that "any internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency would be available to the general public"). Accordingly, "[t]he test under Exemption 5 is whether the documents would be `routinely' or `normally' disclosed upon a showing of relevance." Grolier, supra, at 26.Both parties agree that in both civil and criminal cases the courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals. See, e. g., United States v. McKnight, 771 F.2d 388, 390 (CA8 1985); United States v. Anderson, 724 F.2d 596, 598 (CA7 1984); United States v. Charmer Industries, Inc., 711 F.2d 1164, 1173-1176 (CA2 1983); Hancock Brothers, Inc. v. Jones, 293 F. Supp. 1229 (ND Cal. 1968). As the Government points out, one reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report. See, e. g., United States v. Martinello, 556 F.2d 1215, 1216 (CA5 1977). A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically required some showing of special need before they will allow a third party to obtain a copy of a presentence report. See, e. g., Charmer, supra, at 1174-1176 (following Hancock Brothers, Inc. v. Jones, supra, in concluding that a report may not be disclosed "in the absence of a compelling demonstration that disclosure of the report is required to meet the ends of justice").There is no indication, however, that similar restrictions on discovery of presentence investigation reports have been recognized by the courts when the individual requesting discovery is the subject of the report. Indeed, there seem to be no reported judicial decisions on the subject. By itself, of course, the fact that there are no cases directly on point with respect to this particular category of requests for information is not conclusive evidence that no discovery privilege should be recognized in this situation. From our perspective, however, it appears that the reasoning of the cases denying disclosure to third-party requesters would have little applicability to a request by a defendant to examine his own report, particularly in light of Rule 32(c)'s specific mandate that the report be disclosed to the defendant during sentencing. We note in addition that most privileges of the sort described in Exemption 5 arise as a result of judicial decision. See, e. g., United States v. Reynolds, . But unless the privilege is constitutionally rooted, Congress may determine for itself which privileges the Government may avail itself of and which it may not. Here, the thrust of the disclosure portions of Rule 32(c) and the Parole Act speaks so strongly against the existence of a privilege on the part of the Government when the request is from the subject of the report that we think it accurate to say that Congress has strongly intimated, if it has not actually provided, that no such privilege should exist.The Government contends nonetheless that because Exemption 5 applies to documents that "would not be available by law to a party ... in litigation with the agency" (emphasis added), we cannot construe Exemption 5 in such a way as to make an agency's duty to disclose a presentence report turn on the nature or identity of the requester. The Government points to our reasoning in Grolier, where we held that documents that were privileged under the work-product doctrine were not "routinely" available for Exemption 5 purposes even though it was possible for some parties seeking discovery to obtain access to the document by showing "substantial need." 462 U.S., at 27. As we stated, "[w]hether its immunity from discovery is absolute or qualified, a protected document cannot be said to be subject to `routine' disclosure." Ibid. Such a result, "by establishing a discrete category of exempt information, implements the congressional intent to provide `workable' rules." Ibid.; see also EPA v. Mink, (the exemptions are "plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed").Contrary to the Government's contention, however, nothing in Grolier, or in the language of Exemption 5, requires that, even though Congress has spoken in the manner that it has, a privilege against disclosure must nonetheless be extended to all requests for these reports, or to none at all. Grolier held that the fact that a claim of privilege might be overridden in a particular case by special circumstances did not mean that discovery was "routinely available" within the meaning of Exemption 5. We reaffirm that holding, but we decline the Government's invitation to extend it to circumstances in which there is no basis for a claim of privilege from disclosure against one class of requesters, although there is a perfectly sound basis for resisting disclosure at the behest of another class of requesters. The fact that no one need show a particular need for information in order to qualify for disclosure under the FOIA does not mean that in no situation whatever will there be valid reasons for treating a claim of privilege under Exemption 5 differently as to one class of those who make requests than as to another class. In this case, it seems clear that there is good reason to differentiate between a governmental claim of privilege for presentence reports when a third party is making the request and such a claim when the request is made by the subject of the report. As we noted above, there simply is no privilege preventing disclosure in the latter situation. Even under our ruling in Grolier, therefore, discovery of the reports by the defendants themselves can be said to be "routine." Affirmed. JUSTICE KENNEDY took no part in the consideration or decision of this case.
6	Under 208 of the Labor Management Relations Act, 1947, the United States sued in a Federal District Court to enjoin the continuation of an industry-wide strike in the steel industry. After considering affidavits filed by the parties and finding that the strike had closed down a substantial part of the Nation's steel-production capacity and that its continuation would "imperil the national health and safety," the District Court enjoined continuation of the strike. The Court of Appeals affirmed. Held: The judgment is sustained. Pp. 40-44. 1. Once it determined that the statutory conditions of breadth of involvement and peril to the national health or safety existed, the District Court properly enjoined continuation of the strike. Congress did not intend that the issuance of an injunction should depend upon a judicial inquiry into broad issues of national labor policy, the availability of other remedies to the Executive, the effect of an injunction on the collective bargaining process, the conduct of the parties to the labor dispute in their negotiations, or conjecture as to the course of those negotiations in the future. Pp. 40-41. 2. On the record in this case, the judgment below was amply supported on the ground that the strike imperiled the national safety. Pp. 41-42. 3. Section 208 was designed to provide a public remedy in times of emergency, and it cannot be construed to require that the Government either formulate a reorganization of the affected industry to satisfy its defense needs without the complete reopening of closed facilities or demonstrate in court that such a reorganization is not feasible. P. 43. 4. As here applied, 208 entrusts to the courts only the determination of a "case or controversy." It does not violate the Constitution by entrusting to them any matter capable of only legislative or executive determination. Pp. 43-44. 271 F.2d 676, affirmed. Arthur J. Goldberg argued the cause for petitioner. With him on the brief were David E. Feller and Bernard Dunau.Solicitor General Rankin argued the cause for the United States. With him on the brief were Attorney General Rogers, Assistant Attorney General Doub, Wayne G. Barnett, Samuel D. Slade, Seymour Farber and Herbert E. Morris.PER CURIAM.The Attorney General sought and obtained in the District Court for the Western District of Pennsylvania an injunction against the continuation of an industry-wide strike of workers in the basic steel industry pursuant to 208 of the Labor Management Relations Act, 1947, 61 Stat. 155, 29 U.S.C. 178. We granted certiorari, post, p. 878, to review the judgment of the Court of Appeals for the Third Circuit, 271 F.2d 676, affirming the District Court. In pertinent part, 208 provides that if the District Court -"finds that ... [a] threatened or actual strike or lock-out - "(i) affects an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the production of goods for commerce; and "(ii) if permitted to occur or to continue, will imperil the national health or safety, it shall have jurisdiction to enjoin any such strike or lock-out, or the continuing thereof, and to make such other orders as may be appropriate." The arguments of the parties here and in the lower courts have addressed themselves in considerable part to the propriety of the District Court's exercising its equitable jurisdiction to enjoin the strike in question once the findings set forth above had been made. These arguments have ranged widely into broad issues of national labor policy, the availability of other remedies to the Executive, the effect of a labor injunction on the collective bargaining process, consideration of the conduct of the parties to the labor dispute in their negotiations, and conjecture as to the course of those negotiations in the future. We do not believe that Congress in passing the statute intended that the issuance of injunctions should depend upon judicial inquiries of this nature. Congress was not concerned with the merits of the parties' positions or the conduct of their negotiations. Its basic purpose seems to have been to see that vital production should be resumed or continued for a time while further efforts were made to settle the dispute. To carry out its purposes, Congress carefully surrounded the injunction proceedings with detailed procedural devices and limitations. The public report of a board of inquiry, the exercise of political and executive responsibility personally by the President in directing the commencement of injunction proceedings, the statutory provisions looking toward an adjustment of the dispute during the injunction's pendency, and the limited duration of the injunction, represent a congressional determination of policy factors involved in the difficult problem of national emergency strikes. This congressional determination of the policy factors is of course binding on the courts.The statute imposes upon the courts the duty of finding, upon the evidence adduced, whether a strike or lock-out meets the statutory conditions of breadth of involvement and peril to the national health or safety. We have accordingly reviewed the concurrent findings of the two lower courts. Petitioner here contests the findings that the continuation of the strike would imperil the national health and safety. The parties dispute the meaning of the statutory term "national health"; the Government insists that the term comprehends the country's general well-being, its economic health; petitioner urges that simply the physical health of the citizenry is meant. We need not resolve this question, for we think the judgment below is amply supported on the ground that the strike imperils the national safety.* Here we rely upon the evidence of the strike's effect on specific defense projects; we need not pass on the Government's contention that "national safety" in this context should be given a broader construction and application. The petitioner suggests that a selective reopening of some of the steel mills would suffice to fulfill specific defense needs. The statute was designed to provide a public remedy in times of emergency; we cannot construe it to require that the United States either formulate a reorganization of the affected industry to satisfy its defense needs without the complete reopening of closed facilities, or demonstrate in court the unfeasibility of such a reorganization. There is no room in the statute for this requirement which the petitioner seeks to impose on the Government.We are of opinion that the provision in question as applied here is not violative of the constitutional limitation prohibiting courts from exercising powers of a legislative or executive nature, powers not capable of being conferred upon a court exercising solely "the judicial power of the United States." Keller v. Potomac Elec. Power Co., ; Federal Radio Comm'n v. General Elec. Co., . Petitioner contends that the statute is constitutionally invalid because it does not set up any standard of lawful or unlawful conduct on the part of labor or management. But the statute does recognize certain rights in the public to have unimpeded for a time production in industries vital to the national health or safety. It makes the United States the guardian of these rights in litigation. Cf. United States v. American Bell Tel. Co., ; Sanitary District of Chicago v. United States, . The availability of relief, in the common judicial form of an injunction, depends on findings of fact, to be judicially made. Of the matters decided judicially, there is no review by other agencies of the Government. Cf. Gordon v. United States, 2 Wall. 561, . We conclude that the statute entrusts the courts only with the determination of a "case or controversy," on which the judicial power can operate, not containing any element capable of only legislative or executive determination. We do not find that the termination of the injunction after a specified time, or the machinery established in an attempt to obtain a peaceful settlement of the underlying dispute during the injunction's pendency, detracts from this conclusion.The result is that the judgment of the Court of Appeals for the Third Circuit, affirming that of the District Court, is affirmed. Our mandate shall issue forthwith. It is so ordered.MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN: In joining the Court's opinion we note our intention to file in due course an amplification of our views upon the issues involved which could not be prepared within the time limitations imposed by the necessity of a prompt adjudication in this case.[Footnote ] The evidence in this regard is reflected in the District Court's findings of fact Nos. 15 (a), (b), (c), and (d), as follows: "(a) Certain items of steel required in top priority military missile programs of the United States are not made by any mill now operating, nor available from any inventory or from imports. Any further delay in resumption of steel production would result in an irretrievable loss of time in the supply of weapons systems essential to the national defense plans of the United States and its allies. "(b) The planned program of space activities under the direction of the National Aeronautics and Space Administration has been delayed by the strike and will be further delayed if it is continued. Specifically, project MERCURY, the nation's manned satellite program, which has the highest national priority, has been delayed by reason of delay in construction of buildings essential to its operation. This program is important to the security of the nation. Other planned space programs will be delayed or threatened with delay by a continuation of the strike. "(c) Nuclear Submarines and the naval shipbuilding program other than submarines, including new construction, modernization, and conversion, have been affected by reason of the inability to secure boilers, compressors, and other component parts requiring steel. Products of the steel industry are indispensable to the manufacture of such items and delay in their production will irreparably injure national defense and imperil the national safety. "(d) Exported steel products are vital to the support of United States bases overseas and for the use of NATO allies and similar collective security groups. The steel strike, if permitted to continue, will seriously impair these programs, thus imperiling the national safety."Separate opinion of MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN, concurring in the opinion of the Court dated November 7, 1959. This action by the United States for an injunction under 208 of the Labor Management Relations Act, 1947 (61 Stat. 155, 29 U.S.C. 178) was commenced by the Attorney General at the direction of the President of the United States in the District Court for the Western District of Pennsylvania on October 20, 1959. The strike which was the concern of the action arose out of a labor dispute between petitioner, the collective bargaining agent of the workers, and the steel companies, and was nationwide in scope. The strike began on July 15, 1959, fifteen days after the contracts between the steel companies and petitioner expired. On October 9, 1959, the President created the Board of Inquiry provided by 206 and 207 of the Act to inquire into the issues involved in the dispute. The President deemed the strike to affect a "substantial part of ... an industry," and concluded that, if allowed to continue, it would imperil the national "health and safety." On October 19 the Board submitted its report, which concluded: "[T]he parties have failed to reach an agreement and we see no prospects for an early cessation of the strike. The Board cannot point to any single issue of any consequence whatsoever upon which the parties are in agreement." The President filed the report with the Federal Mediation and Conciliation Service and made its contents public, in accordance with 206, and ordered the Attorney General to commence this action, reiterating his former pronouncements that the continuance of the strike constituted a threat to the national health and safety.Pursuant to stipulations of the parties, the District Court heard the case on affidavits. On October 21 it granted the injunction. Its order was stayed by the Court of Appeals for the Third Circuit, pending that court's final determination of petitioner's appeal. On October 27 it affirmed the decision of the District Court (one judge dissenting) and granted an additional stay to enable petitioner to seek relief here. On October 28 this Court denied the motion of the United States to modify the stay. On October 30 we granted certiorari, set the argument down for November 2, and extended the stay pending final disposition. In a per curiam opinion on November 7, this Court affirmed the decision of the Court of Appeals, MR. JUSTICE DOUGLAS dissenting. We noted our intention to set forth at a later time the grounds for our agreement with the Court's disposition and not delay announcement of the result until such a statement could be prepared. The injunction was challenged on three grounds: (1) the lower courts were not entitled to find that the national emergency, upon which the District Court's jurisdiction is dependent under 208, existed; (2) even if the emergency existed, the District Court failed to exercise the discretion, claimed to be open to it under 208, whether or not to grant the relief sought by the United States; (3) even if the injunction was otherwise unassailable it should have been denied because 208 seeks to charge the District Courts with a duty outside the scope of "judicial Power" exercisable under Art. III, 2, of the Constitution.Section 208 provides that the District Court "shall have jurisdiction to enjoin" a "threatened or actual strike or lock-out" if the court finds that it "(i) affects an entire industry or a substantial part thereof engaged in ... commerce ... or engaged in the production of goods for commerce; and (ii) if permitted to occur or to continue, will imperil the national health or safety ... ." The District Court found, and it was not contested here, that the strike satisfied the first condition in that it affected a substantial portion of the steel industry. Petitioner urged, however, that the lower courts had no basis for concluding that it satisfied the second.In its finding of fact No. 15, the District Court described four instances of serious impediment to national defense programs as a result of existing and prospective procurement problems due to the strike. The programs affected included the missile, nuclear submarine and naval shipbuilding, and space programs. Each of these findings had, as the Court of Appeals found, ample support in the affidavits submitted by the United States. According to the affidavit of Thomas S. Gates, Jr., Acting Secretary of Defense, delays in delivery of materials critical to the creation of the Atlas, Titan and Polaris missile systems had become so severe that each additional day of the strike would result in an equal delay in project completion; and a "significant portion of the steel specified in the procurement contracts is of a composition not common to commercial usage nor available from existing civilian inventories by exercise of allocation or eminent domain powers of the Government... . [T]hese programs in many cases require special sizes and shapes, many of which can be fabricated only by firms having a long experience in their production and the necessary special facilities therefor... ."The affidavit of Hugh L. Dryden, Deputy Administrator of the Aeronautics and Space Administration, stated, in some detail, that space projects, including tracking centers, rocket engine test stands, and other critical facilities, were, at the time of the hearing in the District Court, already subjected to delays of as much as seven weeks, with longer delays anticipated from the continuation of the strike. The affidavit of A. R. Luedecke, the General Manager of the Atomic Energy Commission, stated that minor delays in projects had, at the time of its making, already been experienced in critical programs of the Atomic Energy Commission, and that if the strike should continue into 1960 "there would be an appreciable effect upon the weapons program."In view of such demonstrated unavailability of defense materials it is irrelevant that, as petitioner contended and the United States conceded, somewhat in excess of 15% of the steel industry remained unaffected by the stoppage, and that only about 1% of the gross steel product is ordinarily allocated to defense production.However, petitioner also contested the sufficiency of the affidavits on the ground that they did not present the facts giving rise to the asserted emergencies with sufficient particularity to justify the findings made. This objection raises an issue which was essentially for the trier of fact, and the two lower courts found the affidavits sufficient. It is not for the judiciary to canvass the competence of officers of cabinet rank, with responsibility only below that of the President for the matters to which they speak under oath, to express the opinions set forth in these affidavits. Findings based directly upon them surely cannot be said to be "clearly erroneous." Fed. Rules Civ. Proc., 52 (a).Moreover, under 208 the trier of these facts was called upon to make a judgment already twice made by the President of the United States: once when he convened the Board of Inquiry; and once when he directed the Attorney General to commence this action. His reasoned judgment was presumably based upon the facts we have summarized, and it is not for us to set aside findings consistent with them. The President's judgment is not controlling; 208 makes it the court's duty to "find" the requisite jurisdictional fact for itself. But in the discharge of its duty a District Court would disregard reason not to give due weight to determinations previously made by the President, who is, after all, the ultimate constitutional executive repository for assuring the safety of the Nation, and upon whose judgment the invocation of the emergency provisions depends.The petitioner next asserted that the findings made were insufficient as a matter of law to support the District Court's jurisdiction under 208. Conceding that peril to the national defense is peril to the national safety, it asserted that the peril to the national safety which is made an element of the court's jurisdiction by part (ii) of 208 (a) must result from the substantial character of the effect upon an industry required by part (i), and that if it does not so result a District Court is without power to enjoin the stoppage or any part of it. Alternatively, it urged that the jurisdiction which is conferred by the section is limited to relief against such part of the total stoppage as is found to be the cause in fact of the peril. Petitioner claimed that as a matter of fact the procurement embarrassments found by the courts below were the result not of the entire steel stoppage or even of a substantial part of it, but only of the closing of a "handful" of the hundreds of plants affected; and that therefore the entire industry-wide strike should not have been enjoined under either construction of 208 which it asserted.In the first place, the requisite fact was found against petitioner's contention. The Court of Appeals found that "[t]he steel industry is too vast and too complicated to be segmented" so as to alleviate the existing and foreseeable peril to the national defense by the mere reopening of a few plants. It expressly relied upon the affidavit of Dr. Raymond J. Saulnier, Chairman of the Council of Economic Advisers of the Federal Government, which was before both the lower courts. Dr. Saulnier stated that:"Steel is produced through closely interrelated processes that often cannot be separated technically or economically to allow production of items `needed' ... while omitting items `not needed.' ... `[I]n order to satisfy defense requirements alone from the standpoint of size, grade, and product, it would be necessary to reactivate 25 to 30 hot rolling mills together with supporting blast furnaces, and Bessemer, electric, open hearth and vacuum-melting furnaces. Additional facilities for pickling, coating, heat treating, cold finishing, shearing, cutting, testing, and the like would also be required. To reopen these plants for the production of steel products to meet only defense requirements would be totally impracticable. The problems of scheduling the limited tonnages involved, plus the cost and technical difficulty of start-ups and shutdowns would appear to be insurmountable.'" The lower courts had before them, as did this Court, the conflicting affidavit of Robert Nathan, the economist for the Steelworkers. But the trier of fact was not bound to prefer the arguments, however weighty, of petitioner's economist, however estimable, as against the views of the highest officers in the land and their economic advisers regarding the means for securing necessary defense materials.Nor was it a refutation of the finding of the Court of Appeals to suggest, as petitioner did here, that "needed" facilities might be opened for all purposes. The problem is self-evidently one of programming months in advance every specialized commodity needed for defense purposes, a project which itself would require months of effort and the delays such effort would entail. Other obvious difficulties are not less formidable. Upon what basis would the plants to be reopened be chosen, assuming the number of plants needed could be determined? According to what standard would the production of particular complexes of plants be regulated? What of problems of cost and overhead, and the cost of and time required for intra-company planning to determine the practicality of partially restricting the operation of giant complexes such as those of the major producers?No doubt a District Court is normally charged with the duty of independently shaping the details of a decree when sitting in equity in controversies that involve simple and relatively few factors - factors, that is, far less in number, less complicated and less interrelated than in the case before us. But a court is not qualified to devise schemes for the conduct of an industry so as to assure the securing of necessary defense materials. It is not competent to sit in judgment on the existing distribution of factors in the conduct of an integrated industry to ascertain whether it can be segmented with a view to its reorganization for the supply exclusively, or even primarily, of government-needed materials. Nor is it able to readjust or adequately to reweigh the forces of economic competition within the industry or to appraise the relevance of such forces in carrying out a defense program for the Government. Against all such assumptions of competence, the finding of the Court of Appeals was amply supported by the record.Even without such a finding, however, petitioner's contention would fail. There are controlling reasons for concluding that 208 neither imposes upon the United States, as a condition for securing an injunction, the burden of establishing that the peril shown proceeds from the unavailability of a "substantial number" of particular facilities, nor limits the scope of the court's injunctive process to such part of the total stoppage as appears to be the cause in fact of the peril.First, on its face 208 states two separate criteria, both of which must be satisfied before an injunction may issue against a strike, and it states no other relationship between them than that both must proceed from "such strike." No other relationship is suggested by the legislative history of these emergency provisions. There is, accordingly, no foundation for the drastic limitation on their scope which would be imposed if petitioner's contention had been adopted, that a District Court is without jurisdiction unless the abstract quantitatively substantial character of the effect of the stoppage is found to be the cause in fact of the peril.The legislative history confirms what the provisions themselves amply reveal, that this portion of the Taft-Hartley Act contains a dual purpose, on the one hand to alleviate, at least temporarily, a threat to the national health or safety; and on the other to promote settlement of the underlying dispute of industry-wide effect. The former purpose is to be accomplished by the injunction, and by whatever additional remedies the President may seek and the Congress grant in pursuance of the command of 210 of the Act that the matter be returned to Congress by the President with full report in the event of a failure of settlement within the injunction period. The latter purpose is to be accomplished by the command of 209 that the parties to the dispute "make every effort to adjust and settle their differences"; by the secret ballot of employees provided by 209 with reference to the last offer of the companies; and finally by further action by the President and Congress pursuant to 210. To hold, as petitioner alternatively urged, that a District Court may enjoin only that part of the total stoppage which is shown to be the cause in fact of the peril, would at best serve only the purpose of alleviating the peril, while stultifying the provisions designed to effect settlement of the underlying dispute.Second, the evidentiary burdens upon the Government which would have resulted from the adoption of either of the constructions urged by petitioner would tend to cripple the designed effectiveness of the Act. It is extremely doubtful whether in strikes of national proportion information would be available to the United States within a reasonable time to enable it to show that particular critical orders were placed with particular facilities no longer available; or whether the United States could, within such time, effect a theoretical reorganization of its procurement program so as to demonstrate to a court that it cannot successfully be conducted without the reopening of particular facilities.Finally, 208 is not to be construed narrowly, as if it were merely an exception to the policies which led to the restrictions on the use of injunctions in labor disputes embodied in the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C. 101-115. Totally different policies led to the enactment of the national emergency provisions of the 1947 Act. The legislative history of these provisions is replete with evidence of the concern of both the proponents and the opponents of the bill to deal effectively with large-scale work stoppages which endanger the public health or safety. To stop or prevent public injury, both management and labor were brought within the scope of the injunctive power, and both were subjected to the command to "make every effort to adjust and settle their differences ... ." 209. The preamble to the Act succinctly states this purpose: "Industrial strife which interferes with the normal flow of commerce ... can be avoided or substantially minimized if employers, employees, and labor organizations each ... above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest... ." Labor Management Relations Act, 1947, 1 (b), 61 Stat. 136, 29 U.S.C. 141 (b). The Norris-LaGuardia Act had limited the power of the federal courts to employ injunctions to affect labor disputes. The purpose of that Act was rigorously to define the conditions under which federal courts were empowered to issue injunctions in industrial controversies as between employers and employees, and to devise a safeguarding procedure for the intervention of the federal judiciary in the course of private litigation. It is not without significance that this Act was found not to deprive a federal court of jurisdiction to issue an injunction at the behest of the Government as industrial operator. United States v. United Mine Workers of America, . Moreover, as the preamble to the Norris-LaGuardia Act indicated, the formulation of policy of that statute was made in 1932 "under prevailing economic conditions." Congress at different times and for different purposes may gauge the demands of "prevailing economic conditions" differently or with reference to considerations outside merely "economic conditions." Here Congress has made the appraisal that the interests of both parties must be subordinated to the overriding interest of the Nation. The following observations of Mr. Justice Brandeis are apposite: "Because I have come to the conclusion that both the common law of a State and a statute of the United States declare the right of industrial combatants to push their struggle to the limits of the justification of self-interest, I do not wish to be understood as attaching any constitutional or moral sanction to that right. All rights are derived from the purposes of the society in which they exist; above all rights rises duty to the community. The conditions developed in industry may be such that those engaged in it cannot continue their struggle without danger to the community. But it is not for judges to determine whether such conditions exist, nor is it their function to set the limits of permissible contest and to declare the duties which the new situation demands. This is the function of the legislature which, while limiting individual and group rights of aggression and defense, may substitute processes of justice for the more primitive method of trial by combat." Duplex Printing Press Co. v. Deering, (dissent). These sections were designed to provide machinery for safeguarding the comprehensive interest of the community, and to promote the national policy of collective bargaining. They must be construed to give full effect to the protections they seek to afford.Petitioner's final contention with regard to the statutory standard of peril to the national safety appears to have been that the United States must resort to other modes of relief than this Act to meet the national peril created by a stoppage in a substantial part of an industry, before such peril can be said to exist or be threatened. In substance petitioner urged: (1) that the United States has powers under the Defense Production Act of 1950, 64 Stat. 798, 50 U.S.C. App. 2061, the exercise of which would, even during the course of these proceedings, have permitted it to alleviate the critical shortages which in fact resulted or threatened to result from the strike; and (2) that the United States failed to reveal to petitioner or to the courts what plants might have been reopened so as to remove the peril to the national defense. In the light of what we have already said, it is apparent that neither of these matters is relevant to the judicial determination required by 208. The remedy available to the United States under these provisions is independent of other powers possessed by it and is not encumbered by any burden upon it to seek to persuade or enable the defendants to effect a piecemeal alteration of their conduct to avoid the court's jurisdiction.Because the District Court's finding of peril to the national safety resulting from impediments to the programs for national defense was itself sufficient to satisfy the requirement of 208 (a) (ii), it is not necessary to determine whether perils to defense exhaust the scope of "safety" as used in this statute, or to consider its findings with regard to peril to the national health.Having decided that the strike was one which created a national emergency within the terms of the statute, the next question is whether, upon that finding alone, the "eighty-day" injunction for which the Government prayed should have issued, or whether the District Court was to exercise the conventional discretionary function of equity in balancing conveniences as a preliminary to issuing an injunction. The petitioner argued that under the Act a District Court has "discretion" whether to issue an "eighty-day" injunction, even though a national emergency be found. It argued that the district judge in this case did not consider that he had such "discretion." Alternatively, it argued that if the district judge did exercise "discretion" he abused it, for the broad injunctive relief he granted was not justifiable in this case. The contention was that the relief had the effect of hindering rather than promoting a voluntary settlement of the dispute, and of unnecessarily coercing hundreds of thousands of employees, when an injunction of only a small part of the strike, or other non-injunctive remedies, assertedly less drastic, were available, and would have equally well averted the threat to public safety. We do not think it necessary to embark upon the speculative consideration whether the district judge in fact made a discretionary determination, and, if he did, whether that determination was justifiable. We conclude that under the national emergency provisions of the Labor Management Relations Act it is not for judges to exercise conventional "discretion" to withhold an "eighty-day" injunction upon a balancing of conveniences."Discretionary" jurisdiction is exercised when a given injunctive remedy is not commanded as a matter of policy by Congress, but is, as a presupposition of judge-made law, left to judicial discretion. Such is not the case under this statute. The purpose of Congress expressed by the scheme of this statute precludes ordinary equitable discretion. In this respect we think the role of the District Courts under this statute is like the role of the Courts of Appeals under provisions for review by them of the orders of various administrative agencies, such as the National Labor Relations Board. 29 U.S.C. 160 (e). This Court has held that if the Board's findings are sustained, the remedy it thought appropriate must be enforced. Labor Board v. Bradford Dyeing Assn., . In the national emergency provisions of the Labor Management Relations Act, Congress has with particularity described the duration of the injunction to be granted and the nature of specific collateral administrative procedures which are to be set in motion upon its issuance. We think the conclusion compelling that Congress has thereby manifested that a District Court is not to indulge its own judgment regarding the wisdom of the relief Congress has designed. Congress expressed its own judgment and did not leave it to a District Court. The statute embodies a legislative determination that the particular relief described is appropriate to the emergency, when one is found to exist. Moreover, it is a primary purpose of the Act to stop the national emergency at least for eighty days, which would be defeated if a court were left with discretion to withhold an injunction and thereby permit continuation of an emergency it has found to exist. The hope is that within the period of the injunction voluntary settlement of the labor dispute will be reached, and to that end the statute compels bargaining between the parties during that time. If no voluntary settlement is concluded within the period of the injunction, the President is to report to Congress so that that body may further draw upon its constitutional legislative powers. How else can these specific directions be viewed but that the procedures provided are, in the view of Congress, the way to meet the emergencies which come within the statute? It is not for a court to negative the direction of Congress because of its own confident prophecy that the "eighty-day" injunction and the administrative procedures which follow upon it will not induce voluntary settlement of the dispute, or are too drastic a way of dealing with it.We are also persuaded by the fact that, before the statute is invoked, there must be a Presidential determination that the "eighty-day" injunction is the promising method for dealing with the emergency arising from the labor dispute. Section 206 provides that whenever the President is of the "opinion" that a strike or lockout will create a national emergency, he may appoint a board of inquiry, which shall submit to him a report containing the facts relating to the dispute and the positions of the parties to it. Upon receiving this report the President "may" direct the Attorney General to petition to enjoin the strike or lockout. It is undoubtedly one of the factors in the President's decision to direct the Attorney General to act that he considers such an injunction the best available course to relieve the emergency. Such a decision by the President to invoke the courts' jurisdiction to enjoin, involving, as it does, elements not susceptible of ordinary judicial proof nor within the general range of judicial experience, is not within the competent scope of the exercise of equitable "discretion." It may be that the assumptions on the basis of which Congress legislated were ill-founded or have been invalidated by experience. It may be that the considerations on the basis of which the President exercised his judgment in invoking the legislation will be found wanting by hindsight. These are not matters within the Court's concern. They are not relevant to the construction of 208 nor to its judicial enforcement. They certainly do not warrant the Judiciary's intrusion into the exercise by Congress and the President of their respective powers and responsibilities.The Hecht Co. v. Bowles, , heavily relied on, dealt with quite a different situation. There we held that the application of the Administrator of the Emergency Price Control Act of 1942 for an injunction of violations of that Act might be refused, in the exercise of the District Court's "discretion." But the scheme of the statute in Hecht v. Bowles was significantly different from that of the statute in this case. The Emergency Price Control Act of 1942 provided that the District Court should grant, at the Administrator's application, "a permanent or temporary injunction, restraining order, or other order." This Court emphasized the alternative character of this provision for an "other order" as imparting to the District Court discretion to withhold an injunction. 321 U.S., at 328. Under the Labor Management Relations Act the District Court is given jurisdiction to enjoin "and to make such other orders as may be appropriate." Congress thus provided a jurisdiction additional to the power to grant an injunction, not alternative to it: an "other order" may only supplement an injunction, it may not supplant it. Beyond this difference are the considerations that, under the Emergency Price Control Act of 1942, an injunction did not, as it does here, bring into play other carefully prescribed relief designed by Congress to alleviate the cause of the evil which it was the purpose of the statute to correct, nor was the duration of the injunction specifically limited as in this case. There was not, therefore, in Hecht v. Bowles the strong showing we have here that the Congress has resolved the question of the appropriate form of relief for the condition the statute is meant to correct, and the Court there concluded that the Administrator's application for judicial relief was an appeal to the ordinary equity jurisdiction and "discretion" of the District Court. In Hecht v. Bowles itself the Court recognized that there might be "other federal statutes governing administrative agencies which ... make it mandatory that those agencies take action when certain facts are shown to exist." 321 U.S., at 329. In essence this describes the situation under the Labor Management Relations Act.We come finally to the petitioner's contention that the grant to the District Courts by 208 (a) of the Labor Management Relations Act of jurisdiction to enjoin strikes such as this one is not a grant of "judicial Power" within the meaning of Art. III, 2, of the Constitution, and was therefore beyond the power of Congress to confer on the District Courts. What proceedings are "Cases" and "Controversies" and thus within the "judicial Power" is to be determined, at the least, by what proceedings were recognized at the time of the Constitution to be traditionally within the power of courts in the English and American judicial systems. Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power could come into play only in matters such as were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel of lawyers constituted "Cases" or "Controversies."Beginning at least as early as the sixteenth century the English courts have issued injunctions to abate public nuisances. Bond's Case, Moore 238 (1587); Jacob Hall's Case, 1 Ventris 169, 1 Mod. 76 (1671); The King v. Betterton, 5 Mod. 142 (1696); Baines v. Baker, 3 Atk. 750, 1 Amb. 158 (1752); Mayor of London v. Bolt, 5 Ves. 129 (1799). See also Eden, Injunctions (3d ed. 1852), Vol. II, 259; Blackstone, Commentaries (12th ed. 1795), Vol. IV, 166. This old, settled law was summarized in 1836 by the Lord Chancellor in the statement that "the Court of Exchequer, as well as this Court, acting as a court of equity, has a well established jurisdiction, upon a proceeding by way of information, to prevent nuisances to public harbours and public roads; and, in short, generally, to prevent public nuisances." Attorney-General v. Forbes, 2 M. & C. 123, 133. And two years later this Court recognized that "it is now settled, that a court of equity may take jurisdiction in cases of public nuisance, by an information filed by the attorney general." Georgetown v. Alexandria Canal Co., 12 Pet. 91, 98 (1838). See also Payne v. Hook, 7 Wall. 425, 430. Since that time this Court has impressively enforced the judicial power to abate public nuisances at the suit of the Government. In re Debs, . The crux of the Debs decision, that the Government may invoke judicial power to abate what is in effect a nuisance detrimental to the public interest, has remained intact. The heart of the case was approvingly cited by Mr. Justice Brandeis for the Court in Jacob Ruppert v. Caffey, . The scope of the injunction in the Debs case no doubt gave rise to the much-criticized extensive use of the injunction in ordinary employer-employee controversies. See Frankfurter and Greene, The Labor Injunction, pp. 18 et seq., 62-63, and 190, and for the terms of the decree see p. 253. Congress dealt with this proliferating and mischievous use of the labor injunction first through the Clayton Act and later through the Norris-LaGuardia Act. But even the severest critics of the Debs injunction have recognized that it was not a "new invention." See, id., p. 20. The judicial power to enjoin public nuisance at the instance of the Government has been a commonplace of jurisdiction in American judicial history. See, e. g., Attorney General v. Tudor Ice Co., 104 Mass. 239, 244 (1870); Village of Pine City v. Munch, 42 Minn. 342, 343, 44 N. W. 197 (1890); Board of Health v. Vink, 184 Mich. 688, 151 N. W. 672 (1915).The jurisdiction given the District Courts by 208 (a) of the Labor Management Relations Act to enjoin strikes creating a national emergency is a jurisdiction of a kind that has been traditionally exercised over public nuisances. The criterion for judicial action - peril to health or safety - is much like those upon which courts ordinarily have acted. Injunctive relief is traditionally given by equity upon a showing of such peril, and the court, as was traditional, acts at the request of the Executive. There can therefore be no doubt that, being thus akin to jurisdiction long historically exercised, the function to be performed by the District Courts under 208 (a) is within the "judicial Power" as contemplated by Art. III, 2, and is one which Congress may thus confer upon the courts. It surely does not touch the criteria for determining what is "judicial Power" that the injunction to be issued is not a permanent one, and may last no longer than eighty days. Given the power in Congress to vest in the federal courts the function to enjoin absolutely, it does not change the character of the power granted or undermine the professional competence of a court for its exercise that Congress has directed the relief to be tempered.These controlling constitutional considerations were sought to be diverted by the petitioner through abstract discussion about the necessity for Congress to define legal rights and duties. The power of Congress to deal with the public interest does not derive from, nor is it limited by, rights and duties as between parties. Congress may impose duties and enforce obligations to the Nation as a whole, as it has so obviously done in the Labor Management Relations Act. Such congressional power is not to be subordinated to a sterile juristic dialectic.[Footnote ] [REPORTER'S NOTE: This concurring opinion was filed December 7, 1959.]MR. JUSTICE DOUGLAS, dissenting. Great cases, like this one, are so charged with importance and feeling that, as Mr. Justice Holmes once remarked (Northern Securities Co. v. United States, , dissenting opinion), they are apt to generate bad law. We need, therefore, to stick closely to the letter of the law we enforce in order to keep this controversy from being shaped by the intense interest which the public rightfully has in it. The statute, which Congress had authority to pass, speaks in narrow and guarded terms. Section 206 of the Labor Management Relations Act, 1947, 61 Stat. 155, 29 U.S.C. 176, gives the President power to invoke the aid of a board of inquiry whenever he is of the opinion that a strike or lockout will imperil "the national health or safety." The President, in appointing the board of inquiry in this case, stated: "The strike has closed 85 percent of the nation's steel mills, shutting off practically all new supplies of steel. Over 500,000 steel workers and about 200,000 workers in related industries, together with their families, have been deprived of their usual means of support. Present steel supplies are low and the resumption of full-scale production will require some weeks. If production is not quickly resumed, severe effects upon the economy will endanger the economic health of the nation." It is plain that the President construed the word "health" to include the material well-being or public welfare of the Nation. When the Attorney General moved under 208 for an injunction in the District Court based on the opinion of the President and the conclusions of the board of inquiry, the union challenged the conclusion that "the national health or safety" was imperiled, as those words are used in the Act. The District Court found otherwise, stating five ways in which the strike would, if permitted to continue, imperil "the national health and safety": "(a) Certain items of steel required in top priority military missile programs of the United States are not made by any mill now operating, nor available from any inventory or from imports. Any further delay in resumption of steel production would result in an irretrievable loss of time in the supply of weapons systems essential to the national defense plans of the United States and its allies. "(b) The planned program of space activities under the direction of the National Aeronautics and Space Administration has been delayed by the strike and will be further delayed if it is continued. Specifically, project MERCURY, the nation's manned satellite program, which has the highest national priority, has been delayed by reason of delay in construction of buildings essential to its operation. This program is important to the security of the nation. Other planned space programs will be delayed or threatened with delay by a continuation of the strike. "(c) Nuclear Submarines and the naval shipbuilding program other than submarines, including new construction, modernization, and conversion, have been affected by reason of the inability to secure boilers, compressors, and other component parts requiring steel. Products of the steel industry are indispensable to the manufacture of such items and delay in their production will irreparably injure national defense and imperil the national safety. "(d) Exported steel products are vital to the support of the United States bases overseas and for the use of NATO allies and similar collective security groups. The steel strike, if permitted to continue, will seriously impair these programs, thus imperiling the national safety. "(e) A continuation of the strike will have the ultimate effect of adversely affecting millions of small business enterprises, almost all of which are directly or indirectly dependent upon steel products and most of which lack the resources to stock large inventories. In addition, it will have the effect of idling millions of workers and a large proportion of the facilities in industries dependent upon steel for their continued operation. Manufacturing industries directly dependent on steel mill products account for the employment of approximately 6,000,000 workers and normal annual wages and salaries totalling approximately $34,000,000,000. The products of these industries are valued at over $125,000,000,000. The national health will be imperiled if the strike is permitted to continue." Here again it is obvious that "national health" was construed to include the economic well-being or general welfare of the country. The Court of Appeals, in sustaining the injunction, was apparently of the same view. This seems to me to be an assumption that is unwarranted. I think that Congress, when it used the words "national health," was safeguarding the heating of homes, the delivery of milk, the protection of hospitals, and the like. The coal industry, closely identified with physical health of people, was the industry paramount in the debates on this measure. The coal industry is indeed cited on the Senate side in illustration of the need for the measure. S. Rep. No. 105, 80th Cong., 1st Sess., p. 14. There were those in the Senate who wanted to go so far as to outlaw strikes "in utilities and key Nation-wide industries" in order to protect the "public welfare." 93 Cong. Rec. A1035. Reference was, indeed, made to strikes in industries "like coal or steel" among those to be barred in "the public interest." Ibid. But the Senate did not go that far. The Senate bill reached only situations where there was peril to the "national health or safety."1 The House bill went further and included cases where there was peril to "the public health, safety, or interest."2 The Senate view prevailed, its version being adopted by the Conference.3 Some light is thrown on the wide difference between those two standards - if words are to be taken in their usual sense - by the following colloquy on the floor of the House:4 "Mr. KENNEDY. I believe that this country should certainly be in a position to combat a strike that affects the health and safety of the people. Therefore, I feel that the President must have the power to step in and stop those strikes. I am not in the position of opposing everything in this bill, but there are certain things in the bill that are wrong. I do not see how the President is going to have the power to stop strikes that will affect the health and safety of the people under the procedure listed in section 203. I think he must have that power. "I agree with you that any bill providing for an injunction should carefully consider the position of the striking union and make sure that their rights are protected. I think that in those cases Federal seizure until the dispute is settled would perhaps equalize the burden in the fairest possible manner. "Mr. OWENS. Will not the gentleman admit that we have a third word in there? It is `interest.' Could we not better use the word `welfare' instead of `interest,' because the word `welfare' occurs in the Constitution? It is just as broad as the word `interest' and more practical. "Mr. KENNEDY. The proposal embraces two separate things, health and safety. Because the remedy is drastic these two, in my opinion, are sufficient. I believe we should apply this remedy when the strike affects health or safety, but not the welfare and interest, which may mean anything. I would not interfere in an automobile strike because while perhaps that affects national interest, it does not affect health and safety. "Mr. OWENS. Does not the gentleman agree that `welfare' is the stronger and in line with the President's idea? "Mr. KENNEDY. No. Both `welfare' and `interest' are too indefinite. They could cover anything. I would not have the law apply except in cases where the strike affected health and safety." To read "welfare" into "health" gives that word such a vast reach that we should do it only under the most compelling necessity. We must be mindful of the history behind this legislation. In re Debs, , stands as ominous precedent for the easy use of the injunction in labor disputes. Free-wheeling Attorneys General used compelling public demands to obtain the help of courts in stilling the protests of labor. The revulsion against that practice was deep, and it led ultimately to the enactment of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. 101.5 We deal, of course, with a later Congress and an Act that by 208 (b) sets aside pro tanto the earlier Act. What Congress has created Congress can refashion. But we should hesitate to conclude that Congress meant to restore the use of the injunction in labor disputes whenever that broad and all-inclusive concept of the public welfare is impaired. The words used - "national health or safety" - are much narrower.Congress in the same Act knew how to speak when it spoke all-inclusively. The declaration of policy in the Labor Management Relations Act, 1947, speaks in broad terms. There is a declaration in 1 (b) that "neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest." 61 Stat. 136. The words "public ... interest" cover five titles of a far-reaching regulatory measure. Yet, when Congress came to define the jurisdiction of courts to intervene in strikes or lockouts, it spoke in more restricted terms, confining the judiciary to injunctions where there is impending peril to "the national health or safety." That narrow reading is, indeed, the only one that can be squared with Senator Taft's explanation of the use of an injunction in a strike situation. The strike, he said, must not only affect substantially "an entire industry," it must also "imperil the national health or safety, a condition which, it is anticipated, will not often occur."6 Yet, if "national health" includes the public welfare, injunctions will issue whenever any important industry is involved - whether it be steel or automobiles or coal or any group of industries where one union makes collective agreements for each of the component unions.It is a fact of which we can take judicial notice that steel production in its broadest reach may have a great impact on "national health." Machinery for processing food is needed; hospitals require surgical instruments; refrigeration is dependent on steel; and so on. Whether there are such shortages that imperil the "national health" is not shown by this record. But unless these particularized findings are made no case can be made out for founding the injunction on impending peril to the "national health."Nor can this broad injunction be sustained when it is rested solely on "national safety." The heart of the District Court's finding on this phase of the case is in its statement, "Certain items of steel required in top priority military missile programs of the United States are not made by any mill now operating, nor available from any inventory or from imports." Its other findings, already quoted, are also generalized. One cannot find in the record the type or quantity of the steel needed for defense, the name of the plants at which those products are produced, or the number or the names of the plants that will have to be reopened to fill the military need. We do know that for one and a half years ending in mid-1959 the shipments of steel for defense purposes accounted for less than 1% of all the shipments from all the steel mills. If 1,000 men, or 5,000 men, or 10,000 men can produce the critical amount the defense departments need, what authority is there to send 500,000 men back to work?There can be no doubt that the steel strike affects a "substantial" portion of the industry. Hence the first requirement of 208 (a) of the Act is satisfied.7 But we do know that only a fraction of the production of the struck industry goes to defense needs. We do not know, however, what fraction of the industry is necessary to produce that portion.8 Without that knowledge the District Court is incapable of fashioning a decree that will safeguard the national "safety," and still protect the rights of labor. Will a selective reopening of a few mills be adequate to meet defense needs? Which mills are these? Would it be practical to reopen them solely for defense purposes or would they have to be reopened for all civilian purposes as well? This seems to me to be the type of inquiry that is necessary before a decree can be entered that will safeguard the rights of all the parties. Section 208 (a) gives the District Court "jurisdiction to enjoin" the strike. There is no command that it shall enjoin 100% of the strikers when only 1% or 5% or 10% of them are engaged in acts that imperil the national "safety." We are dealing here with equity practice which has several hundred years of history behind it. We cannot lightly assume that Congress intended to make the federal judiciary a rubber stamp for the President. His findings are entitled to great weight, and I along with my Brethren accept them insofar as national "safety" is concerned. But it is the court, not the President, that is entrusted by Article III of the Constitution to shape and fashion the decree. If a federal court is to do it, it must act in its traditional manner, not as a military commander ordering people to work willy-nilly, nor as the President's Administrative Assistant. If the federal court is to be merely an automaton stamping the papers an Attorney General presents, the judicial function rises to no higher level than an IBM machine. Those who grew up with equity and know its great history should never tolerate that mechanical conception.An appeal to the equity jurisdiction of the Federal District Court is an appeal to its sound discretion. One historic feature of equity is the molding of decrees to fit the requirements of particular cases. See Brown v. Board of Education, . Equity decrees are not like the packaged goods this machine age produces. They are uniform only in that they seek to do equity in a given case.9 We should hesitate long before we conclude that Congress intended an injunction to issue against 500,000 workers when the inactivity of only 5,000 or 10,000 of the total imperils the national "safety." That would be too sharp a break with traditional equity practice for us to accept, unless the statutory mandate were clear and unambiguous. In situations no more clouded with doubt than the present one we have refused to read a statutory authority to issue a decree as a command to do it. Hecht Co. v. Bowles, . We there said, "A grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances." Id., at 329. And see Porter v. Warner Co., . The concurring opinion seeks to distinguish the Bowles case by laying great stress on the language of the statute there in issue to the effect that remedy by injunction "or other order" shall be granted, as distinguished from the use of the words "and to make such other orders" in 208 presently involved. In the Bowles case, however, we expressly declined to reach the question whether it was an abuse of discretion for the District Court to deny any relief, which is what it did in that case. Id., at 331. Moreover, the language of the statute in the Bowles case stated that an injunction or other order "shall be granted." We have here no such command, since 208 only provides that the District Court "shall have jurisdiction" to issue an injunction and other orders, as may be appropriate.Plainly there is authority in the District Court to protect the national "safety" by issuance of an injunction. But there is nothing in this record to sustain the conclusion that it is necessary to send 500,000 men back to work to give the defense department all the steel it needs for the Nation's "safety." If more men are sent back to work than are necessary to fill the defense needs of the country, other objectives are being served than those specified in the statute. What are these other objectives? What right do courts have in serving them? What authority do we have to place the great weight of this injunction on the backs of labor, when the great bulk of those affected by it have nothing to do with production of goods necessary for the Nation's "safety" in the military sense of that word? Labor injunctions were long used as cudgels - so broad in scope, so indiscriminate in application as once to be dubbed "a `scarecrow' device for curbing the economic pressure of the strike." See Frankfurter and Greene, The Labor Injunction (1930), pp. 107-108. The crop of evils that grew up during those regimes was different in some respects from those generated by this decree. The problems of vagueness, of uncertainty, of detailed judicial supervision that made police courts out of equity courts are not present here. But the same indiscriminate leveling of those within and those without the law is present. The injunction applies all the force of the Federal Government against men whose work has nothing to do with military defense as well as against those whose inactivity imperils the "national safety." It is not confined to the precise evil at which the present Act is aimed. Like the old labor injunctions that brought discredit to the federal judiciary this is a blanket injunction broad and all-inclusive, bringing within its scope men whose work has nothing whatsoever to do with the defense needs of the Nation. Being wide of the statutory standard it has, to use the words of Mr. Justice Brandeis, all the vices of the injunction which is used "to endow property with active, militant power which would make it dominant over men." See Truax v. Corrigan, , 368 (dissenting opinion). I cannot believe that Congress intended the federal courts to issue injunctions that bludgeon all workers merely because the labor of a few of them is needed in the interest of "national safety."Labor goes back to work under the present injunction on terms dictated by the industry, not on terms that have been found to be fair to labor and to industry. The steel industry exploits a tremendous advantage: "Our steel mills can produce in nine months all the metal the country can use in a year. That means a three-month strike costs the companies nothing in annual sales, and Uncle Sam picks up the tab for half of their out-of-pocket strike losses in the form of eventual tax adjustments. "The industry's final insurance against any acute financial pinch is the certainty that the President will have to step in with a national emergency injunction under the Taft-Hartley Act whenever steel stockpiles shrink to the danger level. This takes much of the bite out of the union's assault on the pocketbooks of the steel producers."10 This is a matter which equity should take into consideration. For a chancellor sits to do equity.Some years ago this Court struck down as unconstitutional state statutes making arbitration of labor disputes mandatory. Wolff Co. v. Industrial Court, ; Dorchy v. Kansas, . Those cases held that compulsory arbitration violated the Due Process Clause of the Fourteenth Amendment. One can only guess as to what institutions of adjudication we might have in this field today had that experiment been given a chance. The experiment, however, did not survive, and we have had little experience with it.11 Collective bargaining and mediation are today the norm, except for the period of time in which an injunction is in force. By the terms of 209, however, any injunction rendered may not continue longer than 80 days. The Act thus permits an injunction restricted in duration and narrowly confined by the requirements of the "national health or safety." When we uphold this injunction we force men back to work when their inactivity has no relation to "national health or safety." Those whose inactivity produces the peril to "national health or safety" which the Act guards against and only those should be covered in the injunction. The rest - who are the vast majority of the 500,000 on strike - should be treated as the employers are treated. They should continue under the regime of collective bargaining and mediation until they settle their differences or until Congress provides different or broader remedies. When we assume that all the steelworkers are producing steel for defense when in truth only a fraction of them are, we are fulfilling the dreams of those who sponsored the House bill and failed in their efforts to have Congress legislate so broadly.Though unlikely, it is possible that, had the District Court given the problem the consideration that it deserves, it could have found that the only way to remove the peril to national safety caused by the strike was to issue the broad, blanket injunction. It may be that it would be found impractical to send only part of the steelworkers back to work. The record in this case, however, is devoid of evidence to sustain that position.12 Furthermore, there is no indication that the District Court ever even considered such a possibility. I am unwilling to take judicial notice that it requires 100% of the workers to produce the steel needed for national defense when 99% of the output is devoted to purposes entirely unconnected with defense projects.The trier of fact under our federal judicial system is the District Court - not this Court nor the Court of Appeals. No finding was made by the District Court on the feasibility of a limited reopening of the steel mills and it is not, as the concurring opinion suggests, the province of the Court of Appeals to resolve conflicts in the evidence that was before the District Court.I would reverse this decree and remand the cause to the District Court for particularized findings13 as to how the steel strike imperils the "national health" and what plants need to be reopened to produce the small quantity of steel now needed for the national "safety."14 There would also be open for inquiry and findings any questions pertaining to "national health" in the narrow sense in which the Act uses those words.[Footnote *] [REPORTER'S NOTE: This dissenting opinion was filed November 7, 1959, and was revised later in the light of the concurring opinion. It is reported here as revised.]
1	This class action to effect pupil and faculty desegregation of the Fort Smith, Arkansas, high schools was brought several years ago by petitioners, two Negro students. The courts below refused to order respondents to transfer petitioners or to order immediate desegregation of the high schools and it was also held that petitioners had no standing to challenge racial faculty allocation. Since one of the students had graduated during the pendency of the suit, and the other had reached the 12th grade, two other Negro students, one in the 10th grade and the other in the 11th grade, moved in this Court to be added as party plaintiffs. Held: 1. The motion to add parties is granted. 2. The assignment of petitioners to a Negro high school on the basis of race is constitutionally prohibited, both for the reasons stated in Brown v. Board of Education, , and because petitioners are prevented from taking courses offered only at another school limited to white students. Pending immediate desegregation of the high schools according to a general plan, petitioners and those similarly situated shall be allowed immediate transfer to the high school from which they were excluded because of race and which has the more extensive curriculum. 3. Under two theories, the first of which plainly applies, students not yet in desegregated grades would have standing to challenge racial faculty allocation: Such allocation (a) of itself denies them equality of educational opportunity, and (b) renders inadequate an otherwise constitutional pupil desegregation plan soon to be applied to their grades. Certiorari granted; 345 F.2d 117, vacated and remanded.Jack Greenberg, James M. Nabrit III, Derrick A. Bell, Jr., and George Howard, Jr., for petitioners.John P. Woods for respondents.PER CURIAM.The petition for writ of certiorari to the Court of Appeals for the Eighth Circuit and the motion to add parties are granted. The judgment of that court is vacated and the case is remanded to the District Court for the Western District of Arkansas for further proceedings consistent with this opinion.1. This class action to desegregate the public high schools of Fort Smith, Arkansas, was commenced several years ago in the name of two Negro students. One of the students has since graduated and the other has entered the last high school grade. A motion to add parties is made on behalf of two additional Negro students. It is alleged therein, and not denied by respondents, that these students are in the 10th and 11th grades of high school and that they are members of the class represented, seeking the same relief for all the reasons offered by the original party plaintiffs. That motion is accordingly granted.2. The desegregation plan adopted in 1957 desegregates only one grade a year and the 10th, 11th and 12th high school grades are still segregated. The students who are petitioners here were assigned to a Negro high school on the basis of their race.* Those assignments are constitutionally forbidden not only for the reasons stated in Brown v. Board of Education, , but also because petitioners are thereby prevented from taking certain courses offered only at another high school limited to white students, see Missouri ex rel. Gaines v. Canada, ; Sipuel v. Board of Regents, ; Sweatt v. Painter, . Petitioners are entitled to immediate relief; we have emphasized that "[d]elays in desegregating school systems are no longer tolerable." Bradley v. School Board, ante, p. 103, at 105. Pending the desegregation of the public high schools of Fort Smith according to a general plan consistent with this principle, petitioners and those similarly situated shall be allowed immediate transfer to the high school that has the more extensive curriculum and from which they are excluded because of their race.3. From the outset of these proceedings petitioners have challenged an alleged policy of respondents of allocating faculty on a racial basis. The District Court took the view that petitioners were without standing to challenge the alleged policy, and accordingly refused to permit any inquiry into the matter. The Court of Appeals sustained this ruling, holding that only students presently in desegregated grades would have the standing to make that challenge. 345 F.2d 117, 125. We do not agree and remand for a prompt evidentiary hearing on this issue.Even the Court of Appeals' requirement for standing would be met on remand since petitioners' transfer to the white high school would desegregate their grades to that limited extent. Moreover, we reject the Court of Appeals' view of standing as being unduly restrictive. Two theories would give students not yet in desegregated grades sufficient interest to challenge racial allocation of faculty: (1) that racial allocation of faculty denies them equality of educational opportunity without regard to segregation of pupils; and (2) that it renders inadequate an otherwise constitutional pupil desegregation plan soon to be applied to their grades. See Bradley v. School Board, supra. Petitioners plainly had standing to challenge racial allocation of faculty under the first theory and thus they were improperly denied a hearing on this issue. Vacated and remanded.MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE WHITE and MR. JUSTICE FORTAS would set the case down for argument and plenary consideration.[Footnote *] The constitutional adequacy of the method chosen for assigning students to the schools for purpose of desegregating the lower grades is not before us, and the method contemplated for the high schools is not part of the record.
0	Respondent, while in custody on suspicion of sexual assault, was three times advised by the police of his Miranda rights. On each occasion, after signing and dating an acknowledgment that he had been given those rights, respondent indicated to the police that he would not make a written statement, but that he was willing to talk about the incident that led to his arrest. On the second and third such occasions, he added that he would not make a written statement outside the presence of counsel, and then orally admitted his involvement in the sexual assault. One of the police officers reduced to writing his recollection of respondent's last such statement, and the confession was introduced into evidence at respondent's trial. The trial court refused to suppress the confession, finding that respondent had fully understood the Miranda warnings and had voluntarily waived his right to counsel. Respondent's conviction of sexual assault, inter alia, was reversed by the Connecticut Supreme Court which held that his expressed desire for counsel before making a written statement constituted an invocation of his right to counsel for all purposes, that he had not waived that right by initiating further discussion with the police, and that therefore the incriminating statement was improperly admitted into evidence under Edwards v. Arizona, .Held: The Constitution did not require suppression of respondent's incriminating statement. Pp. 527-530. (a) Respondent's statements to the police made clear his willingness to talk about the sexual assault, and, there being no evidence that he was "threatened, tricked, or cajoled" into speaking to the police, the trial court properly found that his decision to do so constituted a voluntary waiver of his right to counsel. Although the Miranda rules were designed to protect defendants from being compelled by the government to make statements, they also give defendants the right to choose between speech and silence. Pp. 527-529. (b) Respondent's invocation of his right to counsel was limited by its terms to the making of written statements, and did not prohibit all further discussion with police. Requests for counsel must be given broad, all-inclusive effect only when the defendant's words, understood as ordinary people would understand them, are ambiguous. Here, respondent clearly and unequivocally expressed his willingness to speak to police about the sexual assault. Pp. 529-530. (c) The distinction drawn by respondent between oral and written statements did not indicate an understanding so incomplete as to render his limited invocation of the right to counsel effective for all purposes. To so hold would contravene his testimony, and the trial court's finding, that he fully understood his Miranda warnings, including the warning that anything he said to police could be used against him. A defendant's ignorance of the full consequences of his decisions does not vitiate their voluntariness. P. 530. 197 Conn. 50, 495 A. 2d 1044, reversed and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 530. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 536.Julia DiCocco Dewey, Assistant State's Attorney of Connecticut, argued the cause and filed a brief for petitioner.Charles A. Rothfeld argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Bryson.Robert L. Genuario argued the cause for respondent. With him on the brief was John F. Kavanewsky, Jr.* [Footnote *] Briefs of amici curiae urging reversal were filed for the State of Alaska et al. by David Crump and by the Attorneys General for their respective States as follows: Harold M. Brown of Alaska, Robert K. Corbin of Arizona, John Steven Clark of Arkansas, John K. Van de Kamp of California, Duane Woodard of Colorado, James T. Jones of Idaho, Linley E. Pearson of Indiana, David L. Armstrong of Kentucky, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi, William L. Webster of Missouri, Lacy H. Thornburg of North Carolina, LeRoy S. Zimmerman of Pennsylvania, T. Travis Medlock of South Carolina, Mark V. Meierhenry of South Dakota, Mary Sue Terry of Virginia, Kenneth O. Eikenberry of Washington, and Bronson C. La Follette of Wisconsin; and for the National District Attorneys Association by Robert S. Marsel, Jack E. Yelverton, and James P. Manak. CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Respondent William Barrett was convicted after a jury trial of sexual assault, unlawful restraint, and possession of a controlled substance. The Connecticut Supreme Court reversed the convictions. It held that incriminating statements made by Barrett should have been suppressed under our decision in Edwards v. Arizona, , because Barrett, though stating his willingness to speak to police, had indicated that he would not make a written statement outside the presence of counsel. 197 Conn. 50, 495 A. 2d 1044 (1985). We granted certiorari to consider the federal constitutional issues presented by this holding. . We reverse.In the early morning of October 24, 1980, Barrett was transported from New Haven, Connecticut, to Wallingford, where he was a suspect in a sexual assault that had occurred the previous evening. Upon arrival at the Wallingford police station, Officer Peter Cameron advised Barrett of his rights, and Barrett signed and dated an acknowledgment that he had received the warnings required by Miranda v. Arizona, . Barrett stated that "he would not give the police any written statements but he had no problem in talking about the incident." App. 12A.Approximately 30 minutes later, Barrett was questioned by Officer Cameron and Officer John Genovese. Before this questioning, he was again advised of his Miranda rights and signed a card acknowledging that he had been read the rights. Respondent stated that he understood his rights, and told the officers that he would not give a written statement unless his attorney was present but had "no problem" talking about the incident. Id., at 21A. Barrett then gave an oral statement admitting his involvement in the sexual assault.After discovering that a tape recorder used to preserve the statement had malfunctioned, the police conducted a second interview. For the third time, Barrett was advised of his Miranda rights by the Wallingford police, and once again stated that "he was willing to talk about [the incident] verbally but he did not want to put anything in writing until his attorney came." Id., at 44A. He then repeated to the police his confession regarding the previous evening's events.When the officers discovered that their tape recorder had again failed to record the statement, Officer Cameron reduced to writing his recollection of respondent's statement.The trial court, after a suppression hearing, held that the confession was admissible. It found that respondent not only indicated that he understood the warnings, but also "offered the statements that he did not need anything explained to him because he understood. So it was not merely a passive acquiescence ... ." Id., at 70A. Barrett's decision to make no written statement without his attorney "indicate[d] to the Court that he certainly understood from having his rights read to him that ... he was under no obligation to give any statement." Ibid. The court held that Barrett had voluntarily waived his right to counsel and thus allowed testimony at trial as to the content of Barrett's statement. Barrett took the stand in his own defense and testified that he had understood his rights as they were read to him. Id., at 130A. He was convicted and sentenced to a prison term of 9 to 18 years.The Connecticut Supreme Court reversed the conviction, holding that respondent had invoked his right to counsel by refusing to make written statements without the presence of his attorney. In the court's view, Barrett's expressed desire for counsel before making a written statement served as an invocation of the right for all purposes:"The fact that the defendant attached his request for counsel to the making of a written statement does not affect the outcome of ... our inquiry. No particular form of words has ever been required to trigger an individual's fifth amendment protections; nor have requests for counsel been narrowly construed. The defendant's refusal to give a written statement without his attorney present was a clear request for the assistance of counsel to protect his rights in his dealings with the police. Such a request continues to be constitutionally effective despite the defendant's willingness to make oral statements. We conclude, therefore, that the defendant did invoke his right to counsel under the fifth and fourteenth amendments." 197 Conn., at 57, 495 A. 2d, at 1049 (citations omitted). This invocation, the court believed, brought the case within what it called the "bright-line rule for establishing a waiver of this right." Id., at 58, 495 A. 2d, at 1049. That rule requires a finding that the suspect "(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked." Smith v. Illinois, (per curiam). See also Edwards, supra, at 485, 486, n. 9. Because Barrett had not initiated further discussions with police, the court found his statement improperly admitted.We think that the Connecticut Supreme Court erred in holding that the United States Constitution required suppression of Barrett's statement. Barrett made clear to police his willingness to talk about the crime for which he was a suspect. The trial court found that this decision was a voluntary waiver of his rights, and there is no evidence that Barrett was "threatened, tricked, or cajoled" into this waiver. Miranda, 384 U.S., at 476. The Connecticut Supreme Court nevertheless held as a matter of law1 that respondent's limited invocation of his right to counsel prohibited all interrogation absent initiation of further discussion by Barrett. Nothing in our decisions, however, or in the rationale of Miranda, requires authorities to ignore the tenor or sense of a defendant's response to these warnings.The fundamental purpose of the Court's decision in Miranda was "to assure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process." Id., at 469 (emphasis added). See also Moran v. Burbine, ("Miranda attempted to reconcile [competing] concerns by giving the defendant the power to exert some control over the course of the interrogation") (emphasis in original); Oregon v. Elstad, ("Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities") (emphasis added). To this end, the Miranda Court adopted prophylactic rules designed to insulate the exercise of Fifth Amendment rights from the government "compulsion, subtle or otherwise," that "operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." Miranda, supra, at 474. See also Smith, supra, at 98; Oregon v. Bradshaw, . One such rule requires that, once the accused "states that he wants an attorney, the interrogation must cease until an attorney is present." Miranda, supra, at 474. See also Edwards, 451 U.S., at 484. It remains clear, however, that this prohibition on further questioning - like other aspects of Miranda - is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose. See New York v. Quarles, . By prohibiting further interrogation after the invocation of these rights, we erect an auxiliary barrier against police coercion. But we know of no constitutional objective that would be served by suppression in this case. It is undisputed that Barrett desired the presence of counsel before making a written statement. Had the police obtained such a statement without meeting the waiver standards of Edwards, it would clearly be inadmissible.2 Barrett's limited requests for counsel, however, were accompanied by affirmative announcements of his willingness to speak with the authorities. The fact that officials took the opportunity provided by Barrett to obtain an oral confession is quite consistent with the Fifth Amendment. Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak.The Connecticut Supreme Court's decision to the contrary rested on the view that requests for counsel are not to be narrowly construed. 197 Conn., at 57, 495 A. 2d, at 1049. In support of this premise, respondent observes that our prior decisions have given broad effect to requests for counsel that were less than all-inclusive. See Bradshaw, supra, at 1041-1042 ("I do want an attorney before it goes very much further"); Edwards, supra, at 479 ("I want an attorney before making a deal"). We do not denigrate the "settled approach to questions of waiver [that] requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel," Michigan v. Jackson, , when we observe that this approach does little to aid respondent's cause. Interpretation is only required where the defendant's words, understood as ordinary people would understand them, are ambiguous. Here, however, Barrett made clear his intentions, and they were honored by police.3 To conclude that respondent invoked his right to counsel for all purposes requires not a broad interpretation of an ambiguous statement, but a disregard of the ordinary meaning of respondent's statement.We also reject the contention that the distinction drawn by Barrett between oral and written statements indicates an understanding of the consequences so incomplete that we should deem his limited invocation of the right to counsel effective for all purposes. This suggestion ignores Barrett's testimony - and the finding of the trial court not questioned by the Connecticut Supreme Court - that respondent fully understood the Miranda warnings. These warnings, of course, made clear to Barrett that "[i]f you talk to any police officers, anything you say can and will be used against you in court." App. at 48A. The fact that some might find Barrett's decision illogical4 is irrelevant, for we have never "embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness." Elstad, supra, at 316; Colorado v. Spring, post, p. 564.For the reasons stated, the judgment of the Connecticut Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
8	Mr. David Rein, Washington, D.C., Mr. Abraham J. Isserman, Los Angeles, Cal., for petitioner. Mr. Philip B. Perlman, Solicitor General, Washington, D.C., for respondent. [ Eisler v. United States ], 190] PER CURIAM. Petitioner's flight from the country after the grant of his petition for writ of certiorari, , and after the submission of his cause on the merits necessitates a decision as to the disposition now to be made of this case. Since the petitioner by his own volition may have rendered moot any judgment on the merits, we must, as a matter of our own practice, decide whether the submission should be set aside the the writ of certiorari dismissed or whether we should postpone review indefinitely by ordering the case removed from the docket, pending the return of the fugitive. Our practice, however, has been to order such cases to be removed from the docket. Smith v. United States, ; Bonahan v. State of Nebraska, . We adhere to those precedents. Accordingly after this term the cause will be left off the docket until a direction to the contrary shall issue. While Mr. Justice BURTON has not participated in the consideration of the merits of this case, he has participated in this procedural action based upon the memorandum filed by the United States of America calling the attention of the Court to the petitioner's flight from justice. Mr. Justice FRANKFURTER, with whom THE CHIEF JUSTICE joins, dissenting. The Government has brought to the Court's attention the circumstances which, in its view, have deprived the Court of jurisdiction to adjudicate this case. Accordingly the Government, by way of suggestion, has moved the Court for its dismissal. The motion should be granted for the following reasons: , 191] 1. Eisler was convicted for contempt of Congress by the United States District Court for the District of Columbia and invoked the jurisdiction of this Court by a petition for certiorari filed August 31, 1948, seeking the determination of questions some of which at least we regarded as important enough to warrant review. We accordingly granted his petition. . The case was argued March 28, 1949, and awaited only final disposition when, on May 6, 1949, the petitioner fled the United States. On May 13, the Attorney General requested the Secretary of State to make application through the usual diplomatic channels for the return of Eisler to the United States. That application was made, it was resisted by Eisler, and on May 27 the English court with final authority in such matters dismissed it on the ground that the crime for which Eisler's extradition was sought-the making of false statements in an application for an exit permit-was not extraditable. Since then Eisler has formally repudiated the jurisdiction of this country and has been elected to political office in a foreign country. The Attorney General has abandoned all attempts to secure his return. The upshot is that the abstract questions brought before the Court by Eisler are no longer attached to any litigant. No matter remains before us as to which we could issue process. 2. Very early after the Republic was founded it was confronted by an emergency in which its very existence was threatened. Serious questions touching the legal power of the President to deal with the crisis arose, and Washington sought answers to these legal questions from this Court. Even under circumstances so compelling the first Chief Justice and his Associates had to deny President Washington's request for aid because the Constitution gave this Court no power to give answers to legal questions as such but merely the authority to decide them when a litigant was before the Court. See 3 Johnston, Correspondence and Public Papers of John Jay 486 , 192] (1891); 10 Sparks, Writings of George Washington 542 (1840). That recognition of the limited power of this Court has been unquestioned ever since 1793. It has been the principle by which cases formally before the Court have again and again been dismissed as beyond its jurisdiction. The circumstances which have called forth application of the principle have varied greatly, but all the instances of its application illustrate and confirm the basic limitation under which this Court functions, namely, that it can entertain a case and decide it only if there is a litigant before it against whom the Court may enforce its decision. 3. If legal questions brought by a litigant are to remain here, the litigant must stay with them. When he withdraws himself from the power of the Court to enforce its judgment, he also withdraws the questions which he had submitted to the Court's adjudication. The questions brought by Eisler have evaporated so far as the Court's power to deal with them is concerned because the rights and obligations of a litigant no longer depend on their answer. The Court therefore lacks jurisdiction as it lacked jurisdiction to answer Washington's questions. Not to dismiss the case for want of jurisdiction can only mean that the Court has jurisdiction and therefore must retain the case. And this, in turn, can only mean that the Court's eventual action must await the pleasure of Eisler and of every future litigant who, having invoked the Court's jurisdiction, withdraws himself beyond the means of asserting it. Eisler's political affiliation, of course, does not distinguish him from other litigants. It was irrelevant when the Court took his case at a time that it had jurisdiction over him; it is equally irrelevant to recognition of the fact that Eisler has put himself definitively beyond the Court's process were it to decide against him. Since the Court is without power effectively to decide against him, it is without power to decide at all. In , 193] short, the Court no longer has jurisdiction, and it would be equally without jurisdiction if Eisler were the Bourbon pretender. 4. This case has nothing in common with instances cited as precedent for leaving it off the docket until a direction to the contrary shall issue. Smith v. United States, ; Bonahan v. State of Nebraska, . In those cases convicts had broken jail while their cases were pending in this Court and remained at large. As a matter of practical good sense, apparently upon informal suggestion, the Court suspended disposition of the cases until it should receive word from the sheriff who reported the escape that a recapture had been accomplished. Such jailbreaks, indeed, as often as not imply a merely temporary separation from confinement. But whatever may be thought of such a light-reined way of dealing with a jailbreak from our local jails, the situation presented by this case is totally different. Here we have the most formal kind of resistance to the jurisdiction of this Court. It has been adjudicated successful, and the Attorney General has had to yield. Since the Court's power to reassert jurisdiction has been incontestably denied, the motion should be granted. Mr. Justice MURPHY, dissenting. The petitioner is an alien, a Communist, and a fugitive from justice. He was convicted of willful default before a Committee of Congress. We decided to hear this case after determining that the issues he presented were of importance. We heard argument, read briefs, and all but made the announcement of our decision. Then the petitioner left the country. Efforts at extradition in Great Britain were unsuccessful. The petitioner is now beyond the territorial jurisdiction of this Court. It is argued that we are therefore without jurisdiction in the case. , 194] We can decide only cases or controversies. A moot case is not a 'ca e' within the meaning of Art. III. United States v. Evans, . But a moot case is one in which the particular controversy confronting the Court has ended. That is not true when a prisoner has simply escaped. We are not at liberty to assume that all escaped defendants will never return to the jurisdiction. And the importance of a criminal judgment is not limited to the imprisonment of the defendant. Thus an alien convicted of crime is excluded from admission to the United States, 8 U.S.C. 136(e), 8 U.S.C.A. 136(e). Since the question is one of jurisdiction, the unlikelihood of prejudice to this petitioner is irrelevant. Equally irrelevant on the question of mootness is President Washington's request for an advisory opinion. That the case may become moot if a defendant does not return does not distinguish it from any other case we decide. For subsequent events may render any decision nugatory. The petitioner having subjected himself to our jurisdiction by filing a petition for review, he cannot now revoke or nullify it and thus prevent an adjudication of the questions at issue merely by leaving the country and repudiating its authority. Thus I entirely agree with those of my brethren who believe we have jurisdiction. But the Court adopts another alternative. It exercises its discretion and refuses to decide the issue. It is clear, however, as Mr. Justice JACKSON points out, that it is the importance of the legal issues, not the parties, which bring the case to this Court. Those issues did not leave when Eisler did. They remain here for decision; they are of the utmost importance to the profession and to the public. Law is at its loftiest when it examines claimed injustice even at the instance of one to whom the public is bitterly hostile. We should be loath to shirk our obligations, whatever the creed of the particular petitioner. Our , 195] country takes pride in requiring of its institutions the examination and correction of alleged injustice whenever it occurs. We should not permit an affront of this sort to distract us from the performance of our constitutional duties. I dissent. Mr. Justice JACKSON, dissenting. I cannot agree that a decision of Eisler's case should be indefinitely deferred, awaiting what I do not know. The case is fully submitted and all that remains is for members of the Court to hand down their opinions and the decision. Eisler's presence for that would be neither necessary nor usual. The case has reached this stage at considerable detriment to the country, since this Court's grant of his petition for review was what delayed Eisler's commencement of sentence and afforded him opportunity to escape. If ever there were good reasons to grant him a review, they are equally good reasons for now deciding its issues. The Rules of this Court provide that we shall grant a petition for review here only where there are 'special and important reasons therefor.' They limit such cases to those that present 'a question of general importance * * * which has not been, but should be, settled by this court.' Rule 38, 28 U.S.C.A. (Emphasis supplied.) Under our practice, the grant of Eisler's petition meant that four Justices of ths Court, at least, were in agreement that the questions he raised were of this description. If they were then, they are still. His petition challenged the power of Congress and its investigating committees to hold, and to control the procedures of, investigations of this nature. These questions are recurring ones, certain to be repeated, for the grant of a review has cast doubt not only on the validity of Eisler's conviction but upon congressional procedures as well. , 196] No one can know what the law is until this case is decided or until someone can carry a like case through the two lower courts again to get the question here. Decision at this time is not urged as a favor to Eisler. If only his interests were involved, they might well be forfeited by his flight. But t is due to Congress and to future witnesses before its committees that we hand down a final decision. I therefore dissent from an expedient that lends added credence to Eisler's petition, which I think is without legal merit. I do not think we can run away from the case just because Eisler has. I should not want to be understood as approving the use that the Committee on Un-American Activities has frequently made of its power. But I think it would be an unwarranted act of judicial usurpation to strip Congress of its investigatory power, or to assume for the courts the function of supervising congressional committees. I should affirm the judgment below and leave the responsibility for the behavior of its committees squarely on the shoulders of Congress. 1
1	Petitioner sued in a Federal District Court for an injunction restraining enforcement of 352 (a) (1) of the Immigration and Nationality Act of 1952, which provides that a naturalized American citizen shall lose his nationality by "having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated ... ." A single-judge District Court refused petitioner's request to convene a three-judge court pursuant to 28 U.S.C. 2282 and dismissed the action. The Court of Appeals affirmed. Held: The constitutional question raised by petitioner's complaint was not plainly insubstantial; the single-judge District Court was powerless to dismiss the action on the merits; and a three-judge District Court should have been convened. Pp. 224-225. Judgment vacated and case remanded to District Court.Milton V. Freeman, Robert E. Herzstein, Horst Kurnick and Charles A. Reich for petitioner.Solicitor General Cox, Assistant Attorney General Miller, J. William Doolittle, Beatrice Rosenberg and J. F. Bishop for respondent.Jack Wasserman, David Carliner and Melvin L. Wulf for the American Civil Liberties Union, as amicus curiae.PER CURIAM.Trial of this case should have been before a three-judge District Court convened pursuant to 28 U.S.C. 2282, 2284, as petitioner requested. Her complaint explicitly sought an "injunction restraining the enforcement, operation or execution of ... [an] Act of Congress" - 352 (a) (1) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1484 (a) (1), which provides that a naturalized American citizen shall lose his nationality by "having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated ... ." The District Court concluded that petitioner's complaint presented no substantial constitutional issue and denied petitioner's motion to convene a three-judge court, relying on Lapides v. ClarkApp. D.C. 101, 176 F.2d 619 (1949), cert. denied, , in which the Court of Appeals for the District of Columbia Circuit had directly upheld the predecessor of a companion provision, 352 (a) (2) of the 1952 Act, 8 U.S.C. 1484 (a) (2), which deprived the naturalized American of his citizenship for residing for five years in any foreign state. The Court of Appeals' per curiam affirmance was also based on Lapides. Although no view is here intimated as to the merits of the constitutional question in the present case, we disagree with the conclusion of the courts below as to the substantiality of that issue. The intervening decisions of this Court in Perez v. Brownell, , and Trop v. Dulles, , reveal that the constitutional questions involving deprivation of nationality which were presented to the district judge were not plainly insubstantial. The single-judge District Court was therefore powerless to dismiss the action on the merits, and should have convened a three-judge court. Ex parte Northern Pac. R. Co., ; Stratton v. St. Louis S. W. R. Co., ; Ex parte Poresky, ; Idlewild Bon Voyage Liquor Corp. v. Epstein, . The judgments below are vacated and the case is remanded to the District Court for expeditious action consistent with the views here expressed. So ordered.
8	Appellee, who was not a student at Princeton University, was arrested for criminal trespass while distributing political materials on the University's campus without having first received permission from University officials, as required by a University regulation. Appellee was convicted in state court, but the New Jersey Supreme Court reversed, holding that his rights of speech and assembly under the State Constitution had been violated. The University, which had intervened in the State Supreme Court proceedings, filed a notice of appeal and a jurisdictional statement (joined by the State) in this Court, claiming that the judgment below deprived it of its rights under the First, Fifth, and Fourteenth Amendments of the Federal Constitution.Held: The appeal is dismissed for want of jurisdiction. (a) The State, in its brief, asked that the issues be decided but declined to take a position on the merits. Thus, if the State were the sole appellant, the appeal would be dismissed for want of a case or controversy. Accordingly, the State's presence in the case does not provide a sound jurisdictional basis for undertaking to decide the constitutional issues. (b) Nor does this Court have jurisdiction with respect to the University. While the case was pending on appeal, the University substantially amended its pertinent regulations, and the New Jersey Supreme Court did not pass on the validity of the revised regulations. The issue of the old regulation's validity is thus moot. Since the University is not prevented by the judgment below from having the validity of its new regulation ruled upon in another enforcement action, it is without standing to invoke this Court's jurisdiction. Appeal dismissed. Reported below: 84 N. J. 535, 423 A. 2d 615.Nicholas deB. Katzenbach argued the cause for appellants. With him on the briefs for appellant Princeton University were Thomas H. Wright, Jr., and Margaret B. G. Freiberg. James R. Zazzali, Attorney General, and Michael R. Cole, Assistant Attorney General, filed a brief for appellant State of New Jersey. Sanford Levinson argued the cause for appellee. With him on the brief were Jerrold Kamensky and Douglas Laycock.* [Footnote ] Briefs of amici curiae urging reversal were filed by R. Claire Guthrie and Christine Topping Milliken for the American Council on Education et al.; and by James Roosevelt, Jr., and Kay H. Hodge for the Massachusetts Institute of Technology. Matthew W. Finkin filed a brief for the American Association of University Professors as amicus curiae urging affirmance. Michael F. Spicer filed a brief for the Association of Independent Colleges and Universities in New Jersey as amicus curiae.PER CURIAM.IAppellee Schmid was arrested and charged with criminal trespass while distributing political materials on the campus of Princeton University. Schmid was not a student at Princeton University. Under University regulations then in effect, members of the public who wished to distribute materials on the campus were required to receive permission from University officials. Appellee was tried in Princeton Borough Municipal Court and on October 20, 1978, the trial judge issued an opinion convicting appellee and fining him $15 plus $10 costs. A de novo trial in the New Jersey Superior Court, Law Division, also resulted in conviction and the same fine was imposed. While appeal was pending to the Superior Court, Appellate Division, the case was certified for review by the New Jersey Supreme Court. That court invited the University to intervene and participate as a party, which it did.The New Jersey Supreme Court reversed the judgment of conviction, holding that appellee's rights of speech and assembly under the New Jersey Constitution had been violated. State v. Schmid, 84 N. J. 535, 423 A. 2d 615 (1980). The University filed a notice of appeal and jurisdictional statement. Its claim is that the judgment below deprives it of its rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution. The State of New Jersey did not file a separate jurisdictional statement but joined in that of the University. We postponed jurisdiction, , and now dismiss the appeal for want of jurisdiction.IIThe State of New Jersey has filed a brief in this Court asking us to review and decide the issues presented, but stating that it "deems it neither necessary nor appropriate to express an opinion on the merits of the respective positions of the private parties to this action." Brief for Appellant State of New Jersey 4. Had the University not been a party to this case in the New Jersey Supreme Court and had the State filed a jurisdictional statement urging reversal, the existence of a case or controversy - and of jurisdiction in this Court - could not be doubted. However, if the State were the sole appellant and its jurisdictional statement simply asked for review and declined to take a position on the merits, we would have dismissed the appeal for want of a case or controversy. We do not sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before us. See, e. g., Sierra Club v. Morton, ; Flast v. Cohen, . Thus the presence of the State of New Jersey in this case does not provide a sound jurisdictional basis for undertaking to decide difficult constitutional issues.Princeton defends its own standing and our jurisdiction on the grounds that it was a party to the case in the New Jersey Supreme Court, that it is bound by the judgment of that court with respect to the validity of its regulations, and that no other forum is available in which to challenge the judgment on federal constitutional grounds. We have determined, however, that we lack jurisdiction with respect to Princeton. The New Jersey Supreme Court noted that while the case was pending on appeal, the University substantially amended its regulations governing solicitation, distribution of literature, and similar activities on University property by those not affiliated with the University. 84 N. J., at 539-541, n. 2, 568, 423 A. 2d, at 617-618, n. 2, 633. The opinion below rested on the absence of a reasonable regulatory scheme governing expressional activity on University property, but the regulation at issue is no longer in force. Furthermore, the lower court's opinion was careful not to pass on the validity of the revised regulation under either the Federal or the State Constitution. Thus the issue of the validity of the old regulation is moot, for this case has "lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract questions of law." Hall v. Beals, (per curiam).Princeton does not claim standing on the ground that a private party may intervene and challenge the reversal of a criminal conviction of another party. See Linda R. S. v. Richard D., . Its alleged standing in this Court rests on its claim that the judgment below would be res judicata against it and that it has thus finally been deprived of the authority to enforce the regulation as it stood prior to amendment. Since the judgment, however, does not prevent it from having the validity of its new regulation ruled upon in another enforcement action, the University is without standing to invoke our jurisdiction. Accordingly, we dismiss the appeal. So ordered. JUSTICE BRENNAN took no part in the consideration or decision of this case.[Footnote *] That Princeton had standing in state court does not determine the power of this Court to consider the issue. Any determination of who has standing to assert constitutional rights is a federal question to be decided by the Court itself. Cramp v. Board of Public Instruction, ; United States v. Raines, , n. 3 (1960).
2	Petitioner Board of Education, rejecting recommendations of a committee of parents and school staff that it had appointed, ordered that certain books, which the Board characterized as "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy," be removed from high school and junior high school libraries. Respondent students then brought this action for declaratory and injunctive relief under 42 U.S.C. 1983 against the Board and petitioner Board members, alleging that the Board's actions had denied respondents their rights under the First Amendment. The District Court granted summary judgment in petitioners' favor. The Court of Appeals reversed and remanded for a trial on the merits of respondents' allegations.Held: The judgment is affirmed. 638 F.2d 404, affirmed. JUSTICE BRENNAN, joined by JUSTICE MARSHALL and JUSTICE STEVENS, concluded: 1. The First Amendment imposes limitations upon a local school board's exercise of its discretion to remove books from high school and junior high school libraries. Pp. 863-872. (a) Local school boards have broad discretion in the management of school affairs, but such discretion must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. Students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines School Dist., , and such rights may be directly and sharply implicated by the removal of books from the shelves of a school library. While students' First Amendment rights must be construed "in light of the special characteristics of the school environment," ibid., the special characteristics of the school library make that environment especially appropriate for the recognition of such rights. Pp. 863-869. (b) While petitioners might rightfully claim absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values in schools, petitioners' reliance upon that duty is misplaced where they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom into the school library and the regime of voluntary inquiry that there holds sway. P. 869. (c) Petitioners possess significant discretion to determine the content of their school libraries, but that discretion may not be exercised in a narrowly partisan or political manner. Whether petitioners' removal of books from the libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. Local school boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." West Virginia Board of Education v. Barnette, . If such an intention was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution. Pp. 869-872. 2. The evidentiary materials before the District Court must be construed favorably to respondents, given the procedural posture of this case. When so construed, those evidentiary materials raise a genuine issue of material fact as to whether petitioners exceeded constitutional limitations in exercising their discretion to remove the books at issue from their school libraries. Respondents' allegations, and some of the evidentiary materials before the District Court, also fail to exclude the possibility that petitioners' removal procedures were highly irregular and ad hoc - the antithesis of those procedures that might tend to allay suspicions regarding petitioners' motivation. Pp. 872-875. JUSTICE BLACKMUN concluded that a proper balance between the limited constitutional restriction imposed on school officials by the First Amendment and the broad state authority to regulate education, would be struck by holding that school officials may not remove books from school libraries for the purpose of restricting access to the political ideas or social perspectives discussed in the books, when that action is motivated simply by the officials' disapproval of the ideas involved. Pp. 879-882. JUSTICE WHITE, while agreeing that there should be a trial to resolve the factual issues, concluded that there is no necessity at this point for discussing the extent to which the First Amendment limits the school board's discretion to remove books from the school libraries. Pp. 883-884. BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which MARSHALL and STEVENS, JJ., joined and in all but Part II-A(1) of which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 875. WHITE, J., filed an opinion concurring in the judgment, post, p. 883. BURGER, C. J., filed a dissenting opinion, in which POWELL, REHNQUIST, and O'CONNOR, JJ., joined, post, p. 885. POWELL, J., filed a dissenting opinion, post, p. 893. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and POWELL, J., joined, post, p. 904. O'CONNOR, J., filed a dissenting opinion, post, p. 921.George W. Lipp, Jr., argued the cause for petitioners. With him on the briefs was David S. J. Rubin.Alan H. Levine argued the cause for respondents. With him on the brief were Steven R. Shapiro, Burt Neuborne, Alan Azzara, Bruce J. Ennis, Jr., and Charles S. Sims.* [Footnote *] Briefs of amici curiae urging reversal were filed by Bruce A. Taylor for Charles H. Keating, Jr., et al.; and by David Crump for the Legal Foundation of America.Briefs of amici curiae urging affirmance were filed by J. Albert Woll, Marsha Berzon, Laurence Gold, and George Kaufmann for the American Federation of Labor and Congress of Industrial Organizations et al.; by Don H. Reuben and James A. Klenk for the American Library Association et al.; by Harold P. Weinberger, Justin J. Finger, and Jeffrey P. Sinensky for the Anti-Defamation League of B'Nai B'Rith; by R. Bruce Rich for the Association of American Publishers, Inc., et al.; by Irwin Karp for the Authors League of America, Inc.; by Robert M. Weinberg, Michael H. Gottesman, and David Rubin for the National Education Association; by James R. Sandner, Jeffrey S. Karp, and Elizabeth A. Truly for New York State United Teachers; and by Jerry Simon Chasen and Marcia B. Paul for P. E. N. American Center.Briefs of amici curiae were filed by Nathan Z. Dershowitz and Edward Labaton for the American Jewish Congress et al.; and by Whitney North Seymour, Jr., and Martha L. Wolfe for the Long Island Library Association Coalition.JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which JUSTICE MARSHALL and JUSTICE STEVENS joined, and in which JUSTICE BLACKMUN joined except for Part II-A-(1).The principal question presented is whether the First Amendment1 imposes limitations upon the exercise by a local school board of its discretion to remove library books from high school and junior high school libraries.IPetitioners are the Board of Education of the Island Trees Union Free School District No. 26, in New York, and Richard Ahrens, Frank Martin, Christina Fasulo, Patrick Hughes, Richard Melchers, Richard Michaels, and Louis Nessim. When this suit was brought, Ahrens was the President of the Board, Martin was the Vice President, and the remaining petitioners were Board members. The Board is a state agency charged with responsibility for the operation and administration of the public schools within the Island Trees School District, including the Island Trees High School and Island Trees Memorial Junior High School. Respondents are Steven Pico, Jacqueline Gold, Glenn Yarris, Russell Rieger, and Paul Sochinski. When this suit was brought, Pico, Gold, Yarris, and Rieger were students at the High School, and Sochinski was a student at the Junior High School.In September 1975, petitioners Ahrens, Martin, and Hughes attended a conference sponsored by Parents of New York United (PONYU), a politically conservative organization of parents concerned about education legislation in the State of New York. At the conference these petitioners obtained lists of books described by Ahrens as "objectionable," App. 22, and by Martin as "improper fare for school students," id., at 101.2 It was later determined that the High School library contained nine of the listed books, and that another listed book was in the Junior High School library.3 In February 1976, at a meeting with the Superintendent of Schools and the Principals of the High School and Junior High School, the Board gave an "unofficial direction" that the listed books be removed from the library shelves and delivered to the Board's offices, so that Board members could read them.4 When this directive was carried out, it became publicized, and the Board issued a press release justifying its action. It characterized the removed books as "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy," and concluded that "[i]t is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers." 474 F. Supp. 387, 390 (EDNY 1979).A short time later, the Board appointed a "Book Review Committee," consisting of four Island Trees parents and four members of the Island Trees schools staff, to read the listed books and to recommend to the Board whether the books should be retained, taking into account the books' "educational suitability," "good taste," "relevance," and "appropriateness to age and grade level." In July, the Committee made its final report to the Board, recommending that five of the listed books be retained5 and that two others be removed from the school libraries.6 As for the remaining four books, the Committee could not agree on two,7 took no position on one,8 and recommended that the last book be made available to students only with parental approval.9 The Board substantially rejected the Committee's report later that month, deciding that only one book should be returned to the High School library without restriction,10 that another should be made available subject to parental approval,11 but that the remaining nine books should "be removed from elementary and secondary libraries and [from] use in the curriculum." Id., at 391.12 The Board gave no reasons for rejecting the recommendations of the Committee that it had appointed.Respondents reacted to the Board's decision by bringing the present action under 42 U.S.C. 1983 in the United States District Court for the Eastern District of New York. They alleged that petitioners had"ordered the removal of the books from school libraries and proscribed their use in the curriculum because particular passages in the books offended their social, political and moral tastes and not because the books, taken as a whole, were lacking in educational value." App. 4. Respondents claimed that the Board's actions denied them their rights under the First Amendment. They asked the court for a declaration that the Board's actions were unconstitutional, and for preliminary and permanent injunctive relief ordering the Board to return the nine books to the school libraries and to refrain from interfering with the use of those books in the schools' curricula. Id., at 5-6.The District Court granted summary judgment in favor of petitioners. 474 F. Supp. 387 (1979). In the court's view, "the parties substantially agree[d] about the motivation behind the board's actions," id., at 391 - namely, that"the board acted not on religious principles but on its conservative educational philosophy, and on its belief that the nine books removed from the school library and curriculum were irrelevant, vulgar, immoral, and in bad taste, making them educationally unsuitable for the district's junior and senior high school students." Id., at 392. With this factual premise as its background, the court rejected respondents' contention that their First Amendment rights had been infringed by the Board's actions. Noting that statutes, history, and precedent had vested local school boards with a broad discretion to formulate educational policy,13 the court concluded that it should not intervene in "`the daily operations of school systems'" unless "`basic constitutional values'" were "`sharply implicate[d],'"14 and determined that the conditions for such intervention did not exist in the present case. Acknowledging that the "removal [of the books] ... clearly was content-based," the court nevertheless found no constitutional violation of the requisite magnitude: "The board has restricted access only to certain books which the board believed to be, in essence, vulgar. While removal of such books from a school library may ... reflect a misguided educational philosophy, it does not constitute a sharp and direct infringement of any first amendment right." Id., at 397. A three-judge panel of the United States Court of Appeals for the Second Circuit reversed the judgment of the District Court, and remanded the action for a trial on respondents' allegations. 638 F.2d 404 (1980). Each judge on the panel filed a separate opinion. Delivering the judgment of the court, Judge Sifton treated the case as involving "an unusual and irregular intervention in the school libraries' operations by persons not routinely concerned with such matters," and concluded that petitioners were obliged to demonstrate a reasonable basis for interfering with respondents' First Amendment rights. Id., at 414-415. He then determined that, at least at the summary judgment stage, petitioners had not offered sufficient justification for their action,15 and concluded that respondents "should have ... been offered an opportunity to persuade a finder of fact that the ostensible justifications for [petitioners'] actions ... were simply pretexts for the suppression of free speech." Id., at 417.16 Judge Newman concurred in the result. Id., at 432-438. He viewed the case as turning on the contested factual issue of whether petitioners' removal decision was motivated by a justifiable desire to remove books containing vulgarities and sexual explicitness, or rather by an impermissible desire to suppress ideas. Id., at 436-437.17 We granted certiorari, .IIWe emphasize at the outset the limited nature of the substantive question presented by the case before us. Our precedents have long recognized certain constitutional limits upon the power of the State to control even the curriculum and classroom. For example, Meyer v. Nebraska, , struck down a state law that forbade the teaching of modern foreign languages in public and private schools, and Epperson v. Arkansas, , declared unconstitutional a state law that prohibited the teaching of the Darwinian theory of evolution in any state-supported school. But the current action does not require us to re-enter this difficult terrain, which Meyer and Epperson traversed without apparent misgiving. For as this case is presented to us, it does not involve textbooks, or indeed any books that Island Trees students would be required to read.18 Respondents do not seek in this Court to impose limitations upon their school Board's discretion to prescribe the curricula of the Island Trees schools. On the contrary, the only books at issue in this case are library books, books that by their nature are optional rather than required reading. Our adjudication of the present case thus does not intrude into the classroom, or into the compulsory courses taught there. Furthermore, even as to library books, the action before us does not involve the acquisition of books. Respondents have not sought to compel their school Board to add to the school library shelves any books that students desire to read. Rather, the only action challenged in this case is the removal from school libraries of books originally placed there by the school authorities, or without objection from them.The substantive question before us is still further constrained by the procedural posture of this case. Petitioners were granted summary judgment by the District Court. The Court of Appeals reversed that judgment, and remanded the action for a trial on the merits of respondents' claims. We can reverse the judgment of the Court of Appeals, and grant petitioners' request for reinstatement of the summary judgment in their favor, only if we determine that "there is no genuine issue as to any material fact," and that petitioners are "entitled to a judgment as a matter of law." Fed. Rule Civ. Proc. 56(c). In making our determination, any doubt as to the existence of a genuine issue of material fact must be resolved against petitioners as the moving party. Adickes v. S. H. Kress & Co., . Furthermore, "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [the affidavits, attached exhibits, and depositions submitted below] must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., .In sum, the issue before us in this case is a narrow one, both substantively and procedurally. It may best be restated as two distinct questions. First, does the First Amendment impose any limitations upon the discretion of petitioners to remove library books from the Island Trees High School and Junior High School? Second, if so, do the affidavits and other evidentiary materials before the District Court, construed most favorably to respondents, raise a genuine issue of fact whether petitioners might have exceeded those limitations? If we answer either of these questions in the negative, then we must reverse the judgment of the Court of Appeals and reinstate the District Court's summary judgment for petitioners. If we answer both questions in the affirmative, then we must affirm the judgment below. We examine these questions in turn.A(1)The Court has long recognized that local school boards have broad discretion in the management of school affairs. See, e. g., Meyer v. Nebraska, supra, at 402; Pierce v. Society of Sisters, . Epperson v. Arkansas, supra, at 104, reaffirmed that, by and large, "public education in our Nation is committed to the control of state and local authorities," and that federal courts should not ordinarily "intervene in the resolution of conflicts which arise in the daily operation of school systems." Tinker v. Des Moines School Dist., , noted that we have "repeatedly emphasized ... the comprehensive authority of the States and of school officials ... to prescribe and control conduct in the schools." We have also acknowledged that public schools are vitally important "in the preparation of individuals for participation as citizens," and as vehicles for "inculcating fundamental values necessary to the maintenance of a democratic political system." Ambach v. Norwick, . We are therefore in full agreement with petitioners that local school boards must be permitted "to establish and apply their curriculum in such a way as to transmit community values," and that "there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political." Brief for Petitioners 10.19 At the same time, however, we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. In West Virginia Board of Education v. Barnette, , we held that under the First Amendment a student in a public school could not be compelled to salute the flag. We reasoned:"Boards of Education ... have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." Id., at 637. Later cases have consistently followed this rationale. Thus Epperson v. Arkansas invalidated a State's anti-evolution statute as violative of the Establishment Clause, and reaffirmed the duty of federal courts "to apply the First Amendment's mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry." 393 U.S., at 104. And Tinker v. Des Moines School Dist., supra, held that a local school board had infringed the free speech rights of high school and junior high school students by suspending them from school for wearing black armbands in class as a protest against the Government's policy in Vietnam; we stated there that the "comprehensive authority ... of school officials" must be exercised "consistent with fundamental constitutional safeguards." 393 U.S., at 507. In sum, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," id., at 506, and therefore local school boards must discharge their "important, delicate, and highly discretionary functions" within the limits and constraints of the First Amendment.The nature of students' First Amendment rights in the context of this case requires further examination. West Virginia Board of Education v. Barnette, supra, is instructive. There the Court held that students' liberty of conscience could not be infringed in the name of "national unity" or "patriotism." 319 U.S., at 640-641. We explained that"the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." Id., at 642. Similarly, Tinker v. Des Moines School Dist., supra, held that students' rights to freedom of expression of their political views could not be abridged by reliance upon an "undifferentiated fear or apprehension of disturbance" arising from such expression:"Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, ; and our history says that it is this sort of hazardous freedom - this kind of openness - that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this ... often disputatious society." 393 U.S., at 508-509. In short, "First Amendment rights, applied in light of the special characteristics of the school environment, are available to ... students." Id., at 506.Of course, courts should not "intervene in the resolution of conflicts which arise in the daily operation of school systems" unless "basic constitutional values" are "directly and sharply implicate[d]" in those conflicts. Epperson v. Arkansas, 393 U.S., at 104. But we think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library. Our precedents have focused "not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas." First National Bank of Boston v. Bellotti, . And we have recognized that "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge." Griswold v. Connecticut, . In keeping with this principle, we have held that in a variety of contexts "the Constitution protects the right to receive information and ideas." Stanley v. Georgia, ; see Kleindienst v. Mandel, (citing cases). This right is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the sender's First Amendment right to send them: "The right of freedom of speech and press ... embraces the right to distribute literature, and necessarily protects the right to receive it." Martin v. Struthers, (citation omitted). "The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers." Lamont v. Postmaster General, (BRENNAN, J., concurring).More importantly, the right to receive ideas is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom. Madison admonished us:"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." 9 Writings of James Madison 103 (G. Hunt ed. 1910).20 As we recognized in Tinker, students too are beneficiaries of this principle: "In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate... . [S]chool officials cannot suppress `expressions of feeling with which they do not wish to contend.'" 393 U.S., at 511 (quoting Burnside v. Byars, 363 F.2d 744, 749 (CA5 1966)). In sum, just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members. Of course all First Amendment rights accorded to students must be construed "in light of the special characteristics of the school environment." Tinker v. Des Moines School Dist., 393 U.S., at 506. But the special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students.A school library, no less than any other public library, is "a place dedicated to quiet, to knowledge, and to beauty." Brown v. Louisiana, (opinion of Fortas, J.). Keyishian v. Board of Regents, , observed that "`students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.'"21 The school library is the principal locus of such freedom. As one District Court has well put it, in the school library"a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum... . Th[e] student learns that a library is a place to test or expand upon ideas presented to him, in or out of the classroom." Right to Read Defense Committee v. School Committee, 454 F. Supp. 703, 715 (Mass. 1978). Petitioners emphasize the inculcative function of secondary education, and argue that they must be allowed unfettered discretion to "transmit community values" through the Island Trees schools. But that sweeping claim overlooks the unique role of the school library. It appears from the record that use of the Island Trees school libraries is completely voluntary on the part of students. Their selection of books from these libraries is entirely a matter of free choice; the libraries afford them an opportunity at self-education and individual enrichment that is wholly optional. Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that petitioners' reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway.(2)In rejecting petitioners' claim of absolute discretion to remove books from their school libraries, we do not deny that local school boards have a substantial legitimate role to play in the determination of school library content. We thus must turn to the question of the extent to which the First Amendment places limitations upon the discretion of petitioners to remove books from their libraries. In this inquiry we enjoy the guidance of several precedents. West Virginia Board of Education v. Barnette stated: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ... . If there are any circumstances which permit an exception, they do not now occur to us." 319 U.S., at 642. This doctrine has been reaffirmed in later cases involving education. For example, Keyishian v. Board of Regents, supra, at 603, noted that "the First Amendment ... does not tolerate laws that cast a pall of orthodoxy over the classroom;" see also Epperson v. Arkansas, 393 U.S., at 104-105. And Mt. Healthy City Board of Ed. v. Doyle, , recognized First Amendment limitations upon the discretion of a local school board to refuse to rehire a nontenured teacher. The school board in Mt. Healthy had declined to renew respondent Doyle's employment contract, in part because he had exercised his First Amendment rights. Although Doyle did not have tenure, and thus "could have been discharged for no reason whatever," Mt. Healthy held that he could "nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms." Id., at 283-284. We held further that once Doyle had shown "that his conduct was constitutionally protected, and that this conduct was a `substantial factor' ... in the Board's decision not to rehire him," the school board was obliged to show "by a preponderance of the evidence that it would have reached the same decision as to respondent's reemployment even in the absence of the protected conduct." Id., at 287.With respect to the present case, the message of these precedents is clear. Petitioners rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration. Our Constitution does not permit the official suppression of ideas. Thus whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision,22 then petitioners have exercised their discretion in violation of the Constitution. To permit such intentions to control official actions would be to encourage the precise sort of officially prescribed orthodoxy unequivocally condemned in Barnette. On the other hand, respondents implicitly concede that an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because those books were pervasively vulgar. Tr. of Oral Arg. 36. And again, respondents concede that if it were demonstrated that the removal decision was based solely upon the "educational suitability" of the books in question, then their removal would be "perfectly permissible." Id., at 53. In other words, in respondents' view such motivations, if decisive of petitioners' actions, would not carry the danger of an official suppression of ideas, and thus would not violate respondents' First Amendment rights.As noted earlier, nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools. Because we are concerned in this case with the suppression of ideas, our holding today affects only the discretion to remove books. In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." West Virginia Board of Education v. Barnette, 319 U.S., at 642. Such purposes stand inescapably condemned by our precedents.BWe now turn to the remaining question presented by this case: Do the evidentiary materials that were before the District Court, when construed most favorably to respondents, raise a genuine issue of material fact whether petitioners exceeded constitutional limitations in exercising their discretion to remove the books from the school libraries? We conclude that the materials do raise such a question, which forecloses summary judgment in favor of petitioners.Before the District Court, respondents claimed that petitioners' decision to remove the books "was based on [their] personal values, morals and tastes." App. 139. Respondents also claimed that petitioners objected to the books in part because excerpts from them were "anti-American." Id., at 140. The accuracy of these claims was partially conceded by petitioners,23 and petitioners' own affidavits lent further support to respondents' claims.24 In addition, the record developed in the District Court shows that when petitioners offered their first public explanation for the removal of the books, they relied in part on the assertion that the removed books were "anti-American," and "offensive to ... Americans in general." 474 F. Supp., at 390.25 Furthermore, while the Book Review Committee appointed by petitioners was instructed to make its recommendations based upon criteria that appear on their face to be permissible - the books' "educational suitability," "good taste," "relevance," and "appropriateness to age and grade level," App. 67 - the Committee's recommendations that five of the books be retained and that only two be removed were essentially rejected by petitioners, without any statement of reasons for doing so. Finally, while petitioners originally defended their removal decision with the explanation that "these books contain obscenities, blasphemies, brutality, and perversion beyond description," 474 F. Supp., at 390, one of the books, A Reader for Writers, was removed even though it contained no such language. 638 F.2d, at 428, n. 6 (Mansfield, J., dissenting). Standing alone, this evidence respecting the substantive motivations behind petitioners' removal decision would not be decisive. This would be a very different case if the record demonstrated that petitioners had employed established, regular, and facially unbiased procedures for the review of controversial materials. But the actual record in the case before us suggests the exact opposite. Petitioners' removal procedures were vigorously challenged below by respondents, and the evidence on this issue sheds further light on the issue of petitioners' motivations.26 Respondents alleged that in making their removal decision petitioners ignored "the advice of literary experts," the views of "librarians and teachers within the Island Trees School system," the advice of the Superintendent of Schools, and the guidance of publications that rate books for junior and senior high school students. App. 128-129. Respondents also claimed that petitioners' decision was based solely on the fact that the books were named on the PONYU list received by petitioners Ahrens, Martin, and Hughes, and that petitioners "did not undertake an independent review of other books in the [school] libraries." Id., at 129-130. Evidence before the District Court lends support to these claims. The record shows that immediately after petitioners first ordered the books removed from the library shelves, the Superintendent of Schools reminded them that "we already have a policy ... designed expressly to handle such problems," and recommended that the removal decision be approached through this established channel. See n. 4, supra. But the Board disregarded the Superintendent's advice, and instead resorted to the extraordinary procedure of appointing a Book Review Committee - the advice of which was later rejected without explanation. In sum, respondents' allegations and some of the evidentiary materials presented below do not rule out the possibility that petitioners' removal procedures were highly irregular and ad hoc - the antithesis of those procedures that might tend to allay suspicions regarding petitioners' motivations.Construing these claims, affidavit statements, and other evidentiary materials in a manner favorable to respondents, we cannot conclude that petitioners were "entitled to a judgment as a matter of law." The evidence plainly does not foreclose the possibility that petitioners' decision to remove the books rested decisively upon disagreement with constitutionally protected ideas in those books, or upon a desire on petitioners' part to impose upon the students of the Island Trees High School and Junior High School a political orthodoxy to which petitioners and their constituents adhered. Of course, some of the evidence before the District Court might lead a finder of fact to accept petitioners' claim that their removal decision was based upon constitutionally valid concerns. But that evidence at most creates a genuine issue of material fact on the critical question of the credibility of petitioners' justifications for their decision: On that issue, it simply cannot be said that there is no genuine issue as to any material fact.The mandate shall issue forthwith. Affirmed.
1	Petitioner filed suit against respondents, a county school board (Board) and school officials, seeking damages for the sexual harassment of her daughter LaShonda by G. F., a fifth-grade classmate at a public elementary school. Among other things, petitioner alleged that respondents' deliberate indifference to G. F.'s persistent sexual advances toward LaShonda created an intimidating, hostile, offensive, and abusive school environment that violated Title IX of the Education Amendments of 1972, which, in relevant part, prohibits a student from being "excluded from participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any education program or activity receiving Federal financial assistance," 20 U. S. C. §1681(a). In granting respondents' motion to dismiss, the Federal District Court found that "student-on-student," or peer, harassment provides no ground for a Title IX private cause of action for damages. The en banc Eleventh Circuit affirmed.Held: 1. A private Title IX damages action may lie against a school board in cases of student-on-student harassment, but only where the funding recipient is deliberately indifferent to sexual harassment, of which the recipient has actual knowledge, and that harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school. Pp. 7-22. (a) An implied private right of action for money damages exists under Title IX, Franklin v. Gwinnett County Public Schools, 503 U. S. 60, where funding recipients had adequate notice that they could be liable for the conduct at issue, Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17, but a recipient is liable only for its own misconduct. Here, petitioner attempts to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools. The standard set out in Gebser v. Lago Vista Independent School Dist.,524 U. S. 274--that a school district may be liable for damages under Title IX where it is deliberately indifferent to known acts of teacher-student sexual harassment — also applies in cases of student-on-student harassment. Initially, in Gebser, this Court expressly rejected the use of agency principles to impute liability to the district for the acts of its teachers. Id., at 283. Additionally, Title IX's regulatory scheme has long provided funding recipients with notice that they may be liable for their failure to respond to non-agents' discriminatory acts. The common law has also put schools on notice that they may be held responsible under state law for failing to protect students from third parties' tortious acts. Of course, the harasser's identity is not irrelevant. Deliberate indifference makes sense as a direct liability theory only where the recipient has the authority to take remedial action, and Title IX's language itself narrowly circumscribes the circumstances giving rise to damages liability under the statute. If a recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference "subject[s]" its students to harassment, i.e., at a minimum, causes students to undergo harassment or makes them liable or vulnerable to it. Moreover, because the harassment must occur "under" "the operations of" a recipient, 20 U. S. C. §§1681(a), 1687, the harassment must take place in a context subject to the school district's control. These factors combine to limit a recipient's damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Where, as here, the misconduct occurs during school hours on school grounds, misconduct is taking place "under" an "operation" of the recipient. In these circumstances, the recipient retains substantial control over the context in which the harassment occurs. More importantly, in this setting, the Board exercises significant control over the harasser, for it has disciplinary authority over its students. At the time of the events here, a publication for school attorneys and administrators indicated that student-on-student harassment could trigger Title IX liability, and subsequent Department of Education policy guidelines provide that such harassment falls within Title IX's scope. Contrary to contentions of respondents and the dissent, school administrators will continue to enjoy the flexibility they require in making disciplinary decisions so long as funding recipients are deemed "deliberately indifferent" to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances. Pp. 8-18. (b) The requirement that recipients receive adequate notice of Title IX's proscriptions also bears on the proper definition of "discrimination" in a private damages action. Title IX proscribes sexual harassment with sufficient clarity to satisfy Pennhurst's notice requirement and serve as a basis for a damages action. See Gebser, supra, at 281. Having previously held that such harassment is "discrimination" in the school context under Title IX, this Court is constrained to conclude that student-on-student sexual harassment, if sufficiently severe, can likewise rise to the level of "discrimination" actionable under the statute. The statute's other prohibitions help to give content to "discrimination" in this context. The statute not only protects students from discrimination but also shields them from being "excluded from participation in" or "denied the benefits of" a recipient's "education program or activity" on the basis of gender. 20 U. S. C. §1681(a). It is not necessary to show an overt, physical deprivation of access to school resources to make out a damages claim for sexual harassment under Title IX, but a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victims are effectively denied equal access to an institution's resources and opportunities. Cf. Meritor Savings Bank, FSB v. Vinson,477 U. S. 57, 67. Whether gender-oriented conduct is harassment depends on a constellation of surrounding circumstances, expectations, and relationships, Oncale v. Sundowner Offshore Services, Inc.,523 U. S. 75, 82, including, but not limited to, the harasser's and victim's ages and the number of persons involved. Courts must also bear in mind that schoolchildren may regularly interact in ways that would be unacceptable among adults. Moreover, that the discrimination must occur "under any education program or activity" suggests that the behavior must be serious enough to have the systemic effect of denying the victim equal access to an education program or activity. A single instance of severe one-on-one peer harassment could, in theory, be said to have such a systemic effect, but it is unlikely that Congress would have thought so. The fact that it was a teacher who engaged in harassment in Franklin and Gebser is relevant. Peer harassment is less likely to satisfy the requirements that the misconduct breach Title IX's guarantee of equal access to educational benefits and have a systemic effect on a program or activity. Pp. 19-22. 2. Applying this standard to the facts at issue, the Eleventh Circuit erred in dismissing petitioner's complaint. This Court cannot say beyond doubt that she can prove no set of facts that would entitle her to relief. She alleges that LaShonda was the victim of repeated acts of harassment by G. F. over a 5-month period, and allegations support the conclusion that his misconduct was severe, pervasive, and objectively offensive. Moreover, the complaint alleges that multiple victims of G. F.'s misconduct sought an audience with the school principal and that the harassment had a concrete, negative effect on LaShonda's ability to receive an education. The complaint also suggests that petitioner may be able to show both actual knowledge and deliberate indifference on the part of the Board, which made no effort either to investigate or to put an end to the harassment. Pp. 22-23.120 F. 3d 1390, reversed and remanded. O'Connor, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined. AURELIA DAVIS, as next friend of LaSHONDA D.,PETITIONER v. MONROE COUNTY BOARDOF EDUCATION et al.on writ of certiorari to the united states court ofappeals for the eleventh circuit[May 24, 1999] Justice O'Connor delivered the opinion of the Court. Petitioner brought suit against the Monroe County Board of Education and other defendants, alleging that her fifth-grade daughter had been the victim of sexual harassment by another student in her class. Among petitioner's claims was a claim for monetary and injunctive relief under Title IX of the Education Amendments of 1972 (Title IX), 86 Stat. 373, as amended, 20 U. S. C. §1681 et seq. The District Court dismissed petitioner's Title IX claim on the ground that "student-on-student," or peer, harassment provides no ground for a private cause of action under the statute. The Court of Appeals for the Eleventh Circuit, sitting en banc, affirmed. We consider here whether a private damages action may lie against the school board in cases of student-on-student harassment. We conclude that it may, but only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities. Moreover, we conclude that such an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit.I Petitioner's Title IX claim was dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. Accordingly, in reviewing the legal sufficiency of petitioner's cause of action, "we must assume the truth of the material facts as alleged in the complaint." Summit Health, Ltd. v. Pinhas, 500 U. S. 322, 325 (1991).A Petitioner's minor daughter, LaShonda, was allegedly the victim of a prolonged pattern of sexual harassment by one of her fifth-grade classmates at Hubbard Elementary School, a public school in Monroe County, Georgia. According to petitioner's complaint, the harassment began in December 1992, when the classmate, G. F., attempted to touch LaShonda's breasts and genital area and made vulgar statements such as " `I want to get in bed with you' " and " `I want to feel your boobs.' " Complaint ¶ ;7. Similar conduct allegedly occurred on or about January 4 and January 20, 1993. Ibid. LaShonda reported each of these incidents to her mother and to her classroom teacher, Diane Fort. Ibid. Petitioner, in turn, also contacted Fort, who allegedly assured petitioner that the school principal, Bill Querry, had been informed of the incidents. Ibid. Petitioner contends that, notwithstanding these reports, no disciplinary action was taken against G. F. Id., ¶ ;16. G. F.'s conduct allegedly continued for many months. In early February, G. F. purportedly placed a door stop in his pants and proceeded to act in a sexually suggestive manner toward LaShonda during physical education class. Id., ¶ ;8. LaShonda reported G. F.'s behavior to her physical education teacher, Whit Maples. Ibid. Approximately one week later, G. F. again allegedly engaged in harassing behavior, this time while under the supervision of another classroom teacher, Joyce Pippin. Id., ¶ ;9. Again, LaShonda allegedly reported the incident to the teacher, and again petitioner contacted the teacher to follow up. Ibid. Petitioner alleges that G. F. once more directed sexually harassing conduct toward LaShonda in physical education class in early March, and that LaShonda reported the incident to both Maples and Pippen. Id., ¶ ;10. In mid-April 1993, G. F. allegedly rubbed his body against LaShonda in the school hallway in what LaShonda considered a sexually suggestive manner, and LaShonda again reported the matter to Fort. Id., ¶ ;11. The string of incidents finally ended in mid-May, when G. F. was charged with, and pleaded guilty to, sexual battery for his misconduct. Id., ¶ ;14. The complaint alleges that LaShonda had suffered during the months of harassment, however; specifically, her previously high grades allegedly dropped as she became unable to concentrate on her studies, id., ¶ ;15, and, in April 1993, her father discovered that she had written a suicide note, ibid. The complaint further alleges that, at one point, LaShonda told petitioner that she " `didn't know how much longer she could keep [G. F.] off her.' " Id., ¶ ;12. Nor was LaShonda G. F.'s only victim; it is alleged that other girls in the class fell prey to G. F.'s conduct. Id., ¶ ;16. At one point, in fact, a group composed of LaShonda and other female students tried to speak with Principal Querry about G. F.'s behavior. Id., ¶ ;10. According to the complaint, however, a teacher denied the students' request with the statement, " `If [Querry] wants you, he'll call you.' " Ibid. Petitioner alleges that no disciplinary action was taken in response to G. F.'s behavior toward LaShonda. Id., ¶ ;16. In addition to her conversations with Fort and Pippen, petitioner alleges that she spoke with Principal Querry in mid-May 1993. When petitioner inquired as to what action the school intended to take against G. F., Querry simply stated, " `I guess I'll have to threaten him a little bit harder.' " Id., ¶ ;12. Yet, petitioner alleges, at no point during the many months of his reported misconduct was G. F. disciplined for harassment. Id., ¶ ;16. Indeed, Querry allegedly asked petitioner why LaShonda " `was the only one complaining.' " Id., ¶ ;12. Nor, according to the complaint, was any effort made to separate G. F. and LaShonda. Id., ¶ ;16. On the contrary, notwithstanding LaShonda's frequent complaints, only after more than three months of reported harassment was she even permitted to change her classroom seat so that she was no longer seated next to G. F. Id., ¶ ;13. Moreover, petitioner alleges that, at the time of the events in question, the Monroe County Board of Education (Board) had not instructed its personnel on how to respond to peer sexual harassment and had not established a policy on the issue. Id., ¶ ;17.B On May 4, 1994, petitioner filed suit in the United States District Court for the Middle District of Georgia against the Board, Charles Dumas, the school district's superintendent, and Principal Querry. The complaint alleged that the Board is a recipient of federal funding for purposes of Title IX, that "[t]he persistent sexual advances and harassment by the student G. F. upon [LaShonda] interfered with her ability to attend school and perform her studies and activities," and that "[t]he deliberate indifference by Defendants to the unwelcome sexual advances of a student upon LaShonda created an intimidating, hostile, offensive and abus[ive] school environment in violation of Title IX." Id., ¶ ;¶ ;27, 28. The complaint sought compensatory and punitive damages, attorney's fees, and injunctive relief. Id., ¶ ;32. The defendants (all respondents here) moved to dismiss petitioner's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted, and the District Court granted respondents' motion. See 862 F. Supp. 363, 368 (MD Ga. 1994). With regard to petitioner's claims under Title IX, the court dismissed the claims against individual defendants on the ground that only federally funded educational institutions are subject to liability in private causes of action under Title IX. Id., at 367. As for the Board, the court concluded that Title IX provided no basis for liability absent an allegation "that the Board or an employee of the Board had any role in the harassment." Ibid. Petitioner appealed the District Court's decision dismissing her Title IX claim against the Board, and a panel of the Court of Appeals for the Eleventh Circuit reversed. 74 F.3d 1186, 1195 (1996). Borrowing from Title VII law, a majority of the panel determined that student-on-student harassment stated a cause of action against the Board under Title IX: "[W]e conclude that as Title VII encompasses a claim for damages due to a sexually hostile working environment created by co-workers and tolerated by the employer, Title IX encompasses a claim for damages due to a sexually hostile educational environment created by a fellow student or students when the supervising authorities knowingly fail to act to eliminate the harassment." Id., at 1193. The Eleventh Circuit panel recognized that petitioner sought to state a claim based on school "officials' failure to take action to stop the offensive acts of those over whom the officials exercised control," ibid., and the court concluded that petitioner had alleged facts sufficient to support a claim for hostile environment sexual harassment on this theory, id., at 1195. The Eleventh Circuit granted the Board's motion for rehearing en banc, 91 F. 3d 1418 (1996), and affirmed the District Court's decision to dismiss petitioner's Title IX claim against the Board, 120 F. 3d 1390 (1998). The en banc court relied, primarily, on the theory that Title IX was passed pursuant to Congress' legislative authority under the Constitution's Spending Clause, U. S. Const., Art I, §8, cl. 1, and that the statute therefore must provide potential recipients of federal education funding with "unambiguous notice of the conditions they are assuming when they accept" it. 120 F. 3d, at 1399. Title IX, the court reasoned, provides recipients with notice that they must stop their employees from engaging in discriminatory conduct, but the statute fails to provide a recipient with sufficient notice of a duty to prevent student-on-student harassment. Id., at 1401. Writing in dissent, four judges urged that the statute, by declining to identify the perpetrator of discrimination, encompasses misconduct by third parties: "The identity of the perpetrator is simply irrelevant under the language" of the statute. Id., at 1412 (Barkett, J., dissenting). The plain language, the dissenters reasoned, also provides recipients with sufficient notice that a failure to respond to student-on-student harassment could trigger liability for the district. Id., at 1414. We granted certiorari, 524 U. S. ____ (1998), in order to resolve a conflict in the Circuits over whether, and under what circumstances, a recipient of federal educational funds can be liable in a private damages action arising from student-on-student sexual harassment, compare 120 F. 3d 1390 (CA11 1998) (case below), and Rowinsky v. Bryan Independent School Dist., 80 F. 3d 1006, 1008 (CA5) (holding that private damages action for student-on-student harassment is available under Title IX only where funding recipient responds to these claims differently based on gender of victim), cert. denied, 519 U. S. 861 (1996), with Doe v. University of Illinois, 138 F. 3d 653, 668 (CA7 1998) (upholding private damages action under Title IX for funding recipient's inadequate response to known student-on-student harassment), cert. pending, No. 98-126, Brzonkala v. Virginia Polytechnic Institute and State University, 132 F. 3d 949, 960-961 (CA4 1997) (same), vacated and District Court decision affirmed en banc, 169 F. 3d 820 (CA4 1999) (not addressing merits of Title IX hostile environment sexual harassment claim and directing District Court to hold this claim in abeyance pending this Court's decision in the instant case), and Oona, R. S. v. McCaffrey, 143 F. 3d 473, 478 (CA9 1998) (rejecting qualified immunity claim and concluding that Title IX duty to respond to student-on-student harassment was clearly established by 1992-1993), cert. pending, No. 98-101. We now reverse.II Title IX provides, with certain exceptions not at issue here, that"[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U. S. C. §1681(a).Congress authorized an administrative enforcement scheme for Title IX. Federal departments or agencies with the authority to provide financial assistance are entrusted to promulgate rules, regulations, and orders to enforce the objectives of §1681, see §1682, and these departments or agencies may rely on "any ... means authorized by law," including the termination of funding, ibid., to give effect to the statute's restrictions. There is no dispute here that the Board is a recipient of federal education funding for Title IX purposes. 74 F. 3d, at 1189. Nor do respondents support an argument that student-on-student harassment cannot rise to the level of "discrimination" for purposes of Title IX. Rather, at issue here is the question whether a recipient of federal education funding may be liable for damages under Title IX under any circumstances for discrimination in the form of student-on-student sexual harassment.A Petitioner urges that Title IX's plain language compels the conclusion that the statute is intended to bar recipients of federal funding from permitting this form of discrimination in their programs or activities. She emphasizes that the statute prohibits a student from being "subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U. S. C. §1681 (emphasis supplied). It is Title IX's "unmistakable focus on the benefited class," Cannon v. University of Chicago, 441 U. S. 677, 691 (1979), rather than the perpetrator, that, in petitioner's view, compels the conclusion that the statute works to protect students from the discriminatory misconduct of their peers. Here, however, we are asked to do more than define the scope of the behavior that Title IX proscribes. We must determine whether a district's failure to respond to student-on-student harassment in its schools can support a private suit for money damages. See Gebser v. Lago Vista Independent School Dist., 524 U. S. 274, 283 (1998) ("In this case, ... petitioners seek not just to establish a Title IX violation but to recover damages ..."). This Court has indeed recognized an implied private right of action under Title IX, see Cannon v. University of Chicago, supra, and we have held that money damages are available in such suits, Franklin v. Gwinnett County Public Schools, 503 U. S. 60 (1992). Because we have repeatedly treated Title IX as legislation enacted pursuant to Congress' authority under the Spending Clause, however, see, e.g., Gebser v. Lago Vista Independent School Dist., supra, at 287 (Title IX); Franklin v. Gwinnett County Public Schools, supra, at 74-75, and n. 8 (Title IX); see also Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U. S. 582, 598-599 (1983) (opinion of White, J.) (Title VI), private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue. When Congress acts pursuant to its spending power, it generates legislation "much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions." Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981). In interpreting language in spending legislation, we thus "insis[t] that Congress speak with a clear voice," recognizing that "[t]here can, of course, be no knowing acceptance [of the terms of the putative contract] if a State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it." Ibid.; see also id., at 24-25. Invoking Pennhurst, respondents urge that Title IX provides no notice that recipients of federal educational funds could be liable in damages for harm arising from student-on-student harassment. Respondents contend, specifically, that the statute only proscribes misconduct by grant recipients, not third parties. Respondents argue, moreover, that it would be contrary to the very purpose of Spending Clause legislation to impose liability on a funding recipient for the misconduct of third parties, over whom recipients exercise little control. See also Rowinsky v. Bryan Independent School Dist., 80 F. 3d, at 1013. We agree with respondents that a recipient of federal funds may be liable in damages under Title IX only for its own misconduct. The recipient itself must "exclud[e] [persons] from participation in, ... den[y] [persons] the benefits of, or ... subjec[t] [persons] to discrimination under" its "program[s] or activit[ies]" in order to be liable under Title IX. The Government's enforcement power may only be exercised against the funding recipient, see §1682, and we have not extended damages liability under Title IX to parties outside the scope of this power. See National Collegiate Athletic Assn. v. Smith, 525 U. S. ___, ___, n. 5 (1999) (slip op., at 7, n. 5) (rejecting suggestion "that the private right of action available under ... §1681(a) is potentially broader than the Government's enforcement authority"); cf. Gebser v. Lago Vista Independent School Dist., supra, at 289 ("It would be unsound, we think, for a statute's express system of enforcement to require notice to the recipient and an opportunity to come into voluntary compliance while a judicially implied system of enforcement permits substantial liability without regard to the recipient's knowledge or its corrective actions upon receiving notice"). We disagree with respondents' assertion, however, that petitioner seeks to hold the Board liable for G. F.'s actions instead of its own. Here, petitioner attempts to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools. In Gebser, we concluded that a recipient of federal education funds may be liable in damages under Title IX where it is deliberately indifferent to known acts of sexual harassment by a teacher. In that case, a teacher had entered into a sexual relationship with an eighth grade student, and the student sought damages under Title IX for the teacher's misconduct. We recognized that the scope of liability in private damages actions under Title IX is circumscribed by Pennhurst's requirement that funding recipients have notice of their potential liability. 524 U. S., at 287-288. Invoking Pennhurst, Guardians Assn., and Franklin, in Gebser we once again required " that `the receiving entity of federal funds [have] notice that it will be liable for a monetary award' " before subjecting it to damages liability. Id., at 287 (quoting Franklin v. Gwinnett County Public Schools, 503 U. S., at 74). We also recognized, however, that this limitation on private damages actions is not a bar to liability where a funding recipient intentionally violates the statute. Id., at 74-75; see also Guardians Assn. v. Civil Serv. Comm'n of New York City, supra, at 597-598 (opinion of White, J.) (same with respect to Title VI). In particular, we concluded that Pennhurst does not bar a private damages action under Title IX where the funding recipient engages in intentional conduct that violates the clear terms of the statute. Accordingly, we rejected the use of agency principles to impute liability to the district for the misconduct of its teachers. 524 U. S., at 283. Likewise, we declined the invitation to impose liability under what amounted to a negligence standard — holding the district liable for its failure to react to teacher-student harassment of which it knew or should have known. Ibid. Rather, we concluded that the district could be liable for damages only where the district itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge. Id., at 290. Contrary to the dissent's suggestion, the misconduct of the teacher in Gebser was not "treated as the grant recipient's actions." Post, at 8. Liability arose, rather, from "an official decision by the recipient not to remedy the violation." Gebser v. Lago Vista Independent School Dist., supra, at 290. By employing the "deliberate indifference" theory already used to establish municipal liability under Rev. Stat. §1979, 42 U. S. C. §1983, see Gebser v. Lago Vista Independent School Dist., supra, at 290-291 (citing Board of Comm'rs of Bryan Cty. v. Brown, 520 U. S. 397 (1997), and Canton v. Harris, 489 U. S. 378 (1989)), we concluded in Gebser that recipients could be liable in damages only where their own deliberate indifference effectively "cause[d]" the discrimination, 524 U. S., at 291; see also Canton v. Harris, supra, at 385 (recognizing that a municipality will be liable under §1983 only if "the municipality itself causes the constitutional violation at issue" (emphasis in original)). The high standard imposed in Gebser sought to eliminate any "risk that the recipient would be liable in damages not for its own official decision but instead for its employees' independent actions." 524 U. S., at 290-291. Gebser thus established that a recipient intentionally violates Title IX, and is subject to a private damages action, where the recipient is deliberately indifferent to known acts of teacher-student discrimination. Indeed, whether viewed as "discrimination" or "subject[ing]" students to discrimination, Title IX "[u]nquestionably ... placed on [the Board] the duty not" to permit teacher-student harassment in its schools, Franklin v. Gwinnett County Public Schools, supra, at 75, and recipients violate Title IX's plain terms when they remain deliberately indifferent to this form of misconduct. We consider here whether the misconduct identified in Gebser--deliberate indifference to known acts of harassment — amounts to an intentional violation of Title IX, capable of supporting a private damages action, when the harasser is a student rather than a teacher. We conclude that, in certain limited circumstances, it does. As an initial matter, in Gebser we expressly rejected the use of agency principles in the Title IX context, noting the textual differences between Title IX and Title VII. 524 U. S., at 283; cf. Faragher v. Boca Raton, 524 U. S. 775, 791-792 (1998) (invoking agency principles on ground that definition of "employer" in Title VII includes agents of employer); Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 72 (1986) (same). Additionally, the regulatory scheme surrounding Title IX has long provided funding recipients with notice that they may be liable for their failure to respond to the discriminatory acts of certain non-agents. The Department of Education requires recipients to monitor third parties for discrimination in specified circumstances and to refrain from particular forms of interaction with outside entities that are known to discriminate. See, e.g., 34 CFR §§106.31(b)(6), 106.31(d), 106.37(a)(2), 106.38(a), 106.51(a)(3) (1998). The common law, too, has put schools on notice that they may be held responsible under state law for their failure to protect students from the tortious acts of third parties. See Restatement (Second) of Torts §320, and Comment a (1965). In fact, state courts routinely uphold claims alleging that schools have been negligent in failing to protect their students from the torts of their peers. See, e.g., Rupp v. Bryant, 417 So. 2d 658, 666-667 (Fla. 1982); Brahatcek v. Millard School Dist., 202 Neb. 86, 99-100, 273 N. W. 2d 680, 688 (1979); McLeod v. Grant County School Dist. No. 128, 42 Wash. 2d 316, 320, 255 P. 2d 360, 362-363 (1953). This is not to say that the identity of the harasser is irrelevant. On the contrary, both the "deliberate indifference" standard and the language of Title IX narrowly circumscribe the set of parties whose known acts of sexual harassment can trigger some duty to respond on the part of funding recipients. Deliberate indifference makes sense as a theory of direct liability under Title IX only where the funding recipient has some control over the alleged harassment. A recipient cannot be directly liable for its indifference where it lacks the authority to take remedial action. The language of Title IX itself — particularly when viewed in conjunction with the requirement that the recipient have notice of Title IX's prohibitions to be liable for damages — also cabins the range of misconduct that the statute proscribes. The statute's plain language confines the scope of prohibited conduct based on the recipient's degree of control over the harasser and the environment in which the harassment occurs. If a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference "subject[s]" its students to harassment. That is, the deliberate indifference must, at a minimum, "cause [students] to undergo" harassment or "make them liable or vulnerable" to it. Random House Dictionary of the English Language 1415 (1966) (defining "subject" as "to cause to undergo the action of something specified; expose" or "to make liable or vulnerable; lay open; expose"); Webster's Third New International Dictionary of the English Language 2275 (1961) (defining "subject" as "to cause to undergo or submit to: make submit to a particular action or effect: EXPOSE"). Moreover, because the harassment must occur "under" "the operations of" a funding recipient, see 20 U. S. C. §1681(a); §1687 (defining "program or activity"), the harassment must take place in a context subject to the school district's control, Webster's Third New International Dictionary of the English Language, supra, at 2487 (defining "under" as "in or into a condition of subjection, regulation, or subordination"; "subject to the guidance and instruction of"); Random House Dictionary of the English Language, supra, at 1543 (defining "under" as "subject to the authority, direction, or supervision of"). These factors combine to limit a recipient's damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Only then can the recipient be said to "expose" its students to harassment or "cause" them to undergo it "under" the recipient's programs. We agree with the dissent that these conditions are satisfied most easily and most obviously when the offender is an agent of the recipient. Post, at 8. We rejected the use of agency analysis in Gebser, however, and we disagree that the term "under" somehow imports an agency requirement into Title IX. See ibid. As noted above, the theory in Gebser was that the recipient was directly liable for its deliberate indifference to discrimination. See supra, at 11. Liability in that case did not arise because the "teacher's actions [were] treated" as those of the funding recipient, post, at 8; the district was directly liable for its own failure to act. The terms "subjec[t]" and "under" impose limits, but nothing about these terms requires the use of agency principles. Where, as here, the misconduct occurs during school hours and on school grounds — the bulk of G. F.'s misconduct, in fact, took place in the classroom — the misconduct is taking place "under" an "operation" of the funding recipient. See Doe v. University of Illinois, 138 F. 3d, at 661 (finding liability where school fails to respond properly to "student-on-student sexual harassment that takes place while the students are involved in school activities or otherwise under the supervision of school employees"). In these circumstances, the recipient retains substantial control over the context in which the harassment occurs. More importantly, however, in this setting the Board exercises significant control over the harasser. We have observed, for example, "that the nature of [the State's] power [over public schoolchildren] is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults." Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 655 (1995). On more than one occasion, this Court has recognized the importance of school officials' "comprehensive authority ... , consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 507 (1969); see also New Jersey v. T. L. O., 469 U. S. 325, 342, n. 9 (1985) ("The maintenance of discipline in the schools requires not only that students be restrained from assaulting one another, abusing drugs and alcohol, and committing other crimes, but also that students conform themselves to the standards of conduct prescribed by school authorities"); 74 F. 3d, at 1193 ("The ability to control and influence behavior exists to an even greater extent in the classroom than in the workplace ..."). The common law, too, recognizes the school's disciplinary authority. See Restatement (Second) of Torts §152 (1965). We thus conclude that recipients of federal funding may be liable for "subject[ing]" their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school's disciplinary authority. At the time of the events in question here, in fact, school attorneys and administrators were being told that student-on-student harassment could trigger liability under Title IX. In March 1993, even as the events alleged in petitioner's complaint were unfolding, the National School Boards Association issued a publication, for use by "school attorneys and administrators in understanding the law regarding sexual harassment of employees and students," which observed that districts could be liable under Title IX for their failure to respond to student-on-student harassment. See National School Boards Association Council of School Attorneys, Sexual Harassment in the Schools: Preventing and Defending Against Claims v, 45 (rev. ed.). Drawing on Equal Employment Opportunity Commission guidelines interpreting Title VII, the publication informed districts that, "if [a] school district has constructive notice of severe and repeated acts of sexual harassment by fellow students, that may form the basis of a [T]itle IX claim." Id., at 45. The publication even correctly anticipated a form of Gebser's actual notice requirement: "It is unlikely that courts will hold a school district liable for sexual harassment by students against students in the absence of actual knowledge or notice to district employees." Sexual Harassment in the Schools, supra, at 45. Although we do not rely on this publication as an "indicium of congressional notice," see post,at 19, we do find support for our reading of Title IX in the fact that school attorneys have rendered an analogous interpretation. Likewise, although they were promulgated too late to contribute to the Board's notice of proscribed misconduct, the Department of Education's Office for Civil Rights (OCR) has recently adopted policy guidelines providing that student-on-student harassment falls within the scope of Title IX's proscriptions. See Department of Education, Office of Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034, 12039-12040 (1997) (OCR Title IX Guidelines); see also Department of Education, Racial Incidents and Harassment Against Students at Educational Institutions, 59 Fed. Reg. 11448, 11449 (1994). We stress that our conclusion here — that recipients may be liable for their deliberate indifference to known acts of peer sexual harassment — does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action. We thus disagree with respondents' contention that, if Title IX provides a cause of action for student-on-student harassment, "nothing short of expulsion of every student accused of misconduct involving sexual overtones would protect school systems from liability or damages." See Brief for Respondents 16; see also 120 F. 3d, at 1402 (Tjoflat, J.) ("[A] school must immediately suspend or expel a student accused of sexual harassment"). Likewise, the dissent erroneously imagines that victims of peer harassment now have a Title IX right to make particular remedial demands. See post,at 34 (contemplating that victim could demand new desk assignment). In fact, as we have previously noted, courts should refrain from second guessing the disciplinary decisions made by school administrators. New Jersey v. T. L. O., supra, at 342-343, n. 9.School administrators will continue to enjoy the flexibility they require so long as funding recipients are deemed "deliberately indifferent" to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances. The dissent consistently mischaracterizes this standard to require funding recipients to "remedy" peer harassment, post at 5, 10, 16, 30, and to "ensur[e] that ... students conform their conduct to" certain rules, post at 13. Title IX imposes no such requirements. On the contrary, the recipient must merely respond to known peer harassment in a manner that is not clearly unreasonable. This is not a mere "reasonableness" standard, as the dissent assumes. See post,at 26. In an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not "clearly unreasonable" as a matter of law.Like the dissent, see post,at 11-15, we acknowledge that school administrators shoulder substantial burdens as a result of legal constraints on their disciplinary authority. To the extent that these restrictions arise from federal statutes, Congress can review these burdens with attention to the difficult position in which such legislation may place our Nation's schools. We believe, however, that the standard set out here is sufficiently flexible to account both for the level of disciplinary authority available to the school and for the potential liability arising from certain forms of disciplinary action. A university might not, for example, be expected to exercise the same degree of control over its students that a grade school would enjoy, see post, at 14, and it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims. While it remains to be seen whether petitioner can show that the Board's response to reports of G. F.'s misconduct was clearly unreasonable in light of the known circumstances, petitioner may be able to show that the Board "subject[ed]" LaShonda to discrimination by failing to respond in any way over a period of five months to complaints of G. F.'s in-school misconduct from LaShonda and other female students.B The requirement that recipients receive adequate notice of Title IX's proscriptions also bears on the proper definition of "discrimination" in the context of a private damages action. We have elsewhere concluded that sexual harassment is a form of discrimination for Title IX purposes and that Title IX proscribes harassment with sufficient clarity to satisfy Pennhurst's notice requirement and serve as a basis for a damages action. See Gebser v. Lago Vista Independent School Dist., 524 U. S., at 281; Franklin v.Gwinnett County Public Schools, supra, at 74-75. Having previously determined that "sexual harassment" is "discrimination" in the school context under Title IX, we are constrained to conclude that student-on-student sexual harassment, if sufficiently severe, can likewise rise to the level of discrimination actionable under the statute. See Bennett v. Kentucky Dept. of Ed., 470 U. S. 656, 665-666 (1985) (rejecting claim of insufficient notice under Pennhurst where statute made clear that there were some conditions placed on receipt of federal funds, and noting that Congress need not "specifically identif[y] and proscrib[e]" each condition in the legislation). The statute's other prohibitions, moreover, help give content to the term "discrimination" in this context. Students are not only protected from discrimination, but also specifically shielded from being "excluded from participation in" or "denied the benefits of" any "education program or activity receiving Federal financial assistance." §1681(a). The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender. We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school. The most obvious example of student-on-student sexual harassment capable of triggering a damages claim would thus involve the overt, physical deprivation of access to school resources. Consider, for example, a case in which male students physically threaten their female peers every day, successfully preventing the female students from using a particular school resource — an athletic field or a computer lab, for instance. District administrators are well aware of the daily ritual, yet they deliberately ignore requests for aid from the female students wishing to use the resource. The district's knowing refusal to take any action in response to such behavior would fly in the face of Title IX's core principles, and such deliberate indifference may appropriately be subject to claims for monetary damages. It is not necessary, however, to show physical exclusion to demonstrate that students have been deprived by the actions of another student or students of an educational opportunity on the basis of sex. Rather, a plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities. Cf. Meritor Savings Bank, FSB v. Vinson, 477 U. S., at 67. Whether gender-oriented conduct rises to the level of actionable "harassment" thus "depends on a constellation of surrounding circumstances, expectations, and relationships," Oncale v. Sundowner Offshore Services, Inc.,523 U. S. 75, 82 (1998), including, but not limited to, the ages of the harasser and the victim and the number of individuals involved, see OCR Title IX Guidelines 12041-12042. Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. See, e.g., Brief for National School Boards Association et al. as Amici Curiae 11 (describing "dizzying array of immature ... behaviors by students"). Indeed, at least early on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect. The dissent fails to appreciate these very real limitations on a funding recipient's liability under Title IX. It is not enough to show, as the dissent would read this opinion to provide, that a student has been "teased," post,at 25, or "called ... offensive names," post, at 27-28. Comparisons to an "overweight child who skips gym class because the other children tease her about her size," the student "who refuses to wear glasses to avoid the taunts of `four-eyes,'" and "the child who refuses to go to school because the school bully calls him a `scardy-cat' at recess," post, at 25, are inapposite and misleading. Nor do we contemplate, much less hold, that a mere "decline in grades is enough to survive" a motion to dismiss. Ibid. The drop-off in LaShonda's grades provides necessary evidence of a potential link between her education and G.F.'s misconduct, but petitioner's ability to state a cognizable claim here depends equally on the alleged persistence and severity of G.F.'s actions, not to mention the Board's alleged knowledge and deliberate indifference. We trust that the dissent's characterization of our opinion will not mislead courts to impose more sweeping liability than we read Title IX to require. Moreover, the provision that the discrimination occur "under any education program or activity" suggests that the behavior be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity. Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment. By limiting private damages actions to cases having a systemic effect on educational programs or activities, we reconcile the general principle that Title IX prohibits official indifference to known peer sexual harassment with the practical realities of responding to student behavior, realities that Congress could not have meant to be ignored. Even the dissent suggests that Title IX liability may arise when a funding recipient remains indifferent to severe, gender-based mistreatment played out on a "widespread level" among students. Post, at 31. The fact that it was a teacher who engaged in harassment in Franklin and Gebser is relevant. The relationship between the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title IX's guarantee of equal access to educational benefits and to have a systemic effect on a program or activity. Peer harassment, in particular, is less likely to satisfy these requirements than is teacher-student harassment.C Applying this standard to the facts at issue here, we conclude that the Eleventh Circuit erred in dismissing petitioner's complaint. Petitioner alleges that her daughter was the victim of repeated acts of sexual harassment by G. F. over a 5-month period, and there are allegations in support of the conclusion that G. F.'s misconduct was severe, pervasive, and objectively offensive. The harassment was not only verbal; it included numerous acts of objectively offensive touching, and, indeed, G. F. ultimately pleaded guilty to criminal sexual misconduct. Moreover, the complaint alleges that there were multiple victims who were sufficiently disturbed by G. F.'s misconduct to seek an audience with the school principal. Further, petitioner contends that the harassment had a concrete, negative effect on her daughter's ability to receive an education. The complaint also suggests that petitioner may be able to show both actual knowledge and deliberate indifference on the part of the Board, which made no effort whatsoever either to investigate or to put an end to the harassment. On this complaint, we cannot say "beyond doubt that [petitioner] can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U. S. 41, 45-46 (1957). See also Scheuer v. Rhodes, 416 U. S. 232, 236 (1974) ("The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims"). Accordingly, the judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered. AURELIA DAVIS, as next friend of LaSHONDA D.,PETITIONER v. MONROE COUNTY BOARDOF EDUCATION et al.on writ of certiorari to the united states court ofappeals for the eleventh circuit[May 24, 1999] Justice Kennedy, with whom The Chief Justice, Justice Scalia, and Justice thomas join, dissenting. The Court has held that Congress' power " `to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.' " South Dakota v. Dole, 483 U. S. 203, 207 (1987) (quoting United States v. Butler, 297 U. S. 1, 66 (1936)). As a consequence, Congress can use its Spending Clause power to pursue objectives outside of "Article I's `enumerated legislative fields' " by attaching conditions to the grant of federal funds. 483 U. S., at 207. So understood, the Spending Clause power, if wielded without concern for the federal balance, has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the federal government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach. A vital safeguard for the federal balance is the requirement that, when Congress imposes a condition on the States' receipt of federal funds, it "must do so unambiguously." Pennhurst State School and Hospital v. Halderman,451 U. S. 1, 17 (1981). As the majority acknowledges, "legislation enacted ... pursuant to the spending power is much in the nature of a contract," and the legitimacy of Congress' exercise of its power to condition funding on state compliance with congressional conditions "rests on whether the State voluntarily and knowingly accepts the terms of the `contract.' " Ibid.; see ante, at 9. " `There can, of course, be no knowing acceptance [of the terms of the putative contract] if a State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it.' " Ibid., (quoting Pennhurst, 451 U. S., at 17). Our insistence that "Congress speak with a clear voice" to "enable the States to exercise their choice knowingly, cognizant of the consequences of their participation," Pennhurst, supra, at 17, is not based upon some abstract notion of contractual fairness. Rather, it is a concrete safeguard in the federal system. Only if States receive clear notice of the conditions attached to federal funds can they guard against excessive federal intrusion into state affairs and be vigilant in policing the boundaries of federal power. Cf. Dole, supra, at 217 (O'Connor, J., dissenting) ("If the spending power is to be limited only by Congress' notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives `power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed' " (quoting Butler, supra, at 78)). While the majority purports to give effect to these principles, it eviscerates the clear-notice safeguard of our Spending Clause jurisprudence. Title IX provides:"No person in the United States shall, on the basis of sex be [1] excluded from participation in, [2] be denied the benefits of, or [3] be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U. S. C. §1681(a).To read the provision in full is to understand what is most striking about its application in this case: Title IX does not by its terms create any private cause of action whatsoever, much less define the circumstances in which money damages are available. The only private cause of action under Title IX is judicially implied. See Cannon v. University of Chicago,441 U. S. 677 (1979). The Court has encountered great difficulty in establishing standards for deciding when to imply a private cause of action under a federal statute which is silent on the subject. We try to conform the judicial judgment to the bounds of likely congressional purpose but, as we observed in Gebser v. Lago Vista Independent School District, 524 U. S. 274 (1998), defining the scope of the private cause of action in general, and the damages remedy in particular, "inherently entails a degree of speculation, since it addresses an issue on which Congress has not specifically spoken." Id., at 284. When the statute at issue is a Spending Clause statute, this element of speculation is particularly troubling because it is in significant tension with the requirement that Spending Clause legislation give States clear notice of the consequences of their acceptance of federal funds. Without doubt, the scope of potential damages liability is one of the most significant factors a school would consider in deciding whether to receive federal funds. Accordingly, the Court must not imply a private cause of action for damages unless it can demonstrate that the congressional purpose to create the implied cause of action is so manifest that the State, when accepting federal funds, had clear notice of the terms and conditions of its monetary liability. Today the Court fails to heed, or even to acknowledge, these limitations on its authority. The remedial scheme the majority creates today is neither sensible nor faithful to Spending Clause principles. In order to make its case for school liability for peer sexual harassment, the majority must establish that Congress gave grant recipients clear and unambiguous notice that they would be liable in money damages for failure to remedy discriminatory acts of their students. The majority must also demonstrate that the statute gives schools clear notice that one child's harassment of another constitutes "discrimination" on the basis of sex within the meaning of Title IX, and that — as applied to individual cases — the standard for liability will enable the grant recipient to distinguish inappropriate childish behavior from actionable gender discrimination. The majority does not carry these burdens. Instead, the majority finds statutory clarity where there is none and discovers indicia of congressional notice to the States in the most unusual of places. It treats the issue as one of routine statutory construction alone, and it errs even in this regard. In the end, the majority not only imposes on States liability that was unexpected and unknown, but the contours of which are, as yet, unknowable. The majority's opinion purports to be narrow, but the limiting principles it proposes are illusory. The fence the Court has built is made of little sticks, and it cannot contain the avalanche of liability now set in motion. The potential costs to our schools of today's decision are difficult to estimate, but they are so great that it is most unlikely Congress intended to inflict them. The only certainty flowing from the majority's decision is that scarce resources will be diverted from educating our children and that many school districts, desperate to avoid Title IX peer harassment suits, will adopt whatever federal code of student conduct and discipline the Department of Education sees fit to impose upon them. The Nation's schoolchildren will learn their first lessons about federalism in classrooms where the federal government is the ever-present regulator. The federal government will have insinuated itself not only into one of the most traditional areas of state concern but also into one of the most sensitive areas of human affairs. This federal control of the discipline of our Nation's schoolchildren is contrary to our traditions and inconsistent with the sensible administration of our schools. Because Title IX did not give States unambiguous notice that accepting federal funds meant ceding to the federal government power over the day-to-day disciplinary decisions of schools, I dissent.I I turn to the first difficulty with the majority's decision. Schools cannot be held liable for peer sexual harassment because Title IX does not give them clear and unambiguous notice that they are liable in damages for failure to remedy discrimination by their students. As the majority acknowledges, Title IX prohibits only misconduct by grant recipients, not misconduct by third parties. Ante, at 9. ("The recipient itself must `exclud[e] [persons] from participation in, ... den[y] [persons] the benefits of, or ... subjec[t] [persons] to discrimination under' its `program[s] or activit[ies]' in order to be liable under Title IX"). The majority argues, nevertheless, that a school "subjects" its students to discrimination when it knows of peer harassment and fails to respond appropriately. The mere word "subjected" cannot bear the weight of the majority's argument. As we recognized in Gebser, the primary purpose of Title IX is "to prevent recipients of federal financial assistance from using the funds in a discriminatory manner." Gebser, 524 U. S, at 292. We stressed in Gebser that Title IX prevents discrimination by the grant recipient, whether through the acts of its principals or the acts of its agents. See id., at 286 (explaining that Title IX and Title VI "operate in the same manner, conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds"). "[W]hereas Title VII aims centrally to compensate victims of discrimination, Title IX focuses more on `protecting' individuals from discriminatory practices carried out by recipients of federal funds." Id., at 287. The majority does not even attempt to argue that the school's failure to respond to discriminatory acts by students is discrimination by the school itself.A In any event, a plaintiff cannot establish a Title IX violation merely by showing that she has been "subjected to discrimination." Rather, a violation of Title IX occurs only if she is "subjected to discrimination under any education program or activity," 20 U. S. C. §1681(a), where "program or activity" is defined as "all of the operations of " a grant recipient, §1687. Under the most natural reading of this provision, discrimination violates Title IX only if it is authorized by, or in accordance with, the actions, activities, or policies of the grant recipient. See Webster's Third New International Dictionary 2487 (1981) (defining "under" as "required by: in accordance with: bound by"); American Heritage Dictionary of the English Language 1395 (1981) (defining "under" as "[w]ith the authorization of; attested by; by virtue of"); Random House Dictionary of the English Language 2059 (2d ed. 1987) (defining "under" as "authorized, warranted, or attested by" or "in accordance with"); see also 43 Words and Phrases 149-152 (1969) (citing cases defining "under" as, inter alia, " `in accordance with' and `in conformity with' "; "indicating subjection, guidance or control, and meaning `by authority of ' "; " `by,' `by reason of,' or `by means of ' "; and " `by virtue of,' which is defined ... as meaning `by or through the authority of ' "). This reading reflects the common legal usage of the term "under" to mean pursuant to, in accordance with, or as authorized or provided by. See, e.g., Gregory v. Ashcroft, 501 U. S. 452, 469 (1991) ("Because Congress nowhere stated its intent to impose mandatory obligations on the States under its §5 powers, we concluded that Congress did not do so."); ante, at 1, ("Among petitioner's claims was a claim for monetary and injunctive relief under Title IX ..."). It is not enough, then, that the alleged discrimination occur in a "context subject to the school district's control." Ante, at 14. The discrimination must actually be "controlled by"--that is, be authorized by, pursuant to, or in accordance with, school policy or actions. Compare ante, at 14 (defining "under" as "in or into a condition of subjection, regulation, or subordination") (emphasis added) with ibid.(defining "under" as "subject to the guidance and instruction of ") (emphasis added). This reading is also consistent with the fact that the discrimination must be "under" the "operations" of the grant recipient. The term "operations" connotes active and affirmative participation by the grant recipient, not merely inaction or failure to respond. See Black's Law Dictionary 1092 (6th ed. 1990) (defining "operation," as an "[e]xertion of power; the process of operating or mode of action; an effect brought about in accordance with a definite plan; action; activity"). Teacher sexual harassment of students is "under" the school's program or activity in certain circumstances, but student harassment is not. Our decision in Gebser recognizes that a grant recipient acts through its agents and thus, under certain limited circumstances, even tortious acts by teachers may be attributable to the school. We noted in Gebser that, in contrast to Title VII, which defines "employer" to include "any agent"--Title IX "contains no comparable reference to an educational institution's `agents,' and so does not expressly call for application of agency principles." Gebser, supra, at 283. As a result, we declined to incorporate principles of agency liability, such as a strict application of vicarious liability, that would conflict with the Spending Clause's notice requirement and Title IX's express administrative enforcement scheme. Contrary to the majority's assertion, ante, at 12, however, we did not abandon agency principles altogether. Rather, we sought in Gebser to identify those employee actions which could fairly be attributed to the grant recipient by superimposing additional Spending Clause notice requirements on traditional agency principles. Gebser, 524 U. S., 288 ("Title IX contains important clues that Congress did not intend to allow recovery in damages where liability rests solely on principles of vicarious liability or constructive notice"). We concluded that, because of the Spending Clause overlay, a teacher's discrimination is attributable to the school only when the school has actual notice of that harassment and is "deliberately indifferent." The agency relation between the school and the teacher is thus a necessary, but not sufficient, condition of school liability. Where the heightened requirements for attribution are met, the teacher's actions are treated as the grant recipient's actions. In those circumstances, then, the teacher sexual harassment is "under" the operations of the school. I am aware of no basis in law or fact, however, for attributing the acts of a student to a school and, indeed, the majority does not argue that the school acts through its students. See ante, at 10 ("We disagree with respondents' assertion ... that petitioner seeks to hold the Board liable for G. F.'s actions instead of its own. Here, petitioner attempts to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools"). Discrimination by one student against another therefore cannot be "under" the school's program or activity as required by Title IX. The majority's imposition of liability for peer sexual harassment thus conflicts with the most natural interpretation of Title IX's "under a program or activity" limitation on school liability. At the very least, my reading undermines the majority's implicit claim that Title IX imposes an unambiguous duty on schools to remedy peer sexual harassment.B1 Quite aside from its disregard for the "under the program" limitation of Title IX, the majority's reading is flawed in other respects. The majority contends that a school's deliberate indifference to known student harassment "subjects" students to harassment — that is, "cause[s] [students] to undergo" harassment. Ante, at 13. The majority recognizes, however, that there must be some limitation on the third-party conduct that the school can fairly be said to cause. In search of a principle, the majority asserts, without much elaboration, that one causes discrimination when one has some "degree of control" over the discrimination and fails to remedy it. Ante, at 13. To state the majority's test is to understand that it is little more than an exercise in arbitrary line-drawing. The majority does not explain how we are to determine what degree of control is sufficient — or, more to the point, how the States were on clear notice that the Court would draw the line to encompass students. Agency principles usually mark the outer limits of an entity's liability for the actions of an individual over whom it exercises some control. Cf. Faragher v. Boca Raton, 524 U. S. 775 (1998) (applying agency principles to delimit Title VII employer liability); Burlington Industries, Inc. v. Ellerth, (1998) (same). The Court, for example, has not recognized liability for the actions of nonagents under Title VII, which contains an express private right of action and is not Spending Clause legislation. The majority nonetheless rejects out-of-hand an agency limitation on Title IX liability based on its cramped reading of Gebser. As noted above, the Gebser Court rejected the wholesale importation of federal common-law agency principles into Title IX to expand liability beyond that which the statute clearly prohibited; it did not, as the majority would have it, reject the proposition that school liability is limited by agency principles. Indeed, to suppose that Congress would have rejected well-established principles of agency law in favor of the majority's vague control principle turns Gebser on its head. Gebser contemplated that Title IX liability would be less expansive than Title VII liability, not more so. See Gebser, supra, at 286-287. One would think that the majority would at least limit its control principle by reference to the long-established practice of the Department of Education (DOE). For the first 25 years after the passage of Title IX — until 1997 — the DOE's regulations drew the liability line, at its most expansive, to encompass only those to whom the school delegated its official functions. See 34 CFR §106.51(a)(3) (1998) ("A [grant] recipient shall not enter into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination prohibited by this subpart, including relationships with employment and referral agencies, with labor unions, and with organizations providing or administering fringe benefits to employees of the recipient"). It is perhaps reasonable to suppose that grant recipients were on notice that they could not hire third parties to do for them what they could not do themselves. For example, it might be reasonable to find that a school was on notice that it could not circumvent Title IX's core prohibitions by, for example, delegating its admissions decisions to an outside screening committee it knew would discriminate on the basis of gender. Given the state of gender discrimination law at the time Title IX was passed, however, there is no basis to think that Congress contemplated liability for a school's failure to remedy discriminatory acts by students or that the States would believe the statute imposed on them a clear obligation to do so. When Title IX was enacted in 1972, the concept of "sexual harassment" as gender discrimination had not been recognized or considered by the courts. See generally C. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination 59-72 (1979). The types of discrimination that were recognized — discriminatory admissions standards, denial of access to programs or resources, hiring, etc.--could not be engaged in by students. See, e.g., 20 U. S. C. §1681(a)(2) (referencing application of Title IX prohibitions to school admissions).2 The majority nonetheless appears to see no need to justify drawing the "enough control" line to encompass students. In truth, however, a school's control over its students is much more complicated and limited than the majority acknowledges. A public school does not control its students in the way it controls its teachers or those with whom it contracts. Most public schools do not screen or select students, and their power to discipline students is far from unfettered. Public schools are generally obligated by law to educate all students who live within defined geographic boundaries. Indeed, the Constitution of almost every State in the country guarantees the State's students a free primary and secondary public education. See, e.g., Cal. Const., Art. IX, §5; Colo. Const., Art IX, §2; Ga. Const., Art VIII, §1, ¶ ;1; Ind. Const., Art. VIII, §1; Md. Const., Art. VIII, §1; Mo. Const., Art. IX, §1(a); Neb. Const., Art. VII, §1; N. J. Const., Art. VIII, §4 ¶ ;1; N. M. Const., Art. XII, §1; N. Y. Const., Art. XI, §1; N. D. Const,. Art. VIII, §§1 and 2; Okla. Const., Art. XIII, §1; S. C. Const., Art. XI, §3; Tex. Const., Art VII, §1; Va. Const., Art. VIII, §1; Wash. Const., Art. IX, §§1 and 2; Wyo. Const., Art. VII, §§1 and 9. In at least some States, moreover, there is a continuing duty on schools to educate even students who are suspended or expelled. See, e.g., Phillip Leon M. v. Board of Education, 199 W. Va. 400, 484 S. E. 2d 909 (1996) (holding that the education clause of the West Virginia Constitution confers on students a fundamental right to an education and requires that a county school board provide alternative educational programs, such as an alternative school, to students who are expelled or suspended for an extended period for bringing guns to school). Schools that remove a harasser from the classroom and then attempt to fulfill their continuing-education obligation by placing the harasser in any kind of group setting, rather than by hiring expensive tutors for each student, will find themselves at continuing risk of Title IX suits brought by the other students in the alternative education program. In addition, federal law imposes constraints on school disciplinary actions. This Court has held, for example, that due process requires "[a]t the very minimum," that a student facing suspension "be given some kind of notice and afforded some kind of hearing." Goss v. Lopez, 419 U. S. 565, 579 (1975) (emphasis added). The Individuals with Disabilities Education Act (IDEA), 20 U. S. C.1400 et seq., (1994 ed., Supp. III), moreover, places strict limits on the ability of schools to take disciplinary actions against students with behavior disorder disabilities, even if the disability was not diagnosed prior to the incident triggering discipline. See, e.g., §1415(f)(1) (parents entitled to hearing when school proposes to change disabled student's educational placement); §1415(k)(1)(A) (school authorities can only "order a change in the placement of a child with a disability ... to an appropriate interim alternative educational setting, another setting, or suspension" for up to "10 school days" unless student's offense involved a weapon or illegal drugs); §1415(k)(8) ("[A] child who has not been determined to be eligible for special education ... and who has engaged in behavior that violated any [school rule], may assert any of the protections" of the subchapter if the school "had knowledge ... that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred"); §1415(k)(8)(B)(ii) (school "deemed to have knowledge that a child is a child with a disability if ... the behavior or performance of the child demonstrates the need for such [special education and related] services"). "Disability," as defined in the Act, includes "serious emotional disturbance," §1401(3)(A)(i), which the DOE, in turn, has defined as a "condition exhibiting ... over a long period of time and to a marked degree that adversely affects a child's educational performance" an "inability to build or maintain satisfactory interpersonal relationships with peers and teachers" or "[i]nappropriate types of behavior or feelings under normal circumstances." 34 CFR §300.7(b)(9) (1998). If, as the majority would have us believe, the behavior that constitutes actionable peer sexual harassment so deviates from the normal teasing and jostling of adolescence that it puts schools on clear notice of potential liability, then a student who engages in such harassment may have at least a colorable claim of severe emotional disturbance within the meaning of IDEA. When imposing disciplinary sanction on a student harasser who might assert a colorable IDEA claim, the school must navigate a complex web of statutory provisions and DOE regulations that significantly limit its discretion. The practical obstacles schools encounter in ensuring that thousands of immature students conform their conduct to acceptable norms may be even more significant than the legal obstacles. School districts cannot exercise the same measure of control over thousands of students that they do over a few hundred adult employees. The limited resources of our schools must be conserved for basic educational services. Some schools lack the resources even to deal with serious problems of violence and are already overwhelmed with disciplinary problems of all kinds. Perhaps even more startling than its broad assumptions about school control over primary and secondary school students is the majority's failure to grapple in any meaningful way with the distinction between elementary and secondary schools, on the one hand, and universities on the other. The majority bolsters its argument that schools can control their students' actions by quoting our decision in Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 655 (1995), for the proposition that " `the nature of [the State's] power [over public school children] is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.' " Ante, at 15. Yet the majority's holding would appear to apply with equal force to universities, which do not exercise custodial and tutelary power over their adult students. A university's power to discipline its students for speech that may constitute sexual harassment is also circumscribed by the First Amendment. A number of federal courts have already confronted difficult problems raised by university speech codes designed to deal with peer sexual and racial harassment. See, e.g., Dambrot v. Central Michigan University, 55 F. 3d 1177 (CA6 1995) (striking down university discriminatory harassment policy because it was overbroad, vague, and not a valid prohibition on fighting words); UWM Post, Inc. v. Board of Regents of University of Wisconsin System, 774 F. Supp. 1163 (ED Wis. 1991) (striking down university speech code that prohibited, inter alia, " `discriminatory comments' " directed at an individual that " `intentionally ... demean' " the " `sex ... of the individual' " and " `[c]reate an intimidating, hostile or demeaning environment for education, university related work, or other university-authorized activity' "); Doe v. University of Michigan, 721 F. Supp. 852 (ED Mich. 1989) (similar); Iota XI Chapter of Sigma Chi Fraternity v. George Mason University, 993 F. 2d 386 (CA4 1993) (overturning on First Amendment grounds university's sanctions on a fraternity for conducting an "ugly woman contest" with "racist and sexist" overtones). The difficulties associated with speech codes simply underscore the limited nature of a university's control over student behavior that may be viewed as sexual harassment. Despite the fact that the majority relies on the assumption that schools exercise a great deal of control over their students to justify creating the private cause of action in the first instance, it does not recognize the obvious limits on a university's ability to control its students as a reason to doubt the propriety of a private cause of action for peer harassment. It simply uses them as a factor in determining whether the university's response was reasonable. See ante, at 18.3 The majority's presentation of its control test illustrates its own discomfort with the rule it has devised. Rather than beginning with the language of Title IX itself, the majority begins with our decision in Gebser and appears to discover there a sweeping legal duty — divorced from agency principles — for schools to remedy third-party discrimination against students. The majority then finds that the DOE's Title IX regulations and state common law gave States the requisite notice that they would be liable in damages for failure to fulfill this duty. Only then does the majority turn to the language of Title IX itself — not, it appears, to find a duty or clear notice to the States, for that the majority assumes has already been established, but rather to suggest a limit on the breathtaking scope of the liability the majority thinks is so clear under the statute. See ante, at 14 ("These factors [("subjects" and "under")] combine to limit a recipient's damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs"). Our decision in Gebser did not, of course, recognize some ill-defined, free-standing legal duty on schools to remedy discrimination by third parties. In particular, Gebser gave schools no notice whatsoever that they might be liable on the majority's novel theory that a school "subjects" a student to third-party discrimination if it exercises some measure of control over the third party. We quoted the "subjected to discrimination" language only once in Gebser, when we quoted the text of Title IX in full, and we did not use the word "control." Instead, we affirmed that Title IX prohibits discrimination by the grant recipient. See Gebser, 524 U. S., at 286; id., at 291-292; supra, at 5. Neither the DOE's Title IX regulations nor state tort law, moreover, could or did provide States the notice required by our Spending Clause principles. The majority contends that the DOE's Title IX regulations have "long provided funding recipients with notice that they may be liable for their failure to respond to the discriminatory acts of certain non-agents." Ante, at 12. Even assuming that DOE regulations could give schools the requisite notice, they did not do so. Not one of the regulations the majority cites suggests that schools may be held liable in money damages for failure to respond to third-party discrimination. In addition, as discussed above, the DOE regulations provide no support for the proposition that schools were on notice that students were among those "non-agents" whose actions the schools were bound to remedy. Most of the regulations cited by the majority merely forbid grant recipients to give affirmative aid to third parties who discriminate. See 34 CFR §106.31(b)(6) (1998) (A grant "recipient shall not, on the basis of sex," "[a]id or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees"); see also §106.37(a)(2) (A grant recipient shall not "[t]hrough solicitation, listing, approval, provision of facilities or other services, assist any foundation, trust, agency, organization, or person which provides assistance to any of such recipient's students in a manner which discriminates on the basis of sex"); §106.38(a) (A grant recipient "which assists any agency, organization or person in making employment available to any of its students ... [s]hall assure itself that such employment is made available without discrimination on the basis of sex [and] [s]hall not render such services to any agency, organization, or person which discriminates on the basis of sex in its employment practices"). The others forbid grant recipients to delegate the provision of student (or employee) benefits and services to third parties who engage in gender discrimination in administering what is, in effect, the school's program. See §106.51(a)(3) ("A [grant] recipient shall not enter into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination prohibited by this subpart, including relationships with employment and referral agencies, with labor unions, and with organizations providing or administering fringe benefits to employees of the recipient"); see also §106.31(d) (A grant recipient "which requires participation by any applicant, student, or employee in any education program or activity not operated wholly by such recipient, or which facilitates, permits, or considers such participation as part of or equivalent to an education program or activity operated by such recipient, including participation in educational consortia and cooperative employment and student-teaching assignments" must take steps to assure itself that the education program or activity is not discriminating on the basis of gender and "shall not facilitate, require, permit, or consider such participation" if the program is discriminating). None of the regulations suggests a generalized duty to remedy discrimination by third parties over whom the school may arguably exercise some control. Requiring a school to take affirmative steps to remedy harassment by its students imposes a much heavier burden on schools than prohibiting affirmative aid or effective delegation of school functions to an entity that discriminates. Notice of these latter responsibilities, then, can hardly be said to encompass clear notice of the former. In addition, each of the DOE regulations is predicated on a grant recipient's choice to give affirmative aid to, or to enter into voluntary association with, a discriminating entity. The recipient, moreover, as the regulations envision, is free to terminate that aid or association (or could have so provided through contract). The relationships regulated by the DOE are thus quite different from school-student relationships. The differences confirm that the regulations did not provide adequate notice of a duty to remedy student discrimination. The majority also concludes that state tort law provided States the requisite notice. It is a non sequitur to suppose, however, that a State knows it is liable under a federal statute simply because the underlying conduct might form the basis for a state tort action. In any event, it is far from clear that Georgia law gave the Monroe County Board of Education notice that it would be liable even under state law for failure to respond reasonably to known student harassment. See, e.g., Holbrook v. Executive Conference Center, Inc., 219 Ga. App. 104, 106, 464 S. E. 2d 398, 401 1996) (holding that school districts are entitled to sovereign immunity for claims based on their supervision of students unless the school displayed "wilfulness, malice, or corruption"). The majority's final observation about notice confirms just how far it has strayed from the basic Spending Clause principle that Congress must, through the clear terms of the statute, give States notice as to what the statute requires. The majority contends that schools were on notice because they "were being told" by a 1993 National School Boards Association publication that peer sexual harassment might trigger Title IX liability. Ante, at 16. By treating a publication designed to help school lawyers prevent and guard against school liability as a reliable indicium of congressional notice, the majority has transformed a litigation manual — which, like all such manuals, errs on the side of caution in describing potential liability — into a self-fulfilling prophecy. It seems schools cannot even discuss potential liabilities amongst themselves without somehow stipulating that Congress had some specified intent.II Our decision in Gebser makes clear that the Spending Clause clear-notice rule requires both that the recipients be on general notice of the kind of conduct the statute prohibits, and — at least when money damages are sought — that they be on notice that illegal conduct is occurring in a given situation. See, e.g., Gebser, 524 U. S., at 287-288 (rejecting vicarious liability because it would hold schools liable even when they did not know that prohibited discrimination was occurring). Title IX, however, gives schools neither notice that the conduct the majority labels peer "sexual harassment" is gender discrimination within the meaning of the Act nor any guidance in distinguishing in individual cases between actionable discrimination and the immature behavior of children and adolescents. The majority thus imposes on schools potentially crushing financial liability for student conduct that is not prohibited in clear terms by Title IX and that cannot, even after today's opinion, be identified by either schools or courts with any precision. The law recognizes that children — particularly young children — are not fully accountable for their actions because they lack the capacity to exercise mature judgment. See, e.g., 1 E. Farnsworth, Farnsworth on Contracts §4.4 (2d ed. 1998) (discussing minor's ability to disaffirm a contract into which he has entered). It should surprise no one, then, that the schools that are the primary locus of most children's social development are rife with inappropriate behavior by children who are just learning to interact with their peers. The amici on the front lines of our schools describe the situation best:"Unlike adults in the workplace, juveniles have limited life experiences or familial influences upon which to establish an understanding of appropriate behavior. The real world of school discipline is a rough-and-tumble place where students practice newly learned vulgarities, erupt with anger, tease and embarrass each other, share offensive notes, flirt, push and shove in the halls, grab and offend." Brief for National School Boards Association et al. as Amici Curiae 10-11 (hereinafter school amici). No one contests that much of this "dizzying array of immature or uncontrollable behaviors by students," ibid., is inappropriate, even "objectively offensive" at times, ante at 19, and that parents and schools have a moral and ethical responsibility to help students learn to interact with their peers in an appropriate manner. It is doubtless the case, moreover, that much of this inappropriate behavior is directed toward members of the opposite sex, as children in the throes of adolescence struggle to express their emerging sexual identities. It is a far different question, however, whether it is either proper or useful to label this immature, childish behavior gender discrimination. Nothing in Title IX suggests that Congress even contemplated this question, much less answered it in the affirmative in unambiguous terms. The majority, nevertheless, has no problem labeling the conduct of fifth graders "sexual harassment" and "gender discrimination." Indeed, the majority sidesteps the difficult issue entirely, first by asserting without analysis that respondents do not "support an argument that student-on-student harassment cannot rise to the level of discrimination' for purposes of Title IX," ante, at 7, and then by citing Gebser and Franklin v. Gwinnett County Public Schools,503 U. S. 60 (1992), for the proposition that "[w]e have elsewhere concluded that sexual harassment is a form of discrimination for Title IX purposes and that Title IX proscribes harassment with sufficient clarity to satisfy Pennhurst's notice requirement and serve as a basis for a damages action," ante, at 19. Contrary to the majority's assertion, however, respondents have made a cogent and persuasive argument that the type of student conduct alleged by petitioner should not be considered "sexual harassment," much less gender discrimination actionable under Title IX:"[A]t the time Petitioner filed her complaint, no court, including this Court had recognized the concept of sexual harassment in any context other than the employment context. Nor had any Court extended the concept of sexual harassment to the misconduct of emotionally and socially immature children. The type of conduct alleged by Petitioner in her complaint is not new. However, in past years it was properly identified as misconduct which was addressed within the context of student discipline. The Petitioner now asks this Court to create out of whole cloth a cause of action by labeling childish misconduct as `sexual harassment,' to stigmatize children as sexual harassers, and have the federal court system take on the additional burden of second guessing the disciplinary actions taken by school administrators in addressing misconduct, something this Court has consistently refused to do." Brief for Respondents 12-13 (citation omitted).See also Brief for Independent Women's Forum as Amicus Curiae 19 (questioning whether "at the primary and secondary school level" it is proper to label "sexual misconduct by students" as "sexual harassment" because there is no power relationship between the harasser and thevictim). Likewise, the majority's assertion that Gebser and Franklin settled the question is little more than ipse dixit.Gebser and Franklin themselves did nothing more than cite Meritor Savings Bank, FSB v. Vinson,477 U. S. 57, 64 (1986), a Title VII case, for the proposition that "when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor `discriminate[s]' on the basis of sex." See Franklin, supra, at 74; Gebser, 524 U. S. at 282-283. To treat that proposition as establishing that the student conduct at issue here is gender discrimination is to erase, in one stroke, all differences between children and adults, peers and teachers, schools and workplaces. In reality, there is no established body of federal or state law on which courts may draw in defining the student conduct that qualifies as Title IX gender discrimination. Analogies to Title VII hostile environment harassment are inapposite, because schools are not workplaces and children are not adults. The norms of the adult workplace that have defined hostile environment sexual harassment, see, e.g., Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998), are not easily translated to peer relationships in schools, where teenage romantic relationships and dating are a part of everyday life. Analogies to Title IX teacher sexual harassment of students are similarly flawed. A teacher's sexual overtures toward a student are always inappropriate; a teenager's romantic overtures to a classmate (even when persistent and unwelcome) are an inescapable part of adolescence. The majority admits that, under its approach, "[w]hether gender-oriented conduct rises to the level of actionable `harassment' ... `depends on a constellation of surrounding circumstances, expectations, and relationships, including, but not limited to, the ages of the harasser and the victim and the number of individuals involved." Ante, at 20 (citations omitted). The majority does not explain how a school is supposed to discern from this mishmash of factors what is actionable discrimination. Its multifactored balancing test is a far cry from the clarity we demand of Spending Clause legislation. The difficulties schools will encounter in identifying peer sexual harassment are already evident in teachers' manuals designed to give guidance on the subject. For example, one teachers' manual on peer sexual harassment suggests that sexual harassment in kindergarten through third grade includes a boy being "put down" on the playground "because he wants to play house with the girls" or a girl being "put down because she shoots baskets better than the boys." Minnesota Dept. of Education, Girls and Boys Getting Along: Teaching Sexual Harassment Prevention in the Elementary Classroom 65 (1993). Yet another manual suggests that one student saying to another, "You look nice" could be sexual harassment, depending on the "tone of voice," how the student looks at the other, and "who else is around." N. Stein & L. Sjostrom, Flirting or Hurting? A Teacher's Guide on Student-to-Student Sexual Harassment in Schools (Grades 6 through 12) 14 (1994). Blowing a kiss is also suspect. Ibid. This confusion will likely be compounded once the sexual-harassment label is invested with the force of federal law, backed up by private damages suits. The only guidance the majority gives schools in distinguishing between the "simple acts of teasing and name-calling among school children," said not to be a basis for suit even when they "target differences in gender," ante at 21, and actionable peer sexual harassment is, in reality, no guidance at all. The majority proclaims that "in the context of student-on-student harassment, damages are available only in the situation where the behavior is so serious, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect." Ante, at 21. The majority does not even purport to explain, however, what constitutes an actionable denial of "equal access to education." Is equal access denied when a girl who tires of being chased by the boys at recess refuses to go outside? When she cannot concentrate during class because she is worried about the recess activities? When she pretends to be sick one day so she can stay home from school? It appears the majority is content to let juries decide. The majority's reference to a "systemic effect," ante at 22, does nothing to clarify the content of its standard. The majority appears to intend that requirement to do no more than exclude the possibility that a single act of harassment perpetrated by one student on one other student can form the basis for an actionable claim. That is a small concession indeed. The only real clue the majority gives schools about the dividing line between actionable harassment that denies a victim equal access to education and mere inappropriate teasing is a profoundly unsettling one: On the facts of this case, petitioner has stated a claim because she alleged, in the majority's words, "that the harassment had a concrete, negative effect on her daughter's ability to receive an education." Ante, at 23. In petitioner's words, the effects that might have been visible to the school were that her daughter's grades "dropped" and her "ability to concentrate on her school work [was] affected." App. to Pet. for Cert. 97a. Almost all adolescents experience these problems at one time or another as they mature.III The majority's inability to provide any workable definition of actionable peer harassment simply underscores the myriad ways in which an opinion that purports to be narrow is, in fact, so broad that it will support untold numbers of lawyers who will prove adept at presenting cases that will withstand the defendant school districts' pretrial motions. Each of the barriers to run-away litigation the majority offers us crumbles under the weight of even casual scrutiny. For example, the majority establishes what sounds like a relatively high threshold for liability--"denial of equal access" to education — and, almost in the same breath, makes clear that alleging a decline in grades is enough to survive 12(b)(6) and, it follows, to state a winning claim. The majority seems oblivious to the fact that almost every child, at some point, has trouble in school because he or she is being teased by his or her peers. The girl who wants to skip recess because she is teased by the boys is no different from the overweight child who skips gym class because the other children tease her about her size in the locker room; or the child who risks flunking out because he refuses to wear glasses to avoid the taunts of "four-eyes"; or the child who refuses to go to school because the school bully calls him a "scaredy-cat" at recess. Most children respond to teasing in ways that detract from their ability to learn. The majority's test for actionable harassment will, as a result, sweep in almost all of the more innocuous conduct it acknowledges as a ubiquitous part of school life. The string of adjectives the majority attaches to the word "harassment"--"severe, pervasive, and objectively offensive"--likewise fails to narrow the class of conduct that can trigger liability, since the touchstone for determining whether there is Title IX liability is the effect on the child's ability to get an education. Ante at 20. Indeed, the Court's reliance on the impact on the child's educational experience suggests that the "objective offensiveness" of a comment is to be judged by reference to a reasonable child at whom the comments were aimed. Not only is that standard likely to be quite expansive, it also gives schools — and juries — little guidance, requiring them to attempt to gauge the sensitivities of, for instance, the average seven year old. The majority assures us that its decision will not interfere with school discipline and instructs that, "as we have previously noted, courts should refrain from second guessing the disciplinary decisions made by school administrators." Ante, at 17. The obvious reason for the majority's expressed reluctance to allow courts and litigants to second-guess school disciplinary decisions is that school officials are usually in the best position to judge the seriousness of alleged harassment and to devise an appropriate response. The problem is that the majority's test, in fact, invites courts and juries to second-guess school administrators in every case, to judge in each instance whether the school's response was "clearly unreasonable." A reasonableness standard, regardless of the modifier, transforms every disciplinary decision into a jury question. Cf. Doe v. University of Illinois, 138 F. 3d 653, 655 (CA7 1998) (holding that college student had stated a Title IX claim for peer sexual harassment even though school officials had suspended two male students for 10 days and transferred another out of her biology class). Another professed limitation the majority relies upon is that the recipient will be liable only where the acts of student harassment are "known." See, e.g., ante, at 13; id. at 16. The majority's enunciation of the standard begs the obvious question: known to whom? Yet the majority says not one word about the type of school employee who must know about the harassment before it is actionable. The majority's silence is telling. The deliberate indifference liability we recognized in Gebser was predicated on notice to "an official of the recipient entity with authority to take corrective action to end the discrimination." Gebser, supra, at 290. The majority gives no indication that it believes the standard to be any different in this context and — given its extensive reliance on the Gebser standard throughout the opinion — appears to adopt the Gebser notice standard by implication. At least the courts adjudicating Title IX peer harassment claims are likely to so conclude. By choosing not to adopt the standard in explicit terms, the majority avoids having to confront the bizarre implications of its decision. In the context of teacher harassment, the Gebser notice standard imposes some limit on school liability. Where peer harassment is the discrimination, however, it imposes no limitation at all. In most cases of student misbehavior, it is the teacher who has authority, at least in the first instance, to punish the student and take other measures to remedy the harassment. The anomalous result will be that, while a school district cannot be held liable for a teacher's sexual harassment of a student without notice to the school board (or at least to the principal), the district can be held liable for a teacher's failure to remedy peer harassment. The threshold for school liability, then, appears to be lower when the harasser is a student than when the harasser is a teacher who is an agent of the school. The absurdity of this result confirms that it was neither contemplated by Congress nor anticipated by the States. The majority's limitations on peer sexual harassment suits cannot hope to contain the flood of liability the Court today begins. The elements of the Title IX claim created by the majority will be easy not only to allege but also to prove. A female plaintiff who pleads only that a boy called her offensive names, that she told a teacher, that the teacher's response was unreasonable, and that her school performance suffered as a result, appears to state a successful claim. There will be no shortage of plaintiffs to bring such complaints. Our schools are charged each day with educating millions of children. Of those millions of students, a large percentage will, at some point during their school careers, experience something they consider sexual harassment. A 1993 Study by the American Association of University Women Educational Foundation, for instance, found that "fully 4 out of 5 students (81%) report that they have been the target of some form of sexual harassment during their school lives." Hostile Hallways: The AAUW Survey on Sexual Harassment in America's Schools 7 (1993). The number of potential lawsuits against our schools is staggering. The cost of defending against peer sexual harassment suits alone could overwhelm many school districts, particularly since the majority's liability standards will allow almost any plaintiff to get to summary judgment, if not to a jury. In addition, there are no damages caps on the judicially implied private cause of action under Title IX. As a result, school liability in one peer sexual harassment suit could approach, or even exceed, the total federal funding of many school districts. Petitioner, for example, seeks damages of $500,000 in this case. App. to Pet. for Cert. 101a. Respondent school district received approximately $679,000 in federal aid in 1992-1993. Brief for the School Amici 25, n. 20. The school district sued in Gebser received only $120,000 in federal funds a year. 524 U. S., 289-290. Indeed, the entire 1992-1993 budget of that district was only $1.6 million. See Tr. of Oral Arg. in No. 96-1866, p. 34. The limitless liability confronting our schools under the implied Title IX cause of action puts schools in a far worse position than businesses; when Congress established the express cause of action for money damages under Title VII, it prescribed damage caps. See Gebser, supra, 286 ("It was not until 1991 that Congress made damages available under Title VII, and even then, Congress carefully limited the amount recoverable in any individual case, calibrating the maximum recovery to the size of the employer. See 42 U. S. C. §1981a(b)(3). Adopting petitioners' position would amount, then, to allowing unlimited recovery of damages under Title IX where Congress has not spoken on the subject of either the right or the remedy, and in the face of evidence that when Congress expressly considered both in Title VII it restricted the amount of damages available"). In addition, in contrast to Title VII, Title IX makes no provision for agency investigation and conciliation of complaints (prior to the filing of a case in federal court) that could weed out frivolous suits or settle meritorious ones at minimal cost. The prospect of unlimited Title IX liability will, in all likelihood, breed a climate of fear that encourages school administrators to label even the most innocuous of childish conduct sexual harassment. It would appear to be no coincidence that, not long after the DOE issued its proposed policy guidance warning that schools could be liable for peer sexual harassment in the fall of 1996, see 61 Fed. Reg. 42728, a North Carolina school suspended a 6-year-old boy who kissed a female classmate on the cheek for sexual harassment, on the theory that "[u]nwelcome is unwelcome at any age." Los Angeles Times, Sept. 25, 1996, p. A11. A week later, a New York school suspended a second-grader who kissed a classmate and ripped a button off her skirt. Buffalo News, Oct. 2, 1996, p. A16. The second grader said that he got the idea from his favorite book "Corduroy," about a bear with a missing button. Ibid. School administrators said only, "We were given guidelines as to why we suspend children. We follow the guidelines." Ibid. At the college level, the majority's holding is sure to add fuel to the debate over campus speech codes that, in the name of preventing a hostile educational environment, may infringe students' First Amendment rights. See supra, at 14. Indeed, under the majority's control principle, schools presumably will be responsible for remedying conduct that occurs even in student dormitory rooms. As a result, schools may well be forced to apply workplace norms in the most private of domains. Even schools that resist overzealous enforcement may find that the most careful and reasoned response to a sexual harassment complaint nonetheless provokes litigation. Speaking with the voice of experience, the school amici remind us, "[h]istory shows that, no matter what a school official chooses to do, someone will be unhappy. Student offenders almost always view their punishment as too strict, and student complainants almost always view an offender's punishment as too lax." Brief for the School Amici 12. A school faced with a peer sexual harassment complaint in the wake of the majority's decision may well be beset with litigation from every side. One student's demand for a quick response to her harassment complaint will conflict with the alleged harasser's demand for due process. Another student's demand for a harassment-free classroom will conflict with the alleged harasser's claim to a mainstream placement under the Individuals with Disabilities Education Act or with his state constitutional right to a continuing, free public education. On college campuses, and even in secondary schools, a student's claim that the school should remedy a sexually hostile environment will conflict with the alleged harasser's claim that his speech, even if offensive, is protected by the First Amendment. In each of these situations, the school faces the risk of suit, and maybe even multiple suits, regardless of its response. See Doe v. University of Illinois, 138 F. 3d, at 679 (Posner, C. J., dissenting from denial of rehearing en banc) ("Liability for failing to prevent or rectify sexual harassment of one student by another places a school on a razor's edge, since the remedial measures that it takes against the alleged harasser are as likely to expose the school to a suit by him as a failure to take those measures would be to expose the school to a suit by the victim of the alleged harassment"). The majority's holding in this case appears to be driven by the image of the school administration sitting idle every day while male students commandeer a school's athletic field or computer lab and prevent female students from using it through physical threats. See ante, at 20. Title IX might provide a remedy in such a situation, however, without resort to the majority's unprecedented theory of school liability for student harassment. If the school usually disciplines students for threatening each other and prevents them from blocking others' access to school facilities, then the school's failure to enforce its rules when the boys target the girls on a widespread level, day after day, may support an inference that the school's decision not to respond is itself based on gender. That pattern of discriminatory response could form the basis of a Title IX action. (Contrary to the majority's assertion, see ante at 22, we do not suggest that mere indifference to gender-based mistreatment — even if widespread — is enough to trigger Title IX liability. We suggest only that a clear pattern of discriminatory enforcement of school rules could raise an inference that the school itself is discriminating. Recognizing that the school itself might discriminate based on gender in the enforcement of its rules is a far cry from recognizing Title IX liability based on the majority's expansive theory that a school "subjects" its students to third-party discrimination when it has some control over the harasser and fails to take corrective action.) Even more important, in most egregious cases the student will have state-law remedies available to her. The student will often have recourse against the offending student (or his parents) under state tort law. In some cases, like this one, the perpetrator may also be subject to criminal sanctions. And, as the majority notes, the student may, in some circumstances, have recourse against the school under state law. Ante, at 13. Disregarding these state-law remedies for student misbehavior and the incentives that our schools already have to provide the best possible education to all of their students, the majority seeks, in effect, to put an end to student misbehavior by transforming Title IX into a Federal Student Civility Code. See Brief for Independent Women's Forum as Amicus Curiae 2 (urging the Court to avoid that result). I fail to see how federal courts will administer school discipline better than the principals and teachers to whom the public has entrusted that task or how the majority's holding will help the vast majority of students, whose educational opportunities will be diminished by the diversion of school funds to litigation. The private cause of action the Court creates will justify a corps of federal administrators in writing regulations on student harassment. It will also embroil schools and courts in endless litigation over what qualifies as peer sexual harassment and what constitutes a reasonable response. In the final analysis, this case is about federalism. Yet the majority's decision today says not one word about the federal balance. Preserving our federal system is a legitimate end in itself. It is, too, the means to other ends. It ensures that essential choices can be made by a government more proximate to the people than the vast apparatus of federal power. Defining the appropriate role of schools in teaching and supervising children who are beginning to explore their own sexuality and learning how to express it to others is one of the most complex and sensitive issues our schools face. Such decisions are best made by parents and by the teachers and school administrators who can counsel with them. The delicacy and immense significance of teaching children about sexuality should cause the Court to act with great restraint before it displaces state and local governments. Heedless of these considerations, the Court rushes onward, finding that the cause of action it creates is necessary to effect the congressional design. It is not. Nothing in Title IX suggests that Congress intended or contemplated the result the Court reaches today, much less dictated it in unambiguous terms. Today's decision cannot be laid at the feet of Congress; it is the responsibility of the Court. The Court must always use great care when it shapes private causes of action without clear guidance from Congress, but never more so than when the federal balance is at stake. As we recognized in Gebser, the definition of an implied cause of action inevitably implicates some measure of discretion in the Court to shape a sensible remedial scheme. Gebser, 524 U. S., at 284. Whether the Court ever should have embarked on this endeavor under a Spending Clause statute is open to question. What should be clear beyond any doubt, however, is that the Court is duty-bound to exercise that discretion with due regard for federalism and the unique role of the States in our system. The Court today disregards that obligation. I can conceive of few interventions more intrusive upon the delicate and vital relations between teacher and student, between student and student, and between the State and its citizens than the one the Court creates today by its own hand. Trusted principles of federalism are superseded by a more contemporary imperative. Perhaps the most grave, and surely the most lasting, disservice of today's decision is that it ensures the Court's own disregard for the federal balance soon will be imparted to our youngest citizens. The Court clears the way for the federal government to claim center stage in America's classrooms. Today's decision mandates to teachers instructing and supervising their students the dubious assistance of federal court plaintiffs and their lawyers and makes the federal courts the final arbiters of school policy and of almost every disagreement between students. Enforcement of the federal right recognized by the majority means that federal influence will permeate everything from curriculum decisions to day-to-day classroom logistics and interactions. After today, Johnny will find that the routine problems of adolescence are to be resolved by invoking a federal right to demand assignment to a desk two rows away. As its holding makes painfully clear, the majority's watered-down version of the Spending Clause clear-statement rule is no substitute for the real protections of state and local autonomy that our constitutional system requires. If there be any doubt of the futility of the Court's attempt to hedge its holding about with words of limitation for future cases, the result in this case provides the answer. The complaint of this fifth grader survives and the school will be compelled to answer in federal court. We can be assured that like suits will follow — suits, which in cost and number, will impose serious financial burdens on local school districts, the taxpayers who support them, and the children they serve. Federalism and our struggling school systems deserve better from this Court. I dissent.
2	The State of Louisiana sued in a state court to enjoin the National Association for the Advancement of Colored People from doing business in the State because of its failure to comply with a state law requiring certain types of organizations to file annually with the Secretary of State lists of their officers and members. That suit was removed to a Federal District Court and appellees sued there for a judgment declaring unconstitutional that statute and another requiring each nontrading association to file annually an affidavit that none of the officers of any out-of-state association with which it is affiliated is a member of any Communist, Communist-front or subversive organization. The cases were consolidated, and, after a hearing on affidavits and oral argument, the District Court entered a temporary injunction that denied relief to the State and its officers and enjoined them from enforcing the two statutes in question. Held: The judgment is affirmed. Pp. 294-297. (a) It is not consonant with due process to require a person to swear to a fact that he cannot be expected to know or alternatively to refrain from a wholly lawful activity. Pp. 294-295. (b) The case is in a preliminary stage, and it is not now known what facts will be disclosed in further hearings before the injunction becomes final; but, if it be shown that disclosure of the Association's membership lists results in reprisals and hostility to members, such disclosure may not be required consistently with the First Amendment, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. N. A. A. C. P. v. Alabama, ; Bates v. Little Rock, . Pp. 295-297. 181 F. Supp. 37, affirmed.William P. Schuler, Assistant Attorney General of Louisiana, and M. E. Culligan argued the cause for appellants. With Mr. Schuler on the briefs were Jack P. F. Gremillion, Attorney General, Carroll Buck, First Assistant Attorney General, and George Ponder, former First Assistant Attorney General.Robert L. Carter argued the cause for appellees. With him on the brief was A. P. Tureaud.MR. JUSTICE DOUGLAS delivered the opinion of the Court.One of the suits that is consolidated in this appeal was instituted in 1956 by the then Attorney General of Louisiana against appellee, the National Association for the Advancement of Colored People, in a Louisiana court and sought to enjoin it from doing business in the State. It was removed to the federal court.1 Thereafter NAACP sued appellants in the federal court asking for a declaratory judgment that two laws of Louisiana were unconstitutional. A three-judge court was convened (28 U.S.C. 2281) and the cases were consolidated. After a hearing (on affidavits) and oral argument, the court entered a temporary injunction that denied relief to appellants and enjoined them from enforcing the two laws in question. 181 F. Supp. 37. The case is here on appeal. 28 U.S.C. 1253. We noted probable jurisdiction. .One of the two statutes of Louisiana in question prohibits any "non-trading" association from doing business in Louisiana if it is affiliated with any "foreign or out of state non-trading" association "any of the officers or members of the board of directors of which are members of Communist, Communist-front or subversive organizations, as cited by the House of Congress [sic] un-American Activities Committee, or the United States Attorney."2 Every nontrading association affiliated with an out-of-state association must file annually with Louisiana's Secretary of State an affidavit that "none of the officers" of the affiliate is "a member" of any such organization.3 Penalties against the officers and members are provided for failure to file the affidavit and for false filings.The NAACP is a New York corporation with some forty-eight directors, twenty vice-presidents, and ten chief executive officers. Only a few reside or work in Louisiana. The District Court commented that the statute "would require the impossible" of the Louisiana residents or workers. 181 F. Supp., at 40. We have received no serious reply to that criticism. Such a requirement in a law compounds the vices present in statutes struck down on account of vagueness. Cf. Winters v. New York, . It is not consonant with due process to require a person to swear to a fact that he cannot be expected to know (cf. Tot v. United States, ) or alternatively to refrain from a wholly lawful activity.The other statute4 requires the principal officer of "each fraternal, patriotic, charitable, benevolent, literary, scientific, athletic, military, or social organization, or organization created for similar purposes" and operating in Louisiana to file with the Secretary of State annually "a full, complete and true list of the names and addresses of all of the members and officers" in the State. Members of organizations whose lists have not been filed are prohibited from holding or attending any meeting of the organization. Criminal penalties are attached both to officers and to members.We are told that this law was passed in 1924 to curb the Ku Klux Klan, but that it was never enforced against any other organization until this litigation started; that when the State brought its suit some affiliates of NAACP in Louisiana filed membership lists; and that after those filings, members were subjected to economic reprisals. 181 F. Supp., at 39. The State denies that this law is presently being enforced only against NAACP; it also challenges the assertions that disclosure of membership in the NAACP results in reprisals. While hearings were held before the temporary injunction issued, the case is in a preliminary stage and we do not know what facts further hearings before the injunction becomes final may disclose. It is clear from our decisions that NAACP has standing to assert the constitutional rights of its members. N. A. A. C. P. v. Alabama, . We deal with a constitutional right, since freedom of association is included in the bundle of First Amendment rights made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Id., p. 460; Bates v. Little Rock, . And where it is shown, as it was in N. A. A. C. P. v. Alabama, supra, 462-463, that disclosure of membership lists results in reprisals against and hostility to the members, disclosure is not required. And see Bates v. Little Rock, supra, 523-524.We are in an area where, as Shelton v. Tucker, , emphasized, any regulation must be highly selective in order to survive challenge under the First Amendment. As we there stated: "... even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Id., 488.The most frequent expressions of that view have been made in cases dealing with local ordinances regulating the distribution of literature. Broad comprehensive regulations of those First Amendment rights have been repeatedly struck down (Lovell v. Griffin, ; Schneider v. State, ; Cantwell v. Connecticut, ), though the power to regulate the time, manner, and place of distribution was never doubted. As stated in Schneider v. State, supra, 160-161, the municipal authorities have the right to "regulate the conduct of those using the streets," to provide traffic regulations, to prevent "throwing literature broadcast in the streets," and the like. Yet, while public safety, peace, comfort, or convenience can be safeguarded by regulating the time and manner of solicitation (Cantwell v. Connecticut, supra, 306-307), those regulations need to be "narrowly drawn to prevent the supposed evil." Id., 307. And see Talley v. California, .Our latest application of this principle was in Shelton v. Tucker, supra, where we held that, while a State has the undoubted right to inquire into the fitness and competency of its teachers, a detailed disclosure of every conceivable kind of associational tie a teacher has had probed into relationships that "could have no possible bearing upon the teacher's occupational competence or fitness." Id., 488.At one extreme is criminal conduct which cannot have shelter in the First Amendment. At the other extreme are regulatory measures which, no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights. These lines mark the area in which the present controversy lies, as the District Court rightly observed. Affirmed.MR. JUSTICE HARLAN and MR. JUSTICE STEWART concur in the result.
0	As it existed in 1950, 18 U.S.C. 1708 made it an offense to steal from a mailbox any mail, letter, or "any article or thing contained therein." It provided that an offender shall be fined not more than $2,000 or imprisoned not more than five years, or both; and provided further that if the value of "any such article or thing" does not exceed $100, the offender shall be fined not more than $1,000 or imprisoned not more than one year, or both. Held: A defendant convicted in 1950 of theft from a mailbox of a letter not shown to have had a value of more than $100 was improperly sentenced to imprisonment for more than one year. Pp. 566-570. (a) The words "article or thing" in the concluding proviso included letters; the Section does not distinguish between theft of mail and theft of an article or thing contained in a piece of mail. Pp. 567-569. (b) The elimination of the concluding provision of 1708 by the Act of July 1, 1952, 66 Stat. 314, is inapplicable to a prior conviction under that Section. P. 569. 193 F.2d 720, reversed. Petitioner was convicted of mail theft in violation of 18 U.S.C. 1708, and subsequently moved to vacate or correct the sentence. The District Court denied petitioner's motion. The Court of Appeals affirmed. 193 F.2d 720. This Court granted certiorari. . Reversed and remanded to the District Court for correction of sentence, p. 570.William W. Koontz, acting under appointment by the Court, argued the cause and filed a brief for petitioner.Murry Lee Randall argued the cause for the United States. With him on the brief were Acting Solicitor General Stern and Beatrice Rosenberg. Philip B. Perlman, then Solicitor General, filed a memorandum suggesting that the writ of certiorari be dismissed.MR. JUSTICE REED delivered the opinion of the Court.On September 13, 1950, petitioner pleaded guilty to a six-count indictment charging the theft of six separate letters from the mailboxes of the six addressees in violation of 18 U.S.C. 1708. Petitioner was sentenced to three years' imprisonment on each count, the sentences to run concurrently. 193 F.2d 720. After serving almost a year of his term, petitioner, on August 3, 1951, filed a motion under 28 U.S.C. 2255 to vacate or correct sentence on the ground that the indictment did not allege that any of the letters stolen from the mailboxes had a value of more than $100, hence that the indictment charged misdemeanors under 1708, the maximum penalty for each of which was one year, instead of felonies for which the maximum penalty was five years. The District Court denied petitioner's motion and the Court of Appeals for the Fourth Circuit affirmed. Both of the courts below held that the misdemeanor provision of 1708 applies only to thefts of "any article or thing" which in turn had been taken from a letter or package, and not to thefts of intact units of mail. As this result was in direct conflict with the position taken by the Court of Appeals for the Ninth Circuit in Armstrong v. United States, 187 F.2d 954, we granted certiorari to resolve that conflict. . The statute in question appears in the margin.1 According to the view of the Government and that adopted by the courts below, the lesser penalty is limited to thefts from mail as opposed to thefts of mail for which the maximum punishment may be imposed. Under the Government's construction, the phrase "article or thing" does not refer to mail or letters. Thus the one-year maximum sentence becomes appropriate only when mail is received in a manner not prohibited by the statute, and the contents thereof then illegally removed. We do not agree with this distinction.As early as 1810 Congress prohibited and punished mail theft (2 Stat. 598). That statute provided a maximum of seven years' imprisonment for the theft of letters containing "any article of value," and a maximum punishment of a fine of $500 for the theft of letters "not containing any article of value or evidence thereof." In 1825 the statute was amended to provide for increased penalties for the two offenses and the value distinction was retained (4 Stat. 109). Under an 1872 revision, however, the punishment distinction as to the value or the nature of the mail stolen was eliminated (17 Stat. 318). Under this revision the maximum sentence which could be imposed for mail theft was five years. This over-all maximum of five years was carried over in the 1909 Act (35 Stat. 1125) and in 18 U.S.C. 317, the antecedent provision of 18 U.S.C. 1708, enacted in 1948. In 1948 the entire federal criminal code received comprehensive revision. Among other changes not here pertinent, the 1948 revision added the phrase "but if the value or face value of any such article or thing does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both." The Reviser's Note on this addition which accompanied the bill and explained the changes to Congress states that "[t]he smaller penalty for an offense involving $100 or less was added." (18 U.S.C. 1708.) This note also called attention to similar adjustments of penalties in 641 and 645, which relate to illegal abstractions of government records, vouchers and other things of value. Nothing was said of the distinction to which the Government would now have us accede.2 As was pointed out in the Armstrong decision, "It would have been a simple matter for the reviser, or Congress, to have made clear, had such been the intent, that stealing `an article or thing' from an item of mail, leaving the item of mail otherwise intact, is to be regarded as a less serious offense than stealing the item of mail itself. A highly technical distinction of this sort, which could easily have been spelled out, cannot be imposed on the general words `any such article or thing' in the concluding proviso of Sec. 1708. Those words must be deemed to include any article or thing previously mentioned in Sec. 1708, whether it is described specifically as a `letter' or generally as `an article or thing.'" 187 F.2d 954, 956.Following the Armstrong decision, the Postmaster General and the Attorney General asked Congress to eliminate the misdemeanor provision from 1708 because the crime of theft of mail had been divided into "felonies and misdemeanors, with the value of the matter stolen as the determining factor." S. Rep. No. 980, 82d Cong., 1st Sess., pp. 3-4; H. R. Rep. No. 1674, 82d Cong., 2d Sess., pp. 3-5. Subsequent to our granting certiorari, June 9, 1952, the proposal to eliminate the misdemeanor provision was approved, July 1, 1952. 66 Stat. 314. Although Congress thus eliminated the conflict which led us to grant certiorari, the change in the statute can have no effect on a prior conviction such as petitioner's. In our view, under the then wording of 1708, and its purpose as shown by the Reviser's Notes, petitioner was improperly convicted of a felony. This Court has power to do justice as the case requires.3 28 U.S.C. 2106. The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court to correct the sentence. It is so ordered.MR. JUSTICE BURTON, MR. JUSTICE CLARK, and MR. JUSTICE MINTON, dissenting, would affirm the judgment of the Court of Appeals for the Fourth Circuit for the reasons stated in the opinion of that court, 193 F.2d 720.THE CHIEF JUSTICE, not having heard all of the oral argument, took no part in the consideration or decision of this case.
0	Appellees, claiming that the Government had known of the crimes with which they were charged, the circumstances of the crimes, and appellees' identities for over three years before they were indicted, moved to dismiss on the ground that the indictment was returned "an unreasonably oppressive and unjustifiable time after the alleged offenses," and that the delay deprived them of rights to due process of law and a speedy trial as secured by the Fifth and Sixth Amendments. While asserting no specific prejudice, appellees contended that the indictment required memory of many specific acts and conversations occurring several years before and that the delay was due to the prosecutor's negligence or indifference in investigating the case and presenting it to the grand jury. The District Court, after a hearing, granted appellees' motion and dismissed the indictment for "lack of speedy prosecution," having found that the defense was "bound to have been seriously prejudiced" by the three-year delay. The Government took a direct appeal to this Court, which postponed consideration of the question of jurisdiction until the hearing on the merits. Held: 1. The motion to dismiss the indictment for lack of a speedy trial was in the nature of a confession and avoidance and constituted a motion in bar by appellees who had not been placed in jeopardy when the District Court entered its order of dismissal. That order was therefore directly appealable to this Court under former 18 U.S.C. 3731. Pp. 311-312. 2. The Sixth Amendment's guarantee of a speedy trial is applicable only after a person has been "accused" of a crime, which in this case did not occur until appellees (who had not previously been arrested or otherwise charged) were indicted. Pp. 313-320. 3. The relevant statute of limitations provides a safeguard against possible prejudice resulting from pre-accusation delay, and here appellees were indicted within the applicable limitations period. Pp. 320-323. 4. Though the Due Process Clause may provide a basis for dismissing an indictment if the defense can show at trial that prosecutorial delay has prejudiced the right to a fair trial, appellees have not claimed or proved actual prejudice resulting from the delay and their due process claims are therefore speculative and premature. Pp. 325-326. Reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART and BLACKMUN, JJ., joined. DOUGLAS, J., filed an opinion concurring in the result, in which BRENNAN and MARSHALL, JJ., joined, post, p. 326.Deputy Solicitor General Greenawalt argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Wilson, Acting Assistant Attorney General Petersen, Beatrice Rosenberg, and Mervyn Hamburg.Thomas Penfield Jackson argued the cause for appellees and filed a brief for appellee Marion. Benjamin Wright Cotten filed a brief for appellee Cratch.Alan Y. Cole and Isaac N. Groner filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.MR. JUSTICE WHITE delivered the opinion of the Court.This appeal requires us to decide whether dismissal of a federal indictment was constitutionally required by reason of a period of three years between the occurrence of the alleged criminal acts and the filing of the indictment.On April 21, 1970, the two appellees were indicted and charged in 19 counts with operating a business known as Allied Enterprises, Inc., which was engaged in the business of selling and installing home improvements such as intercom sets, fire control devices, and burglary detection systems. Allegedly, the business was fraudulently conducted and involved misrepresentations, alterations of documents, and deliberate nonperformance of contracts. The period covered by the indictment was March 15, 1965, to February 6, 1967; the earliest specific act alleged occurred on September 3, 1965, the latest on January 19, 1966.On May 5, 1970, appellees filed a motion to dismiss the indictment "for failure to commence prosecution of the alleged offenses charged therein within such time as to afford [them their] rights to due process of law and to a speedy trial under the Fifth and Sixth Amendments to the Constitution of the United States." No evidence was submitted, but from the motion itself and the arguments of counsel at the hearing on the motion, it appears that Allied Enterprises had been subject to a Federal Trade Commission cease-and-desist order on February 6, 1967, and that a series of articles appeared in the Washington Post in October 1967, reporting the results of that newspaper's investigation of practices employed by home improvement firms such as Allied. The articles also contained purported statements of the then United States Attorney for the District of Columbia describing his office's investigation of these firms and predicting that indictments would soon be forthcoming. Although the statements attributed to the United States Attorney did not mention Allied specifically, that company was mentioned in the course of the newspaper stories. In the summer of 1968, at the request of the United States Attorney's office, Allied delivered certain of its records to that office, and in an interview there appellee Marion discussed his conduct as an officer of Allied Enterprises. The grand jury that indicted appellees was not impaneled until September 1969, appellees were not informed of the grand jury's concern with them until March 1970, and the indictment was finally handed down in April. Appellees moved to dismiss because the indictment was returned "an unreasonably oppressive and unjustifiable time after the alleged offenses." They argued that the indictment required memory of many specific acts and conversations occurring several years before, and they contended that the delay was due to the negligence or indifference of the United States Attorney in investigating the case and presenting it to a grand jury. No specific prejudice was claimed or demonstrated. The District Court judge dismissed the indictment for "lack of speedy prosecution" at the conclusion of the hearing and remarked that since the Government must have become aware of the relevant facts in 1967, the defense of the case "is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or at the very latest early 1968."1 The United States appealed directly to this Court pursuant to 18 U.S.C. 3731 (1964 ed., Supp. V).2 We postponed consideration of the question of jurisdiction until the hearing on the merits of the case.3 We now hold that the Court has jurisdiction, and on the merits we reverse the judgment of the District Court.IPrior to its recent amendment, 18 U.S.C. 3731 (1964 ed., Supp. V) authorized an appeal to this Court by the United States when in any criminal case a district court sustained "a motion in bar, when the defendant has not been put in jeopardy." It is plain to us that the appeal of the United States is within the purview of this section. Appellees had not been placed in jeopardy when the District Court rendered its judgment. The trial judge based his ruling on undue delay prior to indictment, a matter that was beyond the power of the Government to cure since re-indictment would not have been permissible under such a ruling. The motion to dismiss rested on grounds that had nothing to do with guilt or innocence or the truth of the allegations in the indictment but was, rather, a plea in the nature of confession and avoidance, that is, where the defendant does not deny that he has committed the acts alleged and that the acts were a crime but instead pleads that he cannot be prosecuted because of some extraneous factor, such as the running of the statute of limitations or the denial of a speedy trial. See United States v. Weller, . The motion rested on constitutional grounds exclusively, and neither the motion, the arguments of counsel, the Court's oral opinion, nor its judgment mentioned Federal Rule of Criminal Procedure 48 (b), as a ground for dismissal.4 Our jurisdiction to hear this appeal has been satisfactorily established. IIAppellees do not claim that the Sixth Amendment was violated by the two-month delay between the return of the indictment and its dismissal. Instead, they claim that their rights to a speedy trial were violated by the period of approximately three years between the end of the criminal scheme charged and the return of the indictment; it is argued that this delay is so substantial and inherently prejudicial that the Sixth Amendment required the dismissal of the indictment. In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an "accused," an event that occurred in this case only when the appellees were indicted on April 21, 1970.The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ... ." On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been "accused" in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. "[T]he essential ingredient is orderly expedition and not mere speed." Smith v. United States, .Our attention is called to nothing in the circumstances surrounding the adoption of the Amendment indicating that it does not mean what it appears to say,5 nor is there more than marginal support for the proposition that, at the time of the adoption of the Amendment, the prevailing rule was that prosecutions would not be permitted if there had been long delay in presenting a charge.6 The framers could hardly have selected less appropriate language if they had intended the speedy trial provision to protect against pre-accusation delay. No opinions of this Court intimate support for appellees' thesis,7 and the courts of appeals that have considered the question in constitutional terms have never reversed a conviction or dismissed an indictment solely on the basis of the Sixth Amendment's speedy trial provision where only pre-indictment delay was involved.8 Legislative efforts to implement federal and state speedy trial provisions also plainly reveal the view that these guarantees are applicable only after a person has been accused of a crime. The Court has pointed out that "[a]t the common law and in the absence of special statutes of limitations the mere failure to find an indictment will not operate to discharge the accused from the offense nor will a nolle prosequi entered by the Government or the failure of the grand jury to indict." United States v. Cadarr, . Since it is "doubtless true that in some cases the power of the Government has been abused and charges have been kept hanging over the heads of citizens, and they have been committed for unreasonable periods, resulting in hardship," the Court noted that many States "[w]ith a view to preventing such wrong to the citizen ... [and] in aid of the constitutional provisions, National and state, intended to secure to the accused a speedy trial" had passed statutes limiting the time within which such trial must occur after charge or indictment.9 Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused.10 The statutes vary greatly in substance, structure, and interpretation, but a common denominator is that "[i]n no event ... [does] the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this." Note, The Right to a Speedy Trial, 57 Col. L. Rev. 846, 848 (1957).No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Federal Rule of Criminal Procedure 48 (b), which has the force of law, authorizes dismissal of an indictment, information, or complaint "[i]f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial ... ." The rule clearly is limited to post-arrest situations.11 Appellees' position is, therefore, at odds with longstanding legislative and judicial constructions of the speedy trial provisions in both national and state constitutions.IIIIt is apparent also that very little support for appellees' position emerges from a consideration of the purposes of the Sixth Amendment's speedy trial provision, a guarantee that this Court has termed "an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United States v. Ewell, ; see also Klopfer v. North Carolina, ; Dickey v. Florida, . Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. 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. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, supra; see also Smith v. Hooey, . So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge.12 But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself.13 But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case.The law has provided other mechanisms to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge. As we said in United States v. Ewell, supra, at 122, "the applicable statute of limitations ... is ... the primary guarantee against bringing overly stale criminal charges." Such statutes represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they "are made for the repose of society and the protection of those who may [during the limitation] ... have lost their means of defense." Public Schools v. Walker, 9 Wall. 282, 288 (1870). These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced.14 As this Court observed in Toussie v. United States, :"The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity." There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function.Since appellees rely only on potential prejudice and the passage of time between the alleged crime and the indictment, see Part IV, infra, we perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals and that event occurred within the statute of limitations.15 Nevertheless, since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.16 Cf. Brady v. Maryland, ; Napue v. Illinois, . However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution.17 Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution.18 To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases.IVIn the case before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, that transformed the appellees into "accused" defendants who are subject to the speedy trial protections of the Sixth Amendment.The 38-month delay between the end of the scheme charged in the indictment and the date the defendants were indicted did not extend beyond the period of the applicable statute of limitations here. Appellees have not, of course, been able to claim undue delay pending trial, since the indictment was brought on April 21, 1970, and dismissed on June 8, 1970. Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature. Reversed.
7	Proceeds from transactions whereby petitioner creates and designs reproducible instructional materials in New Mexico for delivery under contract to out-of-state clients, which the state court found involved sales of tangible personal property and not services performed in New Mexico, may not be subjected to New Mexico's gross receipts tax, the imposition of which upon such proceeds constitutes an impermissible burden on interstate commerce. 83 N. M. 110, 488 P.2d 1214, reversed.Kendall O. Schlenker argued the cause for petitioner. With him on the briefs was James M. Parker.John C. Cook, Assistant Attorney General of New Mexico, argued the cause for respondents. With him on the brief was David L. Norvell, Attorney General.PER CURIAM.The petitioner, Evco, is a New Mexico corporation that employs writers, artists, and draftsmen to create and design instructional programs. It develops an educational idea into a finished product that generally consists of reproducible originals of books, films, and magnetic audio tapes. Typical of its contracts is Evco's agreement with the Department of Agriculture to develop camera-ready copies of programmed textbooks, notebooks, and manuals to be used in an orientation course for forest engineers. Evco's contracts are negotiated and entered into outside New Mexico; it creates the reproducible originals in New Mexico, and then delivers them to its out-of-state clients. The customers in turn use the originals to publish however many books and manuals are needed to implement the instructional program.The Commissioner of Revenue for New Mexico levied the State's Emergency School Tax and its Gross Receipts Tax on the total proceeds Evco received from these contracts.1 The company appealed this assessment to the Court of Appeals of New Mexico, arguing that these taxes on out-of-state sales imposed an unconstitutional burden on interstate commerce in violation of Art. I, 8, of the Constitution. That court found that though the taxes were imposed on the proceeds of out-of-state sales of tangible personal property, rather than on the receipts from sales of services, such taxes were not an unconstitutional burden on commerce. 81 N. M. 724, 472 P.2d 987.2 The Supreme Court of New Mexico declined to review the judgment.In his brief in opposition to the petition for certiorari, which sought our review of that judgment, the Attorney General of New Mexico conceded that the State could not tax the receipts from sales of tangible personal property outside the State. We granted certiorari, vacated the judgment, and remanded the case to the Court of Appeals for reconsideration in light of the position taken by the Attorney General. . On remand, the Court of Appeals adhered to its prior findings that these taxes were imposed on out-of-state sales of tangible personal property, not services, but it concluded that the constitutionality of the taxes should not depend on that distinction. It reinstated and reaffirmed its prior opinion finding the taxes constitutional. 83 N. M. 110, 488 P.2d 1214. The Supreme Court of New Mexico again declined to review the case, and we granted certiorari. .Our prior cases indicate that a State may tax the proceeds from services performed in the taxing State, even though they are sold to purchasers in another State. Hence, in Department of Treasury v. Ingram-Richardson Mfg. Co., , the Court upheld a state gross income tax imposed on a taxpayer engaged in the process of enameling metal parts for its customers. We accepted the finding of the court below that this was a tax on income derived from services, not from the sales of finished products, and we found irrelevant the fact that the sales were made to out-of-state customers. The tax was validly imposed on the service performed in the taxing State. See also Western Live Stock v. Bureau of Revenue, .But a tax levied on the gross receipts from the sales of tangible personal property in another State is an impermissible burden on commerce. In J. D. Adams Mfg. Co. v. Storen, , we rejected as unconstitutional a State's attempt to impose a gross receipts tax on a taxpayer's sales of road machinery to out-of-state customers. "The vice of the statute as applied to receipts from interstate sales is that the tax includes in its measure, without apportionment, receipts derived from activities in interstate commerce; and that the exaction is of such a character that if lawful it may in substance be laid to the fullest extent by States in which the goods are sold as well as those in which they are manufactured. Interstate commerce would thus be subjected to the risk of a double tax burden to which intrastate commerce is not exposed, and which the commerce clause forbids." Id., at 311. See also Gwin, White & Prince, Inc. v. Henneford, .As on the previous petition for certiorari, both parties accept these propositions, and both agree that if the findings of the Court of Appeals of New Mexico are accepted, its judgment must be reversed.The only real dispute between the parties centers on the factual question of the nature and effect of the taxes. The State contends that these taxes were actually imposed on the receipts from services performed in the State, not on the income from the sale of property outside the State. It argues that the out-of-state purchasers actually paid for the educational programs developed in New Mexico, not for the camera-ready copies that were only incidental to the services purchased. But the Court of Appeals rejected this interpretation of the facts. It found in effect that the reproducible originals were the sine qua non of the contract and that it was the sale of that tangible personal property in another State that New Mexico had taxed. "There are no exceptional circumstances of any kind that would justify us in rejecting the ... Court's findings; they are not without factual foundation, and we accept them." Lloyd A. Fry Roofing Co. v. Wood, . See also Grayson v. Harris, ; Portland Railway, Light & Power Co. v. Railroad Comm'n, .Accordingly, since the Court of Appeals approved the imposition of a tax on the proceeds of the out-of-state sales of tangible personal property, its judgment is Reversed.
11	[ Wisconsin Elec. Power Co. v. U.S. ], 177] Mr. Van B. Wake, of Milwaukee, Wis., for petitioner. Mr. William L. Ransom, of New York City, for Consolidated Edison Co. of N.Y., as amicus curiae, by special leave of Court. Mr. Lee A. Jackson, of Washington, D.C., for respondent. Mr. Justice REED delivered the opinion of the Court. Petitioner, engaged in the business of supplying electric energy to the public, seeks the refund of taxes paid by it pursuant to 3411 of the Internal Revenue Code. That section, in pertinent part, provides for a tax ' * * * upon electrical energy sold for domestic or commercial consumption * * * equivalent to 3 per centum1 of the price for which so sold, to be paid by the vendor under such rules and regulations as the Commissioner, with the approval of the Secretary, shall prescribe.'2 Note that the statute taxes energy for domestic or commercial consumption. There is no provision for taxation of electrical energy used for industrial purposes. 3 The purchasers of the electric power here involved are 27 dairy plants which are engaged primarily in the collection, pasteurization, and distribution of fresh milk. The sole question presented by the case is whether the use of electricity by these dairies is commercial con- , 178] sumption within the meaning of the statute or industrial consumption, a use not covered by the statute. The functions of the dairy plants are sufficiently similar so that they can be treated as one for the purpose of describing their methods of operation. The plants are buildings equipped with milk-handling machinery and facilities located either off the dairy farms, or on the dairy farm itself as an activity apart from milk production. Contracts for the purchase of raw milk are negotiated with nearby farms. 4 This milk is delivered in trucks of the producers or of the dairy plant, as the case may be, to the plant where it is received, weighed, tested for butterfat content, cooled, and mixed and standardized so as to achieve the proper butterfat content. Next it is pasteurized. Pasteurization consists of heating the milk to 143 -145 F., maintaining it at that level for about thirty minutes, and then subjecting it to sudden cooling to a point between 38 and 40 F. 5 The process is designed to kill pathogenic bacteria without destroying the natural creaming properties or the taste of the milk. Then the milk is drawn into bottles or cans which have been washed, sterilized, and cooled. Finally it is stored in refrigerated rooms to permit the cream line to form and to await delivery. 6 Most of it is delivered to customers in the dairy plant's trucks or wagons. In some instances a small proportion is sold at the plant itself. , 179] Electric power is employed by the purchasing dairy plants in a number of ways. It is used to light the plants, including the garage space for the collecting and distributing trucks. It drives electric motors which pump refrigerants, deliver milk to and from the pasteurizer and to the boltling machines, operate the homogenizer, the bottling machine, the cream separator, and the machinery used in washing sterilizing and conveying bottles. The electricity used by some of the plants is measured through a single meter, that of others through two or more meters, but in no case are the meters so connected to the incoming power line as to enable the energy supplied for one purpose to be differentiated from that supplied for another. We do not have before us a situation where pasteurization utilizes electrical energy that is measured by a meter exclusively used for pasteurization. Pasteurization is accomplished by the use of special equipment designed for that purpose. Most of the electricity attributable to the process is devoted to the ice machines which perform the rapid cooling of the milk after the initial heating. Since the same cooling units perform the cooling which is necessary before and after pasteurization, however, the electricity which they consume for pasteurization alone cannot be ascertained. Pasteurization equipment, including the increased cooling equipment necessary therefor, accounts for about 15 or 20 percent of the total cost of plant equipment, excluding trucks and other vehicles. About one-tenth of the cost of plant operation, excluding the cost of the raw milk and costs attributable to distribution, is attributable to pasteurization. Petitioner paid the tax on electrical energy sold to the dairy plants during the period from April, 1940, to July, 1943, and then brought suit to recover it on the ground that such energy was sold not for commercial but for , 180] industrial consumption. The United States District Court for the Eastern District of Wisconsin held that the sales were for commercial consumption within the meaning of the statute, and therefore that the tax was valid. 69 F.Supp. 743. The United States Court of Appeals for the Seventh Circuit affirmed. 168 F.2d 285. It summarized its views as follows:'We agree with (District) Judge Duffy that the wording and legislative history of the Act make it clear that the predominant character of the business carried on by a consumer of electrical energy is what determines whether the electricity sold has been sold for 'commercial consumption'; hence we are content to adopt his opinion as that of this court.' 168 F.2d at 286. The United States Court of Appeals for the Tenth Circuit had held in United States v. Public Service Co. of Colorado, 143 F.2d 79, that electrical energy sold to dairy plants operating substantially as these was sold for industrial rather than commercial consumption, and consequently was not taxable under 3411. We granted certiorari in this case in order to resolve the apparent conflict between circuits and to settle the meaning of the statute as it applies to the business of this general type of dairy plant. . The tax now embodied in 3411 was originally imposed upon the consumer of electricity by the Revenue Act of 1932, 47 Stat. 169, 266. This Act was amended in 1933 to make the burden of the tax fall directly upon the vendor. 48 Stat. 254, 256. No change of any significance for our purposes has occurred since the original enactment of this provision. Although the language of the section does not include the word 'industrial,' it is clear from the legislative history that 'commercial' was used in contradistinction to , 181] 'industrial.'7 While electricity sold for commercial consumption is taxed, that sold for industrial consumption is not. Thus our task resolves itself to a determination of the category in which the consumption of electricity by these dairy plants should be classified. We shall not undertake the difficult and here needless task of general definition which differentiates for this statutory clause between industrial and commercial in other lines of business activity. That is a problem primarily for the administrators of the section, with knowledge of the specific and varying facts. The legislativ history indicates that the term 'commercial' was meant to apply to the nature of the business in which the energy is consumed, and not to the specific purpose to which each measurable unit of electricity is devoted. 8 Where it is delivered through a single meter at one location, energy utilized to operate sewing ma- , 182] chines for a minor manufacturing unit, e.g., shirts, in a department store, would be deemed power sold for commercial consumption, although it might fall within the industrial category if sold to a consumer who did nothing but manufacture shirts. Since any other interpretation of the section would entail the almost insurmountable administrative difficulty of classifying all the electricity sold to a plant according to the specific operations to which such power was devoted by the consumer, the conclusion that the controlling factor is the general nature of a business at a location accords with the natural meaning to be given the words employed by Congress to express its purpose. The regulations interpret the section in line with the legislative history. U.S.Treas.Reg. 46 (1940 ed.) 316.190 (as amended by T.D. 5099), presently applicable, provides in pertinent part:'Scope of tax.-The tax imposed by section 3411(a) of the Internal Revenue Code, as amended, applies, except as provided hereinafter, to all electrical energy sold for domestic or commercial consumption and not for resale.'The term 'electrical energy sold for domestic or commercial consumption' does not include (1) electrical energy sold for industrial consumption, e.g., for use in manufacturing, mining, refining, shipbuilding, building construction, irrigation, etc., or (2) that sold for other uses which likewise can not be classed as domestic or commercial, such as the electrical energy used by electric and gas companies, waterworks, telegraph, telephone, and radio communication companies, railroads, other similar common carriers, educational institutions not operated for private profit, churches, and charitable institutions in their operations as such. However, electrical energy is subject , 183] to tax if sold for consumption in commercial phases of industrial or other businesses, such as in office buildings, sales and display rooms, retail stores, etc., or in domestic phases, such as in dormitories or living quarters maintained by educational institutions, churches, charitable institutions, or others.'Where electrical energy is sold to a consumer for two or more purposes, through separate meters, the specific use for which the energy is sold through each meter, i.e., whether for domestic or commercial consumption, or for other use, shall determine its taxable status. Where the consumer has all the electrical energy consumed at a given location furnished through one meter, the predominant character of the business carried on at such location all determine the classification of consumption for the purposes of this tax.'9 The last sentence of this regulation makes it clear that all electrical energy furnished to a predominantly commercial establishment through a single meter is subject to the tax although portions of such energy are devoted to purposes which, considered separately, might be classified as industrial. 10 While the regulation does not deal with the point, we think it obvious from the last quoted paragraph that where the energy is furnished at a single location through various meters, although none of them , 184] are shown to carry current for predominantly industrial uses, the same rule would be applied. The last sentence of the regulation adds a qualification, however, which directs our attention, not necessarily to the nature of a business as a whole, but to the nature as a whole of the activities carried on 'at a given location.' We accept the last sentence of the quoted regulation as proper under the statute. 11 As applied to these plants we think that the electricity furnished by the petitioner was 'sold for commercial consumption' and consequently was properly taxed. Admittedly the activities of these consumers would be considered commercial if they did not pasteurize the milk prior to its sale. Such business would accurately be called the distribution of fresh milk. The butter and cream extraction appears incidental. We are not dealing with a 'creamery' in the sense of a butter or cheese factory. We agree with the courts below that the addition of pasteurization to the other activities described above does not change the nature of the dairy plants' business from commercial to industrial any more than would the cooking of food for sale in a restaurant, or the cleaning of raw food products prior to distribution or sale. The District Court found that 'pasteurization plays a minor part in the total business of the dairies,' and that 'the predominant business of the dairies here involved * * * is, and was, that of fluid milk dealers and distributors.' 12 , 185] Petitioner argues that the test applied by the Court of Appeals, 'whether the predominant character of the enterprise carried on by such consumer is commercial', is erroneous and contrary to the regulation in that it directs attention to the business as a whole rather than to the activities at a given location. While the language quoted is susceptible to this criticism, the variation is harmless because the plant itself is the location or the focal point of all the relevant activities of each of these consumers of electricity. Pasteurization does not occur at a separate location, but at the same plant where the milk is received, weighed, tested, cooled, homogenized, separated and bottled. The milk is brought to this plant when purchased, and from the plant it is distributed to customers. The fact that most of the sales or deliveries occur off the premises does not alter the essential fact that all activities occur in or pivot around the plant. Thus, though pasteurizing, we assume, is processing and though processing separately viewed may be conceded to be industrial,13 we conclude that the business conducted by these dairy plants is essentially commercial. The contrary conclusion reached in United States v. Public Service Co. of Colorado, 10 Cir., 143 F.2d 79, may be ascribed to the fact that there the court apparently looked to the use to which the electrical energy was devoted rather than to the nature of the business at a given location. 14 , 186] Rulings of the Bureau of Internal Revenue support our conclusion. In 1932, S.T. 518 stated that,'Electrical energy furnished for consumption by bottling works, milk companies, or creameries engaged in the pasteurization and bottling of milk, and in the manufacture of butter, buttermilk, chocolate milk, and cottage cheese, is not furnished for domestic or commercial consumption * * *.'15 Apparently, however, the Bureau intended this ruling to apply only to those plants whose business was predominantly pasteurization and the manufacture of milk by-products, because S.T. 637, issued the following year, contained the following statement:'A dairy which obtains milk and converts it into use for retail purposes is held to be engaged in a business commercial in character. Electrical energy used in such operations will be subject to tax.'16 In clarification of these two rulings the Bureau explained:'Electrical energy furnished a commercial dairy or milk company which merely produces or purchases raw milk in bulk and pasteurizes it for sale either in bulk or bottled quantities, whose activities consist principally in the handling, distribution and sale of milk, is also subject to the tax.'It is only electrical energy that is furnished for direct consumption by dairies which in addition to pasteurizing and bottling milk are also engaged in all the essential manufacturing processes necessary for the production of dairy products, such as the , 187] manufacturing of butter, cheese and other dairy products, for sale on the open market as an article of commerce, that is not subject to the tax.'17 Thus we hold that electrical energy supplied to these dairy plants through single meters, or through more than one but without differentiation as to use, is energy sold for commercial consumption. Affirmed.
7	Third National Bank in Nashville and Nashville Bank and Trust Co., the second and fourth largest banks in Davidson County, Tennessee, merged on August 18, 1964. After the merger the three largest banks had 97.9% of the total bank assets in the county, and the two largest banks had 76.7%. The Government's suit challenging the merger had not come to trial when the Bank Merger Act of 1966 took effect, on February 21, 1966. The Act did not provide antitrust immunity for the merger but did state that courts "shall apply the substantive rule of law set forth" in the Act to pending cases. Section 5 of the Act prohibits approval of a merger whose effect "may be substantially to lessen competition" unless the anticompetitive effects "are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served." The District Court asserted that the Act altered the standards used in determining whether a merger violated 7 of the Clayton Act and 1 of the Sherman Act and mandated a return to United States v. Columbia Steel Co., . The court found that Nashville Bank and Trust was a "stagnant and floundering bank," suffering from lack of young and aggressive officers. It held that the merger would not tend substantially to lessen competition and also that any anticompetitive effect would be outweighed by benefits to the "convenience and needs of the community." Held: 1. The Bank Merger Act of 1966 requires de novo inquiry by the district courts into the validity of bank mergers to determine whether the merger offends the antitrust laws, and, if it does, whether the banks have established that the merger is justified by benefits to the "convenience and needs of the community." United States v. First City National Bank of Houston, . P. 178. 2. The Act, which adopted the language of 7 of the Clayton Act, "substantially to lessen competition," did not provide a different antitrust standard for bank cases, and therefore the District Court applied an erroneous Clayton Act standard to the merger. Pp. 181-182. 3. On the facts of this case, the merger did tend substantially to lessen competition in the Nashville commercial banking market. P. 183. 4. The lower court misapprehended the meaning of the phrase "convenience and needs of the community," and misunderstood the weight to be given the relevant factors in determining whether the anticompetitive effects are "clearly outweighed in the public interest" by the effects on the convenience and needs of the community. Pp. 184-192. (a) While the District Court noted the increased loan capacity of the merged bank, it was not specific in describing the beneficial consequences thereof to the Nashville community, or in defining the value of such increase, especially as compared with less desirable results of the merger. P. 186. (b) The District Court's analysis did not explore possible ways of satisfying the community's convenience and needs without merger. It was incumbent on the banks to demonstrate that they made reasonable efforts to solve Nashville Bank and Trust's management dilemma short of merger with a major competitor. P. 189. (c) The findings of the District Court do not sufficiently establish the unavailability of alternative solutions to Nashville Bank and Trust's problems. Pp. 190-192. 5. The case is remanded so that the lower court can consider again the Act's application to the facts of this merger; and since the District Court heard this case before Houston Bank, supra, was decided, it may wish to consider reopening the record to permit the presentation of new evidence in light of the intervening interpretations of the Act. P. 192. 260 F. Supp. 869, reversed and remanded.Daniel M. Friedman argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Turner, Richard A. Posner and Barry Grossman.E. William Henry argued the cause for appellees Third National Bank in Nashville et al. With him on the brief were Paul A. Porter, Dennis G. Lyons, Frank M. Farris, Jr., Edwin F. Hunt and John J. Hooker, Jr. Joseph J. O'Malley argued the cause for appellee Camp, Comptroller of the Currency. With him on the brief were Robert Bloom and Charles H. McEnerney, Jr.MR. JUSTICE WHITE delivered the opinion of the Court.In this case the United States appeals from a District Court decision1 upholding the merger of Third National Bank in Nashville and Nashville Bank and Trust Company against challenge under 7 of the Clayton Act. The court below concluded that the merger, which joined the second largest and the fourth largest banks in Davidson County, Tennessee, into a bank which immediately after the merger was the county's largest bank but since has become the second largest, would not tend substantially to lessen competition and also that any anticompetitive effect would be outweighed by the "convenience and needs of the community to be served." We disagree with the District Court on both issues. We hold that the United States established that this merger would tend to lessen competition, and also that the District Court did not point to community benefits in terms of "convenience and needs" sufficient to outweigh the anticompetitive impact. I. Like other urban centers in the Southeast, Nashville has grown steadily since World War II in both population and economic activity. Commercial banks, as "the intermediaries in most financial transactions,"2 grew along with their city. From 1955 to 1964, for example, total assets of all banks located in Davidson County increased from $548,300,000 to $1,053,700,000, an increase of 92.2%. The number of banks hardly changed. Indeed, since 1927 there has been only one new bank in the county, Capital City Bank, and at the time of this merger it had achieved only .9% of the county's bank assets. The other banks at the time of the merger, and their percentage of total bank assets in Davidson County, were First American National, 38.3%; Third National, 33.6%; Commerce Union, 21.2%; Nashville Bank, 4.8%; and three small banks, two of them located in Davidson County towns outside Nashville, .6%, .3%, and .3%.3 The merger before us thus joined one of the three very large banks in Nashville and the one middle-sized bank. Its result was to increase from 93.1% to 97.9% the percentage of total assets held by the three largest banks and from 71.9% to 76.7% the percentage held by the two largest institutions.The two merging banks played significantly different roles in Nashville banking. Third National was characterized by the Comptroller of the Currency as one of the strongest and best managed banks in the Nation and by the District Court as "strong, dynamic and aggressive."4 It had "a history of innovating services or promptly providing new services,"5 a recruitment program at local universities, a continuous audit program, and a legal lending limit of $2,000,000. It had 14 branches at the time of the merger and served as correspondent for smaller banks located throughout the central south.Nashville Bank and Trust approached the merger with a more checkered history and a less dynamic present. Until 1956 it was largely a trust institution. In that year, under the direction of W. S. Hackworth, it changed its name from Nashville Trust Company and embarked on a drive to become a full-service commercial bank. This program enjoyed considerable success. Between 1955 and 1964, Nashville Bank's deposits grew from $20,800,000 to $45,500,000, and its loans and discounts from $8,100,000 to $22,800,000. In both categories it grew faster than the county average and faster than Third National. This growth, however, occurred at a substantially faster rate before 1960 than after that year. Before 1960 it was growing more rapidly than the other banks in the county, and after that year more slowly. Its share of total Nashville banking business thus declined from a high of 5.72% on June 30, 1960, to 4.83% on June 30, 1964.The District Court made elaborate findings as to why Nashville Bank and Trust "reached a plateau on which it remained until the date of the merger" and why in this period "it was a stagnant and floundering bank."6 From those findings, and from the broad picture of Nashville Bank's history and operations which emerges from the testimony and exhibits in this case, it appears that the principal reason was that key members of its management, the men who had been responsible for the bank's progress in the late 1950's, had advanced in age and either retired or slowed their activities. The bank's officials nonetheless made but scant efforts to recruit and advance young talent. Nashville Bank paid substantially lower salaries than the other Nashville banks, had no funded pension plan, and conducted no systematic recruiting program. On January 1, 1964, the bank's board of directors had 13 members, of whom four were 75 or over, nine were 65 or older, and 11 were 63 or older. Of the six department heads four were 65 or older and the other two were 59. The average age of the 15 officers working outside the trust department was over 60. The District Court painted in somber hues the banking policies and the economic results which seemed to flow from the failure to hire young talent. Essentially, Nashville Bank was not aggressive or efficient, and it had stopped growing, so that it could not open branches (it had only one) or embark on a correspondent banking program. It was nevertheless an institution of substantial size, with assets of $50,900,000 and deposits of $45,500,000. It was profitable, and it offered somewhat different services, occasionally at somewhat lower rates, than its competitors.In January 1964, the individuals who had owned controlling shares of Nashville Bank and Trust decided to sell 10,845 shares, a controlling interest, to a group of prominent Nashville citizens headed by William Weaver. The price was $350 per share. In February 1964, the Weaver group opened negotiations looking to a merger with Commerce Union Bank, Nashville's third largest. The negotiations were unsuccessful, however, because Weaver demanded $460 per share while Commerce Union offered only $360. Weaver then negotiated the sale to Third National, at a price of about $420 per share. The merger was approved by the boards of directors of both banks on March 12, 1964, and, after approval by the Comptroller of the Currency, was consummated on August 18, 1964. II. The legislative history of the Bank Merger Act of 19667 leaves no doubt that the Act was passed to make substantial changes in the law applicable to bank mergers. Congress was evidently dissatisfied with the 1960 Bank Merger Act as that Act was interpreted in United States v. Philadelphia National Bank, , and in United States v. First National Bank & Trust Co. of Lexington, , and wished to alter both the procedures by which the Justice Department challenges bank mergers and the legal standard which courts apply in judging those mergers. The resulting statute, however, as some members of Congress recognized,8 was more clear and more specific in prescribing new procedures for testing mergers than in expounding the new standard by which they should be judged.Last Term, in United States v. First City National Bank of Houston, , this Court interpreted the procedural provisions of the 1966 Act, holding that the Bank Merger Act provided for continued scrutiny of bank mergers under the Sherman Act and the Clayton Act, but had created a new defense, with the merging banks having the burden of proving that defense. The task of the district courts was to inquire de novo into the validity of a bank merger approved by the relevant bank regulatory agency to determine, first, whether the merger offended the anti-trust laws and, second, if it did, whether the banks had established that the merger was nonetheless justified by "the convenience and needs of the community to be served." Houston Bank reserved "all questions" concerning the substantive meaning of the "convenience and needs" defense. See 386 U.S., at 369, n. 1. III. The proceedings that have occurred until now regarding validity of the merger here before us have been scrambled and confused, largely because the relevant statute, the 1966 Bank Merger Act, became law just prior to the trial and did not receive its first interpretation by this Court, in Houston Bank, until the decision below had been rendered.The two banks agreed to merge on March 12, 1964. On April 27, 1964, they applied to the Comptroller of the Currency for approval, as the 1960 Bank Merger Act required. Pursuant to that Act, the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Department of Justice reported to the Comptroller of the Currency on "the competitive factors involved." The Federal Reserve Board reported that the merger "would have clearly adverse effects on competition" by "eliminat[ing] direct competition which exists between participants and ... increas[ing] significantly ... already heavy concentration ... ." The Federal Deposit Insurance Corporation reported that "the effect of the proposed merger on competition would be unfavorable." The Department of Justice reported that the merger "would have severe anticompetitive effects upon banking competition in Metropolitan Nashville." The Comptroller of the Currency, however, concluded that the merger would not lessen competition and would "improve the charter bank's ability to serve the convenience and needs of the Nashville public." On August 4, 1964, he approved the merger.On August 10, 1964, the United States, as this Court's decision in Philadelphia Bank authorized, sued in federal district court charging that the proposed merger was in violation of 7 of the Clayton Act9 and 1 of the Sherman Act.10 On August 18, 1964, the District Court refused the Government's request for a preliminary injunction staying consummation, and on that day the two banks merged.The antitrust suit against the merger had not come to trial when, on February 21, 1966, the Bank Merger Act of 1966 took effect. Congress had devoted much attention to the impact of that Act on bank mergers still in the process of litigation. In 2 of the Act, 80 Stat. 10, Congress excluded from all antitrust liability11 mergers which had been consummated before June 17, 1963, the date of this Court's Philadelphia Bank decision, and those consummated between June 17, 1963, and February 21, 1966, as to which the Attorney General had not begun litigation on February 21, 1966. However, although Congress considered amendments which would have provided antitrust immunity also for those bank mergers12 consummated after June 17, 1963, and already the subject of litigation, a decision was made to leave those mergers subject to liability, apparently13 because the merging parties had known, from Philadelphia Bank, that their consummation was with the risk of an eventual order to dissolve. Congress did provide, in 2 (c) of the Act, that courts hearing such cases "shall apply the substantive rule of law set forth" in the Act.Since the trial had been held after the 1966 Act took effect, and since the Comptroller of the Currency and other witnesses, directed by counsel, had addressed themselves to the statutory language contained in that Act, the District Court saw no need to remand to the Comptroller for a new opinion in light of the Act, as was ordered in United States v. Crocker-Anglo National Bank, 263 F. Supp. 125 (D.C. N. D. Cal. 1966). Proceeding to decide the case, the District Judge held that under the new Act, violation of antitrust standards was "primarily a legal issue ... [on which courts should make] an independent determination," while "convenience and needs of the community is, in the language of the Crocker-Anglo opinion, `plainly and unquestionably a legislative or administrative determination' ... [on which] the Comptroller's findings should not be disturbed unless they are unsupported by substantial evidence."14 The court concluded that the merger did not offend antitrust standards and that the Comptroller's conclusion that it would benefit the community was supported by substantial evidence. The relief sought by the Justice Department was denied. IV. The District Court asserted that one effect of the Bank Merger Act of 1966 was to alter the standards used in determining whether a merger is in violation of 7 of the Clayton Act and 1 of the Sherman Act. Essentially, the District Court mandated a return to United States v. Columbia Steel Co., , which this Court has held to be "confined to its special facts." Lexington Bank, 376 U.S., at 672. In later cases, especially Philadelphia Bank, supra; Lexington Bank, supra; United States v. Aluminum Co. of America, ; and United States v. Continental Can Co., , this Court has rejected the Columbia Steel approach to determining whether a merger will tend "substantially to lessen competition." We find in the 1966 Act, which adopted precisely that 7 Clayton Act phrase, as well as the "restraint of trade" language of Sherman Act 1, no intention to adopt an "antitrust standard" for bank cases different from that used generally in the law.15 Only one conclusion can be drawn from the exhaustive legislative deliberations that preceded passage of the Act: Congress intended bank mergers first to be subject to the usual antitrust analysis; if a merger failed that scrutiny, it was to be permissible only if the merging banks could establish that the merger's benefits to the community would outweigh its anticompetitive disadvantages. See Houston Bank, supra. Congressman Minish spoke in tune with the language of the Act and the statements of his colleagues when he said: "It should also be clear from the language of paragraph (5) (b) of this bill, which establishes this single standard, that the competitive factor to be used is drawn directly from Clayton Act section 7 and Sherman Act section 1. Thus, all of the principles developed over the last 75 years in regard to these statutes, such as the definition of relevant market and the failing company doctrine are carried forward unchanged by this proposed legislation."16 We therefore hold that the District Court employed an erroneous standard in applying 7 of the Clayton Act to the merger. In addition we hold that, appraised by the test enunciated in recent Clayton Act cases, the tendency of the merger substantially to lessen competition is apparent. Nashville had three large banks and one of middle size. In this merger the bank of middle size was absorbed by the second largest of the big banks. By the merger the market share of the three largest banks rose from 93% to 98%; the merged bank alone had almost 40% of the Nashville banking business. In addition, the record is replete with evidence that Nashville Bank and Trust was in fact an important competitive element in certain, though not in all, facets of Nashville banking. It offered somewhat different services, at somewhat different rates, from those offered by other banks, and some customers found those services desirable. Although Nashville Bank failed to increase its percentage share of the Nashville banking market after 1960, the absolute size of its business increased steadily from 1956, when it entered seriously into the commercial banking market, to the date of the merger. Throughout this period it was profitable. The record permits no conclusion that Nashville Bank was in any way a "failing" company. See International Shoe Co. v. FTC, . On these facts, the conclusion is inescapable that the merger of Third National Bank in Nashville with Nashville Bank and Trust Co. tended to lessen competition in the Nashville commercial banking market. Philadelphia Bank, supra. V. Because the District Court erroneously concluded that the merger would not tend to lessen competition, its conclusion upon weighing the competitive effect against the asserted benefits to the community is suspect. To weigh adequately one of these factors against the other requires a proper conclusion as to each. Having decided that the court below erred in assessing competitive impact, we should remand, so that the District Court can perform again the balancing process mandated by the Act.17 There is, however, an additional reason to remand. In our view, the District Court misapprehended the meaning of the phrase "convenience and needs of the community"; it misunderstood the weight to be given the relevant factors when seeking to determine whether the anticompetitive effects of a merger are "clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served."The purpose of the Bank Merger Act was to permit certain bank mergers even though they tended to lessen competition in the relevant market. Congress felt that the role of banks in a community's economic life was such that the public interest would sometimes be served by a bank merger even though the merger lessened competition. The public interest was the ultimate test imposed. This is clear not only from the language of the Act but from the statements of those who supported it while the Act was under consideration: "Mr. ASHLEY... . In other words, the merger must be shown to be sufficiently beneficial in meeting the convenience and needs of the community to be served that, on balance, it may properly be regarded as in the public interest. ... . . "Mr. MULTER... . I believe it was the intention of the Congress originally in 1960 when we enacted the Bank Merger Act that the public interest should be paramount in making any determination with reference to a merger. The words `in the public interest' are again written into this bill now and will remain in the law so that there will be no question but that the courts and the agencies must take the public interest into account. ... . . "Mr. ASHLEY. Is the gentleman saying, as I believe he is, that it is the consensus of the committee, in drafting this bill, that the public interest is to be considered as combining the consideration both of the anticompetitive factors of a particular merger on the one hand, and, on the other, the needs and convenience of the community that may derive from that merger, which, as I say, may result in a diminution of competition; in other words, that the public interest has got to involve a consideration of both of these rather considerable factors? "Mr. STEPHENS. That is correct ... ." 112 Cong. Rec. 2446, 2449, 2450. It is plain that Congress considered both competition in commercial banking and satisfaction of "the convenience and needs of the community" to be in the public interest. It concluded that a merger should be judged in terms of its overall effect upon the public interest. If a merger posed a choice between preserving competition and satisfying the requirements of convenience and need, the injury and benefit were to be weighed and decision was to rest on which alternative better served the public interest.The necessity of choosing is most clearly posed where the proposed merger would create an institution with capabilities for serving the public interest not possessed by either of the two merging institutions alone and where the potential could be realized only through merger. Thus, it might be claimed, as it is in this case, that a combined bank would have a greater lending capacity and hence be better equipped to serve the financial needs of the community. In Philadelphia Bank, 374 U.S., at 370-371, this Court, acting under the 1960 Bank Merger Act, rejected the relevance of the combined bank's ability to serve Philadelphia by making large loans that could otherwise only be obtained in New York. The Court found no statutory authorization for considering such a benefit in appraising the legality of a merger. Expressions in Congress during consideration of the 1966 Act suggest that one purpose of that Act was to give this factor, not previously relevant in appraising bank mergers, suitable weight in judging their validity.18 In the case before us the District Court's findings of fact suggest that the new bank, with a 20% greater lending limit than Third National Bank previously had, was able to make larger loans, for which Nashville area companies had previously to go to Chicago or New York. The District Court also stated that because Third National Bank operated with a higher loans-to-deposits ratio than Nashville Bank and Trust, combining their deposits and applying the Third National Bank ratio to the total increased available lending capacity in Nashville by about $2,800,000. But the District Court was not specific in describing the beneficial consequences of such results for the Nashville community, or in defining the value of these additions, especially as compared with the other, and less desirable, results of the merger. Absent such findings, the increased lending capacity of the new bank weighs very little in the balance. Congress was also concerned about banks in danger of collapse - banks not so deeply in trouble as to call forth the traditional "failing company" defense, but nonetheless in danger of becoming before long financially unsound institutions.19 Congress seems to have felt that a bank failure is a much greater community catastrophe than the failure of an industrial or retail enterprise, and that a much smaller risk of failure than that required by the failing company doctrine should be sufficient to justify the rather radical preventive step of an anticompetitive merger. The Findings of Fact of the District Court included the information that Nashville Bank and Trust Company had a higher than usual percentage of unsound loans, the result of unsatisfactory procedures for investigating and judging credit risks, and that its "rating" had been changed in 1962 from "satisfactory" to "fair." The District Court drew no conclusion about the extent of the danger these conditions posed for Nashville Bank and Trust's future, about the feasibility of curative measures short of merger, or about whether other healthy aspects of the bank's condition - for instance its steady profitability, including after-tax earnings of $368,000 in 196320 - removed any danger of failure in the foreseeable future. Absent findings and conclusions of this nature,21 the District Court seemed to be holding that the merger should be approved simply because Nashville Bank and Trust Company could be a better bank and could render better banking services.The District Court, it appears, considered the merger beneficial to the community because Nashville Bank and Trust had only one branch, because it had no program of correspondent banking, because its operations were not computerized, because it emphasized real estate loans rather than commercial loans, because its management was old and unable to render sound business advice to borrowers, because it was not recruiting new talent, and because its salary scale was low. Hence a merger was justified because it would solve these problems and produce an institution which, in the words of the House Report, would be capable of"furnishing better overall service to the community, even though the reduction in the number of competing units, or the concentration in the share of the market in one or more lines of commerce, might result under general antitrust law criteria in a substantial lessening of competition." H. R. Rep. No. 1221, 89th Cong., 2d Sess., 3. (Emphasis in original.) Undeniably, Nashville Bank and Trust had significant problems of the kind outlined in the findings of the District Court, problems which were primarily rooted in unsatisfactory and backward management. Just as surely, securing better banking service for the community is a proper element for consideration in weighing convenience and need against the loss of competition. Nor is there any doubt on this record that merger with Third National would very probably end the managerial problems of Nashville Bank and Trust and secure the better use of its assets in the public interest. Thus if the gains in better service outweighed the anticompetitive detriment and the merger was essential to secure this net gain to the public interest, the merger should be approved.But this analysis puts aside possible ways of satisfying the requirement of convenience and need without resort to merger. If the injury to the public interest flowing from the loss of competition could be avoided and the convenience and needs of the community benefited in ways short of merger but within the competence of reasonably able businessmen, the situation is radically different. In such circumstances, we seriously doubt that Congress intended a merger to be authorized by either the banking agencies or the courts. If, for example, just prior to this merger, an experienced banker with competent associates had offered to take over the active management of the bank or another competent businessman with a willingness to tackle the management problems of the bank had offered to buy out the Weaver interests at an acceptable price, it seems obvious that the Weaver group, which seeks to justify the merger in terms of producing an institution rendering better banking service, should not be permitted to merge and to ignore an available alternative. Otherwise, the benefits of competition, acknowledged by Congress, would be sacrificed needlessly. For the same reasons, we think it was incumbent upon those seeking to merge in this case to demonstrate that they made reasonable efforts to solve the management dilemma of Nashville Bank short of merger with a major competitor but failed in these attempts, or that any such efforts would have been unlikely to succeed.This seems to us the most rational reading of the Act, which was a compromise and satisfied none of the protagonists in this extended controversy. The Act directs the agencies and the courts to consider managerial as well as financial resources in weighing a proposed merger. However, the Act requires as well that the "future prospects of the existing and proposed institutions" be appraised. Part of such appraisal, where managerial deficiencies exist as they do in this case, is determining whether the merging bank is capable of obtaining its own improved management. This test does not demand the impossible or the unreasonable. It merely insists that before a merger injurious to the public interest is approved, a showing be made that the gain expected from the merger cannot reasonably be expected through other means.The question we therefore face is whether the findings of the District Court sufficiently or reliably establish the unavailability of alternative solutions to the woes of Nashville Bank and Trust Company. In our view, they do not. The District Court described the nature and extent of the bank's managerial shortcomings. It noted that the Weaver group had discussed these matters extensively with a number of persons, including bankers, and had learned that recruiting new management would be "extremely difficult" at the salaries paid by Nashville Bank. And it concluded that management procurement was difficult for banks in general and an "almost insoluble" problem for Nashville Bank and Trust.Just how insoluble was not made clear. The District Court did not ask whether the Weaver group had made concrete efforts to recruit new management, especially a chief executive officer, who was needed most. The record seems clear that they made no proposals to any individual prospects in or outside of Nashville, save one rather casual letter to a banking acquaintance in New York, and that they neither sought nor cared to seek the help of firms specializing in finding or furnishing new management.22 The court made no reference to the possibility that the new owners themselves might have taken active charge of the bank. None of them was a banker, but their successful predecessor Hackworth had not been one before becoming president of Nashville Bank.23 Nor did the court assess the possibility of a sale to others who might have been willing to face up to the management difficulties over a more extended period. We find nothing in the findings indicating that a bank with assets of $50,000,000 was simply too small to attract competent management24 or that the Weaver group, the new owners, were intransigently insisting on unreasonably conservative managerial policies. Indeed, the Weaver group included competent and experienced men who realized the desirability of improving an unsatisfactory situation. Rather than making serious efforts to do so themselves or to sell to others who would, they preferred to merge with a competing bank - a step which produced a profit of $750,000 on a two-month investment of $3,800,000.The burden of showing that an anticompetitive bank merger would be in the public interest because of the benefits it would bring to the convenience and needs of the community to be served rests on the merging banks. Houston Bank, supra. A showing that one bank needed more lively and efficient management, absent a showing that the alternative means for securing such management without a merger would present unusually severe difficulties, cannot be considered to satisfy that burden.We therefore conclude that the District Court was in error in holding that the factors it cited as ways in which this merger benefited the Nashville community were sufficient to outweigh the anticompetitive effects of the merger. The case must be remanded so that the District Court can consider again the application of the Bank Merger Act to the facts of this merger. Because the District Court heard this case before Houston Bank was decided, it may wish to consider reopening the record, so that the parties will have an opportunity to present new evidence in light of the intervening interpretations of the Act. The judgment below is reversed and the case is remanded for proceedings consistent with this opinion. It is so ordered.MR. JUSTICE FORTAS and MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
9	224 F. Supp. 546, affirmed.Stanley Mosk, Attorney General of California, E. G. Funke, Assistant Attorney General and Felice R. Cutter and Warren H. Deering, Deputy Attorneys General, for appellants.George D. Byfield for appellees.PER CURIAM.The motion to affirm is granted and the judgment is affirmed. Hostetter v. Idlewild Bon Voyage Liquor Corp., .MR. JUSTICE BLACK and MR. JUSTICE GOLDBERG dissent for the reasons stated in the dissenting opinion in Hostetter v. Idlewild Bon Voyage Liquor Corp., supra.
0	At respondent Tovar's November 1996 arraignment for operating a motor vehicle under the influence of alcohol (OWI), in response to the trial court's questions, Tovar affirmed that he wanted to represent himself and to plead guilty. Conducting the guilty plea colloquy required by the Iowa Rules of Criminal Procedure, the court explained that, if Tovar pleaded not guilty, he would be entitled to a speedy and public jury trial where he would have the right to counsel who could help him select a jury, question and cross-examine witnesses, present evidence, and make arguments on his behalf. By pleading guilty, the court cautioned, Tovar would give up his right to a trial and his rights at that trial to be represented by counsel, to remain silent, to the presumption of innocence, and to subpoena witnesses and compel their testimony. The court then informed Tovar of the maximum and minimum penalties for an OWI conviction, and explained that, before accepting a guilty plea, the court had to assure itself that Tovar was in fact guilty of the charged offense. To that end, the court informed Tovar of the two elements of the OWI charge: The defendant must have (1) operated a motor vehicle in Iowa (2) while intoxicated. Tovar confirmed, first, that on the date in question, he was operating a motor vehicle in Iowa and, second, that he did not dispute the result of the intoxilyzer test showing his blood alcohol level exceeded the legal limit nearly twice over. The court then accepted his guilty plea and, at a hearing the next month, imposed the minimum sentence of two days in jail and a fine. In 1998, Tovar was again charged with OWI, this time as a second offense, an aggravated misdemeanor under Iowa law. Represented by counsel in that proceeding, he pleaded guilty. In 2000, Tovar was charged with third-offense OWI, a class "D" felony under Iowa law. Again represented by counsel, Tovar pleaded not guilty to the felony charge. Counsel moved to preclude use of Tovar's first (1996) OWI conviction to enhance his 2000 offense from an aggravated misdemeanor to a third-offense felony. Tovar maintained that his 1996 waiver of counsel was invalid — not fully knowing, intelligent, and voluntary — because he was never made aware by the court of the dangers and disadvantages of self-representation. The trial court denied the motion, found Tovar guilty, and sentenced him on the OWI third-offense charge. The Iowa Court of Appeals affirmed, but the Supreme Court of Iowa reversed and remanded for entry of judgment without consideration of Tovar's first OWI conviction. Holding that the colloquy preceding acceptance of Tovar's 1996 guilty plea had been constitutionally inadequate, Iowa's high court ruled, as here at issue, that two warnings not given to Tovar are essential to the "knowing and intelligent" waiver of the Sixth Amendment right to counsel at the plea stage: The defendant must be advised specifically that waiving counsel's assistance in deciding whether to plead guilty (1) entails the risk that a viable defense will be overlooked and (2) deprives him of the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty.Held: Neither warning ordered by the Iowa Supreme Court is mandated by the Sixth Amendment. The constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea. Pp. 8-15. (a) The Sixth Amendment secures to a defendant facing incarceration the right to counsel at all "critical stages" of the criminal process, see, e.g., Maine v. Moulton, 474 U. S. 159, 170, including a plea hearing, White v. Maryland, 373 U. S. 59, 60 (per curiam). Because Tovar received a two-day prison term for his first OWI conviction, he had a right to counsel both at the plea stage and at trial had he elected to contest the charge. Argersinger v. Hamlin, 407 U. S. 25, 34, 37. Although an accused may choose to forgo representation, any waiver of the right to counsel must be knowing, voluntary, and intelligent, see Johnson v. Zerbst, 304 U. S. 458, 464. The information a defendant must possess in order to make an intelligent election depends on a range of case-specific factors, including his education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. See Johnson, 487 U. S. 285, 298; see Faretta v. California, 422 U. S. 806, 835, a less searching or formal colloquy may suffice at earlier stages of the criminal process, 487 U. S., at 299. In Patterson, this Court described a pragmatic approach to right-to-counsel waivers, one that asks "what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance [counsel] could provide to an accused at that stage." Id., at 298. Less rigorous warnings are required pretrial because, at that stage, "the full dangers and disadvantages of self-representation ... are less substantial and more obvious to an accused than they are at trial." Id., at 299. Pp. 8-11. (b) The Sixth Amendment does not compel the two admonitions ordered by the Iowa Supreme Court. "[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances ... ." United States v. Ruiz, 536 U. S. 622, 629. Even if the defendant lacked a full and complete appreciation of all of the consequences flowing from his waiver, the State may nevertheless prevail if it shows that the information provided to the defendant satisfied the constitutional minimum. Patterson, 487 U. S., at 294. The Iowa high court gave insufficient consideration to this Court's guiding decisions. In prescribing scripted admonitions and holding them necessary in every guilty plea instance, that court overlooked this Court's observations that the information a defendant must have to waive counsel intelligently will depend upon the particular facts and circumstances in each case, Johnson, 304 U. S., at 464. Moreover, as Tovar acknowledges, in a collateral attack on an uncounseled conviction, it is the defendant's burden to prove that he did not competently and intelligently waive his right to counsel. Tovar has never claimed that he did not fully understand the 1996 OWI charge or the range of punishment for that crime prior to pleading guilty. He has never "articulate[d] with precision" the additional information counsel could have provided, given the simplicity of the charge. See Patterson, 487 U. S., at 294. Nor does he assert that he was unaware of his right to be counseled prior to and at his arraignment. Before this Court, he suggests only that he may have been under the mistaken belief that he had a right to counsel at trial, but not if he was, instead, going to plead guilty. Given "the particular facts and circumstances surrounding [this] case," Johnson, 304 U. S., at 464, it is far from clear that warnings of the kind required by the Iowa Supreme Court would have enlightened Tovar's decision whether to seek counsel or to represent himself. In a case so straightforward, the two admonitions at issue might confuse or mislead a defendant more than they would inform him, i.e., the warnings might be misconstrued to convey that a meritorious defense exists or that the defendant could plead to a lesser charge, when neither prospect is a realistic one. If a defendant delays his plea in the vain hope that counsel could uncover a tenable basis for contesting or reducing the criminal charge, the prompt disposition of the case will be impeded, and the resources of either the State (if the defendant is indigent) or the defendant himself (if he is financially ineligible for appointed counsel) will be wasted. States are free to adopt by statute, rule, or decision any guides to the acceptance of an uncounseled plea they deem useful, but the Federal Constitution does not require the two admonitions here in controversy. Pp. 11-15.656 N. W. 2d 112, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court.IOWA, PETITIONER v. FELIPE EDGARDO TOVARon writ of certiorari to the supreme court of iowa[March 8, 2004] Justice Ginsburg delivered the opinion of the Court. The Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process. Maine v. Moulton, 474 U. S. 159, 170 (1985); United States v. Wade, 388 U. S. 218, 224 (1967). The entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a "critical stage" at which the right to counsel adheres. Argersinger v. Hamlin, 407 U. S. 25, 34 (1972); White v. Maryland, 373 U. S. 59, 60 (1963) (per curiam). Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a "knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances." Brady v. United States, 397 U. S. 742, 748 (1970). This case concerns the extent to which a trial judge, before accepting a guilty plea from an uncounseled defendant, must elaborate on the right to representation. Beyond affording the defendant the opportunity to consult with counsel prior to entry of a plea and to be assisted by counsel at the plea hearing, must the court, specifically: (1) advise the defendant that "waiving the assistance of counsel in deciding whether to plead guilty [entails] the risk that a viable defense will be overlooked"; and (2) "admonis[h]" the defendant "that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty"? 656 N. W. 2d 112, 121 (Iowa 2003). The Iowa Supreme Court held both warnings essential to the "knowing and intelligent" waiver of the Sixth Amendment right to the assistance of counsel. Ibid. We hold that neither warning is mandated by the Sixth Amendment. The constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.I On November 2, 1996, respondent Felipe Edgardo Tovar, then a 21-year-old college student, was arrested in Ames, Iowa, for operating a motor vehicle while under the influence of alcohol (OWI). See Iowa Code §321J.2 (1995).1 An intoxilyzer test administered the night of Tovar's arrest showed he had a blood alcohol level of 0.194. App. 24. The arresting officer informed Tovar of his rights under Miranda v. Arizona, 384 U. S 436 (1966). Tovar signed a form stating that he waived those rights and agreed to answer questions. Iowa State Univ. Dept. of Public Safety, OWI Supplemental Report 3 (Nov. 2, 1996), Lodging of Petitioner; Iowa State Univ. Dept. of Public Safety, Rights Warnings (Nov. 2, 1996), Lodging ofPetitioner. Some hours after his arrest, Tovar appeared before a judge in the Iowa District Court for Story County. The judge indicated on the Initial Appearance form that Tovar appeared without counsel and waived application for court-appointed counsel. Initial Appearance in No. OWCR 23989 (Nov. 2, 1996), Lodging of Petitioner. The judge also marked on the form's checklist that Tovar was "informed of the charge and his ... rights and receive[d] a copy of the Complaint." Ibid. Arraignment was set for November 18, 1996. In the interim, Tovar was released from jail. At the November 18 arraignment,2 the court's inquiries of Tovar began: "Mr. Tovar appears without counsel and I see, Mr. Tovar, that you waived application for a court appointed attorney. Did you want to represent yourself at today's hearing?" App. 8-9. Tovar replied: "Yes, sir." Id., at 9. The court soon after asked: "[H]ow did you wish to plead?" Tovar answered: "Guilty." Ibid. Tovar affirmed that he had not been promised anything or threatened in any way to induce him to plead guilty. Id., at 13-14. Conducting the guilty plea colloquy required by the Iowa Rules of Criminal Procedure, see Iowa Rule Crim. Proc. 8 (1992),3 the court explained that, if Tovar pleaded not guilty, he would be entitled to a speedy and public trial by jury, App. 15, and would have the right to be represented at that trial by an attorney, who "could help [Tovar] select a jury, question and cross-examine the State's witnesses, present evidence, if any, in [his] behalf, and make arguments to the judge and jury on [his] behalf," id., at 16. By pleading guilty, the court cautioned, "not only [would Tovar] give up [his] right to a trial [of any kind on the charge against him], [he would] give up [his] right to be represented by an attorney at that trial." Ibid. The court further advised Tovar that, if he entered a guilty plea, he would relinquish the right to remain silent at trial, the right to the presumption of innocence, and the right to subpoena witnesses and compel their testimony. Id., at 16-19. Turning to the particular offense with which Tovar had been charged, the court informed him that an OWI conviction carried a maximum penalty of a year in jail and a $1,000 fine, and a minimum penalty of two days in jail and a $500 fine. Id., at 20. Tovar affirmed that he understood his exposure to those penalties. Ibid. The court next explained that, before accepting a guilty plea, the court had to assure itself that Tovar was in fact guilty of the charged offense. Id., at 21-22. To that end, the court informed Tovar that the OWI charge had only two elements: first, on the date in question, Tovar was operating a motor vehicle in the State of Iowa; second, when he did so, he was intoxicated. Id., at 23. Tovar confirmed that he had been driving in Ames, Iowa, on the night he was apprehended and that he did not dispute the results of the intoxilyzer test administered by the police that night, which showed that his blood alcohol level exceeded the legal limit nearly twice over. Id., at 23-24. After the plea colloquy, the court asked Tovar if he still wished to plead guilty, and Tovar affirmed that he did. Id., at 27-28. The court then accepted Tovar's plea, observing that there was "a factual basis" for it, and that Tovar had made the plea "voluntarily, with a full understanding of [his] rights, [and] ... of the consequences of [pleading guilty]." Id., at 28. On December 30, 1996, Tovar appeared for sentencing on the OWI charge4 and, simultaneously, for arraignment on a subsequent charge of driving with a suspended license. Id., at 45-46; see Iowa Code §321J.21 (1995).5 Noting that Tovar was again in attendance without counsel, the court inquired: "Mr. Tovar, did you want to represent yourself at today's hearing or did you want to take some time to hire an attorney to represent you?" App. 46.6 Tovar replied that he would represent himself. Ibid. The court then engaged in essentially the same plea colloquy on the suspension charge as it had on the OWI charge the previous month. Id., at 48-51. After accepting Tovar's guilty plea on the suspension charge, the court sentenced him on both counts: For the OWI conviction, the court imposed the minimum sentence of two days in jail and a $500 fine, plus a surcharge and costs; for the suspension conviction, the court imposed a $250 fine, plus a surcharge and costs. Id., at 55. On March 16, 1998, Tovar was convicted of OWI for a second time. He was represented by counsel in that proceeding, in which he pleaded guilty. Record 60; see App. to Pet. for Cert. 24, n. 1. On December 14, 2000, Tovar was again charged with OWI, this time as a third offense, see Iowa Code §321J.2 (1999), and additionally with driving while license barred, see §321.561. Iowa law classifies first-offense OWI as a serious misdemeanor and second-offense OWI as an aggravated misdemeanor. §§321J.2(2)(a)-(b). Third-offense OWI, and any OWI offenses thereafter, rank as class "D" felonies. §321J.2(2)(c). Represented by an attorney, Tovar pleaded not guilty to both December 2000 charges. Record 55. In March 2001, through counsel, Tovar filed a Motion for Adjudication of Law Points;7 the motion urged that Tovar's first OWI conviction, in 1996, could not be used to enhance the December 2000 OWI charge from a second-offense aggravated misdemeanor to a third-offense felony. App. 3-5.8 Significantly, Tovar did not allege that he was unaware at the November 1996 arraignment of his right to counsel prior to pleading guilty and at the plea hearing. Instead, he maintained that his 1996 waiver of counsel was invalid — not "full knowing, intelligent, and voluntary"--because he "was never made aware by the court ... of the dangers and disadvantages of self-representation." Id., at 3-4. The court denied Tovar's motion in May 2001, explaining: "Where the offense is readily understood by laypersons and the penalty is not unduly severe, the duty of inquiry which is imposed upon the court is only that which is required to assure an awareness of [the] right to counsel and a willingness to proceed without counsel in the face of such awareness." App. to Pet. for Cert. 36-37 (brackets in original). Tovar then waived his right to a jury trial and was found guilty by the court of both the OWI third-offense charge and driving while license barred. Id., at 33. Four months after that adjudication, Tovar was sentenced. On the OWI third-offense charge, he received a 180-day jail term, with all but 30 days suspended, three years of probation, and a $2,500 fine plus surcharges and costs. App. 70-71. For driving while license barred, Tovar received a 30-day jail term, to run concurrently with the OWI sentence, and a suspended $500 fine. Id., at 71. The Iowa Court of Appeals affirmed, App. to Pet. for Cert. 23-30, but the Supreme Court of Iowa, by a 4 to 3 vote, reversed and remanded for entry of judgment without consideration of Tovar's first OWI conviction, 656 N. W. 2d 112 (2003). Iowa's highest court acknowledged that "the dangers of proceeding pro se at a guilty plea proceeding will be different than the dangers of proceeding pro se at a jury trial, [therefore] the inquiries made at these proceedings will also be different." Id., at 119. The court nonetheless held that the colloquy preceding acceptance of Tovar's 1996 guilty plea had been constitutionally inadequate, and instructed dispositively:"[A] defendant such as Tovar who chooses to plead guilty without the assistance of an attorney must be advised of the usefulness of an attorney and the dangers of self-representation in order to make a knowing and intelligent waiver of his right to counsel... . [T]he trial judge [must] advise the defendant generally that there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked. The defendant should be admonished that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty. In addition, the court must ensure the defendant understands the nature of the charges against him and the range of allowable punishments." Id., at 121.9We granted certiorari, 539 U. S. -- (2003), in view of the division of opinion on the requirements the Sixth Amendment imposes for waiver of counsel at a plea hearing, compare, e.g., United States v. Akins, 276 F. 3d 1141, 1146-1147 (CA9 2002), with State v. Cashman, 491 N. W. 2d 462, 465-466 (S. D. 1992), and we now reverse the judgment of the Iowa Supreme Court.II The Sixth Amendment secures to a defendant who faces incarceration the right to counsel at all "critical stages" of the criminal process. See, e.g., Maine v. Moulton, 474 U. S., at 170; United States v. Wade, 388 U. S., at 224. A plea hearing qualifies as a "critical stage." White v. Maryland, 373 U. S., at 60. Because Tovar received a two-day prison term for his 1996 OWI conviction, he had a right to counsel both at the plea stage and at trial had he elected to contest the charge. Argersinger v. Hamlin, 407 U. S., at 34, 37. A person accused of crime, however, may choose to forgo representation. While the Constitution "does not force a lawyer upon a defendant," Adams v. United States ex rel. McCann, 317 U. S. 269, 279 (1942), it does require that any waiver of the right to counsel be knowing, voluntary, and intelligent, see Johnson v. Zerbst, 304 U. S. 458, 464 (1938). Tovar contends that his waiver of counsel in November 1996, at his first OWI plea hearing, was insufficiently informed, and therefore constitutionally invalid. In particular, he asserts that the trial judge did not elaborate on the value, at that stage of the case, of an attorney's advice and the dangers of self-representation in entering a plea. Brief for Respondent 15.10 We have described a waiver of counsel as intelligent when the defendant "knows what he is doing and his choice is made with eyes open." Adams, 317 U. S., at 279. We have not, however, prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. See Johnson, 304 U. S., at 464. As to waiver of trial counsel, we have said that before a defendant may be allowed to proceed pro se, he must be warned specifically of the hazards ahead. Faretta v. California, 422 U. S. 806 (1975), is instructive. The defendant in Faretta resisted counsel's aid, preferring to represent himself. The Court held that he had a constitutional right to self-representation. In recognizing that right, however, we cautioned: "Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing ... ." Id., at 835 (internal quotation marks omitted). Later, in Patterson v. Illinois, 487 U. S. 285 (1988), we elaborated on "the dangers and disadvantages of self-representation" to which Faretta referred. "[A]t trial," we observed, "counsel is required to help even the most gifted layman adhere to the rules of procedure and evidence, comprehend the subtleties of voir dire, examine and cross-examine witnesses effectively ... , object to improper prosecution questions, and much more." 487 U. S., at 299, n. 13. Warnings of the pitfalls of proceeding to trial without counsel, we therefore said, must be "rigorous[ly]" conveyed. Id., at 298. We clarified, however, that at earlier stages of the criminal process, a less searching or formal colloquy may suffice. Id., at 299. Patterson concerned postindictment questioning by police and prosecutor. At that stage of the case, we held, the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), adequately informed the defendant not only of his Fifth Amendment rights, but of his Sixth Amendment right to counsel as well. 487 U. S., at 293. Miranda warnings, we said, effectively convey to a defendant his right to have counsel present during questioning. In addition, they inform him of the "ultimate adverse consequence" of making uncounseled admissions, i.e., his statements may be used against him in any ensuing criminal proceeding. 487 U. S., at 293. The Miranda warnings, we added, "also sufficed ... to let [the defendant] know what a lawyer could 'do for him,' " namely, advise him to refrain from making statements that could prove damaging to his defense. 487 U. S., at 294. Patterson describes a "pragmatic approach to the waiver question," one that asks "what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage," in order "to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized." Id., at 298. We require less rigorous warnings pretrial, Patterson explained, not because pretrial proceedings are "less important" than trial, but because, at that stage, "the full dangers and disadvantages of self-representation ... are less substantial and more obvious to an accused than they are at trial." Id., at 299 (citation and internal quotation marks omitted). In Tovar's case, the State maintains that, like the Miranda warnings we found adequate in Patterson, Iowa's plea colloquy suffices both to advise a defendant of his right to counsel, and to assure that his guilty plea is informed and voluntary. Brief for Petitioner 20; Tr. of Oral Arg. 3. The plea colloquy, according to the State, "makes plain that an attorney's role would be to challenge the charge or sentence," and therefore adequately conveys to the defendant both the utility of counsel and the dangers of self-representation. Brief for Petitioner 25. Tovar, on the other hand, defends the precise instructions required by the Iowa Supreme Court, see supra, at 7-8, as essential to a knowing, voluntary, and intelligent plea stage waiver of counsel. Brief for Respondent 15. To resolve this case, we need not endorse the State's position that nothing more than the plea colloquy was needed to safeguard Tovar's right to counsel. Preliminarily, we note that there were some things more in this case. Tovar first indicated that he waived counsel at his Initial Appearance, see supra, at 3, affirmed that he wanted to represent himself at the plea hearing, see supra, at 3, and declined the court's offer of "time to hire an attorney" at sentencing, when it was still open to him to request withdrawal of his plea, see supra, at 4-5, and n. 4. Further, the State does not contest that a defendant must be alerted to his right to the assistance of counsel in entering a plea. See Brief for Petitioner 19 (acknowledging defendant's need to know "retained or appointed counsel can assist" at the plea stage by "work[ing] on the issues of guilt and sentencing"). Indeed, the Iowa Supreme Court appeared to assume that Tovar was informed of his entitlement to counsel's aid or, at least, to have pretermitted that issue. See 656 N. W. 2d, at 117. Accordingly, the State presents a narrower question: "Does the Sixth Amendment require a court to give a rigid and detailed admonishment to a pro se defendant pleading guilty of the usefulness of an attorney, that an attorney may provide an independent opinion whether it is wise to plead guilty and that without an attorney the defendant risks overlooking a defense?" Pet. for Cert. i. Training on that question, we turn to, and reiterate, the particular language the Iowa Supreme Court employed in announcing the warnings it thought the Sixth Amendment required: "[T]he trial judge [must] advise the defendant generally that there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked," 656 N. W. 2d, at 121; in addition, "[t]he defendant should be admonished that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty," ibid. Tovar did not receive such advice, and the sole question before us is whether the Sixth Amendment compels the two admonitions here in controversy.11 We hold it does not. This Court recently explained, in reversing a lower court determination that a guilty plea was not voluntary: "[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances — even though the defendant may not know the specific detailed consequences of invoking it." United States v. Ruiz, 536 U. S. 622, 629 (2002) (emphasis in original). We similarly observed in Patterson: "If [the defendant] ... lacked a full and complete appreciation of all of the consequences flowing from his waiver, it does not defeat the State's showing that the information it provided to him satisfied the constitutional minimum." 487 U. S., at 294 (internal quotation marks omitted). The Iowa Supreme Court gave insufficient consideration to these guiding decisions. In prescribing scripted admonitions and holding them necessary in every guilty plea instance, we further note, the Iowa high court overlooked our observations that the information a defendant must have to waive counsel intelligently will "depend, in each case, upon the particular facts and circumstances surrounding that case," Johnson, 304 U. S., at 464; supra, at 9. Moreover, as Tovar acknowledges, in a collateral attack on an uncounseled conviction, it is the defendant's burden to prove that he did not competently and intelligently waive his right to the assistance of counsel. See Watts v. State, 257 N. W. 2d 70, 71 (Iowa 1977); Brief for Respondent 5, 26-27. In that light, we note that Tovar has never claimed that he did not fully understand the charge or the range of punishment for the crime prior to pleading guilty. Further, he has never "articulate[d] with precision" the additional information counsel could have provided, given the simplicity of the charge. See Patterson, 487 U. S., at 294; supra, at 4. Nor does he assert that he was unaware of his right to be counseled prior to and at his arraignment. Before this Court, he suggests only that he "may have been under the mistaken belief that he had a right to counsel at trial, but not if he was merely going to plead guilty." Brief for Respondent 16 (emphasis added).12 Given "the particular facts and circumstances surrounding [this] case," see Johnson, 304 U. S., at 464, it is far from clear that warnings of the kind required by the Iowa Supreme Court would have enlightened Tovar's decision whether to seek counsel or to represent himself. In a case so straightforward, the United States as amicus curiae suggests, the admonitions at issue might confuse or mislead a defendant more than they would inform him: The warnings the Iowa Supreme Court declared mandatory might be misconstrued as a veiled suggestion that a meritorious defense exists or that the defendant could plead to a lesser charge, when neither prospect is a realistic one. If a defendant delays his plea in the vain hope that counsel could uncover a tenable basis for contesting or reducing the criminal charge, the prompt disposition of the case will be impeded, and the resources of either the State (if the defendant is indigent) or the defendant himself (if he is financially ineligible for appointed counsel) will be wasted. Brief for United States as Amicus Curiae 9, 28-29; Tr. of Oral Arg. 20-21. We note, finally, that States are free to adopt by statute, rule, or decision any guides to the acceptance of an uncounseled plea they deem useful. See, e.g., Alaska Rule Crim. Proc. 39(a) (2003); Fla. Rule Crim. Proc. 3.111(d) (2003); Md. Ct. Rule 4-215 (2002); Minn. Rule Crim.Proc. 5.02 (2003); Pa. Rule Crim. Proc. 121, comment (2003). We hold only that the two admonitions the Iowa Supreme Court ordered are not required by the Federal Constitution.* * * For the reasons stated, the judgment of the Supreme Court of Iowa is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.FOOTNOTESFootnote 1 "A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in either of the following conditions: a. While under the influence of an alcoholic beverage ... . b. While having an alcohol concentration ... of .10 or more." Iowa Code §321J.2(1) (1995).Footnote 2 Tovar appeared in court along with four other individuals charged with misdemeanor offenses. App. 6-10. The presiding judge proposed to conduct the plea proceeding for the five cases jointly, and each of the individuals indicated he did not object to that course of action. Id., at 11.Footnote 3 The Rule has since been renumbered 2.8.Footnote 4 At that stage, it was still open to Tovar to request withdrawal of his guilty plea on the OWI charge and to substitute a plea of not guilty. See Iowa Rule Crim. Proc. 8(2)(a) (1992).Footnote 5 In order to appear at the OWI arraignment, Tovar drove to the courthouse despite the suspension of his license; he was apprehended en route home. App. 50, 53.Footnote 6 Prior to asking Tovar whether he wished to hire counsel, the court noted that Tovar had applied for a court-appointed attorney but that his application had been denied because he was financially dependent upon his parents. Id., at 46. Tovar does not here challenge the absence of counsel at sentencing.Footnote 7 See Iowa Rule Crim. Proc. 10(2) (1992) ("Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion."); State v. Wilt, 333 N. W. 2d 457, 460 (Iowa 1983) (approving use of motions for adjudication of law points under Iowa Rule of Criminal Procedure 10(2) where material facts are undisputed).Footnote 8 Tovar conceded that the 1998 OWI conviction could be used for enhancement purposes. Record 60.Footnote 9 The dissenting justices criticized the majority's approach as "rigid" and out of line with the pragmatic approach this Court described in Patterson v. Illinois, 487 U. S. 285, 298 (1988). 656 N. W. 2d, at 122. They noted that, in addition to advice concerning the constitutional rights a guilty plea relinquishes, Tovar was "made fully aware of the penal consequences that might befall him if he went forward without counsel and pleaded guilty." Ibid.Footnote 10 The United States as amicus curiae reads our decision in Scott v. Illinois, 440 U. S. 367 (1979), to hold that a constitutionally defective waiver of counsel in a misdemeanor prosecution, although warranting vacation of any term of imprisonment, affords no ground for disturbing the underlying conviction. Amicus accordingly contends that the Constitution should not preclude use of an uncounseled misdemeanor conviction to enhance the penalty for a subsequent offense, regardless of the validity of the prior waiver. See Brief for United States as Amicus Curiae 11, n. 3. The State, however, does not contest the Iowa Supreme Court's determination that a conviction obtained without an effective waiver of counsel cannot be used to enhance a subsequent charge. See ibid. We therefore do not address arguments amicus advances questioning that premise. See also id., at 29, n. 12.Footnote 11 The Supreme Court of Iowa also held that "the court must ensure the defendant understands the nature of the charges against him and the range of allowable punishments." 656 N. W. 2d, at 121. The parties do not dispute that Tovar was so informed. Footnote 12 The trial court's comment that Tovar appeared without counsel at the arraignment and the court's inquiry whether Tovar wanted to represent himself at that hearing, see App. 8-9, hardly lend support to Tovar's suggestion of what he "may have" believed. See also id., at 46 (court's inquiry at sentencing whether Tovar "want[ed] to take some time to hire an attorney"); Iowa Rule Crim. Proc. 8(2)(a) (1992) ("[a]t any time before judgment," defendant may request withdrawal of guilty plea and substitution of not guilty plea).
0	Payton v. New York, , held that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest. Before Payton was decided, respondent was arrested on a federal charge by Secret Service agents who had entered his home without an arrest warrant. Subsequently, the Federal District Court denied respondent's pretrial motion to suppress incriminating statements he made after his arrest. This evidence was admitted at his trial and he was convicted. While his case was still pending on direct appeal, Payton was decided. On the strength of Payton, the Court of Appeals reversed the conviction, holding that Payton applied retroactively.Held: A decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered, except where a case would be clearly controlled by existing retroactivity precedents. Hence, Payton is to be applied retroactively to respondent's case. Pp. 542-563. (a) Respondent's case does not present a retrospectivity problem clearly controlled by existing precedent. Where a decision of this Court merely has applied settled principles to a new set of facts, it has been a foregone conclusion that the rule of the later case applies in earlier cases. Conversely, where the Court has declared a rule of criminal procedure to be "a clear break with the past," it almost invariably has found the new principle nonretroactive. Also, this Court has recognized full retroactivity as a necessary adjunct to a ruling that a trial court lacked authority to convict or punish the defendant in the first place. Respondent's case does not fit any of these categories, as Payton did not apply settled precedent to a new set of facts, did not announce an entirely new and unanticipated principle of law, and did not hold either that the trial court lacked authority to convict Payton or that the Fourth Amendment immunized his conduct from punishment. Pp. 548-554. (b) The retroactivity question presented here is fairly resolved by applying the Payton rule to all cases still pending on direct appeal at the time Payton was decided. To do so (1) provides a principle of decision-making consonant with this Court's original understanding in Linkletter v. Walker, , and Tehan v. United States ex rel. Shott, , that all newly declared constitutional rules of criminal procedure would apply retrospectively at least to convictions not yet final when the rule was established; (2) comports with this Court's judicial responsibility "to do justice to each litigant on the merits of his own case," Desist v. United States, (Harlan, J., dissenting), and to "resolve all cases before us on direct review in light of our best understanding of governing constitutional principles," Mackey v. United States, (separate opinion of Harlan, J.); and (3) furthers the goal of treating similarly situated defendants similarly. Pp. 554-556. (c) There is no merit to the Government's arguments, based on United States v. Peltier, , against adoption of the above approach to the retroactivity question in this case. Pp. 557-562. 626 F.2d 753, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, and STEVENS, JJ. joined. BRENNAN, J., filed a concurring opinion, post, p. 563. WHITE, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST and O'CONNOR, JJ., joined, post, p. 564.Elliott Schulder argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and Patty Merkamp Stemler.John F. Walter, by appointment of the Court, , argued the cause and filed a brief for respondent.JUSTICE BLACKMUN delivered the opinion of the Court.In Payton v. New York, , this Court held that the Fourth Amendment1 prohibits the police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest. The question before us in the present case is whether the rule announced in Payton applies to an arrest that took place before Payton was decided.ISpecial Agents Hemenway and Pickering of the United States Secret Service suspected respondent Raymond Eugene Johnson and his codefendant, Oscar Joseph Dodd, of attempting to negotiate a misdelivered United States Treasury check.2 Proceeding without an arrest warrant, on May 5, 1977, the two agents went to respondent's Los Angeles home and waited outside. Shortly thereafter, respondent and his wife arrived and entered the house.The agents drew their weapons, approached the doorway and knocked, identifying themselves by fictitious names. When respondent opened the door, he saw the two agents with their guns drawn and their badges raised. Respondent permitted the agents to enter the house. While one agent stood with respondent in the living room, the other searched the premises. The agents then advised respondent of his constitutional rights and interrogated him. When respondent revealed his involvement in the taking of the misdelivered check, the agents formally arrested him. Respondent later signed a written statement admitting his involvement with the check.Before trial, respondent sought to suppress his oral and written statements as fruits of an unlawful arrest not supported by probable cause. The United States District Court for the Central District of California found respondent's arrest to be proper and admitted the evidence. App. 7. A jury then convicted respondent of aiding and abetting obstruction of correspondence, in violation of 18 U.S.C. 2 and 1702.3 The imposition of respondent's sentence was suspended in favor of five years' probation.By an unreported opinion filed December 19, 1978, the United States Court of Appeals for the Ninth Circuit affirmed the judgment of conviction. Acknowledging that "[i]t certainly would have been preferable had the agents obtained a warrant" for respondent's arrest before entering his residence, the court nonetheless ruled that "if probable cause exists for the arrest, [respondent's] constitutional rights were not violated by the warrantless arrest, even though there may have been time [for the agents] to have obtained a warrant for his arrest." App. to Pet. for Cert. 26a-27a.On April 15, 1980, while respondent's petition for rehearing was still pending before the Ninth Circuit, this Court decided Payton v. New York, supra.4 On September 2, 1980, the Ninth Circuit granted respondent's petition for rehearing, withdrew its prior opinion, and on the strength of Payton, now reversed the judgment of conviction. 626 F.2d 753. "In light of the strong language by the Court in Payton emphasizing the special protection the Constitution affords to individuals within their homes," the Court of Appeals held that "the warrantless arrest of Johnson, while he stood within his home, after having opened the door in response to false identification by the agents, constituted a violation of his Fourth Amendment rights." Id., at 757. The Government petitioned for rehearing, arguing that the principles of Payton should not apply retroactively to an arrest that had occurred before Payton was decided. The Court of Appeals disagreed, denied the petition for rehearing, and amended its opinion to clarify that Payton did apply retroactively. App. to Pet. for Cert. 12a.5 The Government sought review in this Court. We granted certiorari to consider the retrospective effect, if any, of the Fourth Amendment rule announced in Payton. .6 II"[T]he federal constitution has no voice upon the subject" of retrospectivity. Great Northern R. Co. v. Sunburst Oil & Refining Co., . Before 1965, when this Court decided Linkletter v. Walker, , "both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court ... subject to [certain] limited exceptions." Robinson v. Neil, , citing Norton v. Shelby County, , and Chicot County Drainage Dist. v. Baxter State Bank, .7 In Linkletter, however, the Court concluded "that the Constitution neither prohibits nor requires [that] retrospective effect" be given to any "new" constitutional rule. 381 U.S., at 629. Since Linkletter, the Court's announcement of a constitutional rule in the realm of criminal procedure has frequently been followed by a separate decision explaining whether, and to what extent, that rule applies to past, pending, and future cases. See generally Beytagh, Ten Years of Non-Retroactivity: A Critique and a Proposal, 61 Va. L. Rev. 1557 (1975).Linkletter itself addressed the question whether the Fourth Amendment exclusionary rule of Mapp v. Ohio, , should apply to state convictions that had become final before Mapp was decided.8 At the outset, the Linkletter Court noted that cases still pending on direct review when Mapp was handed down had already received the benefit of Mapp's rule. See 381 U.S., at 622, n. 4, citing Ker v. California, ; Fahy v. Connecticut, ; and Stoner v. California, . This limited retrospective application of Mapp was consistent with the common-law rule, recognized in both civil and criminal litigation, "that a change in law will be given effect while a case is on direct review." 381 U.S., at 627, citing United States v. Schooner Peggy, 1 Cranch 103 (1801).To determine whether a particular ruling should also extend to cases that were already final, Linkletter directed courts to "weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." 381 U.S., at 629. Employing that test, the Court concluded that the Mapp rule should not apply to convictions that had become final before Mapp was decided.The following Term, in Tehan v. United States ex rel. Shott, , the Court applied Linkletter's analysis to hold the Fifth Amendment rule of Griffin v. California, (barring comment on a state defendant's failure to testify), nonretroactive to judgments of conviction made final before Griffin was decided. The Court again found no "question of the applicability of the Griffin rule to cases still pending on direct review at the time it was announced." 382 U.S., at 409, n. 3, citing O'Connor v. Ohio, . Thus, after Linkletter and Shott, it appeared that all newly declared constitutional rules of criminal procedure would apply retrospectively at least to judgments of conviction not yet final when the rule was established.In Johnson v. New Jersey, , and Stovall v. Denno, , however, the Court departed from that basic principle. Those cases held that, in the interest of justice, the Court may balance three factors to determine whether a "new" constitutional rule should be retrospectively or prospectively applied: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Id., at 297. See also Johnson v. New Jersey, 384 U.S., at 728. Because the outcome of that balancing process might call for different degrees of retroactivity in different cases, the Court concluded that "no distinction is justified between convictions now final ... and convictions at various stages of trial and direct review." Stovall v. Denno, 388 U.S., at 300. See Johnson v. New Jersey, 384 U.S., at 732.Because the balance of the three Stovall factors inevitably has shifted from case to case, it is hardly surprising that, for some, "the subsequent course of Linkletter became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim." Mackey v. United States, (separate opinion of Harlan, J.). At one extreme, the Court has regularly given complete retroactive effect to new constitutional rules whose major purpose "is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials." Williams v. United States, (plurality opinion). See also id., at 653, n. 6; Brown v. Louisiana, (plurality opinion); Hankerson v. North Carolina, ; Gosa v. Mayden, (plurality opinion); Ivan V. v. City of New York, .At the other extreme, the Court has applied some standards only to future cases, denying the benefit of the new rule even to the parties before the Court. See, e. g., Morrissey v. Brewer, (establishing basic requirements applicable only to "future revocations of parole"). Cf. Johnson v. New Jersey, 384 U.S., at 733, citing England v. Louisiana State Board of Medical Examiners, , and James v. United States, . As an intermediate position, the Court has applied a change in the law to all future litigants, but retroactively only to the parties at bar. See, e. g., Stovall v. Denno, 388 U.S., at 301; DeStefano v. Woods, ; Adams v. Illinois, (plurality opinion); Michigan v. Payne, .In a consistent stream of separate opinions since Linkletter, Members of this Court have argued against selective awards of retroactivity. Those opinions uniformly have asserted that, at a minimum, all defendants whose cases were still pending on direct appeal at the time of the law-changing decision should be entitled to invoke the new rule.9 In Desist v. United States, (dissenting opinion), and Mackey v. United States, 401 U.S., at 675 (separate opinion), Justice Harlan presented a comprehensive analysis in support of that principle. In his view, failure to apply a newly declared constitutional rule at least to cases pending on direct review at the time of the decision violated three norms of constitutional adjudication.First, Justice Harlan argued, the Court's "ambulatory retroactivity doctrine," id., at 681, conflicts with the norm of principled decisionmaking. "Some members of the Court, and I have come to regret that I was among them, initially grasped this doctrine as a way of limiting the reach of decisions that seemed to them fundamentally unsound. Others rationalized this resort to prospectivity as a `technique' that provided an `impetus ... for the implementation of long overdue reforms, which otherwise could not be practicably effected.'" Id., at 676, citing Jenkins v. Delaware, . "The upshot of this confluence of viewpoints," 401 U.S., at 676, was that the coalitions favoring nonretroactivity had realigned from case to case, inevitably generating a welter of "incompatible rules and inconsistent principles," Desist v. United States, 394 U.S., at 258. See also Michigan v. Payne, 412 U.S., at 61 (MARSHALL, J., dissenting) ("principled adjudication requires the Court to abandon the charade of carefully balancing countervailing considerations when deciding the question of retroactivity").Second, Justice Harlan found it difficult to accept the notion that the Court, as a judicial body, could apply a "`new' constitutional rule entirely prospectively, while making an exception only for the particular litigant whose case was chosen as the vehicle for establishing that rule." Desist v. United States, 394 U.S., at 258 (dissenting opinion). A legislature makes its new rules "wholly or partially retroactive or only prospective as it deems wise." Mackey v. United States, 401 U.S., at 677 (Harlan, J., dissenting). This Court, however,"announce[s] new constitutional rules ... only as a correlative of our dual duty to decide those cases over which we have jurisdiction and to apply the Federal Constitution as one source of the matrix of governing legal rules... . Simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from this model of judicial review." Id., at 678-679. Third, Justice Harlan asserted that the Court's selective application of new constitutional rules departed from the principle of treating similarly situated defendants similarly:10 "[W]hen another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a `new' rule of constitutional law." Desist v. United States, 394 U.S., at 258-259 (dissenting opinion). Justice Harlan suggested one simple rule to satisfy all three of his concerns. "I have concluded that Linkletter was right in insisting that all `new' rules of constitutional law must, at a minimum, be applied to all those cases which are still subject to direct review by this Court at the time the `new' decision is handed down." Id., at 258. "[A] proper perception of our duties as a court of law, charged with applying the Constitution to resolve every legal dispute within our jurisdiction on direct review, mandates that we apply the law as it is at the time, not as it once was." Mackey v. United States, 401 U.S., at 681 (separate opinion).We now agree with Justice Harlan that "[r]etroactivity' must be rethought," Desist v. United States, 394 U.S., at 258 (dissenting opinion). We therefore examine the circumstances of this case to determine whether it presents a retroactivity question clearly controlled by past precedents, and if not, whether application of the Harlan approach would resolve the retroactivity issue presented in a principled and equitable manner.IIIAAt the outset, we must first ask whether respondent's case presents a retrospectivity problem clearly controlled by existing precedent. Re-examination of the post-Linkletter decisions convinces us that in three narrow categories of cases, the answer to the retroactivity question has been effectively determined, not by application of the Stovall factors, but rather, through application of a threshold test.11 First, when a decision of this Court merely has applied settled precedents to new and different factual situations, no real question has arisen as to whether the later decision should apply retrospectively. In such cases, it has been a foregone conclusion that the rule of the later case applies in earlier cases, because the later decision has not in fact altered that rule in any material way. See, e. g., Dunaway v. New York, (reviewing application of the rule in Brown v. Illinois, ); Spinelli v. United States, ("further explicat[ing]" the principles of Aguilar v. Texas, ); Desist v. United States, 394 U.S., at 263 (Harlan, J., dissenting).Conversely, where the Court has expressly declared a rule of criminal procedure to be "a clear break with the past," Desist v. United States, 394 U.S., at 248, it almost invariably has gone on to find such a newly minted principle nonretroactive. See United States v. Peltier, , n. 5 (1975) (BRENNAN, J., dissenting) (collecting cases). In this second type of case, the traits of the particular constitutional rule have been less critical than the Court's express threshold determination that the "`new' constitutional interpretatio[n] ... so change[s] the law that prospectivity is arguably the proper course," Williams v. United States, 401 U.S., at 659 (plurality opinion). Once the Court has found that the new rule was unanticipated, the second and third Stovall factors - reliance by law enforcement authorities on the old standards and effect on the administration of justice of a retroactive application of the new rule - have virtually compelled a finding of nonretroactivity. See, e. g., Gosa v. Mayden, 413 U.S., at 672-673, 682-685 (plurality opinion); Michigan v. Payne, 412 U.S., at 55-57.12 Third, the Court has recognized full retroactivity as a necessary adjunct to a ruling that a trial court lacked authority to convict or punish a criminal defendant in the first place. The Court has invalidated inconsistent prior judgments where its reading of a particular constitutional guarantee immunizes a defendant's conduct from punishment, see, e. g., United States v. United States Coin & Currency, (penalty against assertion of Fifth Amendment privilege against self-incrimination), or serves "to prevent [his] trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of [that] trial," Robinson v. Neil, 409 U.S., at 509 (double jeopardy). In such cases, the Court has relied less on the technique of retroactive application than on the notion that the prior inconsistent judgments or sentences were void ab initio. See, e. g., Moore v. Illinois, (retroactive application of Eighth Amendment ruling in Furman v. Georgia, ); Ashe v. Swenson, , n. 1 (1970) (retroactive application of double jeopardy ruling in Benton v. Maryland, ). See also Gosa v. Mayden, 413 U.S., at 693 (MARSHALL, J., dissenting); Michigan v. Payne, 412 U.S., at 61 (MARSHALL, J., dissenting) (rulings are fully retroactive when the "Court has held that the trial court lacked jurisdiction in the traditional sense").Respondent's case neatly fits none of these three categories. First, Payton v. New York did not simply apply settled precedent to a new set of facts. In Payton, the Court acknowledged that the "important constitutional question presented" there had been "expressly left open in a number of our prior opinions." 445 U.S., at 574 and 575, n. 1, citing United States v. Watson, , n. 6 (1976); Gerstein v. Pugh, , n. 13 (1975); Coolidge v. New Hampshire, ; and Jones v. United States, .By the same token, however, Payton also did not announce an entirely new and unanticipated principle of law. In general, the Court has not subsequently read a decision to work a "sharp break in the web of the law," Milton v. Wainwright, , n. 2 (1972) (Stewart, J., dissenting), unless that ruling caused "such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one," Hanover Shoe, Inc. v. United Shoe Machinery Corp., . Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, see, e. g., Desist v. United States, ; Williams v. United States, , or disapproves a practice this Court arguably has sanctioned in prior cases, see, e. g., Gosa v. Mayden, 413 U.S., at 673 (plurality opinion); Adams v. Illinois, 405 U.S., at 283; Johnson v. New Jersey, 384 U.S., at 731, or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved. See, e. g., Gosa v. Mayden, 413 U.S., at 673 (plurality opinion) (applying nonretroactively a decision that "effected a decisional change in attitude that had prevailed for many decades"); Stovall v. Denno, 388 U.S., at 299-300. See also Chevron Oil Co. v. Huson, ; Cipriano v. City of Houma, ; Milton v. Wainwright, 407 U.S., at 381-382, n. 2 (Stewart, J., dissenting) ("sharp break" occurs when "decision overrules clear past precedent ... or disrupts a practice long accepted and widely relied upon").Payton did none of these. Payton expressly overruled no clear past precedent of this Court on which litigants may have relied. Nor did Payton disapprove an established practice that the Court had previously sanctioned. To the extent that the Court earlier had spoken to the conduct engaged in by the police officers in Payton, it had deemed it of doubtful constitutionality.13 The Court's own analysis in Payton makes it clear that its ruling rested on both long-recognized principles of Fourth Amendment law and the weight of historical authority as it had appeared to the Framers of the Fourth Amendment.14 Finally, Payton overturned no longstanding practice approved by a near-unanimous body of lower court authority.15 Payton therefore does not fall into that narrow class of decisions whose nonretroactivity is effectively preordained because they unmistakably signal "a clear break with the past," Desist v. United States, 394 U.S., at 248.It is equally plain that Payton does not fall into the third category of cases that do not pose difficult retroactivity questions. Payton did not hold that the trial court lacked authority to convict or sentence Theodore Payton, nor did Payton's reading of the Fourth Amendment immunize Payton's conduct from punishment. The holding in Payton did not prevent the defendant's trial from taking place; rather, it reversed the New York Court of Appeals' judgment and remanded for a new trial to be conducted without unconstitutionally obtained evidence.BHaving determined that the retroactivity question here is not clearly controlled by our prior precedents, we next must ask whether that question would be fairly resolved by applying the rule in Payton to all cases still pending on direct appeal at the time when Payton was decided. Answering that question affirmatively would satisfy each of the three concerns stated in Justice Harlan's opinions in Desist and Mackey.First, retroactive application of Payton to all previously nonfinal convictions would provide a principle of decisionmaking consonant with our original understanding of retroactivity in Linkletter and Shott. Moreover, such a principle would be one capable of general applicability, satisfying Justice Harlan's central concern: "Refusal to apply new constitutional rules to all cases arising on direct review ... tends to cut this Court loose from the force of precedent, allowing us to restructure artificially those expectations legitimately created by extant law and thereby mitigate the practical force of stare decisis ... a force which ought properly to bear on the judicial resolution of any legal problem." Mackey v. United States, 401 U.S., at 680-681 (separate opinion).Second, application of Payton to cases pending on direct review would comport with our judicial responsibilities "to do justice to each litigant on the merits of his own case," Desist v. United States, 394 U.S., at 259 (Harlan, J., dissenting), and to "resolve all cases before us on direct review in light of our best understanding of governing constitutional principles." Mackey v. United States, 401 U.S., at 679 (separate opinion of Harlan, J.). The Court of Appeals held that the circumstances of respondent's arrest violated Payton, and the Government does not dispute that contention. See n. 6, supra. It would be ironic indeed were we now to reverse a judgment applying Payton's rule, when in Payton itself, we reversed a directly contrary judgment of the New York Court of Appeals. As Justice Harlan noted in Desist: "If a `new' constitutional doctrine is truly right, we should not reverse lower courts which have accepted it; nor should we affirm those which have rejected the very arguments we have embraced." 394 U.S., at 259.Third, application of the Harlan approach to respondent's case would further the goal of treating similarly situated defendants similarly. The Government contends that respondent may not invoke Payton because he was arrested before Payton was decided. Yet it goes without saying that Theodore Payton also was arrested before Payton was decided, and he received the benefit of the rule in his case. Furthermore, at least one other defendant whose conviction was not final when Payton issued benefited from Payton's rule, although he, too, was arrested before Payton was decided.16 An approach that resolved all nonfinal convictions under the same rule of law would lessen the possibility that this Court might mete out different constitutional protection to defendants simultaneously subjected to identical police conduct.17 IVAgainst adoption of this approach, the Government raises four arguments based on United States v. Peltier, . None is persuasive.The Government first cites Peltier's holding: that the Fourth Amendment rule announced in Almeida-Sanchez v. United States, , should not apply retroactively to a case pending on appeal when Almeida-Sanchez was announced. By so holding, the Government suggests, Peltier declared a principle that controls the issue of retroactivity for all Fourth Amendment rulings.18 Upon examination, however, the retroactivity question posed here differs from that presented in Peltier. As the Government concedes, Payton overturned neither a statute nor any consistent judicial history approving nonconsensual, warrantless home entries. See Brief for United States 30, n. 18. Thus, its nonretroactivity is not preordained under the "clear break" principles stated above. In Peltier, in contrast, the Court noted that Almeida-Sanchez had invalidated a form of search previously sanctioned by "a validly enacted statute, supported by longstanding administrative regulations and continuous judicial approval." 422 U.S., at 541. See also Almeida-Sanchez v. United States, 413 U.S., at 278 (POWELL, J., concurring) ("While the question is one of first impression in this Court," the practice disapproved had "been consistently approved by the judiciary"); id., at 298-299, n. 10 (WHITE, J., dissenting) (35 of 36 judges in 20 Court of Appeals cases had approved the invalidated practice).Because Almeida-Sanchez had overturned a longstanding practice to which this Court had not spoken, but which a near-unanimous body of lower court authority had approved, it represented a "clear break" with the past. For that reason alone, under controlling retroactivity precedents, the nonretroactive application of Almeida-Sanchez would have been appropriate even if the case had involved no Fourth Amendment question. In that respect, Peltier resembles several earlier decisions that held "new" Fourth Amendment doctrine nonretroactive, not on the ground that all Fourth Amendment rulings apply only prospectively, but because the particular decisions being applied "so change[d] the law that prospectivity [was] arguably the proper course." Williams v. United States, 401 U.S., at 659 (plurality opinion) (refusing to apply retroactively Chimel v. California, , which overruled United States v. Rabinowitz, , and Harris v. United States, ). See also Desist v. United States, (refusing to apply retroactively Katz v. United States, , which overruled Goldman v. United States, , and Olmstead v. United States, ).The Government bases its second argument on Peltier's broad language: "If the purpose of the exclusionary rule is to deter unlawful police conduct then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment" (emphasis added). 422 U.S., at 542. The Government reads this language to require that new Fourth Amendment rules must be denied retroactive effect in all cases except those in which law enforcement officers failed to act in good-faith compliance with then-prevailing constitutional norms.The Government does not seriously suggest that the retroactivity of a given Fourth Amendment ruling should turn solely on the subjective state of a particular arresting officer's mind. Instead, it offers an "objective" test: that law enforcement officers "may properly be charged with knowledge" of all "settled" Fourth Amendment law. Under the Government's theory, because the state of Fourth Amendment law regarding warrantless home arrests was "unsettled" before Payton, that ruling should not apply retroactively even to cases pending on direct appeal when Payton was decided. See Brief for United States 14-19, 34-38. Yet the Government's reading of Peltier would reduce its own "retroactivity test" to an absurdity. Under this view, the only Fourth Amendment rulings worthy of retroactive application are those in which the arresting officers violated pre-existing guidelines clearly established by prior cases. But as we have seen above, cases involving simple application of clear, pre-existing Fourth Amendment guidelines raise no real questions of retroactivity at all. Literally read, the Government's theory would automatically eliminate all Fourth Amendment rulings from consideration for retroactive application.The Government's third claim is that Peltier's logic suggests that retroactive application of Fourth Amendment decisions like Payton - even to cases pending on direct review - would not serve the policies underlying the exclusionary rule. Cf. 422 U.S., at 536-542. Yet viewed in the light of Peltier's holding, this assertion also fails. Peltier suggested only that retroactive application of a Fourth Amendment ruling that worked a "sharp break" in the law, like Almeida-Sanchez, would have little deterrent effect, because law enforcement officers would rarely be deterred from engaging in a practice they never expected to be invalidated. See 422 U.S., at 541-542.This logic does not apply to a ruling like Payton, that resolved a previously unsettled point of Fourth Amendment law. Because this Court cannot rule on every unsettled Fourth Amendment question, years may pass before the Court finally invalidates a police practice of dubious constitutionality. See, e. g., Desist v. United States, 394 U.S., at 275 (Fortas, J., dissenting) (arguing that the "physical-trespass" wiretap rule of Olmstead v. United States, , had been moribund for 17 years before it was formally overruled). Long before Payton, for example, this Court had questioned the constitutionality of warrantless home arrests. See n. 13, supra. Furthermore, the Court's opinions consistently had emphasized that, in light of the constitutional protection traditionally accorded to the privacy of the home, police officers should resolve any doubts regarding the validity of a home arrest in favor of obtaining a warrant. See, e. g., Johnson v. United States, ("Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers").If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior.19 Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question. Failure to accord any retroactive effect to Fourth Amendment rulings would "encourage police or other courts to disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided approach." Desist v. United States, 394 U.S., at 277 (Fortas, J., dissenting).The Government finally argues that retroactive application of Payton, even to a case pending on direct appeal, would accomplish nothing but the discharge of a wrongdoer. Justice Harlan gave the answer to this assertion. "We do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case. And when another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently." Desist v. United States, 394 U.S., at 258 (dissenting opinion). Applying Payton to convictions that were not yet final when Payton issued would accomplish the first step toward "turning our backs on the ad hoc approach that has so far characterized our decisions in the retroactivity field and proceeding to administer the doctrine on principle." Jenkins v. Delaware, 395 U.S., at 224 (Harlan, J., dissenting).VTo the extent necessary to decide today's case, we embrace Justice Harlan's views in Desist and Mackey. We therefore hold that, subject to the exceptions stated below, a decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.By so holding, however, we leave undisturbed our precedents in other areas. First, our decision today does not affect those cases that would be clearly controlled by our existing retroactivity precedents. Second, because respondent's case arises on direct review, we need not address the retroactive reach of our Fourth Amendment decisions to those cases that still may raise Fourth Amendment issues on collateral attack.20 Cf. n. 10, supra. Third, we express no view on the retroactive application of decisions construing any constitutional provision other than the Fourth Amendment.21 Finally, all questions of civil retroactivity continue to be governed by the standard enunciated in Chevron Oil Co. v. Huson, 404 U.S., at 106-107. See n. 12, supra.Respondent's case was pending on direct appeal when Payton v. New York was decided. Because the Court of Appeals correctly held that the rule in Payton should apply to respondent's case, its judgment is affirmed.22 It is so ordered.
2	Petitioner made an inflammatory speech to a mixed crowd of 75 or 80 Negroes and white people on a city street. He made derogatory remarks about President Truman, the American Legion, and local political officials; endeavored to arouse the Negroes against the whites; and urged that Negroes rise up in arms and fight for equal rights. The crowd, which blocked the sidewalk and overflowed into the street, became restless; its feelings for and against the speaker were rising; and there was at least one threat of violence. After observing the situation for some time without interference, police officers, in order to prevent a fight, thrice requested petitioner to get off the box and stop speaking. After his third refusal, and after he had been speaking over 30 minutes, they arrested him, and he was convicted of violating 722 of the Penal Code of New York, which, in effect, forbids incitement of a breach of the peace. The conviction was affirmed by two New York courts on review. Held: The conviction is sustained against a claim that it violated petitioner's right of free speech under the First and Fourteenth Amendments. Pp. 316-321. (a) Petitioner was neither arrested nor convicted for the making or the content of his speech but for the reaction which it actually engendered. Pp. 319-320. (b) The police cannot be used as an instrument for the suppression of unpopular views; but, when a speaker passes the bounds of argument or persuasion and undertakes incitement to riot, the police are not powerless to prevent a breach of the peace. P. 321. 300 N. Y. 391, 91 N. E. 2d 316, affirmed. The case is stated in the first paragraph of the opinion. The decision below is affirmed, p. 321.Sidney H. Greenberg and Emanuel Redfield argued the cause for petitioner. Mr. Greenberg filed a brief for petitioner.Dan J. Kelly argued the cause and filed a brief for respondent. MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.Petitioner was convicted of the offense of disorderly conduct, a misdemeanor under the New York penal laws, in the Court of Special Sessions of the City of Syracuse and was sentenced to thirty days in the county penitentiary. The conviction was affirmed by the Onondaga County Court and the New York Court of Appeals, 300 N. Y. 391, 91 N. E. 2d 316 (1950). The case is here on certiorari, , petitioner having claimed that the conviction is in violation of his right of free speech under the Fourteenth Amendment.In the review of state decisions where First Amendment rights are drawn in question, we of course make an examination of the evidence to ascertain independently whether the right has been violated. Here, the trial judge, who heard the case without a jury, rendered an oral decision at the end of the trial, setting forth his determination of the facts upon which he found the petitioner guilty. His decision indicated generally that he believed the state's witnesses, and his summation of the testimony was used by the two New York courts on review in stating the facts. Our appraisal of the facts is, therefore, based upon the uncontroverted facts and, where controversy exists, upon that testimony which the trial judge did reasonably conclude to be true.On the evening of March 8, 1949, petitioner Irving Feiner was addressing an open-air meeting at the corner of South McBride and Harrison Streets in the City of Syracuse. At approximately 6:30 p. m., the police received a telephone complaint concerning the meeting, and two officers were detailed to investigate. One of these officers went to the scene immediately, the other arriving some twelve minutes later. They found a crowd of about seventy-five or eighty people, both Negro and white, filling the sidewalk and spreading out into the street. Petitioner, standing on a large wooden box on the sidewalk, was addressing the crowd through a loud-speaker system attached to an automobile. Although the purpose of his speech was to urge his listeners to attend a meeting to be held that night in the Syracuse Hotel, in its course he was making derogatory remarks concerning President Truman, the American Legion, the Mayor of Syracuse, and other local political officials.The police officers made no effort to interfere with petitioner's speech, but were first concerned with the effect of the crowd on both pedestrian and vehicular traffic. They observed the situation from the opposite side of the street, noting that some pedestrians were forced to walk in the street to avoid the crowd. Since traffic was passing at the time, the officers attempted to get the people listening to petitioner back on the sidewalk. The crowd was restless and there was some pushing, shoving and milling around. One of the officers telephoned the police station from a nearby store, and then both policemen crossed the street and mingled with the crowd without any intention of arresting the speaker.At this time, petitioner was speaking in a "loud, high-pitched voice." He gave the impression that he was endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights. The statements before such a mixed audience "stirred up a little excitement." Some of the onlookers made remarks to the police about their inability to handle the crowd and at least one threatened violence if the police did not act. There were others who appeared to be favoring petitioner's arguments. Because of the feeling that existed in the crowd both for and against the speaker, the officers finally "stepped in to prevent it from resulting in a fight." One of the officers approached the petitioner, not for the purpose of arresting him, but to get him to break up the crowd. He asked petitioner to get down off the box, but the latter refused to accede to his request and continued talking. The officer waited for a minute and then demanded that he cease talking. Although the officer had thus twice requested petitioner to stop over the course of several minutes, petitioner not only ignored him but continued talking. During all this time, the crowd was pressing closer around petitioner and the officer. Finally, the officer told petitioner he was under arrest and ordered him to get down from the box, reaching up to grab him. Petitioner stepped down, announcing over the microphone that "the law has arrived, and I suppose they will take over now." In all, the officer had asked petitioner to get down off the box three times over a space of four or five minutes. Petitioner had been speaking for over a half hour.On these facts, petitioner was specifically charged with violation of 722 of the Penal Law of New York, the pertinent part of which is set out in the margin.1 The bill of particulars, demanded by petitioner and furnished by the State, gave in detail the facts upon which the prosecution relied to support the charge of disorderly conduct. Paragraph C is particularly pertinent here: "By ignoring and refusing to heed and obey reasonable police orders issued at the time and place mentioned in the Information to regulate and control said crowd and to prevent a breach or breaches of the peace and to prevent injury to pedestrians attempting to use said walk, and being forced into the highway adjacent to the place in question, and prevent injury to the public generally."We are not faced here with blind condonation by a state court of arbitrary police action. Petitioner was accorded a full, fair trial. The trial judge heard testimony supporting and contradicting the judgment of the police officers that a clear danger of disorder was threatened. After weighing this contradictory evidence, the trial judge reached the conclusion that the police officers were justified in taking action to prevent a breach of the peace. The exercise of the police officers' proper discretionary power to prevent a breach of the peace was thus approved by the trial court and later by two courts on review.2 The courts below recognized petitioner's right to hold a street meeting at this locality, to make use of loud-speaking equipment in giving his speech, and to make derogatory remarks concerning public officials and the American Legion. They found that the officers in making the arrest were motivated solely by a proper concern for the preservation of order and protection of the general welfare, and that there was no evidence which could lend color to a claim that the acts of the police were a cover for suppression of petitioner's views and opinions. Petitioner was thus neither arrested nor convicted for the making or the content of his speech. Rather, it was the reaction which it actually engendered.The language of Cantwell v. Connecticut, , is appropriate here. "The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious." at 308. The findings of the New York courts as to the condition of the crowd and the refusal of petitioner to obey the police requests, supported as they are by the record of this case, are persuasive that the conviction of petitioner for violation of public peace, order and authority does not exceed the bounds of proper state police action. This Court respects, as it must, the interest of the community in maintaining peace and order on its streets. Schneider v. State, ; Kovacs v. Cooper, . We cannot say that the preservation of that interest here encroaches on the constitutional rights of this petitioner.We are well aware that the ordinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker, and are also mindful of the possible danger of giving overzealous police officials complete discretion to break up otherwise lawful public meetings. "A State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions." Cantwell v. Connecticut, supra, at 308. But we are not faced here with such a situation. It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. Nor in this case can we condemn the considered judgment of three New York courts approving the means which the police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. The findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner's deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech. Affirmed. [For opinion of MR. JUSTICE FRANKFURTER, concurring in the result, see ante, p. 273.]
1	In 1760 and 1763, respondent Indian Tribe surrendered to Great Britain its aboriginal territory in return for the right to settle permanently on a 225-square-mile tract of land now located in South Carolina. In 1840, the Tribe conveyed the tract to South Carolina in return for the State's establishing a new reservation for the Tribe. In 1959, Congress, pursuant to its changed policies concerning Indian affairs, enacted the Catawba Indian Tribe Division of Assets Act (Catawba Act) authorizing a division of Catawba tribal assets. Section 5 of that Act provided for revocation of the Tribe's constitution, rendered inapplicable to the Tribe and its members special federal statutory protections for Indians, and made state laws applicable to the Tribe and its members in the same way that they apply to all "other persons or citizens." In 1980, the Tribe brought an action in Federal District Court against petitioners (South Carolina and other claimants to the 225-square-mile tract), seeking possession of the tract and trespass damages for the period of its dispossession on the ground that the 1840 conveyance to South Carolina was null and void because the United States never consented to it as required by the Nonintercourse Act to make it effective. The District Court granted summary judgment for petitioners, in part on the ground that the Tribe's claim was barred by the South Carolina statute of limitations. The Court of Appeals reversed, holding that, under its interpretation of the Catawba Act, the state statute of limitations did not apply.Held: The explicit redefinition of the relationship between the Federal Government and respondent Tribe reflected in the Catawba Act's clear language requires the application of the state statute of limitations to the Tribe's claim. But whether that statute bars the claim should be determined by the Court of Appeals on remand. Pp. 506-511. 740 F.2d 305, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL and O'CONNOR, JJ., joined, post, p. 511. James D. St. Clair argued the cause for petitioners. With him on the briefs were James L. Quarles III, William F. Lee, T. Travis Medlock, Attorney General of South Carolina, Kenneth P. Woodington, Assistant Attorney General, John C. Christie, Jr., J. William Hayton, Stephen J. Landes, Lucinda O. McConathy, J. D. Todd, Jr., Michael J. Giese, Dan M. Byrd, Jr., and Mitchell K. Byrd.Don B. Miller argued the cause for respondent. With him on the brief were Jean H. Toal and Robert M. Jones.* [Footnote *] Solicitor General Lee, Assistant Attorney General Habicht, Edwin S. Kneedler, Jacques B. Gelin, and Arthur E. Gowran filed a brief for the United States as amicus curiae.JUSTICE STEVENS delivered the opinion of the Court.At issue in this litigation is the right to possession of a "Tract of Land of Fifteen Miles square" described in a 1763 treaty between the King of England and the Catawba Head Men and Warriors.1 The tract, comprising 144,000 acres and 225 square miles, is located near the northern border of South Carolina; some 27,000 persons now claim title to different parcels within the tract. The specific question presented to us is whether the State's statute of limitations applies to the Tribe's claim. The answer depends on an interpretation of a statute enacted by Congress in 1959 to authorize a division of Catawba tribal assets. See 25 U.S.C. 931-938. We hold that the State's statute applies, but we do not reach the question whether it bars the Tribe's claim.Simply stated, the Tribe2 claims that it had undisputed ownership and possession of the land before the first Nonintercourse Act was passed by Congress in 1790;3 that the Nonintercourse Act prohibited any conveyance of tribal land without the consent of the United States; and that the United States never gave its consent to a conveyance of this land. Accordingly, the Tribe's purported conveyance to South Carolina in 1840 is null and void. Among the defenses asserted by petitioners4 is the contention that, even if the Tribe's claim was valid before passage and enactment of the Catawba Division of Assets Act, 5 of the Act made the state statute of limitations applicable to the claim. Because that is the only contention that we review, it is not necessary to describe much of the historical material in the record.IIn 1760 and 1763, the Tribe surrendered to Great Britain its aboriginal territory in what is now North and South Carolina in return for the right to settle permanently on the "Tract of Land of Fifteen Miles square" that is now at issue. For purposes of this summary judgment motion, it is not disputed that the Tribe retained title to the land when the Nonintercourse Acts were passed.By 1840, the Tribe had leased most, if not all, of the land described in the 1763 treaty to white settlers. In 1840, the Tribe conveyed its interest in the "Tract of Land of Fifteen Miles square" to the State of South Carolina by entering into the "Treaty of Nation Ford." In that treaty, the State agreed, in return for the "Tract," to spend $5,000 to acquire a new reservation, to pay the Tribe $2,500 in advance, and to make nine annual payments of $1,500 in the ensuing years. In 1842, the State purchased a 630-acre tract as a new reservation for the Tribe, which then apparently had a membership of about 450 persons.5 This land is still held in trust for the Tribe by South Carolina.The Tribe contends that the State did not perform its obligations under the treaty - it delayed the purchase of the new reservation for over 2 1/2 years; it then spent only $2,000 instead of $5,000 to purchase the new land; and it was not actually "new" land because it was located within the original 144,000-acre tract. Still more importantly, as noted, the Tribe maintains that this entire transaction was void because the United States did not consent to the conveyance as required by the Nonintercourse Act.At various times during the period between 1900 and 1943, leaders of the Tribe applied to the State for citizenship and for a "final settlement of all their claims against the State."6 Petitioners argue that these claims merely sought full performance of the State's obligations under the 1840 treaty, but, for purposes of our decision, we accept the Tribe's position that it was then asserting a claim under the Nonintercourse Acts and thus challenging the treaty itself. In any event, both state officials and representatives of the Federal Government took an interest in the plight of the Tribe.7 In response to this concern, on December 14, 1943, the Tribe, the State, and the Office of Indian Affairs of the Department of the Interior entered into a Memorandum of Understanding which was intended to provide relief for the Tribe, but which did not require the Tribe to release its claims against the State.8 Pursuant to that agreement, the State purchased 3,434 acres of land at a cost of $70,000 and conveyed it to the United States to be held in trust for the Tribe.9 The Federal Government agreed to make annual contributions of available sums for the welfare of the Tribe and to assist the Tribe with education, medical benefits, and economic development. For its part, the Tribe agreed to conduct its affairs on the basis of the Federal Government's recommendations; it thereafter adopted a Constitution approved by the Secretary of the Interior pursuant to the Indian Reorganization Act, 25 U.S.C. 476.In 1953, Congress decided to make a basic change in its policies concerning Indian affairs. The passage of House Concurrent Resolution 108 on August 1, 1953,10 marked the beginning of the "termination era" - a period that continued into the mid-1960's, in which the Federal Government endeavored to terminate its supervisory responsibilities for Indian tribes.11 Pursuant to that policy, the Federal Government identified the Catawba Tribe as a likely candidate for the withdrawal of federal services.12 Moreover, members of the Tribe desired an end to federal restrictions on alienation of their lands in order to facilitate financing for homes and farm operations.13 Accordingly, after discussions with representatives of the Bureau of Indian Affairs in which leaders of the Tribe were assured that any claim they had against the State would not be jeopardized by legislation terminating federal services, the Tribe adopted a resolution supporting such legislation and authorizing a distribution of tribal assets to the members of the Tribe.14 After receiving advice that the Tribe supported legislation authorizing the disposal of the tribal assets and terminating federal responsibility for the Tribe and its individual members, Congress enacted the Catawba Indian Tribe Division of Assets Act, 73 Stat. 592, 25 U.S.C. 931-938. The Act provides for the preparation of a tribal membership roll, 931; the tribal council's designation of sites for church, park, playground, and cemetery purposes, 933(b); and the division of remaining assets among the enrolled members of the Tribe, 933(f). The Act also provides for the revocation of the Tribe's Constitution and the termination of federal services for the Tribe, 935. It explicitly states that state laws shall apply to members of the Tribe in the same manner that they apply to non-Indians. Ibid. Pursuant to that Act, the 3,434-acre reservation that had been acquired as a result of the 1943 Memorandum of Understanding was distributed to the members of the Tribe; the Secretary of the Interior revoked the Tribe's Constitution, effective July 1, 1962. In 1980, the Tribe commenced this action seeking possession of the 225-square-mile tract and trespass damages for the period of its dispossession. All of the District Judges for the District of South Carolina recused themselves, and Judge Willson of the Western District of Pennsylvania was designated to try the case. After the development of a substantial record of uncontested facts, Judge Willson granted petitioners' motion for summary judgment. His order of dismissal was initially reversed by a panel of the Court of Appeals for the Fourth Circuit, 718 F.2d 1291 (1983); sitting en banc, the full Court of Appeals adopted the panel's opinion. 740 F.2d 305 (1984). Because of the importance of the case, we requested the views of the Solicitor General of the United States and granted certiorari, . We now reverse.IISection 5 of the Catawba Act is central to this dispute. As currently codified, it provides: "The constitution of the tribe adopted pursuant to sections 461, 462, 463, 464, 465, 466 to 470, 471 to 473, 474, 475, 476 to 478, and 479 of this title shall be revoked by the Secretary. Thereafter, the tribe and its members shall not be entitled to any of the special services performed by the United States for Indians because of their status as Indians, all statutes of the United States that affect Indians because of their status as Indians shall be inapplicable to them, and the laws of the several States shall apply to them in the same manner they apply to other persons or citizens within their jurisdiction. Nothing in this subchapter, however, shall affect the status of such persons as citizens of the United States." 25 U.S.C. 935. This provision establishes two principles in unmistakably clear language. First, the special federal services and statutory protections for Indians are no longer applicable to the Catawba Tribe and its members. Second, state laws apply to the Catawba Tribe and its members in precisely the same fashion that they apply to others.The Court of Appeals disagreed with this reading of the Act. For it concluded that the word "them" in the second sentence of 5 could refer to the individual Indians who are members of the Tribe and not encompass the Tribe itself. Relying on the canon that doubtful expressions of legislative intent must be resolved in favor of the Indians,15 it thus held that the language in 5 about the inapplicability of federal Indian statutes and the applicability of state laws did not reach the Tribe itself.The canon of construction regarding the resolution of ambiguities in favor of Indians, however, does not permit reliance on ambiguities that do not exist; nor does it permit disregard of the clearly expressed intent of Congress.16 It seems clear to us that the antecedent of the words "them" and "their" in the second sentence of 5 is the compound subject of the first clause in the sentence, namely, "the tribe and its members." To read the provision otherwise is to give it a contorted construction that abruptly divorces the first clause from the second and the third, and that conflicts with the central purpose and philosophy of the Termination Act. According the statutory language its ordinary meaning, moreover, is reinforced by the fact that the first sentence in the section provides for a revocation of the Tribe's Constitution. It would be most incongruous to preserve special protections for a tribe whose constitution has been revoked while withdrawing protection for individual members of that tribe.17 Without special federal protection for the Tribe, the state statute of limitations should apply to its claim in this case. For it is well established that federal claims are subject to state statutes of limitations unless there is a federal statute of limitations or a conflict with federal policy.18 Although federal policy may preclude the ordinary applicability of a state statute of limitations for this type of action in the absence of a specific congressional enactment to the contrary, County of Oneida v. Oneida Indian Nation, , the Catawba Act clearly suffices to reestablish the usual principle regarding the applicability of the state statute of limitations. In striking contrast to the situation in County of Oneida, the Catawba Act represents an explicit redefinition of the relationship between the Federal Government and the Catawbas; an intentional termination of the special federal protection for the Tribe and its members; and a plain statement that state law applies to the Catawbas as to all "other persons or citizens."That the state statute of limitations applies as a consequence of terminating special federal protections is also supported by the significance we have accorded congressional action redefining the federal relationship with particular Indians. We have long recognized that, when Congress removes restraints on alienation by Indians, state laws are fully applicable to subsequent claims.19 Similarly, we have emphasized that Termination Acts subject members of the terminated tribe to "the full sweep of state laws and state taxation."20 These principles reflect an understanding that congressional action to remove restraints on alienation and other federal protections represents a fundamental change in federal policy with respect to the Indians who are the subject of the particular legislation.The Court of Appeals found support for its conclusion about the nonapplicability of the state statute of limitations in 6 of the Catawba Act, which provides that nothing in the statute affects the rights of the Tribe under the laws of South Carolina.21 The thrust of the Court of Appeals' reasoning was that, if a state law was inapplicable to the Tribe or its members before the effective date of the Act, its application after the effective date necessarily violates 6. But such a reading contradicts the plain meaning of 5's reference to the applicability of state laws. In our view 6 was merely intended to remove federal obstacles to the ordinary application of state law. Section 6 cannot be read to preserve, of its own force, a federal tribal immunity from otherwise applicable state law without defeating a basic purpose of the Act and negating explicit language in 5.22 Most fundamentally, 6 simply does not speak to the explicit redefinition of the federal relationship with the Catawbas that is the basis for the applicability of the state statute of limitations.Finally, the Court of Appeals relied heavily on the assurance to the Tribe that the status of any claim against South Carolina would not be affected by the legislation.23 Even assuming that the legislative provisions are sufficiently ambiguous to warrant reliance on the legislative history, we believe that the Court of Appeals misconceived the import of this assurance. We do not accept petitioners' argument that the Catawba Act immediately extinguished any claim that the Tribe had before the statute became effective. Rather, we assume that the status of the claim remained exactly the same immediately before and immediately after the effective date of the Act, but that the Tribe thereafter had an obligation to proceed to assert its claim in a timely manner as would any other person or citizen within the State's jurisdiction. As a result, unlike the Court of Appeals, we perceive no contradiction between the applicability of the state statute of limitations and the assurance that the status of any state claims would not be affected by the Act.We thus conclude that the explicit redefinition of the federal relationship reflected in the clear language of the Catawba Act requires the application of the state statute of limitations to the Tribe's claim.IIIThe District Court held that respondent's claim is barred by the South Carolina statute of limitations. The Court of Appeals' construction of the 1959 federal statute made it unnecessary for that court to review the District Court's interpretation of state law. Because the Court of Appeals is in a better position to evaluate such an issue of state law than we are,24 we remand the case to that court for consideration of this issue. It is so ordered.
2	Colorado allows its citizens to make laws directly through initiatives placed on election ballots. The complaint in this federal action challenged six of the State's many controls on the initiative-petition process. Plaintiffs-respondents, the American Constitutional Law Foundation, Inc., and several individuals (collectively, ACLF), charged that the following prescriptions of Colorado's law governing initiative petitions violate the First Amendment's freedom of speech guarantee: (1) the requirement that petition circulators be at least 18 years old, Colo. Rev. Stat. §1-40-112(1); (2) the further requirement that they be registered voters, ibid.;(3) the limitation of the petition circulation period to six months, §1-40-108; (4) the requirement that petition circulators wear identification badges stating their names, their status as "VOLUNTEER" or "PAID," and if the latter, the name and telephone number of their employer, §1-40-112(2); (5) the requirement that circulators attach to each petition section an affidavit containing, inter alia, the circulator's name and address, §1-40-111(2); and (6) the requirements that initiative proponents disclose (a) at the time they file their petition, the name, address, and county of voter registration of all paid circulators, the amount of money proponents paid per petition signature, and the total amount paid to each circulator, and (b) on a monthly basis, the names of the proponents, the name and address of each paid circulator, the name of the proposed ballot measure, and the amount of money paid and owed to each circulator during the month, §1-40-121. The District Court struck down the badge requirement and portions of the disclosure requirements, but upheld the age, affidavit, and registration requirements, and the six-month limit on petition circulation. The Tenth Circuit affirmed in part and reversed in part. That court properly sought guidance from this Court's recent decisions on ballot access, see, e.g., Timmons v. Twin Cities Area New Party,520 U. S. 351, and on hand-bill distribution, see, e.g., McIntyre v. Ohio Elections Comm'n,514 U. S. 334. The Tenth Circuit upheld, as reasonable regulations of the ballot-initiative process, the age restriction, the six-month limit on petition circulation, and the affidavit requirement. The court struck down the requirement that petition circulators be registered voters, and also held portions of the badge and disclosure requirements invalid as trenching unnecessarily and improperly on political expression. This Court agreed to review the Court of Appeals dispositions concerning the registration, badge, and disclosure requirements. See 522 U. S. ___. Precedent guides this review. In Meyer v. Grant,486 U. S. 414, this Court struck down Colorado's prohibition of payment for the circulation of ballot-initiative petitions, concluding that petition circulation is "core political speech" for which First Amendment protection is "at its zenith." Id., at 422, 425. This Court has also recognized, however, that "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order ... is to accompany the democratic processes." Storer v. Brown,415 U. S. 724, 730; see Timmons,520 U. S., at 358; Anderson v. Celebrezze,460 U. S. 780, 788. Held: The Tenth Circuit correctly separated necessary or proper ballot access controls from restrictions that unjustifiably inhibit the circulation of ballot-initiative petitions. Pp. 7-22. (a) States have considerable leeway to protect the integrity and reliability of the ballot-initiative process, as they have with respect to election processes generally. "[N]o litmus-paper test" will separate valid ballot-access provisions from invalid interactive speech restrictions, and this Court has come upon "no substitute for the hard judgments that must be made." Storer, 415 U. S., at 730. But the First Amendment requires vigilance in making those judgments, to guard against undue hindrances to political conversations and the exchange of ideas. See Meyer, 486 U. S., at 421. The Court is satisfied that, as in Meyer, the restrictions in question significantly inhibit communication with voters about proposed political change, and are not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify those restrictions. This judgment is informed by other means Colorado employs to accomplish its regulatory purposes. Pp. 7-8. (b) Beyond question, Colorado's registration requirement drastically reduces the number of persons, both volunteer and paid, available to circulate petitions. That requirement produces a speech diminution of the very kind produced by the ban on paid circulators at issue in Meyer. Both provisions "limi[t] the number of voices who will convey [the initiative proponents'] message" and, consequently, cut down "the size of the audience [proponents] can reach." Meyer, 486 U. S., at 422, 423. The ease with which qualified voters may register to vote does not lift the burden on speech at petition circulation time. There are individuals for whom, as the trial record shows, the choice not to register implicates political thought and expression. The State's strong interest in policing lawbreakers among petition circulators by ensuring that circulators will be amenable to the Secretary of State's subpoena power is served by the requirement, upheld below, that each circulator submit an affidavit setting out, among several particulars, his or her address. ACLF did not challenge Colorado's right to require that all circulators be residents, a requirement that more precisely achieves the State's subpoena service objective. Assuming that a residence requirement would be upheld as a needful integrity-policing measure — a question that this Court, like the Tenth Circuit, has no occasion to decide because the parties have not placed the matter of residence at issue — the added registration requirement is not warranted. Pp. 8-13. (c) The Tenth Circuit held the badge requirement invalid insofar as it requires circulators to display their names. The District Court found from evidence ACLF presented that compelling circulators to wear identification badges inhibits participation in the petitioning process. Colorado's interest in enabling the public to identify, and the State to apprehend, petition circulators who engage in misconduct is addressed by the requirement that circulators disclose their names and addresses on affidavits submitted with each petition section. Unlike a name badge worn at the time a circulator is soliciting signatures, the affidavit is separated from the moment the circulator speaks, when reaction to the message is immediate and may be the most intense, emotional, and unreasoned. Because the badge requirement compels personal name identification at the precise moment when the circulator's interest in anonymity is greatest, it does not qualify for inclusion among "the more limited [election process] identification requirement[s]" to which this Court alluded in McIntyre,514 U. S., at 353. Like the Tenth Circuit, this Court expresses no opinion on the constitutionality of the additional requirements that the badge disclose whether the circulator is paid or volunteer, and if paid, by whom. Pp. 13-16. (d) The Tenth Circuit invalidated the requirement that ballot-initiative proponents file a final report when the initiative petition is submitted insofar as that requirement compels disclosure of each paid circulator by name and address, and the total amount paid to each circulator. That court also rejected compelled disclosure in monthly reports of the name and address of each paid circulator, and the amount of money paid and owed to each circulator during the month in question. In ruling on these disclosure requirements, the Court of Appeals looked primarily to this Court's decision in Buckley v. Valeo,424 U. S. 1. In Buckley, the Court stated that "exacting scrutiny" is necessary when compelled disclosure of campaign-related payments is at issue, but nevertheless upheld, as substantially related to important governmental interests, the reporting and disclosure provisions of the Federal Election Campaign Act of 1971. Mindful of Buckley, the Tenth Circuit did not upset Colorado's disclosure requirements as a whole. Notably, the Court of Appeals upheld the State's requirements for disclosure of payors, in particular, proponents' names and the total amount they have spent to collect signatures for their petitions. Disclosure of the names of initiative sponsors, and the amounts they have spent to gather support for their initiatives, responds to Colorado's substantial interest in controlling domination of the initiative process by affluent special interest groups. The added benefit of revealing the names of paid circulators and amounts paid to each circulator, the lower courts fairly determined from the record as a whole, has not been demonstrated. This Court expresses no opinion whether other monthly report prescriptions regarding which the Tenth Circuit identified no infirmity would, standing alone, survive review. Pp. 16-20. (e) Through less problematic measures, Colorado can and does meet the State's substantial interest in regulating the ballot-initiative process. To deter fraud and diminish corruption, Colorado retains an arsenal of safeguards. To inform the public about the source of funding for ballot initiatives, the State legitimately requires sponsors of ballot initiatives to disclose who pays petition circulators, and how much. To ensure grass roots support, Colorado conditions placement of an initiative proposal on the ballot on the proponent's submission of valid signatures representing five percent of the total votes cast for all candidates for Secretary of State at the previous general election. Furthermore, in aid of efficiency, veracity, or clarity, Colorado has provided for an array of process measures not contested here by ACLF. P. 21.120 F. 3d 1092, affirmed. Ginsburg, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, and Souter, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. O'Connor, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Breyer, J., joined. Rehnquist, C. J., filed a dissenting opinion. VICTORIA BUCKLEY, SECRETARY OF STATE OFCOLORADO, PETITIONER v. AMERICAN CONSTITU-TIONAL LAW FOUNDATION, INC., et al.on writ of certiorari to the united states court ofappeals for the tenth circuit[January 12, 1999] Justice Ginsburg delivered the opinion of the Court. Colorado allows its citizens to make laws directly through initiatives placed on election ballots. See Colo. Const., Art. V, §§1(1), (2); Colo. Rev. Stat. §§1-40-101 to 1-40-133 (1998). We review in this case three conditions Colorado places on the ballot-initiative process: (1) the requirement that initiative-petition circulators be registered voters, Colo. Rev. Stat. §1-40-112(1) (1998); (2) the requirement that they wear an identification badge bearing the circulator's name, §1-40-112(2); and (3) the requirement that proponents of an initiative report the names and addresses of all paid circulators and the amount paid to each circulator, §1-40-121. Precedent guides our review. In Meyer v. Grant,486 U. S. 414 (1988), we struck down Colorado's prohibition of payment for the circulation of ballot-initiative petitions. Petition circulation, we held, is "core political speech," because it involves "interactive communication concerning political change." Id., at 422 (internal quotation marks omitted). First Amendment protection for such interaction, we agreed, is "at its zenith." Id., at 425 (internal quotation marks omitted). We have also recognized, however, that "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer v. Brown,415 U. S. 724, 730 (1974); see Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997); Anderson v. Celebrezze,460 U. S. 780, 788 (1983). Taking careful account of these guides, the Court of Appeals for the Tenth Circuit upheld some of the State's regulations, but found the three controls at issue excessively restrictive of political speech, and therefore declared them invalid. American Constitutional Law Foundation, Inc. v. Meyer, 120 F. 3d 1092 (1997). We granted certiorari, 522 U. S. ___ (1998), and now affirm that judgment.I The complaint in this action was filed in 1993 in the United States District Court for the District of Colorado pursuant to 42 U. S. C. §1983; it challenged six of Colorado's many controls on the initiative-petition process. Plaintiffs, now respondents, included American Constitutional Law Foundation, Inc., a nonprofit, public interest organization that supports direct democracy, and several individual participants in Colorado's initiative process. In this opinion we refer to plaintiffs-respondents, collectively, as ACLF.1 ACLF charged that the following prescriptions of Colorado's law governing initiative petitions violate the First Amendment's freedom of speech guarantee: (1) the requirement that petition circulators be at least 18 years old, Colo. Rev. Stat. §1-40-112(1) (1998);2 (2) the further requirement that they be registered voters, ibid.;3 (3) the limitation of the petition circulation period to six months, §1-40-108;4 (4) the requirement that petition circulators wear identification badges stating their names, their status as "VOLUNTEER" or "PAID," and if the latter, the name and telephone number of their employer, §1-40-112(2);5 (5) the requirement that circulators attach to each petition section6 an affidavit containing, inter alia, the circulator's name and address and a statement that "he or she has read and understands the laws governing the circulation of petitions," §1-40-111(2);7 and (6) the requirements that initiative proponents disclose (a) at the time they file their petition, the name, address, and county of voter registration of all paid circulators, the amount of money proponents paid per petition signature, and the total amount paid to each circulator, and (b) on a monthly basis, the names of the proponents, the name and address of each paid circulator, the name of the proposed ballot measure, and the amount of money paid and owed to each circulator during the month, §1-40-121.8 The District Court, after a bench trial,9 struck down the badge requirement and portions of the disclosure requirements, but upheld the age and affidavit requirements and the six-month limit on petition circulation. See American Constitutional Law Foundation, Inc. v. Meyer, 870 F. Supp. 995, 1001-1004 (Colo. 1994). The District Court also found that the registration requirement "limits the number of persons available to circulate ... and, accordingly, restricts core political speech." Id., at 1002. Nevertheless, that court upheld the registration requirement. In 1980, the District Court noted, the registration requirement had been adopted by Colorado's voters as a constitutional amendment. See ibid. For that reason, the District Court believed, the restriction was "not subject to any level of scrutiny." Ibid. The Court of Appeals affirmed in part and reversed in part. See 120 F. 3d 1092 (CA10 1997). That court properly sought guidance from our recent decisions on ballot access, see, e.g., Timmons v. Twin Cities Area New Party, 520 U. S. 351 (1997), and on handbill distribution, see McIntyre v. Ohio Elections Comm'n,514 U. S. 334 (1995). See 120 F. 3d, at 1097, 1103. Initiative-petition circulators, the Tenth Circuit recognized, resemble handbill distributors, in that both seek to promote public support for a particular issue or position. See id., at 1103. Initiative-petition circulators also resemble candidate-petition signature gatherers, however, for both seek ballot access. In common with the District Court, the Tenth Circuit upheld, as reasonable regulations of the ballot-initiative process, the age restriction, the six-month limit on petition circulation, and the affidavit requirement. See id., at 1098-1100, 1101.10 The Court of Appeals struck down the requirement that petition circulators be registered voters, and also held portions of the badge and disclosure requirements invalid as trenching unnecessarily and improperly on political expression. See id., at 1100, 1101-1105.II As the Tenth Circuit recognized in upholding the age restriction, the six-month limit on circulation, and the affidavit requirement, States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally. See Biddulph v. Mortham, 89 F. 3d 1491, 1494, 1500-1501 (CA11 1996) (upholding single subject and unambiguous title requirements for initiative proposals to amend Florida's Constitution), cert. denied, 519 U. S. 1151 (1997); Taxpayers United For Assessment Cuts v. Austin, 994 F. 2d 291, 293-294, 296-297 (CA6 1993) (upholding Michigan procedures for checking voters' signatures on initiative petitions).11 We have several times said "no litmus-paper test" will separate valid ballot-access provisions from invalid interactive speech restrictions; we have come upon "no substitute for the hard judgments that must be made." Storer, 415 U. S., at 730; see Timmons, 520 U. S., at 359; Anderson, 460 U. S., at 789-790. But the First Amendment requires us to be vigilant in making those judgments, to guard against undue hindrances to political conversations and the exchange of ideas. See Meyer, 486 U. S., at 421. We therefore detail why we are satisfied that, as in Meyer, the restrictions in question significantly inhibit communication with voters about proposed political change, and are not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify those restrictions.12 Our judgment is informed by other means Colorado employs to accomplish its regulatory purposes.III By constitutional amendment in 1980, see Colo. Const., Art. V, §1(6) (1980), and corresponding statutory change the next year, see 1981 Colo. Sess. Laws, ch. 56, §4, Colorado added to the requirement that petition circulators be residents, the further requirement that they be registered voters.13 Registration, Colorado's Attorney General explained at oral argument, demonstrates "commit[ment] to the Colorado law-making process," Tr. of Oral Arg. 10, and facilitates verification of the circulator's residence, see id., at 10, 14. Beyond question, Colorado's registration requirement drastically reduces the number of persons, both volunteer and paid, available to circulate petitions. We must therefore inquire whether the State's concerns warrant the reduction. See Timmons, 520 U. S., at 358. When this case was before the District Court, registered voters in Colorado numbered approximately 1.9 million. At least 400,000 persons eligible to vote were not registered. See 2 Tr. 159 (testimony of Donetta Davidson, elections official in the Colorado Secretary of State's office);14 120 F. 3d, at 1100 ("Colorado acknowledges there are at least 400,000 qualified but unregistered voters in the state.").15 Trial testimony complemented the statistical picture. Typical of the submissions, initiative proponent Paul Grant testified: "Trying to circulate an initiative petition, you're drawing on people who are not involved in normal partisan politics for the most part... . [L]arge numbers of these people, our natural support, are not registered voters." 1 Tr. 128. As earlier noted, see supra, at 5, the District Court found from the statistical and testimonial evidence: "The record does show that the requirement of registration limits the number of persons available to circulate and sign [initiative] petitions and, accordingly, restricts core political speech." 870 F. Supp., at 1002. Because the requirement's source was a referendum approved by the people of Colorado, however, the District Court deemed the prescription "not subject to any level of [judicial] scrutiny." Ibid. That misjudgment was corrected by the Tenth Circuit: "The voters may no more violate the United States Constitution by enacting a ballot issue than the general assembly may by enacting legislation." 120 F. 3d, at 1100. The Tenth Circuit reasoned that the registration requirement placed on Colorado's voter-eligible population produces a speech diminution of the very kind produced by the ban on paid circulators at issue in Meyer. See 120 F. 3d, at 1100.We agree. The requirement that circulators be not merely voter eligible, but registered voters, it is scarcely debatable given the uncontested numbers, see supra, at 8-9, and n. 15, decreases the pool of potential circulators as certainly as that pool is decreased by the prohibition of payment to circulators.16 Both provisions "limi[t] the number of voices who will convey [the initiative proponents'] message" and, consequently, cut down "the size of the audience [proponents] can reach." Meyer, 486 U. S., at 422, 423; see Bernbeck v. Moore, 126 F. 3d 1114, 1116 (CA8 1997) (quoting Meyer); see also Meyer, 486 U. S., at 423 (stating, further, that the challenged restriction reduced the chances that initiative proponents would gather signatures sufficient in number to qualify for the ballot, and thus limited proponents' "ability to make the matter the focus of statewide discussion"). In this case, as in Meyer, the requirement "imposes a burden on political expression that the State has failed to justify." Id., at 428. Colorado acknowledges that the registration requirement limits speech, but not severely, the State asserts, because "it is exceptionally easy to register to vote." Reply Brief 5, 6; see Brief for Petitioner 30-31. The ease with which qualified voters may register to vote, however, does not lift the burden on speech at petition circulation time. Of course there are individuals who fail to register out of ignorance or apathy. See post, at 6 (O'Connor, J., concurring in judgment in part and dissenting in part). But there are also individuals for whom, as the trial record shows, the choice not to register implicates political thought and expression. See 1 Tr. 14 (testimony of ballot-initiative organizer Jack Hawkins). A lead plaintiff in this case, long active in ballot-initiative support — a party no doubt "`able and willing' to convey a political message," cf. post, at 5 (O'Connor, J., concurring in judgment in part and dissenting in part)--testified that his refusal to register is a "form of ... private and public protest." 1 Tr. 223 (testimony of William Orr, executive director of ACLF). Another initiative proponent similarly stated that some circulators refuse to register because "they don't believe that the political process is responsive to their needs." Id., at 58 (testimony of Jon Baraga). For these voter-eligible circulators, the ease of registration misses the point.17 The State's dominant justification appears to be its strong interest in policing lawbreakers among petition circulators. Colorado seeks to ensure that circulators will be amenable to the Secretary of State's subpoena power, which in these matters does not extend beyond the State's borders. See Brief for Petitioner 32. The interest in reaching law violators, however, is served by the requirement, upheld below, that each circulator submit an affidavit setting out, among several particulars, the "address at which he or she resides, including the street name and number, the city or town, [and] the county." Colo. Rev. Stat. §1-40-111(2) (1998); see supra, at 4, n. 7. This address attestation, we note, has an immediacy, and corresponding reliability, that a voter's registration may lack. The attestation is made at the time a petition section is submitted; a voter's registration may lack that currency. ACLF did not challenge Colorado's right to require that all circulators be residents, a requirement that, the Tenth Circuit said, "more precisely achieved" the State's subpoena service objective. 120 F. 3d, at 1100. Nor was any eligible-to-vote qualification in contest in this lawsuit. Colorado maintains that it is more difficult to determine who is a state resident than it is to determine who is a registered voter. See Tr. of Oral Arg. 10, 14. The force of that argument is diminished, however, by the affidavit attesting to residence that each circulator must submit with each petition section. In sum, assuming that a residence requirement would be upheld as a needful integrity-policing measure — a question we, like the Tenth Circuit, see 120 F. 3d, at 1100, have no occasion to decide because the parties have not placed the matter of residence at issue — the added registration requirement is not warranted. That requirement cuts down the number of message carriers in the ballot-access arena without impelling cause.IV Colorado enacted the provision requiring initiative-petition circulators to wear identification badges in 1993, five years after our decision in Meyer. 1993 Colo. Sess. Laws, ch. 183, §1.18 The Tenth Circuit held the badge requirement invalid insofar as it requires circulators to display their names. See 120 F. 3d, at 1104. The Court of Appeals did not rule on the constitutionality of other elements of the badge provision, namely the "requirements that the badge disclose whether the circulator is paid or a volunteer, and if paid, by whom." Ibid. Nor do we. Evidence presented to the District Court, that court found, "demonstrated that compelling circulators to wear identification badges inhibits participation in the petitioning process." 870 F. Supp., at 1001. The badge requirement, a veteran ballot-initiative-petition organizer stated, "very definitely limited the number of people willing to work for us and the degree to which those who were willing to work would go out in public." 1 Tr. 127 (testimony of Paul Grant).19 Another witness told of harassment he personally experienced as circulator of a hemp initiative petition. See 870 F. Supp., at 1001. He also testified to the reluctance of potential circulators to face the recrimination and retaliation that bearers of petitions on "volatile" issues sometimes encounter: "[W]ith their name on a badge, it makes them afraid." 1 Tr. 60 (testimony of Jon Baraga). Other petition advocates similarly reported that "potential circulators were not willing to wear personal identification badges." 870 F. Supp., at 1001-1002. Colorado urges that the badge enables the public to identify, and the State to apprehend, petition circulators who engage in misconduct. See Brief for Petitioner 36-37; Reply Brief 17. Here again, the affidavit requirement, unsuccessfully challenged below, see supra, at 6, and n. 10, is responsive to the State's concern; as earlier noted, see supra, at 3-4, and n. 7, each petition section must contain, along with the collected signatures of voters, the circulator's name, address, and signature. This notarized submission, available to law enforcers, renders less needful the State's provision for personal names on identification badges. While the affidavit reveals the name of the petition circulator and is a public record, it is tuned to the speaker's interest as well as the State's. Unlike a name badge worn at the time a circulator is soliciting signatures, the affidavit is separated from the moment the circulator speaks. As the Tenth Circuit explained, the name badge requirement "forces circulators to reveal their identities at the same time they deliver their political message," 120 F. 3d, at 1102; it operates when reaction to the circulator's message is immediate and "may be the most intense, emotional, and unreasoned," ibid. The affidavit, in contrast, does not expose the circulator to the risk of "heat of the moment" harassment. Cf. 870 F. Supp., at 1004 (observing that affidavits are not instantly accessible, and are therefore less likely to be used "for such purposes as retaliation or harassment"). Our decision in McIntyre v. Ohio Elections Comm'n,514 U. S. 334 (1995), is instructive here. The complainant in McIntyre challenged an Ohio law that prohibited the distribution of anonymous campaign literature. The writing in question was a handbill urging voters to defeat a ballot issue. Applying "exacting scrutiny" to Ohio's fraud prevention justifications, we held that the ban on anonymous speech violated the First Amendment. See id., at 347, 357. "Circulating a petition is akin to distributing a handbill," the Tenth Circuit observed in the decision now before us. 120 F. 3d, at 1103. Both involve a one-on-one communication. But the restraint on speech in this case is more severe than was the restraint in McIntyre. Petition circulation is the less fleeting encounter, for the circulator must endeavor to persuade electors to sign the petition. See Tr. of Oral Arg. 21, 25-26. That endeavor, we observed in Meyer, "of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change." 486 U. S., at 421. The injury to speech is heightened for the petition circulator because the badge requirement compels personal name identification at the precise moment when the circulator's interest in anonymity is greatest. See 120 F. 3d, at 1102. For this very reason, the name badge requirement does not qualify for inclusion among the "more limited [election process] identification requirement[s]" to which we alluded in McIntyre. 514 U. S., at 353 ("We recognize that a State's enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here."); see id., at 358 (Ginsburg, J., concurring). In contrast, the affidavit requirement upheld by the District Court and Court of Appeals, which must be met only after circulators have completed their conversations with electors, exemplifies the type of regulation for which McIntyre left room.20 In sum, we conclude, as did the Court of Appeals, that Colorado's current badge requirement discourages participation in the petition circulation process by forcing name identification without sufficient cause. We reiterate this qualification: In its final observation, the Court of Appeals noted that ACLF's "arguments and evidence focus[ed] entirely on [the circulator identification] requirement"; therefore, that court expressed no opinion whether the additional requirements — that the badge disclose the circulator's paid or volunteer status, and if paid, by whom--"would pass constitutional muster standing alone." 120 F. 3d, at 1104. We similarly confine our decision.V Like the badge requirement, Colorado's disclosure provisions were enacted post-Meyer in 1993. See 1993 Colo. Sess. Laws, ch. 183, §1.21 The Tenth Circuit trimmed these provisions. Colorado requires ballot-initiative proponents who pay circulators to file both a final report when the initiative petition is submitted to the Secretary of State, and monthly reports during the circulation period. Colo. Rev. Stat. §1-40-121 (1998), set out supra, at 5, n. 8. The Tenth Circuit invalidated the final report provision only insofar as it compels disclosure of information specific to each paid circulator, in particular, the circulators' names and addresses and the total amount paid to each circulator. See 120 F. 3d, at 1104-1105. As modified by the Court of Appeals decision, the final report will reveal the amount paid per petition signature, and thus, effectively, the total amount paid to petition circulators. See ibid. The Court of Appeals next addressed Colorado's provision demanding "detailed monthly disclosures." 120 F. 3d, at 1105. In a concise paragraph, the court rejected compelled disclosure of the name and addresses (residential and business) of each paid circulator, and the amount of money paid and owed to each circulator, during the month in question. See Colo. Rev. Stat. §§1-40-121(2)(b), (d) (1998). The Court of Appeals identified no infirmity in the required reporting of petition proponents' names, or in the call for disclosure of proposed ballot measures for which paid circulators were engaged. See §§1-40-121(2)(a), (c). We express no opinion whether these monthly report prescriptions, standing alone, would survive review. In ruling on Colorado's disclosure requirements for paid circulations, the Court of Appeals looked primarily to our decision in Buckley v. Valeo,424 U. S. 1 (1976) (per curiam). In that decision, we stated that "exacting scrutiny" is necessary when compelled disclosure of campaign-related payments is at issue. See id., at 64-65. We nevertheless upheld, as substantially related to important governmental interests, the recordkeeping, reporting, and disclosure provisions of the Federal Election Campaign Act of 1971, 86 Stat. 3, as amended, 88 Stat. 1263, 2 U. S. C. §431 et seq. (1970 ed., Supp. IV). See 424 U. S., at 66-68, 84. We explained in Buckley that disclosure provides the electorate with information "as to where political campaign money comes from and how it is spent," thereby aiding electors in evaluating those who seek their vote. Id., at 66 (internal quotation marks omitted). We further observed that disclosure requirements "deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity." Id., at 67; see also Grosjean v. American Press Co., 297 U. S. 233, 250 (1936) (observing that an "informed public opinion is the most potent of all restraints upon misgovernment"). Mindful of Buckley, the Tenth Circuit did not upset Colorado's disclosure requirements "as a whole." But see post, at 8 (Rehnquist, C. J., dissenting). Notably, the Court of Appeals upheld the State's requirements for disclosure of payors, in particular, proponents' names and the total amount they have spent to collect signatures for their petitions. See 120 F. 3d, at 1104-1105. In this regard, the State and supporting amici stress the importance of disclosure as a control or check on domination of the initiative process by affluent special interest groups. See Reply Brief 15 ("[T]here are increasingly more initiatives that are the product of large monied interests."); Brief for Council of State Governments et al. as Amici Curiae 3 ("Today the initiative and referendum process is dominated by money and professional firms."). Disclosure of the names of initiative sponsors, and of the amounts they have spent gathering support for their initiatives, responds to that substantial state interest. See 870 F. Supp., at 1003 ("What is of interest is the payor, not the payees."); cf. this Court's Rule 37.6 (requiring disclosure of "every person or entity ... who made a monetary contribution to the preparation or submission of the brief"). Through the disclosure requirements that remain in place, voters are informed of the source and amount of money spent by proponents to get a measure on the ballot; in other words, voters will be told "who has proposed [a measure]," and "who has provided funds for its circulation." See post, at 11 (O'Connor, J., concurring in judgment in part and dissenting in part). The added benefit of revealing the names of paid circulators and amounts paid to each circulator, the lower courts fairly determined from the record as a whole, is hardly apparent and has not been demonstrated.22 We note, furthermore, that ballot initiatives do not involve the risk of "quid pro quo" corruption present when money is paid to, or for, candidates. See Meyer, 486 U. S., at 427-428 (citing First Nat. Bank of Boston v. Bellotti,435 U. S. 765, 790 (1978) ("The risk of corruption perceived in cases involving candidate elections ... simply is not present in a popular vote on a public issue.")); McIntyre, 514 U. S., at 352, n. 15. In addition, as we stated in Meyer, "the risk of fraud or corruption, or the appearance thereof, is more remote at the petition stage of an initiative than at the time of balloting." 486 U. S., at 427. Finally, absent evidence to the contrary, "we are not prepared to assume that a professional circulator — whose qualifications for similar future assignments may well depend on a reputation for competence and integrity — is any more likely to accept false signatures than a volunteer who is motivated entirely by an interest in having the proposition placed on the ballot." Id., at 426.23 In sum, we agree with the Court of Appeals appraisal: Listing paid circulators and their income from circulation "forc[es] paid circulators to surrender the anonymity enjoyed by their volunteer counterparts," 120 F. 3d, at 1105;24 no more than tenuously related to the substantial interests disclosure serves, Colorado's reporting requirements, to the extent that they target paid circulators, "fai[l] exacting scrutiny," ibid.VI Through less problematic measures, Colorado can and does meet the State's substantial interests in regulating the ballot-initiative process. Colorado aims to protect the integrity of the initiative process, specifically, to deter fraud and diminish corruption. See Brief for Petitioner 24, 42, 45; Reply Brief 13, 14, 17. To serve that important interest, as we observed in Meyer, Colorado retains an arsenal of safeguards. See 486 U. S., at 426-427; 120 F. 3d, at 1103, 1105; see, e.g., Colo. Rev. Stat. §1-40-130(1)(b) (1998) (making it criminal to forge initiative-petition signatures); §1-40-132(1) (initiative-petition section deemed void if circulator has violated any provision of the laws governing circulation). To inform the public "where [the] money comes from," Buckley, 424 U. S., at 66 (internal quotation marks omitted), we reiterate, the State legitimately requires sponsors of ballot initiatives to disclose who pays petition circulators, and how much. See supra, at 16-17. To ensure grass roots support, Colorado conditions placement of an initiative proposal on the ballot on the proponent's submission of valid signatures representing five percent of the total votes cast for all candidates for Secretary of State at the previous general election. Colo. Const., Art. V, §1(2); Colo. Rev. Stat. §1-40-109(1) (1998); see Meyer, 486 U. S., at 425-426; 120 F. 3d, at 1105. Furthermore, in aid of efficiency, veracity, or clarity, Colorado has provided for an array of process measures not contested here by ACLF. These measures prescribe, inter alia, a single subject per initiative limitation, Colo. Rev. Stat. §1-40-106.5(1)(a) (1998), a signature verification method, §1-40-116, a large, plain-English notice alerting potential signers of petitions to the law's requirements, §1-40-110(1), and the text of the affidavit to which all circulators must subscribe, §1-40-111(2).* * * For the reasons stated, we conclude that the Tenth Circuit correctly separated necessary or proper ballot access controls from restrictions that unjustifiably inhibit the circulation of ballot-initiative petitions. Therefore, the judgment of the Court of Appeals is Affirmed. VICTORIA BUCKLEY, SECRETARY OF STATE OFCOLORADO, PETITIONER v. AMERICAN CONSTITU-TIONAL LAW FOUNDATION, INC., et al.on writ of certiorari to the united states court ofappeals for the tenth circuit[January 12, 1999] Justice Thomas, concurring in the judgment. When considering the constitutionality of a state election regulation that restricts core political speech or imposes "severe burdens" on speech or association, we have generally required that the law be narrowly tailored to serve a compelling state interest. But if the law imposes "lesser burdens," we have said that the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions. The Court today appears to depart from this now-settled approach. In my view, Colorado's badge, registration, and reporting requirements each must be evaluated under strict scrutiny. Judged by that exacting standard, I agree with the majority that each of the challenged regulations violates the First and Fourteenth Amendments, and accordingly concur only in the judgment.I States, of course, must regulate their elections to ensure that they are conducted in a fair and orderly fashion. See, e.g., Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997); Burdick v. Takushi, 504 U. S. 428, 433 (1992). But such regulations often will directly restrict or otherwise burden core political speech and associational rights. To require that every voting, ballot, and campaign regulation be narrowly tailored to serve a compelling interest "would tie the hands of States seeking to assure that elections are operated equitably and efficiently." Id., at 433. Consequently, we have developed (although only recently) a framework for assessing the constitutionality, under the First and Fourteenth Amendments, of state election laws. When a State's rule imposes severe burdens on speech or association, it must be narrowly tailored to serve a compelling interest; lesser burdens trigger less exacting review, and a State's important regulatory interests are typically enough to justify reasonable restrictions. Timmons, supra, at 358-359; Burdick, supra, at 434; Anderson v. Celebrezze, 460 U. S. 780, 788-790 (1983). Predictability of decisions in this area is certainly important, but unfortunately there is no bright line separating severe from lesser burdens. When a State's election law directly regulates core political speech, we have always subjected the challenged restriction to strict scrutiny and required that the legislation be narrowly tailored to serve a compelling governmental interest. See, e.g., Burson v. Freeman, 504 U. S. 191, 198 (1992) (Tennessee law prohibiting solicitation of voters and distribution of campaign literature within 100 feet of the entrance of a polling place); Brown v. Hartlage, 456 U. S. 45, 53-54 (1982) (Kentucky's regulation of candidate campaign promises); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978) (Massachusetts law prohibiting certain business entities from making expenditures for the purpose of affecting referendum votes). Even where a State's law does not directly regulate core political speech, we have applied strict scrutiny. For example, in Meyer v. Grant, 486 U. S. 414 (1988), we considered a challenge to Colorado's law making it a felony to pay initiative petition circulators. We applied strict scrutiny because we determined that initiative petition circulation "of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change." Id., at 421. In Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290 (1981), we subjected to strict scrutiny a city ordinance limiting contributions to committees formed to oppose ballot initiatives because it impermissibly burdened association and expression. Id., at 294. When core political speech is at issue, we have ordinarily applied strict scrutiny without first determining that the State's law severely burdens speech. Indeed, in McIntyre v. Ohio Elections Comm'n, 514 U. S. 334 (1995), the Court suggested that we only resort to our severe/lesser burden framework if a challenged election law regulates "the mechanics of the electoral process," not speech. Id., at 345; but see Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 222-223 (1989) (first determining that California's prohibition on primary endorsements by the official governing bodies of political parties burdened speech and association and then applying strict scrutiny). I suspect that when regulations of core political speech are at issue it makes little difference whether we determine burden first because restrictions on core political speech so plainly impose a "severe burden." When an election law burdens voting and associational interests, our cases are much harder to predict, and I am not at all sure that a coherent distinction between severe and lesser burdens can be culled from them. For example, we have subjected to strict scrutiny Connecticut's requirement that voters in any party primary be registered members of that party because it burdened the "associational rights of the Party and its members." Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986). We similarly treated California's laws dictating the organization and composition of official governing bodies of political parties, limiting the term of office of a party chair, and requiring that the chair rotate between residents of northern and southern California because they "burden[ed] the associational rights of political parties and their members," Eu, supra, at 231. In Storer v. Brown, 415 U. S. 724 (1974), we applied strict scrutiny to California's law denying a ballot position to independent candidates who had a registered affiliation with a qualified political party within a year of the preceding primary election, apparently because it "substantially" burdened the rights to vote and associate. Id., at 729, 736.1 And in Norman v. Reed, 502 U. S. 279 (1992), we determined that Illinois' regulation of the use of party names and its law establishing signature requirements for nominating petitions severely burdened association by limiting new parties' access to the ballot, and held both challenged laws, as construed by the State Supreme Court, unconstitutional because they were not narrowly tailored. Id., at 288-290, 294. By contrast, we determined that Minnesota's law preventing a candidate from appearing on the ballot as the choice of more than one party burdened a party's access to the ballot and its associational rights, but not severely, and upheld the ban under lesser scrutiny. Timmons, 520 U. S., at 363. We likewise upheld Hawaii's prohibition on write-in voting, which imposed, at most, a "very limited" burden on voters' freedom of choice and association. Burdick, 504 U. S., at 437.II Colorado argues that its badge, registration, and reporting requirements impose "lesser" burdens, and consequently, each ought to be upheld as serving important State interests. I cannot agree.A The challenged badge requirement, Colo. Rev. Stat.§1-40-112(2), directly regulates the content of speech. The State requires that all petition circulators disclose, at the time they deliver their political message, their names and whether they were paid or unpaid. Therefore, the regulation must be evaluated under strict scrutiny. Moreover, the category of burdened speech is defined by its content — Colorado's badge requirement does not apply to those who circulate candidate petitions, only to those who circulate initiative or referendum proposals. See generally Colo. Rev. Stat. §1-4-905 (candidate petition circulation requirements). Content-based regulation of speech typically must be narrowly tailored to a compelling state interest. See, e.g., Boos v. Barry, 485 U. S. 312, 321 (1988). The State's dominant justification for its badge requirement is that it helps the public to identify, and the State to apprehend, petition circulators who perpetrate fraud. Even assuming that this is a compelling interest, plainly, this requirement is not narrowly tailored. It burdens all circulators, whether they are responsible for committing fraud or not. In any event, the State has failed to satisfy its burden of demonstrating that fraud is a real, rather than a conjectural, problem. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 664 (1994); Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U. S. 604, 647 (1996) (Thomas, J., concurring in judgment and dissenting in part).2 B Although Colorado's registration requirement, Colo. Rev. Stat. §1-40-112(1), does not directly regulate speech, it operates in the same fashion that Colorado's prohibition on paid circulators did in Meyer--the requirement reduces the voices available to convey political messages. We unanimously concluded in Meyer that initiative petition circulation was core political speech. 486 U. S., at 421-422. Colorado's law making it a felony to pay petition circulators burdened that political expression, we said, because it reduced the number of potential speakers. That reduction limited the size of the audience that initiative proponents and circulators might reach, which in turn made it less likely that initiative proposals would garner the signatures necessary to qualify for the ballot. Id., at 422-423. I see no reason to revisit our earlier conclusion. The aim of a petition is to secure political change, and the First Amendment, by way of the Fourteenth Amendment, guards against the State's efforts to restrict free discussions about matters of public concern.3 Colorado primarily defends its registration requirement on the ground that it ensures that petition circulators are residents, which permits the State to more effectively enforce its election laws against those who violate them.4 The Tenth Circuit assumed, and so do I, that the State has a compelling interest in ensuring that all circulators are residents. Even so, it is clear, as the Court of Appeals decided, that the registration requirement is not narrowly tailored. A large number of Colorado's residents are not registered voters, as the majority points out, ante, at 8-9, and the State's asserted interest could be more precisely achieved through a residency requirement.5 C The District Court and the Court of Appeals both suggested that by forcing proponents to identify paid circulators by name, the reports made it less likely that persons would want to circulate petitions. Therefore, both concluded, the reporting requirement had a chilling effect on core political speech similar to the one we recognized in Meyer. American Constitutional Law Foundation, Inc. v. Meyer, 120 F. 3d 1092 1096 (CA 10 1997); American Constitutional Law Foundation, Inc. v. Meyer, 870 F. Supp. 955, 1003 (Colo. 1994). The District Court additionally determined that preparation of the required monthly reports was burdensome for and involved additional expense to those supporting an initiative petition. Ibid. In my view, the burdens that the reporting requirement imposes on circulation are too attenuated to constitute a "severe burden" on core political speech. However, "compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment." Buckley v. Valeo, 424 U. S. 1, 64 (1976) (per curiam). In Buckley, because the disclosure requirements of the Federal Election Campaign Act of 1971 encroached on associational rights, we required that they pass a "strict test." Id., at 66. The same associational interests are burdened by the State's reporting requirements here, and they must be evaluated under strict scrutiny. Colorado argues that the "essential purpose" of the reports is to identify circulators. Brief for Petitioner 44. It also claims that its required reports are designed to provide "the press and the voters of Colorado a more complete picture of how money is being spent to get a measure on the ballot." Ibid. Even assuming that Colorado has a compelling interest in identifying circulators, its law does not serve that interest. The State requires that proponents identify only the names of paid circulators, not all circulators. The interest in requiring a report as to the money paid to each circulator by name, as the majority points out, ante, at 17, has not been demonstrated. The State contends that its asserted interest in providing the press and the electorate with information as to how much money is spent by initiative proponents to advance a particular measure is similar to the governmental interests in providing the electorate with information about how money is spent by a candidate and where it comes from, and in deterring actual corruption and avoiding the appearance of corruption that we recognized in Buckley, supra, at 66-67. However, we have suggested that ballot initiatives and candidate elections involve different considerations. Bellotti, 435 U. S., at 791-792 ("[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments... . [I]f there be any danger that the people cannot evaluate the information and arguments advanced by [one source], it is a danger contemplated by the Framers of the First Amendment"); see also Citizens Against Rent Control, 454 U. S., at 296-298. Indeed, we recognized in Meyer that "the risk of improper conduct ... is more remote at the petition stage of an initiative." 486 U. S., at 427. Similarly, I would think, at the very least, the State's interest in informing the public of the financial interests behind an initiative proposal is not compelling during the petitioning stage. As it stands after the lower court decisions, proponents must disclose the amount paid per petition signature and the total amount paid to each circulator, without identifying each circulator, at the time the petition is filed. Monthly disclosures are no longer required.6 Because the respondents did not sufficiently brief the question, I am willing to assume, for purposes of this opinion, that Colorado's interest in having this information made available to the press and its voters — before the initiative is voted upon, but not during circulation — is compelling. The reporting provision as modified by the courts below ensures that the public receives information demonstrating the financial support behind an initiative proposal before voting. I recognize that in Buckley, although the Court purported to apply strict scrutiny, its formulation of that test was more forgiving than the traditional understanding of that exacting standard. The Court merely required that the disclosure provisions have a "substantial relation," 424 U. S., at 64, to a "substantial" government interest, id., at 68.7 (The majority appears to dilute Buckley's formulation even further, stating that Colorado's reporting requirement must be "substantially related to important governmental interests." Ante, at 17.) To the extent that Buckley suggests that we should apply a relaxed standard of scrutiny, it is inconsistent with our state election law cases that require the application of traditional strict scrutiny whenever a state law "severely burdens" association, and I would not adhere to it. I would nevertheless decide that the challenged portions of Colorado's disclosure law are unconstitutional as evaluated under the Buckley standard.* * * To conclude, I would apply strict scrutiny to each of the challenged restrictions, and would affirm the judgment of the Court of Appeals as to each of the three provisions before us. As the majority would apply different reasoning, I concur only in the Court's judgment. VICTORIA BUCKLEY, SECRETARY OF STATE OFCOLORADO, PETITIONER v. AMERICAN CONSTITU-TIONAL LAW FOUNDATION, INC., et al.on writ of certiorari to the united states court ofappeals for the tenth circuit[January 12, 1999] Chief Justice Rehnquist, dissenting. The Court today invalidates a number of state laws designed to prevent fraud in the circulation of candidate petitions and to ensure that local issues of state law are decided by local voters, rather than by out-of-state interests. Because I believe that Colorado can constitutionally require that those who circulate initiative petitions to registered voters actually be registered voters themselves, and because I believe that the Court's contrary holding has wide-reaching implication for state regulation of elections generally, I dissent.I Ballot initiatives of the sort involved in this case were a central part of the Progressive movement's agenda for reform at the turn of the 20th century, and were advanced as a means of limiting the control of wealthy special interests and restoring electoral power to the voters. See, e.g., H. Croly, Progressive Democracy 236-237, 248-249, 254-255 (Transaction ed. 1998); H. Steele Commager, The American Mind 338 (1950); Persily, The Peculiar Geography of Direct Democracy, 2 Mich. L. & Pol'y Rev. 11, 23 (1997). However, in recent years, the initiative and referendum process has come to be more and more influenced by out-of-state interests which employ professional firms doing a nationwide business. See, e.g., Lowenstein & Stern, The First Amendment and Paid Initiative Petition Circulators, 17 Hastings Const. L. Q. 175, 176 (1989); Broder, Ballot Battle, Washington Post, Apr. 12, 1998, pp. A1, A6; Slind-Flor, Election Result: Litigation over Propositions, National Law Journal, Nov. 16, 1998, pp. A1, A8. The state laws that the Court strikes down today would restore some of this initial purpose by limiting the influence that such out-of-state interests may have on the in-state initiative process. The ironic effect of today's opinion is that, in the name of the First Amendment, it strikes down the attempt of a State to allow its own voters (rather than out-of-state persons and political dropouts) to decide what issues should go on the ballot to be decided by the State's registered voters. The basis of the Court's holding is that because the state laws in question both (1) decrease the pool of potential circulators and (2) reduce the chances that a measure would gather signatures sufficient to qualify for the ballot, the measure is unconstitutional under our decision in Meyer v. Grant, 486 U. S. 414 (1988). See ante, at 9-10. Meyer, which also dealt with Colorado's initiative regulations, struck down a criminal ban on all paid petition circulators. 486 U. S., at 428. But Meyer did not decide that a State cannot impose reasonable regulations on such circulation. Indeed, before today's decision, it appeared that under our case law a State could have imposed reasonable regulations on the circulation of initiative petitions, so that some order could be established over the inherently chaotic nature of democratic processes. Cf. Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997); Burdick v. Takushi, 504 U. S. 428, 433 (1992); Storer v. Brown, 415 U. S. 724, 730 (1974). Today's opinion, however, calls into question the validity of any regulation of petition circulation which runs afoul of the highly abstract and mechanical test of diminishing the pool of petition circulators or making a proposal less likely to appear on the ballot. See ante, at 9-10. It squarely holds that a State may not limit circulators to registered voters, and maintains a sphinx-like silence as to whether it may even limit circulators to state residents.II Section 1-40-112(1) of Colorado's initiative petition law provides that "[n]o section of a petition for any initiative or referendum measure shall be circulated by any person who is not a registered elector and at least eighteen years of age at the time the section is circulated." Colo. Rev. Stat. §1-40-112(1) (1998). This requirement is obviously intended to ensure that the people involved in getting a measure placed on the ballot are the same people who will ultimately vote on that measure — the electors of the State. Indeed, it is difficult to envision why the State cannot do this, but for the unfortunate dicta in Meyer. The parties agree that for purposes of this appeal there are 1.9 million registered voters in Colorado, and that 400,000 persons eligible to vote are not registered. See ante, at 8. But registering to vote in Colorado is easy — the only requirements are that a person be 18 years of age or older on the date of the next election, a citizen of the United States, and a resident of the precinct in which the person will vote 30 days immediately prior to the election. See Colo. Rev. Stat. §1-2-101 (1998). The elector requirement mirrors Colorado's regulation of candidate elections, for which all delegates to county and state assemblies must be registered electors, §1-4-602(5), and where candidates cannot be nominated for a primary election unless they are registered electors, §1-4-601(4)(a). The Court, however, reasons that the restriction of circulation to electors fails to pass scrutiny under the First Amendment because the decision not to register to vote "implicates political thought and expression." Ante, at 11. Surely this can be true of only a very few of the many residents who don't register to vote, but even in the case of the few it should not invalidate the Colorado requirement. Refusing to read current newspapers or to watch television may have "First Amendment implications," but this does not mean that a state university might not refuse to hire such a person to teach a course in "today's media." The examples of unregistered people who wish to circulate initiative petitions presented by the respondents (and relied upon by the Court) are twofold1 --people who refuse to participate in the political process as a means of protest, and convicted drug felons who have been denied the franchise as part of their punishment. For example, respondent Bill Orr, apparently the mastermind of this litigation, argued before the District Court that "It's my form of ... private and public protest. I don't believe that representative organs of Government are doing what they're supposed to be doing." 1 Tr. 223. And respondent Jon Baraga, a person affiliated with the "Colorado Hemp Initiative," which seeks to legalize marijuana in Colorado, testified that "there are a great many folks who are refused to participate as registered voters in the political process who would like to see our measure gain ballot status and would like to help us do that." Id., at 57. Thus, the Court today holds that a State cannot require that those who circulate the petitions to get initiatives on the ballot be electors, and that a State is constitutionally required to instead allow those who make no effort to register to vote — political dropouts — and convicted drug dealers to engage in this electoral activity. Although the Court argues that only those eligible to vote may now circulate candidate petitions, there is no Colorado law to this effect. Such a law would also be even harder to administer than one which limited circulation to residents, because eligible Colorado voters are that subset of Colorado residents who have fulfilled the requirements for registration, and have not committed a felony or been otherwise disqualified from the franchise. A State would thus have to perform a background check on circulators to determine if they are not felons. And one of the reasons the State wished to limit petition circulation to electors in the first place was that it is far easier to determine who is an elector from who is a resident, much less who is "voter eligible."2 In addition, the Court does not adequately explain what "voter eligible" means. If it means "eligible to vote in the State for which the petitions are circulating" (Colorado, in this case), then it necessarily follows from today's holding that a State may limit petition circulation to its own residents. I would not quarrel with this holding. On the other hand, "voter eligible" could mean "any person eligible to vote in any of the United States or its territories." In this case, a State would not merely have to run a background check on out of state circulators, but would also have to examine whether the unregistered circulator had satisfied whatever are the criteria for voter eligibility in his place of residence, be it Georgia or Guam, Peoria or Puerto Rico. State ballot initiatives are a matter of state concern, and a State should be able to limit the ability to circulate initiative petitions to those people who can ultimately vote on those initiatives at the polls. If eligible voters make the conscious decision not to register to vote on the grounds that they reject the democratic process, they should have no right to complain that they cannot circulate initiative petitions to people who are registered voters. And the idea that convicted drug felons who have lost the right to vote under state law nonetheless have a constitutional right to circulate initiative petitions scarcely passes the "laugh test." But the implications of today's holding are even more stark than its immediate effect. Under the Court's interpretation of Meyer, any ballot initiative regulation is unconstitutional if it either diminishes the pool of people who can circulate petitions or makes it more difficult for a given issue to ultimately appear on the ballot. See ante, at 9-10. Thus, while today's judgment is ostensibly circumscribed in scope, it threatens to invalidate a whole host of historically established state regulations of the electoral process in general. Indeed, while the Court is silent with respect to whether a State can limit initiative petition circulation to state residents, the implication of its reading of Meyer--that being unable to hire out-of-state circulators would "limi[t] the number of voices who will convey [the initiative proponents'] message" ante, at 10 (bracketing in original)--is that under today's decision, a State cannot limit the ability to circulate issues of local concern to its own residents. May a State prohibit children or foreigners from circulating petitions, where such restrictions would also limit the number of voices who could carry the proponents' message and thus cut down on the size of the audience the initiative proponents could reach? Cf. Meyer, 486 U. S., at 422-423. And if initiative petition circulation cannot be limited to electors, it would seem that a State can no longer impose an elector or residency requirement on those who circulate petitions to place candidates on ballots, either. At least 19 States plus the District of Columbia explicitly require that candidate petition circulators be electors,3 and at least one other State requires that its petition circulators be state residents.4 Today's decision appears to place each of these laws in serious constitutional jeopardy.III As to the other two laws struck down by the Court, I agree that the badge requirement for petition circulators is unconstitutional. McIntyre v. Ohio Elections Comm'n, 514 U. S. 334 (1995). I also find instructive, as the Court notes, ante, at 12, n. 15, that Colorado does not require such badges for those who circulate candidate petitions. See generally Colo. Rev. Stat. §1-4-905 (1998). I disagree, however, that the First Amendment renders the disclosure requirements unconstitutional. The Court affirms the Court of Appeals' invalidation of only the portion of the law that requires final reports to disclose information specific to each paid circulator — the name, address, and amount paid to each. Important to the Court's decision is the idea that there is no risk of "quid pro quo" corruption when money is paid to ballot initiative circulators, and that paid circulators should not have to surrender the anonymity enjoyed by their volunteer counterparts. I disagree with this analysis because, under Colorado law, all petition circulators must surrender their anonymity under the affidavit requirement. Colorado law requires that each circulator must submit an affidavit which must include the circulator's "name, the address at which he or she resides, including the street name and number, the city or town, [and] the county." Colo. Rev. Stat. §1-40-111(2) (1998). This affidavit requirement was upheld by the Tenth Circuit as not significantly burdening political expression, American Constitutional Law Foundation v. Meyer, 120 F. 3d 1092, 1099 (1997), and is relied upon by the Court in holding that the registered voter requirement is unconstitutional. See ante, at 11. The only additional piece of information for which the disclosure requirement asks is thus the amount paid to each circulator. Since even after today's decision the identity of the circulators as well as the total amount of money paid to circulators will be a matter of public record, see ante, at 16, I do not believe that this additional requirement is sufficient to invalidate the disclosure requirements as a whole. They serve substantial interests and are sufficiently narrowly tailored to satisfy the First Amendment.IV Because the Court's holding invalidates what I believe to be legitimate restrictions placed by Colorado on the petition circulation process, and because its reasoning calls into question a host of other regulations of both the candidate nomination and petition circulation process, I dissent. VICTORIA BUCKLEY, SECRETARY OF STATE OFCOLORADO, PETITIONER v. AMERICAN CONSTITU-TIONAL LAW FOUNDATION, INC., et al.on writ of certiorari to the united states court ofappeals for the tenth circuit[January 12, 1999] Justice O'Connor, with whom Justice Breyer joins, concurring in the judgment in part and dissenting in part. Petition circulation undoubtedly has a significant political speech component. When an initiative petition circulator approaches a person and asks that person to sign the petition, the circulator is engaging in "interactive communication concerning political change." Meyer v. Grant, 486 U. S. 414, 422 (1988). It was the imposition of a direct and substantial burden on this one-on-one communication that concerned us in Meyer v. Grant. To address this concern, we held in that case that regulations directly burdening the one-on-one, communicative aspect of petition circulation are subject to strict scrutiny. Id., at 420. Not all circulation-related regulations target this aspect of petition circulation, however. Some regulations govern the electoral process by directing the manner in which an initiative proposal qualifies for placement on the ballot. These latter regulations may indirectly burden speech but are a step removed from the communicative aspect of petitioning and are necessary to maintain an orderly electoral process. Accordingly, these regulations should be subject to a less exacting standard of review. In this respect, regulating petition circulation is similar to regulating candidate elections. Regulations that govern a candidate election invariably burden to some degree one's right to vote and one's right to associate for political purposes. Such restrictions are necessary, however, "if [elections] are to be fair and honest." Storer v. Brown, 415 U. S. 724, 730 (1974). To allow for regulations of this nature without overly burdening these rights, we have developed a flexible standard to review regulations of the electoral process. The Court succinctly described this standard in Burdick v. Takushi, 504 U. S. 428, 434 (1992):"[W]hen [First and Fourteenth Amendment] rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State's important regulatory interests are generally sufficient to justify the restrictions." Id., at 434 (internal quotation marks and citations omitted).Applying this test, in Burdick, we upheld as reasonable Hawaii's prohibition on write-in voting, holding that it imposed only a limited burden upon the constitutional rights of voters. See id., at 433-441. See also Timmons v. Twin Cities Area New Party, 520 U. S. 351, 362-370 (1997) (upholding Minnesota law that banned fusion candidacies on the ground that the State had asserted a "sufficiently weighty" interest). The application of this flexible standard was not without precedent. Prior to Burdick, the Court applied a test akin to rational review to regulations that governed only the administrative aspects of elections. See Rosario v. Rockefeller, 410 U. S. 752, 756-762 (1973) (upholding requirement that voters enroll as members of a political party prior to voting in a primary election on the ground that the regulation did not impose an onerous burden and advanced a legitimate stateinterest). Under the Burdick approach, the threshold inquiry is whether Colorado's regulations directly and substantially burden the one-on-one, communicative aspect of petition circulation or whether they primarily target the electoral process, imposing only indirect and less substantial burdens on communication. If the former, the regulation should be subject to strict scrutiny. If the latter, the regulation should be subject to review for reasonableness.I I agree with the Court that requiring petition circulators to wear identification badges, specifically name badges, see Colo. Rev. Stat. §1-40-112(2)(b) (1998), should be subject to, and fails, strict scrutiny. Requiring petition circulators to reveal their names while circulating a petition directly regulates the core political speech of petition circulation. The identification badge introduces into the one-on-one dialogue of petition circulation a message the circulator might otherwise refrain from delivering, and the evidence shows that it deters some initiative petition circulators from disseminating their messages. Under the logic of Meyer, the regulation is subject to more exacting scrutiny. As explained by the Court, see ante, at 12-14, Colorado's identification badge requirement cannot survive this more demanding standard of review because the requirement is not narrowly tailored to satisfy Colorado's interest in identifying and apprehending petition circulators who engage in misconduct. I also agree that whether Colorado's other badge requirement-that the badges identify initiative petition circulators as paid or volunteer-is constitutional is a question that the court below did not resolve, and this issue is not properly before us. See ante, at 12. Accordingly, like the Court, I do not address it.II Unlike the majority, however, I believe that the requirement that initiative petition circulators be registered voters, see Colo. Rev. Stat. §1-40-112(1) (1998), is a permissible regulation of the electoral process. It is indeed a classic example of this type of regulation. We have upheld analogous restrictions on qualifications to vote in a primary election and on candidate eligibility as reasonable regulations of the electoral process. See Rosario v. Rockefeller, supra, at 756-762 (upholding qualifications to vote in primary); Storer v. Brown, supra, at 728-737 (upholding candidate eligibility requirement). As the Chief Justice observes, Colorado's registration requirement parallels the requirements in place in at least 19 States and the District of Columbia that candidate petition circulators be electors, see post, at 7, and the requirement of many States that candidates certify that they are registered voters.* Like these regulations, the registration requirement is a neutral qualification for participation in the petitioning process. When one views the registration requirement as a neutral qualification, it becomes apparent that the requirement only indirectly and incidentally burdens the communicative aspects of petition circulation. By its terms, the requirement does not directly prohibit otherwise qualified initiative petition circulators from circulating petitions. Cf. Rosario v. Rockefeller, supra, at 758 (holding that time limits on enrollment in political parties did not violate the right of association because individuals were not prohibited from enrolling in parties). Moreover, as the ChiefJustice illustrates in his dissent, this requirement can be satisfied quite easily. See post,at 3. The requirement, indeed, has been in effect in Colorado since 1980, see American Constitutional Law Foundation, Inc. v. Meyer, 870 F. Supp. 995, 999 (Colo. 1994), with no apparent impact on the ability of groups to circulate petitions, see 2 Tr. 159 (testimony of Donetta Davidson that the number of initiative proposals placed on the ballot has increased over the past few years). In this way, the registration requirement differs from the statute held unconstitutional in Meyer. There, we reviewed a statute that made it unlawful to pay petition circulators, see Meyer v. Grant, 486 U. S.,at 417, and held that the statute directly regulated and substantially burdened speech by excluding from petition circulation a class of actual circulators that were necessary "to obtain the required number of signatures within the allotted time." Ibid. That is, the statute directly silenced voices that were necessary, and "able and willing" to convey a political message. Id., at 422-423, and n. 6. In contrast, the registration requirement does not effect a ban on an existing class of circulators or, by its terms, silence those who are "able and willing" to circulate ballot initiative petitions. Indeed, it does not appear that the parties to this litigation needed unregistered but voter-eligible individuals to disseminate their political messages. Cf. id., at 417. The respondents have offered only slight evidence to suggest that the registration requirement negatively affects the one-on-one, communicative aspect of petition circulation. In particular, the respondents argue that the registration requirement burdens political speech because some otherwise-qualified circulators do not register to vote as a form of political protest. See ante, at 11. Yet the existence and severity of this burden is not as clearly established in the record as the respondents, or the Court, suggests. For example, witness Jack Hawkins, whose testimony the Court cites for the proposition that "the choice not to register implicates political thought and expression," see ibid., did not testify that anyone failed to register to vote as a political statement. He responded "[y]es, that's true" to the leading question "are there individuals who would circulate your petition who are non-registered voters because of their political choice?" 1 Tr. 14. But he went on to explain this "political choice" as follows: "They have interesting views of why they don't want to register to vote. They're under a misconception that they won't be called for jury duty if they're not registered to vote and they're really concerned about being a jurist, but in Colorado you can be a jurist if you drive a car or pay taxes or anything else. So, they're under a misconception, but I can't turn them around on that." Id., at 15-16 (emphasis supplied).Likewise, witness Jon Baraga, who testified that some potential circulators are not registered to vote because they feel the political process is not responsive to their needs, see ante, at 11, went on to testify that many of the same people would register to vote if an initiative they supported were placed on the ballot. See 1 Tr. 58. Considered as a whole, this testimony does not establish that the registration requirement substantially burdens alternative forms of political expression. Because the registration requirement indirectly and incidentally burdens the one-on-one, communicative aspect of petition circulation, Burdick requires that it advance a legitimate state interest to be a reasonable regulation of the electoral process. Colorado maintains that the registration requirement is necessary to enforce its laws prohibiting circulation fraud and to guarantee the State's ability to exercise its subpoena power over those who violate these laws, see ante, at 11, two patently legitimate interests. See, e.g.,Timmons v. Twin Cities Area New Party, 520 U. S., at 366-367; Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 636-637 (1980). In the past, Colorado has had difficulty enforcing its prohibition on circulation fraud, in particular its law against forging petition signatures, because violators fled the State. See 2 Tr. 115 (testimony of Donetta Davidson). Colorado has shown that the registration requirement is an easy and a verifiable way to ensure that petition circulators fall under the State's subpoena power. See Tr. of Oral Arg. 14; see also Appellee's Supplemental App. in Nos. 94-1576 and 94-1581 (CA10), p. 268 (describing requirement that signatories be registered voters as necessary for verification of signatures). For these reasons, I would uphold the requirement as a reasonable regulation of Colorado's electoral process. III Most disturbing is the Court's holding that Colorado's disclosure provisions are partially unconstitutional. Colorado requires that ballot-initiative proponents file two types of reports: monthly reports during the period of circulation and a final report when the initiative petition is submitted. See Colo. Rev. Stat. §1-40-121 (1998). The monthly reports must include the names of paid circulators, their business and residential addresses, and the amount of money paid and owed to each paid circulator during the relevant month. See §1-40-121(2). The final report also must include the paid circulators' names and addresses, as well as the total amount paid to each circulator. See §1-40-121(1). The Tenth Circuit invalidated the reports to the extent they revealed this information. See ante, at 16. The Court affirms this decision, without expressing an opinion on the validity of the reports to the extent they reveal other information, on the ground that forcing the proponents of ballot initiatives to reveal the identities of their paid circulators is tenuously related to the interests disclosure serves and impermissibly targets paid circulators. See ante, at 18-19. I, however, would reverse the Tenth Circuit on the ground that Colorado's disclosure provision is a reasonable regulation of the electoral process. Colorado's disclosure provision is a step removed from the one-on-one, communicative aspects of petition circulation, and it burdens this communication in only an incidental manner. Like the mandatory affidavit that must accompany every set of signed petitions, the required disclosure reports "revea[l] the name of the petition circulator and [are] public record[s] ... [, but are] separated from the moment the circulator speaks," see ante, at 13-14. This characteristic indeed makes the disclosure reports virtually indistinguishable from the affidavit requirement, which the Court suggests is a permissible regulation of the electoral process, see ante, at 15, and similarly lessens any chilling effect the reports might have on speech, see ante, at 14 (observing that injury to speech is heightened when disclosure is made at the moment of speech). If anything, the disclosure reports burden speech less directly than the affidavits because the latter are completed by the petition circulator, while the former are completed by the initiative proponent and thus are a step removed from petition circulation. In fact, the Court does not suggest that there is any record evidence tending to show that such remote disclosure will deter the circulation of initiative petitions. To the extent the disclosure requirements burden speech, the burden must be viewed as incremental and insubstantial in light of the affidavit requirement, which also reveals the identity of initiative petition circulators. As a regulation of the electoral process with an indirect and insignificant effect on speech, the disclosure provision should be upheld so long as it advances a legitimate government interest. Colorado's asserted interests in combating fraud and providing the public with information about petition circulation are surely sufficient to survive this level of review. These are among the interests we found to be substantial in Buckley v. Valeo. See 424 U. S. 1, 67, 68 (1976) (per curiam) (holding that the Government has a substantial interest in requiring candidates to disclose the sources of campaign contributions to provide the electorate with information about "the interests to which a candidate is most likely to be responsive," to "deter actual corruption and avoid the appearance of corruption," and "to detect violations of the contribution limitations"). Moreover, it is scarcely debatable that, as a general matter, financial disclosure effectively combats fraud and provides valuable information to the public. We have recognized that financial disclosure requirements tend to discourage those who are subject to them from engaging in improper conduct, and that "[a] public armed with information ... is better able to detect" wrongdoing. See id., at 67; see also Grosjean v. American Press Co., 297 U. S. 233, 250 (1936) (observing that an "informed public opinion is the most potent of all restraints upon misgovernment"). " `Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.' " Buckley v. Valeo, supra, at 67, and n. 80 (quoting L. Brandeis, Other People's Money 62 (1933)). "[I]n the United States, for half a century compulsory publicity of political accounts has been the cornerstone of legal regulation. Publicity is advocated as an automatic regulator, inducing self-discipline among political contenders and arming the electorate with important information." H. Alexander & B. Haggerty, The Federal Election Campaign Act: After a Decade of Political Reform 37 (1981). " `[T]otal disclosure' " has been recognized as the " `essential cornerstone' " to effective campaign finance reform, id., at 39, and "fundamental to the political system," H. Alexander, Financing Politics: Money, Elections and Political Reform 164 (4th ed. 1992). In light of these many and substantial benefits of disclosure, we have upheld regulations requiring disclosure and reporting of amounts spent by candidates for election, amounts contributed to candidates, and the names of contributors, see Buckley v. Valeo, 424 U. S., at 60-84, while holding that the First Amendment protects the right of the political speaker to spend his money to amplify his speech, see id., at 44-59. Indeed, laws requiring the disclosure of the names of contributors and the amounts of their contributions are common to all States and the Federal Government. See id., at 62-64 (describing disclosure provisions of Federal Election Campaign Act of 1971); Alexander, supra, at 135 ("All fifty states have some disclosure requirements, and all except two [South Carolina and Wyoming] call for both pre- and post-election reporting of contributions and expenditures"). Federal disclosure laws were first enacted in 1910, and early laws, like Colorado's current provision, required the disclosure of the names of contributors and the recipients of expenditures. See Buckley v. Valeo, 424 U. S., at 61. Such public disclosure of the amounts and sources of political contributions and expenditures assists voters in making intelligent and knowing choices in the election process and helps to combat fraud. The recognized benefits of financial disclosure are equally applicable in the context of petition circulation. Disclosure deters circulation fraud and abuse by encouraging petition circulators to be truthful and self-disciplined. See generally id., at 67. The disclosure required here advances Colorado's interest in law enforcement by enabling the State to detect and to identify on a timely basis abusive or fraudulent circulators. Moreover, like election finance reporting generally, Colorado's disclosure reports provide facts useful to voters who are weighing their options. Members of the public deciding whether to sign a petition or how to vote on a measure can discover who has proposed it, who has provided funds for its circulation, and to whom these funds have been provided. Knowing the names of paid circulators and the amounts paid to them also allows members of the public to evaluate the sincerity or, alternatively, the potential bias of any circulator that approaches them. In other words, if one knows a particular circulator is well paid, one may be less likely to believe the sincerity of the circulator's statements about the initiative proposal. The monthly disclosure reports are public records available to the press and public, see Brief for Petitioner 44, are "contemporaneous with circulation," American Constitutional Law Foundation, Inc. v. Meyer, 120 F. 3d 1092, 1105 (CA10 1997), and are more accessible than the other "masses of papers filed with the petitions," see 870 F. Supp., at 1004. It is apparent from the preceding discussion that, to combat fraud and to inform potential signatories in a timely manner, disclosure must be made at the time people are being asked to sign petitions and before any subsequent vote on a measure that qualifies for the ballot. It is, indeed, during this period that the need to deter fraud and to inform the public of the forces motivating initiative petitions "is likely to be at its peak ... ; [this] is the time when improper influences are most likely to be brought to light." Buckley v. Valeo, supra, at 68, n. 82. Accordingly, the monthly reports, which are disseminated during the circulation period and are available to the press, see Brief for Petitioner 44, uniquely advance Colorado's interests. The affidavit requirement is not an effective substitute because the affidavits are not completed until after all signatures have been collected and thus after the time that the information is needed. See Colo. Rev. Stat. §1-40-111(2) (1998) ("Any signature added to a section of a petition after the affidavit has been executed shall be invalid"). In addition, the public's access to the affidavits is generally more restricted than its access to monthly disclosure reports, for as the District Court found, the public will have "greater difficulty in finding [the] names and addresses [of petition circulators] in the masses of papers filed with the petitions as compared with the monthly reports." 870 F. Supp., at 1004. To be sure, Colorado requires disclosure of financial information about only paid circulators. But, contrary to the Court's assumption, see ante, at 18, this targeted disclosure is permissible because the record suggests that paid circulators are more likely to commit fraud and gather false signatures than other circulators. The existence of occasional fraud in Colorado's petitioning process is documented in the record. See 2 Tr. 197-198 (testimony of retired FBI agent Theodore P. Rosack); id., at 102, 104-116 (testimony of Donetta Davidson). An elections officer for the State of Colorado testified that only paid circulators have been involved in recent fraudulent activity, see id., at 150-151 and 161 (testimony of Donetta Davidson); see also id., at 197-198 (testimony of Theodore P. Rosack) (describing recent investigation of fraud in which only paid circulators were implicated). Likewise, respondent William C. Orr, the executive director of the American Constitutional Law Foundation, Inc., while examining a witness, explained to the trial court that "volunteer organizations, they're self-policing and there's not much likelihood of fraud... . Paid circulators are perhaps different." Id., at 208-209. Because the legitimate interests asserted by Colorado are advanced by the disclosure provision and outweigh the incidental and indirect burden that disclosure places on political speech, I would uphold the provision as a reasonable regulation of the electoral process. Colorado's interests are more than legitimate, however. We have previ-ously held that they are substantial. See Buckley v. Valeo, supra, at 67, 68. Therefore, even if I thought more exacting scrutiny were required, I would uphold the disclosure requirements. Because I feel the Court's decision invalidates permissible regulations that are vitally important to the integrity of the political process, and because the decision threatens the enforceability of other important and permissible regulations, I concur in the judgment only in part and dissent in part.FOOTNOTESFootnote 1 Individual plaintiffs included: David Aitken, who, as chairman of the Colorado Libertarian Party, had organized the circulation of several initiative petitions; Jon Baraga, statewide petition coordinator for the Colorado Hemp Initiative; Craig Eley and Jack Hawkins, circulators of petitions for the Safe Workplace Initiative and Worker's Choice of Care Initiative; Lonnie Haynes, an initiative-supporting member of ACLF; Alden Kautz, a circulator of numerous initiative petitions; Bill Orr, executive director of ACLF and a qualified but unregistered voter, who regularly participated in the petition process and wanted to circulate petitions; and William David Orr, a minor who wanted to circulate petitions. See American Constitutional Law Foundation, Inc. v. Meyer, 120 F. 3d 1092, 1096-1097 (CA10 1997); Brief for Respondents David Aitken et al. 2, 3, 5, 6.Footnote 2 Section 1-40-112(1) provides:"No section of a petition for any initiative or referendum measure shall be circulated by any person who is not a registered elector and at least eighteen years of age at the time the section is circulated."Footnote 3 To be a registered voter, one must reside in Colorado. See §1-2-101(1)(b). ACLF did not challenge the residency requirement in this action.Footnote 4 Section 1-40-108(1) provides in relevant part:"No petition for any ballot issue shall be of any effect unless filed with the secretary of state within six months from the date that the titles, submission clause, and summary have been fixed and determined pursuant to the provisions of sections 1-40-106 and 1-40-107 ... ."Footnote 5 Section 1-40-112(2) provides:"(a) All circulators who are not to be paid for circulating petitions concerning ballot issues shall display an identification badge that includes the words `VOLUNTEER CIRCULATOR' in bold-faced type which is clearly legible and the circulator's name."(b) All circulators who are to be paid for circulating petitions concerning ballot issues shall display an identification badge that includes the words `PAID CIRCULATOR' in bold-faced type which is clearly legible, the circulator's name, and the name and telephone number of the individual employing the circulator."Footnote 6 A petition section is a "bound compilation of initiative forms ... which ... include ... a copy of the proposed [ballot] measure; ... ruled lines numbered consecutively for registered electors' signatures; and a final page that contains the affidavit required by section 1-40-111(2)." §1-40-102(6).Footnote 7 Section 1-40-111(2) provides:"To each petition section shall be attached a signed, notarized, and dated affidavit executed by the registered elector who circulated the petition section, which shall include his or her printed name, the address at which he or she resides, including the street name and number, the city or town, the county, and the date he or she signed the affidavit; that he or she has read and understands the laws governing the circulation of petitions; that he or she was a registered elector at the time the section of the petition was circulated and signed by the listed electors; that he or she circulated the section of the petition; that each signature thereon was affixed in the circulator's presence; that each signature thereon is the signature of the person whose name it purports to be; that to the best of the circulator's knowledge and belief each of the persons signing the petition section was, at the time of signing, a registered elector; and that he or she has not paid or will not in the future pay and that he or she believes that no other person has paid or will pay, directly or indirectly, any money or other thing of value to any signer for the purpose of inducing or causing such signer to affix his or her signature to the petition. The secretary of state shall not accept for filing any section of a petition that does not have attached thereto the notarized affidavit required by this section. Any signature added to a section of a petition after the affidavit has been executed shall be invalid."Footnote 8 Section 1-40-121 provides in relevant part:"(1) The proponents of the petition shall file ... the name, address, and county of voter registration of all circulators who were paid to circulate any section of the petition, the amount paid per signature, and the total amount paid to each circulator. The filing shall be made at the same time the petition is filed with the secretary of state... ."(2) The proponents of the petition shall sign and file monthly reports with the secretary of state, due ten days after the last day of each month in which petitions are circulated on behalf of the proponents by paid circulators. Monthly reports shall set forth the following: "(a) The names of the proponents; "(b) The name and the residential and business addresses of each of the paid circulators; "(c) The name of the proposed ballot measure for which petitions are being circulated by paid circulators; and "(d) The amount of money paid and owed to each paid circulator for petition circulation during the month in question."Footnote 9 The record included evidence submitted in support of cross-motions for summary judgment and at a bench trial. See American Constitutional Law Foundation, Inc. v. Meyer, 870 F. Supp. 995, 997 (Colo. 1994).Footnote 10 The Tenth Circuit recognized that "age commonly is used as a proxy for maturity," and that "maturity is reasonably related to Colorado's interest in preserving the integrity of ballot issue elections." 120 F. 3d, at 1101. Such a restriction, the Court of Appeals said, need not satisfy "[e]xacting scrutiny," for it is both "neutral" and "temporary"; it "merely postpones the opportunity to circulate." Ibid. As to the six-month limit, the Court of Appeals observed that an orderly process requires time lines; again without demanding "[e]laborate ... verification," the court found six months a "reasonable window," a sensible, "nondiscriminatory ballot access regulation." Id., at 1099 (internal quotation marks omitted). Finally, the court explained that the affidavit requirement properly responded to the State's need to " `ensure that circulators, who possess various degrees of interest in a particular initiative, exercise special care to prevent mistake, fraud, or abuse in the process of obtaining thousands of signatures of only registered electors throughout the state.' " Id., at 1099-1100 (quoting Loonan v. Woodley, 882 P. 2d 1380, 1388-1389 (Colo. 1994) (en banc)). We denied ACLF's cross-petition regarding these issues. See 522 U. S. ___ (1998).Footnote 11 Nothing in this opinion should be read to suggest that initiative-petition circulators are agents of the State. Although circulators are subject to state regulation and are accountable to the State for compliance with legitimate controls, see, e.g., Colo. Rev. Stat. §§1-40-111, 1-40-130 (1998), circulators act on behalf of themselves or the proponents of ballot initiatives.Footnote 12 Our decision is entirely in keeping with the "now-settled approach" that state regulations "impos[ing] `severe burdens' on speech ... [must] be narrowly tailored to serve a compelling state interest." See post, at 1 (Thomas, J., concurring in judgment).Footnote 13 Colorado law similarly provides that only registered voters may circulate petitions to place candidates on the ballot. See Colo. Rev. Stat. §1-4-905(1) (1998) (only "eligible elector" may circulate candidate petitions); §1-1-104(16) ("eligible elector" defined as "registeredelector").Footnote 14 Volume 1 of the trial transcript is reprinted in Pro-Se Plaintiff's App. I in No. 94-1576 (CA10), and is cited hereinafter as 1 Tr. Volume 2 of the trial transcript is reprinted in Pro-Se Plaintiff's App. II in No. 94-1576 (CA10), and is cited hereinafter as 2 Tr.Footnote 15 In fact, the number of unregistered but voter-eligible residents in Colorado at the time of the trial may have been closer to 620,000. See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 282 (1993) (Table 453). More recent statistics show that less than 65 percent of the voting-age population was registered to vote in Colorado in 1997. See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 289 (1997) (Table 463). Using those more recent numbers, Colorado's registration requirement would exclude approximately 964,000 unregistered but voter-eligible residents from circulating petitions. The proportion of voter-eligible but unregistered residents to registered residents in Colorado is not extraordinary in comparison to those proportions in other States. See generally ibid.Footnote 16 Persons eligible to vote, we note, would not include "convicted drug felons who have been denied the franchise as part of their punishment," see post, at 4 (Rehnquist, C. J., dissenting), and could similarly be barred from circulating petitions. The dissent's concern that hordes of "convicted drug dealers," post, at 5, will swell the ranks of petition circulators, unstoppable by legitimate state regulation, is therefore undue. Even more imaginary is the dissent's suggestion that if the merely voter eligible are included among petition circulators, children and citizens of foreign lands will not be far behind. See post, at 6. This familiar parade of dreadfuls calls to mind wise counsel: "Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom." R. Bork, The Tempting of America: The Political Seduction of the Law 169 (1990). That same counsel applies to Justice O'Connor's floodgate fears concerning today's decision, which, like Meyer, separates petition circulators from the proponents and financial backers of ballot initiatives. See post, at 13 (opinion concurring in judgment in part and dissenting in part).Footnote 17 Justice O'Connor correctly observes that registration requirements for primary election voters and candidates for political office are "classic" examples of permissible regulation. See post, at 4 (opinion concurring in judgment in part and dissenting in part). But the hired signature collector, as this Court recognized in Meyer, is in a notably different category. When the Court unanimously struck down a ban on paying persons to circulate petitions, it surely did not imply that the State must therefore tolerate a private sponsor's hourly or piecework payment of persons in exchange for their vote or political candidacy.Footnote 18 Colorado does not require identification badges for persons who gather signatures to place candidates on the ballot. See generally Colo. Rev. Stat. §1-4-905 (1998) (regulations governing candidate-petition circulators). Footnote 19 See 1 Tr. 133 ("I would not circulate because I don't want to go to jail. And, I won't wear the badge because I don't think it's right.") (testimony of Paul Grant).Footnote 20 As the Tenth Circuit observed, see 120 F. 3d, at 1101, neither Riley v. National Federation of Blind of N. C., Inc.,487 U. S. 781 (1988), nor Martin v. City of Struthers,319 U. S. 141 (1943), supports the name identification Colorado requires petition circulators to wear. Riley invalidated a North Carolina law restricting solicitation of charitable contributions by professional fundraisers. Martin invalidated a city ordinance prohibiting knocking on the door or ringing the doorbell of any residence for the purpose of distributing literature. The Court observed in Riley that an unchallenged portion of the disclosure law required professional fundraisers to disclose their professional status, i.e., their employer's name and address, to potential donors. 487 U. S., at 799, and n. 11. In dictum in Martin, the Court noted that "a stranger in the community" could be required to establish his identity and authority to act for the cause he purports to represent. 319 U. S., at 148, n. 14 (internal quotation marks omitted). Neither case involved a name badge requirement or any other specification that the solicitor's personal name be revealed. Nor was there in either case a counterpart to the affidavit, which puts each petition circulator's name and address on a public record.Footnote 21 Colorado does not require similar disclosures for persons who gather signatures to place candidates on the ballot. See generally Colo. Rev. Stat. §1-4-905 (1998) (regulations governing candidate-petition circulators).Footnote 22 Justice O'Connor states that "[k]nowing the names of paid circulators and the amounts paid to them [will] allo[w] members of the public to evaluate the sincerity or, alternatively, the potential bias of any circulator that approaches them." Post, at 11. It is not apparent why or how this is so, for the reports containing the names of paid circulators would be filed with the Secretary of State and would not be at hand at the moment the circulators "approac[h]."Footnote 23 While testimony in the record suggests that "occasional fraud in Colorado's petitioning process" involved paid circulators, it does not follow like the night the day that "paid circulators are morelikelyto commit fraud and gather false signatures than other circulators." See post, at 12 (O'Connor, J., concurring in judgment in part and dissenting in part). Far from making any ultimate finding to that effect, the District Court determined that neither the State's interest in preventing fraud, nor its interest in informing the public concerning the "financial resources ... available to [initiative proponents]" or the "special interests" supporting a ballot measure, is "significantly advanced by disclosure of the names and addresses of each person paid to circulate any section of [a] petition." 870 F. Supp., at 1003. Such disclosure in proponents' reports, the District Court also observed, risked exposing the paid circulators "to intimidation, harassment and retribution in the same manner as the badge requirement." Ibid.Footnote 24 Because the disclosure provisions target only paid circulators and require disclosure of the income from circulation each receives, the disclosure reports are of course "[d]istinguishable from the affidavit," post, at 8 (O'Connor, J., concurring in judgment in part and dissenting in part), which must be completed by both paid and volunteer circulators, and does not require disclosure of the amount paid individually to a circulator.FOOTNOTESFootnote 1 Although we did not explicitly apply strict scrutiny in Storer, we said that the State's interest was "not only permissible, but compelling" and that the device the State chose was "an essential part of its overall mechanism." 415 U. S., at 736.Footnote 2 The majority is correct to note, ante, at 15-16, that the Tenth Circuit declined to address whether Colorado's requirement that the badge disclose whether a circulator is paid or a volunteer, and if paid, the name and telephone number of the payer, would be constitutionally permissible standing alone. Nevertheless, the District Court invalidated §1-40-112(2) in its entirety, American Constitutional Law Foundation, Inc. v. Meyer, 870 F. Supp. 955, 1005 (Colo. 1994), and the Court of Appeals affirmed that decision in full. American Constitutional Law Foundation, Inc. v. Meyer, 120 F. 3d 1092, 1096 (CA 10 1997).Footnote 3 There is anecdotal evidence in the briefs that circulators do not discuss the merits of a proposed change by initiative in any great depth. Indeed, National Voter Outreach, Inc., an amicuscuriae in support of respondents and, according to its statement of interest, the largest organizer of paid petition circulation drives in the United States, describes most conversations between circulator and prospective petition signer as "brief." Brief for National Voter Outreach, Inc., as Amicus Curiae 21. It gives an example of the typical conversation: "Here, sign this. It will really [tick off California Governor] Pete Wilson." Id., at 21, n. 17. In my view, the level of scrutiny cannot turn on the content or sophistication of a political message. Cf. Colorado Republican Federal Campaign Comm'n v. Federal Election Comm'n, 518 U. S. 604, 640 (1996) ("Even a pure message of support, unadorned with reasons, is valuable to the democratic process").Footnote 4 Colorado's law requires that petition circulators be registered electors, Colo. Rev. Stat. §1-40-112(1), and while one must reside in Colorado in order to be a registered voter, §1-2-101(1)(b), Colorado does not have a separate residency requirement for petition circulators at this time.Footnote 5 Whatever the merit of the views expressed by The Chief Justice,post, at 2, 5, the State did little more than mention in passing that it had an interest in having its own voters decide what issues should go on the ballot. See Brief for Petitioner 31.Footnote 6 The Court of Appeals did not specifically identify any constitutional problem with the monthly reports to the extent that they require disclosure of proponents' names and proposed ballot measures for which persons were paid to circulate petitions. But the District Court invalidated the entire monthly reporting requirement, 870 F. Supp., at 1005, and the Court of Appeals affirmed its decision in full. See 120 F. 3d, at 1096.Footnote 7 I have previously noted that the Court in Buckley seemed more forgiving in its review of the contribution provisions than it was with respect to the expenditure rules at issue, even though we purported to strictly scrutinize both. Colorado Republican, 518 U. S., at 640, n. 7 (Thomas, J., concurring in judgment and dissenting in part).FOOTNOTESFootnote 1 The respondents also presented the example of children who wished to circulate petitions. Indeed, one of the respondents in this case — William David Orr — was a minor when this suit was filed and was apparently included in the action to give it standing to challengethe age restriction element of Colo. Rev. Stat. §1-40-112(1) (1998). Because the Court of Appeals held that the age restriction on petition circulation was constitutional, it is unnecessary to point out the absurdity of the respondents' minority argument.Footnote 2 The Court dismisses this state interest as "diminished," by noting that the affidavit requirement identifies residents. Ante, at 12. Yet even if the interest is diminished, it surely is not eliminated, and it is curious that the Court relies on the affidavit requirement to strike down the elector requirement, but does not use it to preserve that part of the disclosure requirements that also contain information duplicated by the affidavits. Cf., Part V, ante.Footnote 3 See Ariz. Rev. Stat. Ann. §16-315 (1996); Cal. Elec. Code Ann. §8106(b)(4) (West 1996); Colo. Rev. Stat. §1-4-905 (1998); Conn. Gen. Stat. §9-410 (Supp. 1998); D. C. Code Ann. §1-1312(b)(2) (1992); Idaho Code §§34-626, 34-1807 (Supp. 1998); Ill. Comp. Stat., ch. 10, §§5/7-10, 5/8-8, 5/10-4 (Supp. 1998); Kan. Stat. Ann. §25-205(d) (1993); Mich. Comp. Laws §168.544c(3) (Supp. 1998); Mo. Rev. Stat. §115.325(2) (1997); Neb. Rev. Stat. §32-630 (Supp. 1997); N. Y. Elec. Law §§6-132, 6-140, 6-204, 6-206 (McKinney 1998); Ohio Rev. Code Ann. §3503.06 (1996); 25 Pa. Cons. Stat. §2869 (1994); R. I. Gen. Laws §17-23-12 (1996); S. D. Comp. Laws Ann. §12-1-3 (1995); Va. Code Ann. §24.2-521 (Supp. 1998); W. Va. Code §3-5-23 (1994); Wis. Stat. §8.40 (1996); Wyo. Stat. §22-5-304 (1992).Footnote 4 See Ga. Code Ann. §§21-2-132(g)(3)(A), 21-2-170(d)(1) (1993 and Supp. 1997).FOOTNOTESFootnote * See, e.g., Va. Const., Art. V, §3; Cal. Elec. Code Ann. §201 (West Special Pamphlet 1996); Ind. Stat. Ann. §3-8-5-14 (1998); Mass. Gen. Laws Ann., ch. 53, §9 (West Supp. 1998); Nev. Rev. Stat. Ann. §293.180 (1997); N. H. Rev. Stat. Ann. §655:28 (1996); N. J. Stat. Ann. §40:45-8 (West 1991); N. C. Gen. Stat. §163-323 (Supp. 1997); Okla. Stat., Tit. 26, §5-111 (1997).
0	Petitioner was tried for murder, found guilty of the lesser included offense of voluntary manslaughter, and sentenced to 10 to 15 years' imprisonment. Following reversal of that conviction on appeal, he was retried for murder, despite his double jeopardy claim, again found guilty of voluntary manslaughter, and sentenced to 10 years' imprisonment. The Georgia Court of Appeals affirmed the second conviction, rejecting, on the authority of Brantley v. State, 132 Ga. 573, 64 S. E. 676, aff'd, , petitioner's contention that his retrial for murder constituted double jeopardy. The Georgia Supreme Court denied certiorari. Held: 1. Though under the continuing jeopardy principle (see Green v. United States, ), petitioner could be retried for voluntary manslaughter, the lesser included offense, he could not, under the Double Jeopardy Clause of the Fifth Amendment as made applicable to the States by the Fourteenth Amendment, be retried and subjected to the hazard of conviction for murder, of which he had been impliedly acquitted when the jury returned a verdict on the lesser included offense but refused to return a guilty verdict on that greater offense. Brantley, supra, is deemed overruled by this Court's subsequent decisions. Pp. 326-330. 2. In view of the hazard of conviction of murder in the second trial and the possible effect upon the jury of the murder charge, the second jeopardy was not harmless error. Pp. 331-332. 3. The issue whether petitioner can be retried for voluntary manslaughter under Georgia law is to be resolved on remand. P. 332. 118 Ga. App. 207, 163 S. E. 2d 243, reversed and remanded.Allyn M. Wallace argued the cause and filed a brief for petitioner.Mathew Robins, Assistant Attorney General of Georgia, argued the cause for respondent. With him on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, and Marion O. Gordon, Assistant Attorney General.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted the writ to consider the power of a State to retry an accused for murder after an earlier guilty verdict on the lesser included offense of voluntary manslaughter had been set aside because of a trial error.Petitioner was charged with the killing of Johnnie Mae Dupree in an indictment for the offense of murder filed in the Superior Court of Effingham County, Georgia. He entered a plea of not guilty and was tried on October 17, 1962. The jury returned a verdict of guilty to the lesser included crime of voluntary manslaughter and fixed the sentence at 10 to 15 years in the state penitentiary. The jury's verdict made no reference to the charge of murder.The Court of Appeals of Georgia reversed the conviction because of an erroneous jury instruction and ordered a new trial. Price v. State, 108 Ga. App. 581, 133 S. E. 2d 916 (1963).On October 20, 1967, petitioner was again placed on trial for murder under the original indictment. Before the commencement of the second trial petitioner entered a plea of autrefois acquit, claiming that to place him again on trial for the offense of murder would expose him to double jeopardy in view of the verdict of voluntary manslaughter at the initial trial. The trial judge rejected the plea and, at the close of the trial, included instructions on the offense of murder in his charge to the jury so that the jury could have rendered a verdict of guilty on that offense. That jury, like the first, found petitioner guilty of voluntary manslaughter, and then fixed the penalty at 10 years' imprisonment. Petitioner sought direct review of his second conviction in the Supreme Court of Georgia,1 but that court transferred the case to the Court of Appeals of Georgia, declaring that "[o]nly questions as to the application of plain and unambiguous provisions of the Constitution of the United States being involved, ... the case is one for the consideration of the Court of Appeals ... ." Price v. State, 224 Ga. 306, 307, 161 S. E. 2d 825, 826 (1968).The Georgia Court of Appeals then heard the appeal and affirmed the second conviction, rejecting petitioner's argument, among others, that his retrial for murder constituted double jeopardy. Price v. State, 118 Ga. App. 207, 163 S. E. 2d 243 (1968). The Court of Appeals held that in Brantley v. State, 132 Ga. 573, 64 S. E. 676 (1909), aff'd, , the Georgia Supreme Court had decided this question adversely to petitioner. The Court of Appeals then quoted from the Brantley case's syllabus:"When a person has been indicted for murder and convicted of voluntary manslaughter, if he voluntarily seeks and obtains a new trial, he is subject to another trial generally for the offense charged in the indictment, and upon such trial he cannot successfully interpose a plea of former acquittal of the crime of murder, or former jeopardy in regard thereto." 118 Ga. App., at 208, 163 S. E. 2d, at 244. Petitioner sought a rehearing, contending, as he contends here, that Brantley was no longer controlling. He relied on Green v. United States, , and United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (C. A. 2d Cir. 1965), cert. denied, . His contention was rejected. In deciding that Brantley was still a binding precedent as to it, the Georgia Court of Appeals noted that the Georgia Supreme Court had transferred the case to it as involving the application of only "plain and unambiguous" constitutional provisions. The petitioner's motion was then denied. Thereafter the Georgia Supreme Court denied certiorari, and petitioner sought review in this Court. We granted the writ, , and now reverse.(1)In United States v. Ball, , this Court observed: "The Constitution of the United States, in the Fifth Amendment, declares, 'nor shall any person be subject [for the same offense] to be twice put in jeopardy of life or limb.' The prohibition is not against being twice punished, but against being twice put in jeopardy ... ." (Emphasis added.) The "twice put in jeopardy" language of the Constitution thus relates to a potential, i. e., the risk that an accused for a second time will be convicted of the "same offense" for which he was initially tried.The circumstances that give rise to such a forbidden potential have been the subject of much discussion in this Court. In the Ball case, for example, the Court expressly rejected the view that the double jeopardy provision prevented a second trial when a conviction had been set aside. In so doing, it effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course. See Green v. United States, .The continuing jeopardy principle necessarily is applicable to this case. Petitioner sought and obtained the reversal of his initial conviction for voluntary manslaughter by taking an appeal. Accordingly, no aspect of the bar on double jeopardy prevented his retrial for that crime. However, the first verdict, limited as it was to the lesser included offense, required that the retrial be limited to that lesser offense. Such a result flows inescapably from the Constitution's emphasis on a risk of conviction and the Constitution's explication in prior decisions of this Court.An early case to deal with restrictions on retrials was Kepner v. United States, , where the Court held that the Fifth Amendment's double jeopardy prohibition barred the Government from appealing an acquittal in a criminal prosecution,2 over a dissent by Mr. Justice Holmes that argued that there was only one continuing jeopardy until the proceedings against the accused had been finally resolved. He held to the view that even if an accused was retried after the Government had obtained reversal of an acquittal, the second trial was part of the original proceeding. Similar double jeopardy issues did not fully claim the Court's attention until the Court heard argument in Green v. United States, .3 There the petitioner had been tried and convicted of first-degree murder after an earlier guilty verdict on the lesser included offense of second-degree murder had been set aside on appeal. A majority of the Court rejected the argument that by appealing the conviction of second-degree murder the petitioner had "waived" his plea of former jeopardy with regard to the charge of first-degree murder.The Court in the Green case reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner's jeopardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on two premises. First, the Court considered the first jury's verdict of guilty on the second-degree murder charge to be an "implicit acquittal" on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner's jeopardy on the greater charge had ended when the first jury "was given a full opportunity to return a verdict" on that charge and instead reached a verdict on the lesser charge. 355 U.S., at 191. Under either of these premises, the holding in the Kepner case - that there could be no appeal from an acquittal because such a verdict ended an accused's jeopardy - was applicable.The rationale of the Green holding applies here. The concept of continuing jeopardy implicit in the Ball case4 would allow petitioner's retrial for voluntary manslaughter after his first conviction for that offense had been reversed. But, as the Kepner and Green cases illustrate, this Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity5 to return a verdict on the greater charge. There is no relevant factual distinction between this case and Green v. United States. Although the petitioner was not convicted of the greater charge on retrial, whereas Green was, the risk of conviction on the greater charge was the same in both cases, and the Double Jeopardy Clause of the Fifth Amendment is written in terms of potential or risk of trial and conviction, not punishment.The Georgia courts nonetheless rejected Green as a persuasive authority in favor of reliance on Brantley v. State, 132 Ga. 573, 64 S. E. 676 (1909), aff'd, . The Brantley case presented a situation where a defendant's appeal from a conviction for a lesser included offense ultimately led to retrial and conviction on the greater offense. After the second conviction had been affirmed on appeal, the defendant sued out a writ of error to the Supreme Court of Georgia from this Court, contending "that the exemption from second jeopardy is one of the privileges and immunities of citizens of the United States, which the Fourteenth Amendment forbids a state to abridge",6 that he had "been tried and acquitted by a jury of his country of the crime of murder",7 and that "[h]e should never [sic] have been tried a second time only for the offense on which he obtained a new trial ... ."8 This Court tersely rejected these contentions as:"absolutely without merit. It was not a case of twice in jeopardy under any view of the Constitution of the United States." 217 U.S., at 285. The Brantley case was decided by this Court at a time when, although the Court was actively developing an explication of federal double jeopardy doctrines based on the Fifth Amendment, it took a very restricted approach in reviewing similar state court decisions. While the Brantley holding may have had some vitality at the time the Georgia courts rendered their decisions in this case, it is no longer a viable authority and must now be deemed to have been overruled by subsequent decisions of this Court.9 (2)One further consideration remains. Because the petitioner was convicted of the same crime at both the first and second trials, and because he suffered no greater punishment on the subsequent conviction, Georgia submits that the second jeopardy was harmless error when judged by the criteria of Chapman v. California, , and Harrington v. California, .We must reject this contention. The Double Jeopardy Clause, as we have noted, is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly.10 Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debated his innocence. See United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (C. A. 2d Cir. 1965), cert. denied, .(3)We asked the parties to submit post-argument memoranda directed to the question of whether petitioner can now be re-indicted or retried for voluntary manslaughter under Georgia law. These memoranda have been filed and indicate that the answer to our question appears to depend upon the construction of several Georgia statutes and on the power of Georgia courts to fashion remedial orders. Accordingly, although we reverse petitioner's conviction, we also remand the case to enable the Georgia courts to resolve the issues pertaining to petitioner's retrial, if any such retrial is to be had. Reversed and remanded.MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.
8	After Alaska achieved statehood, these suits to enjoin enforcement of a statute of the State on the ground that it conflicted with applicable federal law were instituted in the District Court for Alaska, which, by the Constitution of the new State, and by state and federal statutes, was designated the successor of the former Territorial District Court in the interim until the organization of the new state courts and the Federal District Court for the District of Alaska. The District Court for Alaska held the statute constitutional and entered orders denying the injunctions and dismissing the complaints. Notices of direct appeals to this Court were filed after the Justices of the new Alaska Supreme Court had been designated but before that Court was in actual operation. Held: 1. The District Court for Alaska was the "highest court of a State in which a decision could be had," and the appeals are within the jurisdiction of this Court under 28 U.S.C. 1257 (2). Pp. 557-560. 2. Since the question of the constitutionality of the Alaska statute raises the issue of its justification under the so-called police power and is entangled with questions of state law which the Supreme Court of Alaska might construe so as to avoid conflict with federal law, this Court refrains at this stage from deciding the issues presented on the merits of these appeals so as to afford the Supreme Court of Alaska an opportunity to rule on the questions presented. Pp. 561-562. 3. The cases are retained on the docket of this Court pending further proceedings or a further appeal after the decision of the Supreme Court of Alaska, and the stays granted are continued until final disposition of the cases. Pp. 562-563. 18 Alaska ___, 174 F. Supp. 500, decision reserved and appeals held on docket pending consideration by the Supreme Court of Alaska.[Footnote *] Together with No. 327, Organized Village of Kake et al. v. Egan, Governor of Alaska, also on appeal from the same Court. Richard Schifter argued the cause for appellant in No. 326. With him on the brief were Theodore H. Little and Daniel M. Singer.John W. Cragun argued the cause and filed a brief for appellants in No. 327.John L. Rader argued the cause for appellees. With him on the brief were Ralph E. Moody, Attorney General of Alaska, Douglas L. Gregg, Assistant Attorney General, and Charles S. Rhyne.John D. Calhoun argued the cause for the United States, as amicus curiae, urging reversal. On the brief were Solicitor General Rankin, Assistant Attorney General Morton and Roger P. Marquis.MR. JUSTICE FRANKFURTER delivered the opinion of the Court.These consolidated cases were commenced on June 22 and 24, 1959, in the interim District Court for Alaska, by complaints seeking permanent injunctions against threatened enforcement by the new State of Alaska, its Governor, and other agents, of an Alaska statute (Alaska Laws 1959, c. 17, as amended, Alaska Laws 1959, c. 95) making it a criminal offense to fish with traps. The statute was assailed on the ground that it was in conflict with applicable federal law. On July 2, 1959, orders were entered denying the injunctions, dismissing the complaints with prejudice, and denying an injunction pending appeal to this Court. 18 Alaska ___, 174 F. Supp. 500. On July 11, 1959, MR. JUSTICE BRENNAN, acting in his capacity as a circuit justice, granted appellants' application for an injunction pending final disposition of their future appeals to this Court. His opinion noted the existence of substantial questions, both as to our jurisdiction and the merits. 80 S. Ct. 33. The notices of appeal were filed on August 6, 1959; on December 7, 1959, we postponed further consideration of the question of jurisdiction to the hearing of the cases on the merits. .If the orders rendered on July 2, 1959, were those of the "highest court of a State in which a decision could be had," the appeals are within our jurisdiction under 28 U.S.C. 1257 (2), since the court below sustained a statute of the State of Alaska against a claim of unconstitutionality under the United States Constitution. The jurisdictional problem arises out of the enactments governing Alaska's accession to statehood, specifically, in relation to the Constitution of the new State and to the state and federal laws governing the termination of the former territorial courts and their displacement by a new state judicial system and a Federal District Court for the District of Alaska. The State Constitution, which took effect "immediately upon the admission of Alaska into the Union as a state" (Art. XV, 25) on January 3, 1959, provided for a Supreme Court, to "be the highest court of the State, with final appellate jurisdiction," a superior court, and such other courts as the legislature may provide. Art. IV, 1, 2. Article XV, 17, provides that in the transitional period until the new courts are organized, "the judicial system shall remain as constituted on the date of admission ..." and that "[w]hen the state courts are organized, new actions shall be commenced and filed therein, and all causes, other than those under the jurisdiction of the United States, pending in the courts existing on the date of admission, shall be transferred to the proper state court as though commenced, filed, or lodged in those courts in the first instance, except as otherwise provided by law."The Alaska Statehood Act, 72 Stat. 339, which also became fully effective on January 3, 1959, in 13-17, makes similar provision for the eventual disposition of business pending in the territorial district court upon the organization of the new District Court for the District of Alaska. However, it too provides, in 18, that "the United States District Court for the Territory of Alaska shall continue to function as heretofore" for three years, or until the President proclaims that the new District Court "is prepared to assume the functions imposed upon it." In June, 1959, when these actions were commenced, and on July 2, 1959, when decision below was rendered, neither new federal nor state courts were in operation.The first question presented is whether the interim Alaskan District Court was the "court of a State" in deciding these cases. Sections 12 to 18 of the Statehood Act, 72 Stat. 339, make it plain that the interim court was not intended to be the newly created United States District Court for the District of Alaska, 28 U.S.C. 81A; otherwise the nature of the court, whether state or federal, is not explicitly set forth. It is apparent, however, that the court is to a significant degree the creature of two sovereigns acting cooperatively to accomplish the joint purpose of avoiding an interregnum in judicial administration in the transitional period. The termination of the existence of the interim court is governed by federal law, Statehood Act 18; but the termination of its general jurisdiction over state law matters, insofar as it is dependent on state consent, is governed by state law, Alaska Laws 1959, c. 50, 31 (2), which also provides for the accelerated organization of separate Alaska courts should the interim court be terminated before they are ready. Alaska Laws 1959, c. 50, 32 (4), amended by Alaska Laws 1959, c. 151, 1.To determine our jurisdiction we need not engage in abstract speculation as to the function of the interim court in cases not before us. Whether the court can serve as a federal court, and the permissible scope of its powers if it may so serve, cf. National Mutual Ins. Co. v. Tidewater Transfer Co., ; Benner v. Porter, 9 How. 235, are perplexing questions, decision of which should not be avoidably made. It is apparent that the legislature of Alaska vested the judicial power of the State in the interim District Court for the time being, that the district judge in this case explicitly deemed himself to be exercising such power, and that, in light of the express consent of the United States, he properly did so. Benner v. Porter, supra. It follows that the District Court sat as a "court of a State" to decide these cases.The question remains whether the interim court was also the "highest court" of Alaska within the meaning of 28 U.S.C. 1257. At the time of the filing of the notice of this appeal on August 6, 1959, the latest time at which jurisdiction could properly be determined, no new Alaska state court was in actual operation, although on July 29 the Justices of the Court were designated by the Governor. The contention that the interim court was not the highest court of Alaska at that time rests upon this latter fact, and the terms of Alaska Laws 1959, c. 151, 1, amending Alaska Laws 1959, c. 50, 32, which amendment provides that in the event that "a court of competent jurisdiction, by final judgment, declares that the United States Court of Appeals for the Ninth Circuit lacks jurisdiction to hear appeals from the District Court of the District of Alaska, the Judicial Council shall forthwith meet and submit to the Governor the names of the persons nominated as justices of the supreme court and appeals from the District Court of the District of Alaska may be made to the State Supreme Court."Because the Ninth Circuit had ruled against its appellate jurisdiction over the interim court on June 16, 1959, six days before this action was commenced, Parker v. McCarrey, 268 F.2d 907, it is urged that this provision, preserving appeals from the District Court to the Supreme Court of the State until the creation of that court, requires the conclusion that at least after July 29, when the Justices were appointed, appellate review was sufficiently guaranteed to make the Supreme Court, and not the District Court, the highest court of Alaska in which a decision in the instant case could be rendered.The question thus raised is not free from doubt. Viewing the cases as of August 6, when the notices of appeal were filed, it is fairly arguable that the preservation effected by Alaska Laws 1959, c. 151, 1, of the right to appeal to the Supreme Court of Alaska constituted the interim court as a lower court of Alaska within the intent of 28 U.S.C. 1257 to await the completion of the State's adjudicatory process as a prerequisite to adjudication here. Yet, were the promise of an appeal, however indefinitely postponed, to be taken as sufficient to bar our jurisdiction under 1257, its equally obvious purpose to allow substantial constitutional questions to be timely brought here as of right would be frustrated. Although these cases were decided below on July 2, 1959, the date set by Alaska statute for full organization of the state courts was not until January 3, 1962, Alaska Laws 1959, c. 50, 31 and 32 (4). If no other fact were present, a potential delay of two and one-half years before the organization of a court to hear the preserved appeal would in itself counsel a construction against denial of our jurisdiction. Here, however, two additional facts must be weighed: (1) the Justices of the Supreme Court were actually appointed on July 29, in pursuance of a direction to accelerate the organization of the court; and (2) the effective promulgation of the rules of the court (accomplished on October 5, 1959) and appointment of a clerk were in their hands. Alaska Laws 1959, c. 50, 32 (3). While in light of these facts the question is exceedingly nice, we do not think that the assurance of a timely appeal to a court not yet functioning was sufficiently definite when the appeals were here filed to constitute a bar to our jurisdiction under 1257 (2). The interim court sustained the validity of the Alaska statute banning fishing with traps, Alaska Laws 1959, c. 17, as amended by Alaska Laws 1959, c. 95, against the claim of overriding federal law under the Supremacy Clause. The claim was based on an asserted conflict between the statute and regulations of the Secretary of the Interior, 24 Fed. Reg. 2053-71, prohibiting trap fishing in Alaskan waters generally, but excepting the appellants, thereby granting them in effect a license to fish with traps. The authority under which the Secretary purported to act is the Act of 1924, 43 Stat. 464, as amended, 48 U.S.C. 221, 222.A question not free from doubt, to put it at its lowest, thus raised under the Supremacy Clause, is however entangled with questions of construction of Alaskan state statutes as well as of the Alaska Statehood Act, supra. Also in issue is the effect of provisions of a compact between Alaska and the United States which, it is urged, reserved exclusive regulatory powers over Indian fishing rights to the United States, 72 Stat. 339, and which, so construed, is assertedly unconstitutional because of its failure to accord to Alaska participation in the Union on an "equal footing" with the other States. The latter contention raises related questions of federal power under the Commerce Clause, Art. 1, 8. While we have before us questions of federal law that are the concern of this Court, their consideration implicates antecedent questions of local law turning in part on appreciation of local economic and social considerations pertinent to the scope of the so-called police power reserved to the State, upon which it would be patently desirable to have the enlightenment which the now fully formed Alaska Supreme Court presumably could furnish.The original Act prohibiting traps was amended by Alaska Laws 1959, c. 95, 1, so as to provide that it should not be construed inconsistently with the compact, and if the Alaska court determines as a matter of statutory construction that the compact was designed to leave with the United States, as to Indian fishing, the power it exercises under the White Act, a constitutional question now appearing on the horizon might disappear. Moreover, since questions are raised regarding the status of these two Indian communities in relation to the authority of the Secretary of the Interior, enlightenment drawn on the spot by the Alaska Supreme Court may be material to any ultimate determination of federal questions by this Court. Finally, since the ultimate challenge to this legislation is that it must yield to superior federal authority, an authoritative pronouncement by the Supreme Court of Alaska with regard to the justifications of this legislation under the so-called police power would have important bearing on the question of the scope of the powers reserved to the State.Accordingly, consistently with the policies embodied in 1257, and in view of the peculiar facts of these cases, we refrain at this stage from deciding the issues presented on the merits of these appeals so as to afford the Alaska Supreme Court the opportunity to rule on questions open to it for decision. We assume that that court has jurisdiction in these cases. However, since it alone can authoritatively decide such a question, we shall hold the cases on our docket. After the Alaska Supreme Court's decision, there may be further proceedings on these appeals; and if it assumes jurisdiction, further appeals may be taken from its judgments. Cf. Lassiter v. Northampton County Board of Elections, .Because of the nature of the asserted claim of federal right and the irreparable nature of the injury which may flow from the enforcement of these Alaska criminal statutes prior to a final determination of the merits, we continue the stays granted by MR. JUSTICE BRENNAN on July 11, 1959, until the final disposition of the cases. Having been advised that appeals in these cases are pending in the Alaska Supreme Court, we direct appellants to pursue those appeals for disposition not inconsistent with this opinion. It is so ordered. THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS dissent from remitting the parties to the Alaska Supreme Court, as they are of the view that the controlling questions are federal ones whose resolution is for this Court.
0	The Ohio death penalty statute provides that once a defendant is found guilty of aggravated murder with at least one of seven specified aggravating circumstances, the death penalty must be imposed unless, considering "the nature and circumstances of the offense and the history, character, and condition of the offender," the sentencing judge determines that at least one of the following circumstances is established by a preponderance of the evidence: (1) the victim induced or facilitated the offense; (2) it is unlikely that the offense would have been committed but for the fact that the offender was under duress, coercion, or strong provocation; or (3) the offense was primarily the product of the offender's psychosis or mental deficiency. Petitioner, whose conviction of aggravated murder with specifications that it was committed to escape apprehension for, and while committing or attempting to commit, aggravated robbery, and whose sentence to death were affirmed by the Ohio Supreme Court, makes various challenges to the validity of her conviction, and attacks the constitutionality of the death penalty statute on the ground, inter alia, that it does not give the sentencing judge a full opportunity to consider mitigating circumstances in capital cases as required by the Eighth and Fourteenth Amendments. Held: The judgment is reversed insofar as it upheld the death penalty, and the case is remanded. Pp. 594-609; 613-619; 619-621; 624-628. 49 Ohio St. 2d 48, 358 N. E. 2d 1062, reversed in part and remanded.THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II, concluding: 1. The prosecutor's closing references to the State's evidence as "unrefuted" and "uncontradicted" (no evidence having been introduced to rebut the prosecutor's case after petitioner decided not to testify) did not violate the constitutional prohibitions against commenting on an accused's failure to testify, where petitioner's counsel had already focused the jury's attention on her silence by promising a defense and telling the jury that she would testify. Pp. 594-595. 2. The exclusion from the venire of four prospective jurors who made it "unmistakably clear" that, because of their opposition to the death penalty, they could not be trusted to "abide by existing law" and to "follow conscientiously" the trial judge's instructions, Boulden v. Holman, , did not violate petitioner's Sixth and Fourteenth Amendment rights under the principles of Witherspoon v. Illinois, , or Taylor v. Louisiana, . Pp. 595-597. 3. Petitioner's contention that the Ohio Supreme Court's interpretation of the complicity provision of the statute under which she was convicted was so unexpected that it deprived her of fair warning of the crime with which she was charged, is without merit. The court's construction was consistent with both prior Ohio law and the statute's legislative history. P. 597. THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, concluded, in Part III, that the limited range of mitigating circumstances that may be considered by the sentencer under the Ohio death penalty statute is incompatible with the Eighth and Fourteenth Amendments. Pp. 597-609. (a) The Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Pp. 604-605. (b) The need for treating each defendant in a capital case with the degree of respect due the uniqueness of the individual is far more important than in noncapital cases, particularly in view of the unavailability with respect to an executed capital sentence of such postconviction mechanisms in noncapital cases as probation, parole, and work furloughs. P. 605. (c) A statute that prevents the sentencer in capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to the circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors that may call for a less severe penalty, and when the choice is between life and death, such risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments. P. 605. (d) The Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors required by the Eighth and Fourteenth Amendments. Only the three factors specified in the statute can be considered in mitigation of the defendant's sentence, and once it is determined that none of those factors is present, the statute mandates the death sentence. Pp. 606-608. MR. JUSTICE WHITE concluded that petitioner's death sentence should be vacated on the ground that the Ohio death penalty statute permits a defendant convicted of aggravated murder with specifications to be sentenced to death, as petitioner was in this case, without a finding that he intended death to result. Pp. 624-628. MR. JUSTICE MARSHALL, being of the view that the death penalty is, under all circumstances, a cruel and unusual punishment prohibited by the Eighth Amendment, concurred in the judgment insofar as it vacates petitioner's death sentence, and also concurred in the judgment insofar as it affirms her conviction. Pp. 619-621. MR. JUSTICE BLACKMUN concluded that petitioner's death sentence should be vacated on the grounds that (1) the Ohio death penalty statute is deficient in regard to petitioner, a nontriggerman charged with aiding and abetting a murder, in failing to allow consideration of the extent of petitioner's involvement, or the degree of her mens rea, in the commission of the homicide, and (2) the procedure provided by an Ohio Rule of Criminal Procedure giving the sentencing court full discretion to bar the death sentence "in the interests of justice" if the defendant pleads guilty or no contest, but no such discretion if the defendant goes to trial, creates an unconstitutional disparity of sentencing alternatives, United States v. Jackson, . Pp. 613-619. BURGER, C. J., announced the Court's judgment and delivered an opinion of the Court with respect to Parts I and II, in which STEWART, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined, and an opinion with respect to Part III, in which STEWART, POWELL, and STEVENS, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 613. MARSHALL, J., filed an opinion concurring in the judgment, post, p. 619. WHITE, J., filed an opinion concurring in part, concurring in the judgment, and dissenting in part, post, p. 621. REHNQUIST, J., filed an opinion concurring in part and dissenting in part, post, p. 628. BRENNAN, J., took no part in the consideration or decision of the case.Anthony G. Amsterdam argued the cause for petitioner. With him on the brief were Max Kravitz, Jack Greenberg, James M. Nabrit III, Joel Berger, David E. Kendall, and Peggy C. Davis.Carl M. Layman III argued the cause for respondent. With him on the brief were Stephan M. Gabalac and James A. Rudgers. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court with respect to the constitutionality of petitioner's conviction (Parts I and II), together with an opinion (Part III), in which MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS joined, on the constitutionality of the statute under which petitioner was sentenced to death, and announced the judgment of the Court.We granted certiorari in this case to consider, among other questions, whether Ohio violated the Eighth and Fourteenth Amendments by sentencing Sandra Lockett to death pursuant to a statute1 that narrowly limits the sentencer's discretion to consider the circumstances of the crime and the record and character of the offender as mitigating factors.ILockett was charged with aggravated murder with the aggravating specifications (1) that the murder was "committed for the purpose of escaping detection, apprehension, trial, or punishment" for aggravated robbery, and (2) that the murder was "committed while ... committing, attempting to commit, or fleeing immediately after committing or attempting to commit ... aggravated robbery." That offense was punishable by death in Ohio. See Ohio Rev. Code Ann. 2929.03, 2929.04 (1975). She was also charged with aggravated robbery. The State's case against her depended largely upon the testimony of a coparticipant, one Al Parker, who gave the following account of her participation in the robbery and murder.Lockett became acquainted with Parker and Nathan Earl Dew while she and a friend, Joanne Baxter, were in New Jersey. Parker and Dew then accompanied Lockett, Baxter, and Lockett's brother back to Akron, Ohio, Lockett's hometown. After they arrived in Akron, Parker and Dew needed money for the trip back to New Jersey. Dew suggested that he pawn his ring. Lockett overheard his suggestion, but felt that the ring was too beautiful to pawn, and suggested instead that they could get some money by robbing a grocery store and a furniture store in the area. She warned that the grocery store's operator was a "big guy" who carried a "45" and that they would have "to get him real quick." She also volunteered to get a gun from her father's basement to aid in carrying out the robberies, but by that time, the two stores had closed and it was too late to proceed with the plan to rob them.Someone, apparently Lockett's brother, suggested a plan for robbing a pawnshop. He and Dew would enter the shop and pretend to pawn a ring. Next Parker, who had some bullets, would enter the shop, ask to see a gun, load it, and use it to rob the shop. No one planned to kill the pawnshop operator in the course of the robbery. Because she knew the owner, Lockett was not to be among those entering the pawnshop, though she did guide the others to the shop that night.The next day Parker, Dew, Lockett, and her brother gathered at Baxter's apartment. Lockett's brother asked if they were "still going to do it," and everyone, including Lockett, agreed to proceed. The four then drove by the pawnshop several times and parked the car. Lockett's brother and Dew entered the shop. Parker then left the car and told Lockett to start it again in two minutes. The robbery proceeded according to plan until the pawnbroker grabbed the gun when Parker announced the "stickup." The gun went off with Parker's finger on the trigger, firing a fatal shot into the pawnbroker.Parker went back to the car where Lockett waited with the engine running. While driving away from the pawnshop, Parker told Lockett what had happened. She took the gun from the pawnshop and put it into her purse. Lockett and Parker drove to Lockett's aunt's house and called a taxicab. Shortly thereafter, while riding away in a taxicab, they were stopped by the police, but by this time Lockett had placed the gun under the front seat. Lockett told the police that Parker rented a room from her mother and lived with her family. After verifying this story with Lockett's parents, the police released Lockett and Parker. Lockett hid Dew and Parker in the attic when the police arrived at the Lockett household later that evening.Parker was subsequently apprehended and charged with aggravated murder with specifications, an offense punishable by death, and aggravated robbery. Prior to trial, he pleaded guilty to the murder charge and agreed to testify against Lockett, her brother, and Dew. In return, the prosecutor dropped the aggravated robbery charge and the specifications to the murder charge, thereby eliminating the possibility that Parker could receive the death penalty.Lockett's brother and Dew were later convicted of aggravated murder with specifications. Lockett's brother was sentenced to death, but Dew received a lesser penalty because it was determined that his offense was "primarily the product of mental deficiency," one of the three mitigating circumstances specified in the Ohio death penalty statute.Two weeks before Lockett's separate trial, the prosecutor offered to permit her to plead guilty to voluntary manslaughter and aggravated robbery (offenses which each carried a maximum penalty of 25 years' imprisonment and a maximum fine of $10,000, see Ohio Rev. Code Ann. 2903.03, 2911.01, 2929.11 (1975)) if she would cooperate with the State, but she rejected the offer. Just prior to her trial, the prosecutor offered to permit her to plead guilty to aggravated murder without specifications, an offense carrying a mandatory life penalty, with the understanding that the aggravated robbery charge and an outstanding forgery charge would be dismissed. Again she rejected the offer. At trial, the opening argument of Lockett's defense counsel summarized what appears to have been Lockett's version of the events leading to the killing. He asserted the evidence would show that, as far as Lockett knew, Dew and her brother had planned to pawn Dew's ring for $100 to obtain money for the trip back to New Jersey. Lockett had not waited in the car while the men went into the pawnshop but had gone to a restaurant for lunch and had joined Parker, thinking the ring had been pawned, after she saw him walking back to the car. Lockett's counsel asserted that the evidence would show further that Parker had placed the gun under the seat in the taxicab and that Lockett had voluntarily gone to the police station when she learned that the police were looking for the pawnbroker's killers.Parker was the State's first witness. His testimony related his version of the robbery and shooting, and he admitted to a prior criminal record of breaking and entering, larceny, and receiving stolen goods, as well as bond jumping. He also acknowledged that his plea to aggravated murder had eliminated the possibility of the death penalty, and that he had agreed to testify against Lockett, her brother, and Dew as part of his plea agreement with the prosecutor. At the end of the major portion of Parker's testimony, the prosecutor renewed his offer to permit Lockett to plead guilty to aggravated murder without specifications and to drop the other charges against her. For the third time Lockett refused the option of pleading guilty to a lesser offense.Lockett called Dew and her brother as defense witnesses, but they invoked their Fifth Amendment rights and refused to testify. In the course of the defense presentation, Lockett's counsel informed the court, in the presence of the jury, that he believed Lockett was to be the next witness and requested a short recess. After the recess, Lockett's counsel told the judge that Lockett wished to testify but had decided to accept her mother's advice to remain silent, despite her counsel's warning that, if she followed that advice, she would have no defense except the cross-examination of the State's witnesses. Thus, the defense did not introduce any evidence to rebut the prosecutor's case.The court instructed the jury that, before it could find Lockett guilty, it had to find that she purposely had killed the pawnbroker while committing or attempting to commit aggravated robbery. The jury was further charged that one who"purposely aids, helps, associates himself or herself with another for the purpose of committing a crime is regarded as if he or she were the principal offender and is just as guilty as if the person performed every act constituting the offense... ." Regarding the intent requirement, the court instructed: "A person engaged in a common design with others to rob by force and violence an individual or individuals of their property is presumed to acquiesce in whatever may reasonably be necessary to accomplish the object of their enterprise... . "If the conspired robbery and the manner of its accomplishment would be reasonably likely to produce death, each plotter is equally guilty with the principal offender as an aider and abettor in the homicide ... . An intent to kill by an aider and abettor may be found to exist beyond a reasonable doubt under such circumstances." The jury found Lockett guilty as charged.Once a verdict of aggravated murder with specifications had been returned, the Ohio death penalty statute required the trial judge to impose a death sentence unless, after "considering the nature and circumstances of the offense" and Lockett's "history, character, and condition," he found by a preponderance of the evidence that (1) the victim had induced or facilitated the offense, (2) it was unlikely that Lockett would have committed the offense but for the fact that she "was under duress, coercion, or strong provocation," or (3) the offense was "primarily the product of [Lockett's] psychosis or mental deficiency." Ohio Rev. Code 2929.03-2929.04 (B) (1975).In accord with the Ohio statute, the trial judge requested a presentence report as well as psychiatric and psychological reports. The reports contained detailed information about Lockett's intelligence, character, and background. The psychiatric and psychological reports described her as a 21-year-old with low-average or average intelligence, and not suffering from a mental deficiency. One of the psychologists reported that "her prognosis for rehabilitation" if returned to society was favorable. The presentence report showed that Lockett had committed no major offenses although she had a record of several minor ones as a juvenile and two minor offenses as an adult. It also showed that she had once used heroin but was receiving treatment at a drug abuse clinic and seemed to be "on the road to success" as far as her drug problem was concerned. It concluded that Lockett suffered no psychosis and was not mentally deficient.2 After considering the reports and hearing argument on the penalty issue, the trial judge concluded that the offense had not been primarily the product of psychosis or mental deficiency. Without specifically addressing the other two statutory mitigating factors, the judge said that he had "no alternative, whether [he] like[d] the law or not" but to impose the death penalty. He then sentenced Lockett to death.IIAAt the outset, we address Lockett's various challenges to the validity of her conviction. Her first contention is that the prosecutor's repeated references in his closing remarks to the State's evidence as "unrefuted" and "uncontradicted" constituted a comment on her failure to testify and violated her Fifth and Fourteenth Amendment rights. See Griffin v. California, . We conclude, however, that the prosecutor's closing comments in this case did not violate constitutional prohibitions. Lockett's own counsel had clearly focused the jury's attention on her silence, first, by outlining her contemplated defense in his opening statement and, second, by stating to the court and jury near the close of the case, that Lockett would be the "next witness." When viewed against this background, it seems clear that the prosecutor's closing remarks added nothing to the impression that had already been created by Lockett's refusal to testify after the jury had been promised a defense by her lawyer and told that Lockett would take the stand.BLockett also contends that four prospective jurors were excluded from the venire in violation of her Sixth and Fourteenth Amendment rights under the principles established in Witherspoon v. Illinois, , and Taylor v. Louisiana, . We do not agree.On voir dire, the prosecutor told the venire that there was a possibility that the death penalty might be imposed, but that the judge would make the final decision as to punishment. He then asked whether any of the prospective jurors were so opposed to capital punishment that "they could not sit, listen to the evidence, listen to the law, [and] make their determination solely upon the evidence and the law without considering the fact that capital punishment" might be imposed. Four of the venire responded affirmatively. The trial judge then addressed the following question to those four veniremen:"[D]o you feel that you could take an oath to well and truely [sic] try this case ... and follow the law, or is your conviction so strong that you cannot take an oath, knowing that a possibility exists in regard to capital punishment?" Each of the four specifically stated twice that he or she would not "take the oath." They were excused.In Witherspoon, persons generally opposed to capital punishment had been excluded for cause from the jury that convicted and sentenced the petitioner to death. We did not disturb the conviction but we held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S., at 522. We specifically noted, however, that nothing in our opinion prevented the execution of a death sentence when the veniremen excluded for cause make it "unmistakably clear ... that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Id., at 522-523, n. 21.Each of the excluded veniremen in this case made it "unmistakably clear" that they could not be trusted to "abide by existing law" and "to follow conscientiously the instructions" of the trial judge. Boulden v. Holman, . They were thus properly excluded under Witherspoon, even assuming, arguendo, that Witherspoon provides a basis for attacking the conviction as well as the sentence in a capital case.Nor was there any violation of the principles of Taylor v. Louisiana, supra. In Taylor, the Court invalidated a jury selection system that operated to exclude a "grossly disproportionate," 419 U.S., at 525, number of women from jury service thereby depriving the petitioner of a jury chosen from a "fair cross-section" of the community, id., at 530. Nothing in Taylor, however, suggests that the right to a representative jury includes the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge.CLockett's final attack on her conviction, as distinguished from her sentence, merits only brief attention. Specifically she contends that the Ohio Supreme Court's interpretation of the complicity provision of the statute under which she was convicted, Ohio Rev. Code Ann. 2923.03 (A) (1975), was so unexpected that it deprived her of fair warning of the crime with which she was charged. The opinion of the Ohio Supreme Court belies this claim. It shows clearly that the construction given the statute by the Ohio court was consistent with both prior Ohio law and with the legislative history of the statute.3 In such circumstances, any claim of inadequate notice under the Due Process Clause of the Fourteenth Amendment must be rejected.IIILockett challenges the constitutionality of Ohio's death penalty statute on a number of grounds. We find it necessary to consider only her contention that her death sentence is invalid because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime. To address her contention from the proper perspective, it is helpful to review the developments in our recent cases where we have applied the Eighth and Fourteenth Amendments to death penalty statutes. We do not write on a "clean slate."APrior to Furman v. Georgia, , every State that authorized capital punishment had abandoned mandatory death penalties,4 and instead permitted the jury unguided and unrestrained discretion regarding the imposition of the death penalty in a particular capital case.5 Mandatory death penalties had proved unsatisfactory, as the plurality noted in Woodson v. North Carolina, , in part because juries, "with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict."This Court had never intimated prior to Furman that discretion in sentencing offended the Constitution. See Pennsylvania ex rel. Sullivan v. Ashe, ; Williams v. New York, ; Williams v. Oklahoma, . As recently as McGautha v. California, , the Court had specifically rejected the contention that discretion in imposing the death penalty violated the fundamental standards of fairness embodied in Fourteenth Amendment due process, id., at 207-208, and had asserted that States were entitled to assume that "jurors confronted with the truly awesome responsibility of decreeing death for a fellow human [would] act with due regard for the consequences of their decision." Id., at 208.The constitutional status of discretionary sentencing in capital cases changed abruptly, however, as a result of the separate opinions supporting the judgment in Furman. The question in Furman was whether "the imposition and carrying out of the death penalty [in the cases before the Court] constitute[d] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." 408 U.S., at 239. Two Justices concluded that the Eighth Amendment prohibited the death penalty altogether and on that ground voted to reverse the judgments sustaining the death penalties. Id., at 305-306 (BRENNAN, J., concurring); id., at 370-371 (MARSHALL, J., concurring). Three Justices were unwilling to hold the death penalty per se unconstitutional under the Eighth and Fourteenth Amendments, but voted to reverse the judgments on other grounds. In separate opinions, the three concluded that discretionary sentencing, unguided by legislatively defined standards, violated the Eighth Amendment because it was "pregnant with discrimination," id., at 257 (Douglas, J., concurring), because it permitted the death penalty to be "wantonly" and "freakishly" imposed, id., at 310 (STEWART, J., concurring), and because it imposed the death penalty with "great infrequency" and afforded "no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not," id., at 313 (WHITE, J., concurring). Thus, what had been approved under the Due Process Clause of the Fourteenth Amendment in McGautha became impermissible under the Eighth and Fourteenth Amendments by virtue of the judgment in Furman. See Gregg v. Georgia, , n. 47 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.).Predictably,6 the variety of opinions supporting the judgment in Furman engendered confusion as to what was required in order to impose the death penalty in accord with the Eighth Amendment.7 Some States responded to what was thought to be the command of Furman by adopting mandatory death penalties for a limited category of specific crimes thus eliminating all discretion from the sentencing process in capital cases.8 Other States attempted to continue the practice of individually assessing the culpability of each individual defendant convicted of a capital offense and, at the same time, to comply with Furman, by providing standards to guide the sentencing decision.9 Four years after Furman, we considered Eighth Amendment issues posed by five of the post-Furman death penalty statutes.10 Four Justices took the position that all five statutes complied with the Constitution; two Justices took the position that none of them complied. Hence, the disposition of each case varied according to the votes of three Justices who delivered a joint opinion in each of the five cases upholding the constitutionality of the statutes of Georgia, Florida, and Texas, and holding those of North Carolina and Louisiana unconstitutional.The joint opinion reasoned that, to comply with Furman, sentencing procedures should not create "a substantial risk that the death penalty [will] be inflicted in an arbitrary and capricious manner." Gregg v. Georgia, supra, at 188. In the view of the three Justices, however, Furman did not require that all sentencing discretion be eliminated, but only that it be "directed and limited," 428 U.S., at 189, so that the death penalty would be imposed in a more consistent and rational manner and so that there would be a "meaningful basis for distinguishing the ... cases in which it is imposed from ... the many cases in which it is not." Id., at 188. The plurality concluded, in the course of invalidating North Carolina's mandatory death penalty statute, that the sentencing process must permit consideration of the "character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death," Woodson v. North Carolina, 428 U.S., at 304, in order to ensure the reliability, under Eighth Amendment standards, of the determination that "death is the appropriate punishment in a specific case." Id., at 305; see Roberts (Harry) v. Louisiana, ; Jurek v. Texas, . In the last decade, many of the States have been obliged to revise their death penalty statutes in response to the various opinions supporting the judgments in Furman and Gregg and its companion cases. The signals from this Court have not, however, always been easy to decipher. The States now deserve the clearest guidance that the Court can provide; we have an obligation to reconcile previously differing views in order to provide that guidance.BWith that obligation in mind we turn to Lockett's attack on the Ohio statute. Essentially she contends that the Eighth and Fourteenth Amendments require that the sentencer be given a full opportunity to consider mitigating circumstances in capital cases and that the Ohio statute does not comply with that requirement. She relies, in large part, on the plurality opinions in Woodson, supra, at 303-305, and Roberts (Stanislaus) v. Louisiana, , and the joint opinion in Jurek, supra, at 271-272, but she goes beyond them.We begin by recognizing that the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country. See Williams v. New York, 337 U.S., at 247-248; Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S., at 55. Consistent with that concept, sentencing judges traditionally have taken a wide range of factors into account. That States have authority to make aiders and abettors equally responsible, as a matter of law, with principals, or to enact felony-murder statutes is beyond constitutional challenge. But the definition of crimes generally has not been thought automatically to dictate what should be the proper penalty. See ibid.; Williams v. New York, supra, at 247-248; Williams v. Oklahoma, 358 U.S., at 585. And where sentencing discretion is granted, it generally has been agreed that the sentencing judge's "possession of the fullest information possible concerning the defendant's life and characteristics" is "[h]ighly relevant - if not essential - [to the] selection of an appropriate sentence ... ." Williams v. New York, supra, at 247 (emphasis added).The opinions of this Court going back many years in dealing with sentencing in capital cases have noted the strength of the basis for individualized sentencing. For example, Mr. Justice Black, writing for the Court in Williams v. New York, supra, at 247-248 - a capital case - observed that the"whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions - even for offenses today deemed trivial." Ten years later, in Williams v. Oklahoma, supra, at 585, another capital case, the Court echoed Mr. Justice Black, stating that"[i]n discharging his duty of imposing a proper sentence, the sentencing judge is authorized, if not required, to consider all of the mitigating and aggravating circumstances involved in the crime." (Emphasis added.) See also Furman v. Georgia, 408 U.S., at 245-246 (Douglas, J., concurring); id., at 297-298 (BRENNAN, J., concurring); id., at 339 (MARSHALL, J., concurring); id., at 402-403 (BURGER, C. J., dissenting); id., at 413 (BLACKMUN, J., dissenting); McGautha v. California, 402 U.S., at 197-203. Most would agree that "the 19th century movement away from mandatory death sentences marked an enlightened introduction of flexibility into the sentencing process." Furman v. Georgia, supra, at 402 (BURGER, C. J., dissenting).Although legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases, the plurality opinion in Woodson, after reviewing the historical repudiation of mandatory sentencing in capital cases, 428 U.S., at 289-298, concluded that "in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Id., at 304. That declaration rested "on the predicate that the penalty of death is qualitatively different" from any other sentence. Id., at 305. We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed. The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of "relevant facets of the character and record of the individual offender or the circumstances of the particular offense." Id., at 304. The plurality did not attempt to indicate, however, which facets of an offender or his offense it deemed "relevant" in capital sentencing or what degree of consideration of "relevant facets" it would require.We are now faced with those questions and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case,11 not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.12 We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes. The considerations that account for the wide acceptance of individualization of sentences in noncapital cases surely cannot be thought less important in capital cases. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques - probation, parole, work furloughs, to name a few - and various postconviction remedies may be available to modify an initial sentence of confinement in noncapital cases. The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.13 There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments. CThe Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors we now hold to be required by the Eighth and Fourteenth Amendments in capital cases. Its constitutional infirmities can best be understood by comparing it with the statutes upheld in Gregg, Proffitt, and Jurek.In upholding the Georgia statute in Gregg, JUSTICES STEWART, POWELL, and STEVENS noted that the statute permitted the jury "to consider any aggravating or mitigating circumstances," see Gregg, 428 U.S., at 206, and that the Georgia Supreme Court had approved "open and far-ranging argument" in presentence hearings, id., at 203.14 Although the Florida statute approved in Proffitt contained a list of mitigating factors, six Members of this Court assumed, in approving the statute, that the range of mitigating factors listed in the statute was not exclusive.15 Jurek involved a Texas statute which made no explicit reference to mitigating factors. 428 U.S., at 272. Rather, the jury was required to answer three questions in the sentencing process, the second of which was "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Tex. Code Crim. Proc., Art. 37.071 (b) (Supp. 1975-1976); see 428 U.S., at 269. The statute survived the petitioner's Eighth and Fourteenth Amendment attack because three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question - despite its facial narrowness - so as to permit the sentencer to consider "whatever mitigating circumstances" the defendant might be able to show. Id., at 272-273 (opinion of STEWART, POWELL, and STEVENS, JJ.), citing and quoting, Jurek v. State, 522 S. W. 2d 934, 939-940 (Tex. Crim. App. 1975). None of the statutes we sustained in Gregg and the companion cases clearly operated at that time to prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor.In this regard the statute now before us is significantly different. Once a defendant is found guilty of aggravated murder with at least one of seven specified aggravating circumstances, the death penalty must be imposed unless, considering "the nature and circumstances of the offense and the history, character, and condition of the offender," the sentencing judge determines that at least one of the following mitigating circumstances is established by a preponderance of the evidence: "(1) The victim of the offense induced or facilitated it. "(2) It is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation. "(3) The offense was primarily the product of the offender's psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity." Ohio Rev. Code Ann. 2929.04 (B) (1975). The Ohio Supreme Court has concluded that there is no constitutional distinction between the statute approved in Proffitt and Ohio's statute, see State v. Bayless, 48 Ohio St. 2d 73, 86-87, 357 N. E. 2d 1035, 1045-1046 (1976), because the mitigating circumstances in Ohio's statute are "liberally construed in favor of the accused," State v. Bell, 48 Ohio St. 2d 270, 281, 358 N. E. 2d 556, 564 (1976); see State v. Bayless, supra, at 86, 357 N. E. 2d, at 1046, and because the sentencing judge or judges may consider factors such as the age and criminal record of the defendant in determining whether any of the mitigating circumstances is established, State v. Bell, supra, at 281, 358 N. E. 2d, at 564. But even under the Ohio court's construction of the statute, only the three factors specified in the statute can be considered in mitigation of the defendant's sentence. See, 48 Ohio St. 2d, at 281-282, 358 N. E. 2d, at 564-565; State v. Bayless, supra, at 87 n. 2, 357 N. E. 2d, at 1046 n. 2. We see, therefore, that once it is determined that the victim did not induce or facilitate the offense, that the defendant did not act under duress or coercion, and that the offense was not primarily the product of the defendant's mental deficiency, the Ohio statute mandates the sentence of death. The absence of direct proof that the defendant intended to cause the death of the victim is relevant for mitigating purposes only if it is determined that it sheds some light on one of the three statutory mitigating factors. Similarly, consideration of a defendant's comparatively minor role in the offense, or age, would generally not be permitted, as such, to affect the sentencing decision.The limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments. To meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors.Accordingly, the judgment under review is reversed to the extent that it sustains the imposition of the death penalty, and the case is remanded for further proceedings.16 So ordered.MR. JUSTICE BRENNAN took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT The pertinent provisions of the Ohio death penalty statute, Ohio Rev. Code Ann. (1975), are as follows: 2929.03 Imposing sentence for a capital offense. (A) If the indictment or count in the indictment charging aggravated murder contains no specification of an aggravating circumstance listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge, the trial court shall impose sentence of life imprisonment on the offender. (B) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, the verdict shall separately state whether the accused is found guilty or not guilty of the principal charge and, if guilty of the principal charge, whether the offender is guilty or not guilty of each specification. The jury shall be instructed on its duties in this regard, which shall include an instruction that a specification must be proved beyond a reasonable doubt in order to support a guilty verdict on such specification, but such instruction shall not mention the penalty which may be the consequence of a guilty or not guilty verdict on any charge or specification. (C) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge but not guilty of each of the specifications, the trial court shall impose sentence of life imprisonment on the offender. If the indictment contains one or more specifications listed in division (A) of such section, then, following a verdict of guilty of both the charge and one or more of the specifications, the penalty to be imposed on the offender shall be determined: (1) By the panel of three judges which tried the offender upon his waiver of the right to trial by jury; (2) By the trial judge, if the offender was tried by jury. (D) When death may be imposed as a penalty for aggravated murder, the court shall require a pre-sentence investigation and a psychiatric examination to be made, and reports submitted to the court, pursuant to section 2947.06 of the Revised Code. Copies of the reports shall be furnished to the prosecutor and to the offender or his counsel. The court shall hear testimony and other evidence, the statement, if any, of the offender, and the arguments, if any, of counsel for the defense and prosecution, relevant to the penalty which should be imposed on the offender. If the offender chooses to make a statement, he is subject to cross-examination only if he consents to make such statement under oath or affirmation. (E) Upon consideration of the reports, testimony, other evidence, statement of the offender, and arguments of counsel submitted to the court pursuant to division (D) of this section, if the court finds, or if the panel of three judges unanimously finds that none of the mitigating circumstances listed in division (B) of section 2929.04 of the Revised Code is established by a preponderance of the evidence, it shall impose sentence of death on the offender. Otherwise, it shall impose sentence of life imprisonment on the offender. 2929.04 Criteria for imposing death or imprisonment for a capital offense. (A) Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code, and is proved beyond a reasonable doubt: (1) The offense was the assassination of the president of the United States or person in line of succession to the presidency, or of the governor or lieutenant governor of this state, or of the president-elect or vice president-elect of the United States, or of the governor-elect or lieutenant governor-elect of this state, or of a candidate for any of the foregoing offices. For purposes of this division, a person is a candidate if he has been nominated for election according to law, or if he has filed a petition or petitions according to law to have his name placed on the ballot in a primary or general election, or if he campaigns as a write-in candidate in a primary or general election. (2) The offense was committed for hire. (3) The offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender. (4) The offense was committed while the offender was a prisoner in a detention facility as defined in section 2921.01 of the Revised Code. (5) The offender has previously been convicted of an offense of which the gist was the purposeful killing of or attempt to kill another, committed prior to the offense at bar, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender. (6) The victim of the offense was a law enforcement officer whom the offender knew to be such, and either the victim was engaged in his duties at the time of the offense, or it was the offender's specific purpose to kill a law enforcement officer. (7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary. (B) Regardless of whether one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictment and proved beyond a reasonable doubt, the death penalty for aggravated murder is precluded when, considering the nature and circumstances of the offense and the history, character, and condition of the offender, one or more of the following is established by a prepondence [preponderance] of the evidence: (1) The victim of the offense induced or facilitated it. (2) It is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation. (3) The offense was primarily the product of the offender's psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity.
7	Respondent Rural Telephone Service Company is a certified public utility providing telephone service to several communities in Kansas. Pursuant to state regulation, Rural publishes a typical telephone directory, consisting of white pages and yellow pages. It obtains data for the directory from subscribers, who must provide their names and addresses to obtain telephone service. Petitioner Feist Publications, Inc., is a publishing company that specializes in area-wide telephone directories covering a much larger geographic range than directories such as Rural's. When Rural refused to license its white pages listings to Feist for a directory covering 11 different telephone service areas, Feist extracted the listings it needed from Rural's directory without Rural's consent. Although Feist altered many of Rural's listings, several were identical to listings in Rural's white pages. The District Court granted summary judgment to Rural in its copyright infringement suit, holding that telephone directories are copyrightable. The Court of Appeals affirmed.Held: Rural's white pages are not entitled to copyright, and therefore Feist's use of them does not constitute infringement. Pp. 344-364.(a) Article I, 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable. Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protection extends only to those components of the work that are original to the author, not to the facts themselves. This fact/expression dichotomy severely limits the scope of protection in fact-based works. Pp. 344-351.(b) The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909, leave no doubt that originality is the touchstone of copyright protection in directories and other fact-based works. The 1976 Act explains that copyright extends to "original works of authorship," 17 U.S.C. 102(a), and that there can be no copyright in facts, 102(b). A compilation is not copyrightable per se, but is copyrightable only if its facts have been "selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." 101 (emphasis added). Thus, the statute envisions that some ways of selecting, coordinating, and arranging data are not sufficiently original to trigger copyright protection. Even a compilation that is copyrightable receives only limited protection, for the copyright does not extend to facts contained in the compilation. 103(b). Lower courts that adopted a "sweat of the brow" or "industrious collection" test - which extended a compilation's copyright protection beyond selection and arrangement to the facts themselves - misconstrued the 1909 Act and eschewed the fundamental axiom of copyright law that no one may copyright facts or ideas. Pp. 351-361.(c) Rural's white pages do not meet the constitutional or statutory requirements for copyright protection. While Rural has a valid copyright in the directory as a whole because it contains some forward text and some original material in the yellow pages, there is nothing original in Rural's white pages. The raw data are uncopyrightable facts, and the way in which Rural selected, coordinated, and arranged those facts is not original in any way. Rural's selection of listings - subscribers' names, towns, and telephone numbers - could not be more obvious, and lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. In fact, it is plausible to conclude that Rural did not truly "select" to publish its subscribers' names and telephone numbers, since it was required to do so by state law. Moreover, there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. Pp. 361-364. 916 F.2d 718, reversed.O'CONNOR J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, SCALIA, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, J., concurred in the judgment.Kyler Knobbe argued the cause and filed briefs for petitioner.James M. Caplinger, Jr., argued the cause and filed a brief for respondent.* [Footnote ] Briefs of amici curiae urging reversal were filed for the Association of North American Directory Publishers et al. by Theodore Case Whitehouse; for the International Association of Cross Reference Directory Publishers by Richard D. Grauer and Kathleen McCree Lewis; and for the Third-Class Mail Association by Ian D. Volner.Briefs of amici curiae urging affirmance were filed for Ameritech et al. by Michael K. Kellogg, Charles Rothfeld, Douglas J. Kirk, Thomas P. Hester, and Harlan Sherwat; for Association of American Publishers, Inc., by Robert G. Sugarman and R. Bruce Rich; for GTE Corp. by Kirk K. Van Tine, Richard M. Cahill, and Edward R. Sublett; for the National Telephone Cooperative Association by L. Marie Guillory and David Cosson; for the United States Telephone Association by Richard J. Rappaport and Keith P. Schoeneberger; and for West Publishing Co. by Vance K. Opperman and James E. Schatz.Briefs of amici curiae were filed for Bellsouth Corp. by Anthony B. Askew, Robert E. Richards, Walter H. Alford, and Vincent L. Sgrosso; for Direct Marketing Association, Inc., by Robert L. Sherman; for Haines and Co., Inc., by Jeremiah D. McAuliffe, Bernard A. Barken, and Eugene Gressman; and for the Information Industry Association et al. by Steven J. Metalitz and Angela Burnett. JUSTICE O'CONNOR delivered the opinion of the Court.This case requires us to clarify the extent of copyright protection available to telephone directory white pages.IRural Telephone Service Company is a certified public utility that provides telephone service to several communities in northwest Kansas. It is subject to a state regulation that requires all telephone companies operating in Kansas to issue annually an updated telephone directory. Accordingly, as a condition of its monopoly franchise, Rural publishes a typical telephone directory, consisting of white pages and yellow pages. The white pages list in alphabetical order the names of Rural's subscribers, together with their towns and telephone numbers. The yellow pages list Rural's business subscribers alphabetically by category, and feature classified advertisements of various sizes. Rural distributes its directory free of charge to its subscribers, but earns revenue by selling yellow pages advertisements.Feist Publications, Inc., is a publishing company that specializes in area-wide telephone directories. Unlike a typical directory, which covers only a particular calling area, Feist's area-wide directories cover a much larger geographical range, reducing the need to call directory assistance or consult multiple directories. The Feist directory that is the subject of this litigation covers 11 different telephone service areas in 15 counties and contains 46,878 white pages listings - compared to Rural's approximately 7,700 listings. Like Rural's directory, Feist's is distributed free of charge and includes both white pages and yellow pages. Feist and Rural compete vigorously for yellow pages advertising.As the sole provider of telephone service in its service area, Rural obtains subscriber information quite easily. Persons desiring telephone service must apply to Rural and provide their names and addresses; Rural then assigns them a telephone number. Feist is not a telephone company, let alone one with monopoly status, and therefore lacks independent access to any subscriber information. To obtain white pages listings for its area-wide directory, Feist approached each of the 11 telephone companies operating in northwest Kansas and offered to pay for the right to use its white pages listings.Of the 11 telephone companies, only Rural refused to license its listings to Feist. Rural's refusal created a problem for Feist, as omitting these listings would have left a gaping hole in its area-wide directory, rendering it less attractive to potential yellow pages advertisers. In a decision subsequent to that which we review here, the District Court determined that this was precisely the reason Rural refused to license its listings. The refusal was motivated by an unlawful purpose "to extend its monopoly in telephone service to a monopoly in yellow pages advertising." Rural Telephone Service Co. v. Feist Publications, Inc., 737 F.Supp. 610, 622 (Kan. 1990).Unable to license Rural's white pages listings, Feist used them without Rural's consent. Feist began by removing several thousand listings that fell outside the geographic range of its area-wide directory, then hired personnel to investigate the 4,935 that remained. These employees verified the data reported by Rural and sought to obtain additional information. As a result, a typical Feist listing includes the individual's street address; most of Rural's listings do not. Notwithstanding these additions, however, 1,309 of the 46,878 listings in Feist's 1983 directory were identical to listings in Rural's 1982-1983 white pages. App. 54 (§ 15-16), 57. Four of these were fictitious listings that Rural had inserted into its directory to detect copying.Rural sued for copyright infringement in the District Court for the District of Kansas, taking the position that Feist, in compiling its own directory, could not use the information contained in Rural's white pages. Rural asserted that Feist's employees were obliged to travel door-to-door or conduct a telephone survey to discover the same information for themselves. Feist responded that such efforts were economically impractical and, in any event, unnecessary, because the information copied was beyond the scope of copyright protection. The District Court granted summary judgment to Rural, explaining that "[c]ourts have consistently held that telephone directories are copyrightable" and citing a string of lower court decisions. 663 F.Supp. 214, 218 (1987). In an unpublished opinion, the Court of Appeals for the Tenth Circuit affirmed "for substantially the reasons given by the district court." App. to Pet. for Cert. 4a, judgt. order reported at 916 F.2d 718 (1990). We granted certiorari, , to determine whether the copyright in Rural's directory protects the names, towns, and telephone numbers copied by Feist.IIAThis case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are. Each of these propositions possesses an impeccable pedigree. That there can be no valid copyright in facts is universally understood. The most fundamental axiom of copyright law is that "[n]o author may copyright his ideas or the facts he narrates." Harper & Row, Publishers, Inc. v. Nation Enterprises, . Rural wisely concedes this point, noting in its brief that "[f]acts and discoveries, of course, are not themselves subject to copyright protection." Brief for Respondent 24. At the same time, however, it is beyond dispute that compilations of facts are within the subject matter of copyright. Compilations were expressly mentioned in the Copyright Act of 1909, and again in the Copyright Act of 1976.There is an undeniable tension between these two propositions. Many compilations consist of nothing but raw data - i.e., wholly factual information not accompanied by any original written expression. On what basis may one claim a copyright in such a work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. Yet copyright law seems to contemplate that compilations that consist exclusively of facts are potentially within its scope.The key to resolving the tension lies in understanding why facts are not copyrightable. The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. See Harper & Row, supra, at 547-549. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright 2.01[A], [B] (1990) (hereinafter Nimmer). To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. Id. 1.08[C]1.. Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (CA2 1936).Originality is a constitutional requirement. The source of Congress' power to enact copyright laws is Article I, 8, cl. 8, of the Constitution, which authorizes Congress to "secur[e] for limited Times to Authors ... the exclusive Right to their respective Writings." In two decisions from the late 19th Century - The Trade-Mark Cases, ; and Burrow-Giles Lithographic Co. v. Sarony, - this Court defined the crucial terms "authors" and "writings." In so doing, the Court made it unmistakably clear that these terms presuppose a degree of originality.In The Trade-Mark Cases, the Court addressed the constitutional scope of "writings." For a particular work to be classified "under the head of writings of authors," the Court determined, "originality is required." at 94. The Court explained that originality requires independent creation plus a modicum of creativity: "[W]hile the word writings may be liberally construed, as it has been, to include original designs for engraving, prints, &c., it is only such as are original, and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like." Ibid. (emphasis in original).In Burrow-Giles, the Court distilled the same requirement from the Constitution's use of the word "authors." The Court defined "author," in a constitutional sense, to mean "he to whom anything owes its origin; originator; maker." at 58 (internal quotations omitted). As in The Trade-Mark Cases, the Court emphasized the creative component of originality. It described copyright as being limited to "original intellectual conceptions of the author," 111 U.S., at 58, and stressed the importance of requiring an author who accuses another of infringement to prove "the existence of those facts of originality, of intellectual production, of thought, and conception." Id. Id., at 59-60.The originality requirement articulated in The Trade-Mark Cases and Burrow-Giles remains the touchstone of copyright protection today. See Goldstein v. California, . It is the very "premise of copyright law." Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (CA5 1981). Leading scholars agree on this point. As one pair of commentators succinctly puts it: "The originality requirement is constitutionally mandated for all works." Patterson & Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L.Rev. 719, 763, n. 155 (1989) (emphasis in original) (hereinafter Patterson & Joyce). Accord, id. at 759-760, and n. 140; Nimmer 1.06[A] ("originality is a statutory as well as a constitutional requirement"); id. 1.08[C]1. ("a modicum of intellectual labor ... clearly constitutes an essential constitutional element").It is this bedrock principle of copyright that mandates the law's seemingly disparate treatment of facts and factual compilations. "No one may claim originality as to facts." Id. 2.11[A], p. 2-157. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. To borrow from Burrow-Giles, one who discovers a fact is not its "maker" or "originator." 111 U.S., at 58. "The discoverer merely finds and records." Nimmer 2.03[E]. Census-takers, for example, do not "create" the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them. Denicola, Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works, 81 Colum.L.Rev. 516, 525 (1981) (hereinafter Denicola). Census data therefore do not trigger copyright, because these data are not "original" in the constitutional sense. Nimmer 2.03[E]. The same is true of all facts - scientific, historical, biographical, and news of the day. "[T]hey may not be copyrighted, and are part of the public domain available to every person." Miller, supra, at 1369.Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. Nimmer 2.11[D], 3.03; Denicola 523, n. 38. Thus, even a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement. See Harper & Row, 471 U.S., at 547. Accord, Nimmer 3.03.This protection is subject to an important limitation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Patterson & Joyce 800-802; Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum.L.Rev. 1865, 1868, and n. 12 (1990) (hereinafter Ginsburg). Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. In Harper & Row, for example, we explained that President Ford could not prevent others from copying bare historical facts from his autobiography, see at 556-557, but that he could prevent others from copying his "subjective descriptions and portraits of public figures." Id. at 563. Where the compilation author adds no written expression, but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection. See Patry, Copyright in Compilations of Facts (or Why the "White Pages" Are Not Copyrightable), 12 Com. & Law 37, 64 (Dec. 1990) (hereinafter Patry). No matter how original the format, however, the facts themselves do not become original through association. See Patterson & Joyce 776.This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. As one commentator explains it: "[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking... . [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas." Ginsburg 1868.It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." Harper & Row, 471 U.S., at 589 (dissenting opinion). It is, rather, "the essence of copyright," ibid. and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." Art. I, 8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, . To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. Harper & Row, supra, at 556-557. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.This Court has long recognized that the fact/expression dichotomy limits severely the scope of protection in fact-based works. More than a century ago, the Court observed: "The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book." Baker v. Selden, . We reiterated this point in Harper & Row:"[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work - termed `expression' - that display the stamp of the author's originality. "[C]opyright does not prevent subsequent users from copying from a prior author's work those constituent elements that are not original - for example ... facts, or materials in the public domain - as long as such use does not unfairly appropriate. the author's original contributions." 471 U.S., at 547-548 (citation omitted). This, then, resolves the doctrinal tension: Copyright treats facts and factual compilations in a wholly consistent manner. Facts, whether alone or as part of a compilation, are not original, and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyright extend to the facts themselves.BAs we have explained, originality is a constitutionally mandated prerequisite for copyright protection. The Court's decisions announcing this rule predate the Copyright Act of 1909, but ambiguous language in the 1909 Act caused some lower courts temporarily to lose sight of this requirement.The 1909 Act embodied the originality requirement, but not as clearly as it might have. See Nimmer 2.01. The subject matter of copyright was set out in 3 and 4 of the Act. Section 4 stated that copyright was available to "all the writings of an author." 35 Stat. 1076. By using the words "writings" and "author" - the same words used in Article I, 8 of the Constitution and defined by the Court in The Trade-Mark Cases and Burrow-Giles - the statute necessarily incorporated the originality requirement articulated in the Court's decisions. It did so implicitly, however, thereby leaving room for error.Section 3 was similarly ambiguous. It stated that the copyright in a work protected only "the copyrightable component parts of the work." It thus stated an important copyright principle, but failed to identify the specific characteristic - originality - that determined which component parts of a work were copyrightable and which were not.Most courts construed the 1909 Act correctly, notwithstanding the less-than-perfect statutory language. They understood from this Court's decisions that there could be no copyright without originality. See Patterson & Joyce 760-761. As explained in the Nimmer treatise: The 1909 Act neither defined originality nor even expressly required that a work be `original' in order to command protection. However, the courts uniformly inferred the requirement from the fact that copyright protection may only be claimed by `authors'... . It was reasoned that, since an author is `the ... creator, originator,' it follows that a work is not the product of an author unless the work is original. Nimmer 2.01 (footnotes omitted) (citing cases).But some courts misunderstood the statute. See, e.g., Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (CA9 1937); Jeweler's Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83 (CA2 1922). These courts ignored 3 and 4, focusing their attention instead on 5 of the Act. Section 5, however, was purely technical in nature: it provided that a person seeking to register a work should indicate on the application the type of work, and it listed 14 categories under which the work might fall. One of these categories was "[b]ooks, including composite and cyclopoedic works, directories, gazetteers, and other compilations." 5(a). Section 5 did not purport to say that all compilations were automatically copyrightable. Indeed, it expressly disclaimed any such function, pointing out that "the subject matter of copyright [i]s defined in section four." Nevertheless, the fact that factual compilations were mentioned specifically in 5 led some courts to infer erroneously that directories and the like were copyrightable per se, "without any further or precise showing of original - personal - authorship." Ginsburg 1895.Making matters worse, these courts developed a new theory to justify the protection of factual compilations. Known alternatively as "sweat of the brow" or "industrious collection," the underlying notion was that copyright was a reward for the hard work that went into compiling facts. The classic formulation of the doctrine appeared in Jeweler's Circular Publishing Co., 281 F., at 88: "The right to copyright a book upon which one has expended labor in its preparation does not depend upon whether the materials which he has collected consist or not of matters which are publici juris, or whether such materials show literary skill or originality, either in thought or in language, or anything more than industrious collection. The man who goes through the streets of a town and puts down the names of each of the inhabitants, with their occupations and their street number acquires material of which he is the author. (emphasis added). The "sweat of the brow" doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement - the compiler's original contributions - to the facts themselves. Under the doctrine, the only defense to infringement was independent creation. A subsequent compiler was "not entitled to take one word of information previously published," but rather had to "independently wor[k] out the matter for himself, so as to arrive at the same result from the same common sources of information." Id., at 88-89 (internal quotations omitted). "Sweat of the brow" courts thereby eschewed the most fundamental axiom of copyright law - that no one may copyright facts or ideas. See Miller v. Universal City Studios, Inc., 650 F.2d, at 1372 (criticizing "sweat of the brow" courts because "ensur[ing] that later writers obtain the facts independently ... is precisely the scope of protection given ... copyrighted matter, and the law is clear that facts are not entitled to such protection").Decisions of this Court applying the 1909 Act make clear that the statute did not permit the "sweat of the brow" approach. The best example is International News Service v. Associated Press, . In that decision, the Court stated unambiguously that the 1909 Act conferred copyright protection only on those elements of a work that were original to the author. International News Service had conceded taking news reported by Associated Press and publishing it in its own newspapers. Recognizing that 5 of the Act specifically mentioned "[p]eriodicals, including newspapers," 5(b), the Court acknowledged that news articles were copyrightable. Id., at 234. It flatly rejected, however, the notion that the copyright in an article extended to the factual information it contained: "[T]he news element - the information respecting current events contained in the literary production - is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day." Ibid. Without a doubt, the "sweat of the brow" doctrine flouted basic copyright principles. Throughout history, copyright law has "recognize[d] a greater need to disseminate factual works than works of fiction or fantasy." Harper & Rowat 563. Accord, Gorman, Fact or Fancy: The Implications for Copyright, 29 J. Copyright Soc. 560, 563 (1982). But "sweat of the brow" courts took a contrary view; they handed out proprietary interests in facts and declared that authors are absolutely precluded from saving time and effort by relying upon the facts contained in prior works. In truth, "[i]t is just such wasted effort that the proscription against the copyright of ideas and facts ... [is] designed to prevent." Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966), cert. denied . "Protection for the fruits of such research ... may, in certain circumstances, be available under a theory of unfair competition. But to accord copyright protection on this basis alone distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of `writings' by `authors.'" Nimmer 3.04, p. 3-23 (footnote omitted).C"Sweat of the brow" decisions did not escape the attention of the Copyright Office. When Congress decided to overhaul the copyright statute and asked the Copyright Office to study existing problems, see Mills Music, Inc. v. Snyder, , the Copyright Office promptly recommended that Congress clear up the confusion in the lower courts as to the basic standards of copyrightability. The Register of Copyrights explained in his first report to Congress that "originality" was a "basic requisit[e]" of copyright under the 1909 Act, but that "the absence of any reference to [originality] in the statute seems to have led to misconceptions as to what is copyrightable matter." Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess., p. 9 (H. Judiciary Comm. Print 1961). The Register suggested making the originality requirement explicit. Ibid. Congress took the Register's advice. In enacting the Copyright Act of 1976, Congress dropped the reference to "all the writings of an author" and replaced it with the phrase "original works of authorship." 17 U.S.C. 102(a). In making explicit the originality requirement, Congress announced that it was merely clarifying existing law: "The two fundamental criteria of copyright protection [are] originality and fixation in tangible form... . The phrase `original works of authorship,' which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts under the present 1909. copyright statute." H. R. Rep. No. 94-1476, p. 51 (1976) (emphasis added) (hereinafter H. R. Rep.); S. Rep. No. 94-473, p. 50 (1975), (emphasis added) (hereinafter S. Rep.). This sentiment was echoed by the Copyright Office: "Our intention here is to maintain the established standards of originality... ." Supplementary Report of the Register of Copyrights on the General Revision of U.S. Copyright Law, 89th Cong., 1st Sess., pt. 6, p. 3 (H. Judiciary Comm. Print 1965) (emphasis added).To ensure that the mistakes of the "sweat of the brow" courts would not be repeated, Congress took additional measures. For example, 3 of the 1909 Act had stated that copyright protected only the "copyrightable component parts" of a work, but had not identified originality as the basis for distinguishing those component parts that were copyrightable from those that were not. The 1976 Act deleted this section and replaced it with 102(b), which identifies specifically those elements of a work for which copyright is not available: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Section 102(b) is universally understood to prohibit any copyright in facts. Harper Row, supra, at 547, 556. Accord, Nimmer 2.03[E] (equating facts with "discoveries"). As with 102(a), Congress emphasized that 102(b) did not change the law, but merely clarified it: "Section 102(b) in no way enlarges or contracts the scope of copyright protection under the present law. Its purpose is to restate ... that the basic dichotomy between expression and idea remains unchanged." H. R. Rep. at 57; S. Rep. at 54.Congress took another step to minimize confusion by deleting the specific mention of "directories ... and other compilations" in 5 of the 1909 Act. As mentioned, this section had led some courts to conclude that directories were copyrightable per se, and that every element of a directory was protected. In its place, Congress enacted two new provisions. First, to make clear that compilations were not copyrightable per se, Congress provided a definition of the term "compilation." Second, to make clear that the copyright in a compilation did not extend to the facts themselves, Congress enacted 103.The definition of "compilation" is found in 101 of the 1976 Act. It defines a "compilation" in the copyright sense as "a work formed by the collection and assembly of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work, as a whole, constitutes an original work of authorship." (Emphasis added.) The purpose of the statutory definition is to emphasize that collections of facts are not copyrightable per se. It conveys this message through its tripartite structure, as emphasized above by the italics. The statute identifies three distinct elements, and requires each to be met for a work to qualify as a copyrightable compilation: (1) the collection and assembly of pre-existing material, facts, or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an "original" work of authorship. "[T]his tripartite conjunctive structure is self-evident, and should be assumed to `accurately express the legislative purpose.'" Patry 51, quoting Mills Music, 469 U.S., at 164.At first glance, the first requirement does not seem to tell us much. It merely describes what one normally thinks of as a compilation - a collection of pre-existing material, facts, or data. What makes it significant is that it is not the sole requirement. It is not enough for copyright purposes that an author collects and assembles facts. To satisfy the statutory definition, the work must get over two additional hurdles. In this way, the plain language indicates that not every collection of facts receives copyright protection. Otherwise, there would be a period after "data."The third requirement is also illuminating. It emphasizes that a compilation, like any other work, is copyrightable only if it satisfies the originality requirement ("an original work of authorship"). Although 102 states plainly that the originality requirement applies to all works, the point was emphasized with regard to compilations to ensure that courts would not repeat the mistake of the "sweat of the brow" courts by concluding that fact-based works are treated differently and measured by some other standard. As Congress explained it, the goal was to "make plain that the criteria of copyrightable subject matter stated in section 102 apply with full force to works ... containing preexisting material." H. R. Rep., at 57; S. Rep., at 55. The key to the statutory definition is the second requirement. It instructs courts that, in determining whether a fact-based work is an original work of authorship, they should focus on the manner in which the collected facts have been selected, coordinated, and arranged. This is a straightforward application of the originality requirement. Facts are never original, so the compilation author can claim originality, if at all, only in the way the facts are presented. To that end, the statute dictates that the principal focus should be on whether the selection, coordination, and arrangement are sufficiently original to merit protection.Not every selection, coordination, or arrangement will pass muster. This is plain from the statute. It states that, to merit protection, the facts must be selected, coordinated, or arranged "in such a way" as to render the work as a whole original. This implies that some "ways" will trigger copyright, but that others will not. See Patry 57, and n. 76. Otherwise, the phrase "in such a way" is meaningless, and Congress should have defined "compilation" simply as "a work formed by the collection and assembly of preexisting materials or data that are selected, coordinated, or arranged." That Congress did not do so is dispositive. In accordance with "the established principle that a court should give effect, if possible, to every clause and word of a statute," Moskal v. United States, (internal quotations omitted), we conclude that the statute envisions that there will be some fact-based works in which the selection, coordination, and arrangement are not sufficiently original to trigger copyright protection.As discussed earlier, however, the originality requirement is not particularly stringent. A compiler may settle upon a selection or arrangement that others have used; novelty is not required. Originality requires only that the author make the selection or arrangement independently (i.e., without copying that selection or arrangement from another work), and that it display some minimal level of creativity. Presumably, the vast majority of compilations will pass this test, but not all will. There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent. See generally Bleistein v. Donaldson Lithographing Co., (referring to "the narrowest and most obvious limits"). Such works are incapable of sustaining a valid copyright. Nimmer 2.01[B].Even if a work qualifies as a copyrightable compilation, it receives only limited protection. This is the point of 103 of the Act. Section 103 explains that "[t]he subject matter of copyright ... includes compilations," 103(a), but that copyright protects only the author's original contributions - not the facts or information conveyed: "The copyright in a compilation ... extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material." 103(b). As 103 makes clear, copyright is not a tool by which a compilation author may keep others from using the facts or data he or she has collected. "The most important point here is one that is commonly misunderstood today: copyright ... has no effect one way or the other on the copyright or public domain status of the preexisting material." H. R. Rep. at 57; S. Rep. at 55. The 1909 Act did not require, as "sweat of the brow" courts mistakenly assumed, that each subsequent compiler must start from scratch, and is precluded from relying on research undertaken by another. See, e.g., Jeweler's Circular publishing Co., 281 F., at 88-89. Rather, the facts contained in existing works may be freely copied, because copyright protects only the elements that owe their origin to the compiler - the selection, coordination, and arrangement of facts.In summary, the 1976 revisions to the Copyright Act leave no doubt that originality, not "sweat of the brow," is the touchstone of copyright protection in directories and other fact-based works. Nor is there any doubt that the same was true under the 1909 Act. The 1976 revisions were a direct response to the Copyright Office's concern that many lower courts had misconstrued this basic principle, and Congress emphasized repeatedly that the purpose of the revisions was to clarify, not change, existing law. The revisions explain with painstaking clarity that copyright requires originality, 102(a); that facts are never original, 102(b); that the copyright in a compilation does not extend to the facts it contains, 103(b); and that a compilation is copyrightable only to the extent that it features an original selection, coordination, or arrangement, 101.The 1976 revisions have proven largely successful in steering courts in the right direction. A good example is Miller v. Universal City Studios, Inc., 650 F.2d, at 1369-1370: "A copyright in a directory ... is properly viewed as resting on the originality of the selection and arrangement of the factual material, rather than on the industriousness of the efforts to develop the information. Copyright protection does not extend to the facts themselves, and the mere use of information contained in a directory without a substantial copying of the format does not constitute infringement" (citation omitted.) Additionally, the Second Circuit, which almost 70 years ago issued the classic formulation of the "sweat of the brow" doctrine in Jeweler's Circular Publishing Co., has now fully repudiated the reasoning of that decision. See, e.g., Financial Information, Inc. v. Moody's Investors Service, Inc., 808 F.2d 204, 207 (CA2 1986), cert. denied, ; Financial Information, Inc. v. Moody's Investors Service, Inc., 751 F.2d 501, 510 (CA2 1984) (Newman, J., concurring); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (CA2 1980). Even those scholars who believe that "industrious collection" should be rewarded seem to recognize that this is beyond the scope of existing copyright law. See Denicola 516 ("the very vocabulary of copyright is ill suited to analyzing property rights in works of nonfiction"); id. at 520-521, 525; Ginsburg 1867, 1870.IIIThere is no doubt that Feist took from the white pages of Rural's directory a substantial amount of factual information. At a minimum, Feist copied the names, towns, and telephone numbers of 1,309 of Rural's subscribers. Not all copying, however, is copyright infringement. To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. See Harper & Row, 471 U.S., at 548. The first element is not at issue here; Feist appears to concede that Rural's directory, considered as a whole, is subject to a valid copyright because it contains some foreword text, as well as original material in its yellow pages advertisements. See Brief for Petitioner 18; Pet. for Cert. 9.The question is whether Rural has proved the second element. In other words, did Feist, by taking 1,309 names, towns, and telephone numbers from Rural's white pages, copy anything that was "original" to Rural? Certainly, the raw data does not satisfy the originality requirement. Rural may have been the first to discover and report the names, towns, and telephone numbers of its subscribers, but this data does not "`ow[e] its origin'" to Rural. Burrow-Giles, 111 U.S., at 58. Rather, these bits of information are uncopyrightable facts; they existed before Rural reported them, and would have continued to exist if Rural had never published a telephone directory. The originality requirement "rule[s] out protecting ... names, addresses, and telephone numbers of which the plaintiff, by no stretch of the imagination, could be called the author." Patterson & Joyce 776.Rural essentially concedes the point by referring to the names, towns, and telephone numbers as "preexisting material." Brief for Respondent 17. Section 103(b) states explicitly that the copyright in a compilation does not extend to "the preexisting material employed in the work."The question that remains is whether Rural selected, coordinated, or arranged these uncopyrightable facts in an original way. As mentioned, originality is not a stringent standard; it does not require that facts be presented in an innovative or surprising way. It is equally true, however, that the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it does exist. See Patterson & Joyce 760, n. 144 ("While this requirement is sometimes characterized as modest, or a low threshold, it is not without effect") (internal quotations omitted; citations omitted). As this Court has explained, the Constitution mandates some minimal degree of creativity, see The Trade-Mark Cases, 100 U.S., at 94, and an author who claims infringement must prove "the existence of ... intellectual production, of thought, and conception." Burrow-Giles, supra, at 59-60.The selection, coordination, and arrangement of Rural's white pages do not satisfy the minimum constitutional standards for copyright protection. As mentioned at the outset, Rural's white pages are entirely typical. Persons desiring telephone service in Rural's service area fill out an application, and Rural issues them a telephone number. In preparing its white pages, Rural simply takes the data provided by its subscribers and lists it alphabetically by surname. The end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity.Rural's selection of listings could not be more obvious: It publishes the most basic information - name, town, and telephone number - about each person who applies to it for telephone service. This is "selection" of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. Rural expended sufficient effort to make the white pages directory useful, but insufficient creativity to make it original.We note in passing that the selection featured in Rural's white pages may also fail the originality requirement for another reason. Feist points out that Rural did not truly "select" to publish the names and telephone numbers of its subscribers; rather, it was required to do so by the Kansas Corporation Commission as part of its monopoly franchise. See 737 F.Supp., at 612. Accordingly, one could plausibly conclude that this selection was dictated by state law, not by Rural.Nor can Rural claim originality in its coordination and arrangement of facts. The white pages do nothing more than list Rural's subscribers in alphabetical order. This arrangement may, technically speaking, owe its origin to Rural; no one disputes that Rural undertook the task of alphabetizing the names itself. But there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. See Brief for Information Industry Association et al. as Amici Curiae 10 (alphabetical arrangement "is universally observed in directories published by local exchange telephone companies"). It is not only unoriginal, it is practically inevitable. This time-honored tradition does not possess the minimal creative spark required by the Copyright Act and the Constitution.We conclude that the names, towns, and telephone numbers copied by Feist were not original to Rural, and therefore were not protected by the copyright in Rural's combined white and yellow pages directory. As a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity. Rural's white pages, limited to basic subscriber information and arranged alphabetically, fall short of the mark. As a statutory matter, 17 U.S.C. 101 does not afford protection from copying to a collection of facts that are selected, coordinated, and arranged in a way that utterly lacks originality. Given that some works must fail, we cannot imagine a more likely candidate. Indeed, were we to hold that Rural's white pages pass muster, it is hard to believe that any collection of facts could fail.Because Rural's white pages lack the requisite originality, Feist's use of the listings cannot constitute infringement. This decision should not be construed as demeaning Rural's efforts in compiling its directory, but rather as making clear that copyright rewards originality, not effort. As this Court noted more than a century ago, "great praise may be due to the plaintiffs for their industry and enterprise in publishing this paper, yet the law does not contemplate their being rewarded in this way." Baker v. Selden, 101 U.S., at 105.The judgment of the Court of Appeals isReversed.JUSTICE BLACKMUN concurs in the judgment.[Footnote *] The Court ultimately rendered judgment for Associated Press on noncopyright grounds that are not relevant here. See at 235, 241-242.
1	After a bench trial in petitioner Landgraf's suit under Title VII of the Civil Rights Act of 1964 (Title VII), the District Court found that she had been sexually harassed by a coworker at respondent USI Film Products, but that the harassment was not so severe as to justify her decision to resign her position. Because the court found that her employment was not terminated in violation of Title VII, she was not entitled to equitable relief, and because Title VII did not then authorize any other form of relief, the court dismissed her complaint. While her appeal was pending, the Civil Rights Act of 1991 (1991 Act or Act) became law, 102 of which includes provisions that create a right to recover compensatory and punitive damages for intentional discrimination violative of Title VII (hereinafter 102(a)), and authorize any party to demand a jury trial if such damages are claimed (hereinafter 102(c)). In affirming, the Court of Appeals rejected Landgraf's argument that her case should be remanded for a jury trial on damages pursuant to 102.Held: Section 102 does not apply to a Title VII case that was pending on appeal when the 1991 Act was enacted. Pp. 4-43. (a) Since the President vetoed a 1990 version of the Act on the ground, among others, of perceived unfairness in the bill's elaborate retroactivity provision, it is likely that the omission of comparable language in the 1991 Act was not congressional oversight or unawareness, but was a compromise that made the Act possible. That omission is not dispositive here, because it does not establish precisely where the compromise was struck. For example, a decision to reach only cases still pending, and not those already finally decided, might explain Congress' failure to provide in the 1991 Page II Act, as it had in the 1990 bill, that certain sections would apply to proceedings pending on specified preenactment dates. Pp. 4-11. (b) The text of the 1991 Act does not evince any clear expression of congressional intent as to whether 102 applies to cases arising before the Act's passage. The provisions on which Landgraf relies for such an expression - 402(a), which states that, "[e]xcept as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment," and 402(b) and 109(c), which provide for prospective application in limited contexts - cannot bear the heavy weight she would place upon them by negative inference: her statutory argument would require the Court to assume that Congress chose a surprisingly indirect route to convey an important and easily expressed message. Moreover, the relevant legislative history reveals little to suggest that Members of Congress believed that an agreement had been tacitly reached on the controversial retroactivity issue or that Congress understood or intended the interplay of the foregoing sections to have the decisive effect Landgraf assigns them. Instead, the history conveys the impression that legislators agreed to disagree about whether and to what extent the Act would apply to preenactment conduct. Pp. 11-18. (c) In order to resolve the question left open by the 1991 Act, this Court must focus on the apparent tension between two seemingly contradictory canons for interpreting statutes that do not specify their temporal reach: the rule that a court must apply the law in effect at the time it renders its decision, see Bradley v. Richmond, , and the axiom that statutory retroactivity is not favored, see Bowen v. Georgetown Univ. Hospital, . Pp. 18-20. (d) The presumption against statutory retroactivity is founded upon elementary considerations of fairness dictating that individuals should have an opportunity to know what the law is and to conform their conduct accordingly. It is deeply rooted in this Court's jurisprudence and finds expression in several constitutional provisions, including, in the criminal context, the Ex Post Facto Clause. In the civil context, prospectivity remains the appropriate default rule unless Congress has made clear its intent to disrupt settled expectations. Pp. 20-28. (e) Thus, when a case implicates a federal statute enacted after the events giving rise to the suit, a court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, there is no need to resort to judicial default rules. Where the statute in question unambiguously applies to preenactment conduct, there is no conflict between Page III the anti-retroactivity presumption and the principle that a court should apply the law in effect at the time of decision. Even absent specific legislative authorization, application of a new statute to cases arising before its enactment is unquestionably proper in many situations. However, where the new statute would have a genuinely retroactive effect - i.e., where it would impair rights a party possessed when he acted, increase his liability for past conduct, or impose new duties with respect to transactions already completed - the traditional presumption teaches that the statute does not govern absent clear congressional intent favoring such a result. Bradley did not displace the traditional presumption. Pp. 28-36. (f) Application of the foregoing principles demonstrates that, absent guiding instructions from Congress, 102 is not the type of provision that should govern cases arising before its enactment, but is instead subject to the presumption against statutory retroactivity. Section 102(b)(1), which authorizes punitive damages in certain circumstances, is clearly subject to the presumption, since the very labels given "punitive" or "exemplary" damages, as well as the rationales supporting them, demonstrate that they share key characteristics of criminal sanctions, and therefore would raise a serious question under the Ex Post Facto Clause if retroactively imposed. While the 102(a)(1) provision authorizing compensatory damages is not so easily classified, it is also subject to the presumption, since it confers a new right to monetary relief on persons like Landgraf, who were victims of a hostile work environment but were not constructively discharged, and substantially increases the liability of their employers for the harms they caused, and thus would operate "retrospectively" if applied to preenactment conduct. Although a jury trial right is ordinarily a procedural change of the sort that would govern in trials conducted after its effective date regardless of when the underlying conduct occurred, the jury trial option set out in 102(c)(1) must fall with the attached damages provisions because 102(c) makes a jury trial available only "[i]f a complaining party seeks compensatory or punitive damages." Pp. 36-43. 968 F.2d 427, affirmed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which KENNEDY and THOMAS, JJ., joined. BLACKMUN, J., filed a dissenting opinion. [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 1] JUSTICE STEVENS delivered the opinion of the Court.The Civil Rights Act of 1991 (1991 Act or Act) creates a right to recover compensatory and punitive damages for certain violations of Title VII of the Civil Rights Act of 1964. See Rev. Stat. 1977A(a), 42 U.S.C. 1981a(a), as added by 102 of the 1991 Act, Pub. L. 102-166, 105 Stat. 1071. The Act further provides that any party may demand a trial by jury if such damages are sought.1 We granted certiorari to decide whether these provisions apply to a Title VII case that was pending on appeal when the statute was enacted. We hold that they do not.IFrom September 4, 1984, through January 17, 1986, petitioner Barbara Landgraf was employed in the USI Film Products (USI) plant in Tyler, Texas. She worked the 11 p.m. to 7 a.m. shift operating a machine that produced plastic bags. A fellow employee named John [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 2] Williams repeatedly harassed her with inappropriate remarks and physical contact. Petitioner's complaints to her immediate supervisor brought her no relief, but when she reported the incidents to the personnel manager, he conducted an investigation, reprimanded Williams, and transferred him to another department. Four days later, petitioner quit her job.Petitioner filed a timely charge with the Equal Employment Opportunity Commission (EEOC or Commission). The Commission determined that petitioner had likely been the victim of sexual harassment creating a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., but concluded that her employer had adequately remedied the violation. Accordingly, the Commission dismissed the charge and issued a notice of right to sue.On July 21, 1989, petitioner commenced this action against USI, its corporate owner, and that company's successor-in-interest.2 After a bench trial, the District Court found that Williams had sexually harassed petitioner causing her to suffer mental anguish. However, the court concluded that she had not been constructively discharged. The court said: "Although the harassment was serious enough to establish that a hostile work environment existed for Landgraf, it was not so severe that a reasonable person would have felt compelled to resign. This is particularly true in light of the fact that at the time Landgraf resigned from her job, USI had taken steps ... to eliminate the hostile working environment arising from the sexual harassment. Landgraf voluntarily resigned from her employment with USI [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 3] for reasons unrelated to the sexual harassment in question." App. to Pet. for Cert. B-3-4. Because the court found that petitioner's employment was not terminated in violation of Title VII, she was not entitled to equitable relief, and because Title VII did not then authorize any other form of relief, the court dismissed her complaint.On November 21, 1991, while petitioner's appeal was pending, the President signed into law the Civil Rights Act of 1991. The Court of Appeals rejected petitioner's argument that her case should be remanded for a jury trial on damages pursuant to the 1991 Act. Its decision not to remand rested on the premise that "a court must `apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.' Bradley [v. Richmond School Bd., ." 968 F.2d 427, 432 (CA 5 1992). Commenting first on the provision for a jury trial in 102(c), the court stated that requiring the defendant "to retry this case because of a statutory change enacted after the trial was completed would be an injustice and a waste of judicial resources. We apply procedural rules to pending cases, but we do not invalidate procedures followed before the new rule was adopted." 968 F.2d at 432-433. The court then characterized the provision for compensatory and punitive damages in 102 as "a sea-change in employer liability for Title VII violations," and concluded that it would be unjust to apply this kind of additional and unforeseeable obligation to conduct occurring before the effective date of the Act. Ibid. Finding no clear error in the District Court's factual findings, the Court of Appeals affirmed the judgment for respondents.We granted certiorari and set the case for argument with Rivers v. Roadway Express, Inc., post, at ___. Our order limited argument to the question whether 102 of [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 4] the 1991 Act applies to cases pending when it became law. ___ (1993). Accordingly, for purposes of our decision, we assume that the District Court and the Court of Appeals properly applied the law in effect at the time of the discriminatory conduct, and that the relevant findings of fact were correct. We therefore assume that petitioner was the victim of sexual harassment violative of Title VII, but that the law did not then authorize any recovery of damages, even though she was injured. We also assume, arguendo, that, if the same conduct were to occur today, petitioner would be entitled to a jury trial and that the jury might find that she was constructively discharged, or that her mental anguish or other injuries would support an award of damages against her former employer. Thus, the controlling question is whether the Court of Appeals should have applied the law in effect at the time the discriminatory conduct occurred or at the time of its decision in July, 1992.IIPetitioner's primary submission is that the text of the 1991 Act requires that it be applied to cases pending on its enactment. Her argument, if accepted, would make the entire Act (with two narrow exceptions) applicable to conduct that occurred, and to cases that were filed, before the Act's effective date. Although only 102 is at issue in this case, we therefore preface our analysis with a brief description of the scope of the 1991 Act.The Civil Rights Act of 1991 is in large part a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964. Section 3(4) expressly identifies as one of the Act's purposes "to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination." That section, as well as a specific finding in 2(2), identifies Wards Cove Packing Co. v. [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 5] Atonio, , as a decision that gave rise to special concerns.3 Section 105 of the Act, entitled "Burden of Proof in Disparate Impact Cases," is a direct response to Wards Cove.Other sections of the Act were obviously drafted with "recent decisions of the Supreme Court" in mind. Thus, 101 (which is at issue in Rivers, post, at ___) amended the 1866 Civil Rights Act's prohibition of racial discrimination in the "mak[ing] and enforce[ment] [of] contracts," 42 U.S.C. 1981 (1988 ed., Supp. III), in response to Patterson v. McLean Credit Union, ; 107 responds to Price Waterhouse v. Hopkins, , by setting forth standards applicable in "mixed motive" cases; 108 responds to Martin v. Wilks, , by prohibiting certain challenges to employment practices implementing consent decrees; 109 responds to EEOC v. Arabian American Oil Co., , by redefining the term "employee" as used in Title VII to include certain United States citizens working in foreign countries for United States employers; 112 responds to Lorance v. AT&T Technologies, Inc., , by expanding employees' rights to challenge discriminatory seniority systems; 113 responds to West Virginia Univ. Hospitals, Inc. v. Casey, , by providing that an award of attorney's fees may include expert fees; and 114 responds to Library of Congress v. Shaw, , by allowing interest on judgments against the United States. [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 6] A number of important provisions in the Act, however, were not responses to Supreme Court decisions. For example, 106 enacts a new prohibition against adjusting test scores "on the basis of race, color, religion, sex, or national origin"; 117 extends the coverage of Title VII to include the House of Representatives and certain employees of the Legislative Branch; and 301-325 establish special procedures to protect Senate employees from discrimination. Among the provisions that did not directly respond to any Supreme Court decision is the one at issue in this case, 102.Entitled "Damages in Cases of Intentional Discrimination," 102 provides in relevant part:"(a) Right of Recovery. - "(1) Civil Rights. - In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U.S.C. 1981), the complaining party may recover compensatory and punitive damages ... in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent. ... . ."(c) Jury Trial. - If a complaining party seeks compensatory or punitive damages under this section - "(1) any party may demand a trial by jury. Before the enactment of the 1991 Act, Title VII afforded only "equitable" remedies. The primary form of [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 7] monetary relief available was backpay.4 Title VII's back pay remedy,5 modeled on that of the National Labor Relations Act, 29 U.S.C. 160(c), is a "make-whole" remedy that resembles compensatory damages in some respects. See Albemarle Paper Co. v. Moody, . However, the new compensatory damages provision of the 1991 Act is "in addition to," and does not replace or duplicate, the backpay remedy allowed under prior law. Indeed, to prevent double recovery, the 1991 Act provides that compensatory damages "shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964." 102(b)(2).Section 102 significantly expands the monetary relief potentially available to plaintiffs who would have been entitled to backpay under prior law. Before 1991, for example, monetary relief for a discriminatorily discharged employee generally included "only an amount equal to the wages the employee would have earned [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 8] from the date of discharge to the date of reinstatement, along with lost fringe benefits such as vacation pay and pension benefits. United States v. Burke___, ___ (slip op., at 9-10) (1992). Under 102, however, a Title VII plaintiff who wins a backpay award may also seek compensatory damages for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." 102(b)(3). In addition, when it is shown that the employer acted "with malice or with reckless indifference to the [plaintiff's] federally protected rights," 102(b)(1), a plaintiff may recover punitive damages.6 Section 102 also allows monetary relief for some forms of workplace discrimination that would not previously have justified any relief under Title VII. As this case illustrates, even if unlawful discrimination was proved, under prior law a Title VII plaintiff could not recover monetary relief unless the discrimination was also found to have some concrete effect on the plaintiff's employment status, such as a denied promotion, a differential in compensation, or termination. See Burke, supra, at ___ (slip op., at 10-11). ("[T]he circumscribed remedies available under Title VII [before the 1991 Act] stand in marked contrast not only to those available under traditional tort law, but under other federal anti-discrimination statutes, as well"). Section 102, however, allows a plaintiff to recover in circumstances in which there has been unlawful discrimination in the "terms, [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 9] conditions, or privileges of employment," 42 U.S.C. 2000e-2(a)(1),7 even though the discrimination did not involve a discharge or a loss of pay. In short, to further Title VII's "central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination," Albemarle Paper Co.at 421, 102 of the 1991 Act effects a major expansion in the relief available to victims of employment discrimination.In 1990, a comprehensive civil rights bill passed both Houses of Congress. Although similar to the 1991 Act in many other respects, the 1990 bill differed in that it contained language expressly calling for application of many of its provisions, including the section providing for damages in cases of intentional employment discrimination, to cases arising before its (expected) enactment.8 [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 10] The President vetoed the 1990 legislation, however, citing the bill's "unfair retroactivity rules" as one reason for his disapproval.9 Congress narrowly failed to override the veto. See 136 Cong. Rec. S16589 (Oct. 24, 1990) (66-34 Senate vote in favor of override). [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 11] The absence of comparable language in the 1991 Act cannot realistically be attributed to oversight or to unawareness of the retroactivity issue. Rather, it seems likely that one of the compromises that made it possible to enact the 1991 version was an agreement not to include the kind of explicit retroactivity command found in the 1990 bill.The omission of the elaborate retroactivity provision of the 1990 bill - which was by no means the only source of political controversy over that legislation - is not dispositive, because it does not tell us precisely where the compromise was struck in the 1991 Act. The Legislature might, for example, have settled in 1991 on a less expansive form of retroactivity that, unlike the 1990 bill, did not reach cases already finally decided. See n. 8 supra. A decision to reach only cases still pending might explain Congress' failure to provide in the 1991 Act, as it had in 1990, that certain sections would apply to proceedings pending on specific preenactment dates. Our first question, then, is whether the statutory text on which petitioner relies manifests an intent that the 1991 Act should be applied to cases that arose and went to trial before its enactment.IIIPetitioner's textual argument relies on three provisions of the 1991 Act: 402(a), 402(b), and 109(c). Section 402(a), the only provision of the Act that speaks directly to the question before us, states: "Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment." That language does not, by itself, resolve the question before us. A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 12] occurred at an earlier date.10 Petitioner does not argue otherwise. Rather, she contends that the introductory clause of 402(a) would be superfluous unless it refers to 402(b) and 109(c), which provide for prospective application in limited contexts.The parties agree that 402(b) was intended to exempt a single disparate impact lawsuit against the Wards Cove Packing Company. Section 402(b) provides: "(b) Certain Disparate Impact Cases. - Notwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 13] March 1, 1975, and for which an initial decision was rendered after October 30, 1983." Section 109(c), part of the section extending Title VII to overseas employers, states: "(c) Application of Amendments. - The amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act." According to petitioner, these two subsections are the "other provisions" contemplated in the first clause of 402(a), and together create a strong negative inference that all sections of the Act not specifically declared prospective apply to pending cases that arose before November 21, 1991.Before addressing the particulars of petitioner's argument, we observe that she places extraordinary weight on two comparatively minor and narrow provisions in a long and complex statute. Applying the entire Act to cases arising from preenactment conduct would have important consequences, including the possibility that trials completed before its enactment would need to be retried and the possibility that employers would be liable for punitive damages for conduct antedating the Act's enactment. Purely prospective application, on the other hand, would prolong the life of a remedial scheme, and of judicial constructions of civil rights statutes, that Congress obviously found wanting. Given the high stakes of the retroactivity question, the broad coverage of the statute, and the prominent and specific retroactivity provisions in the 1990 bill, it would be surprising for Congress to have chosen to resolve that question through negative inferences drawn from two provisions of quite limited effect.Petitioner, however, invokes the canon that a court should give effect to every provision of a statute and thus avoid redundancy among different provisions. See, [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 14] e.g., Mackey v. Lanier Collection Agency & Service, Inc., , and n. 11 (1988). Unless the word "otherwise" in 402(a) refers to either 402(b) or 109(c), she contends, the first five words in 402(a) are entirely superfluous. Moreover, relying on the canon "[e]xpressio unius est exclusio alterius," see Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit___, ___ (1993) (slip op., at 5), petitioner argues that, because Congress provided specifically for prospectivity in two places ( 109(c) and 402(b)), we should infer that it intended the opposite for the remainder of the statute.Petitioner emphasizes that 402(a) begins: "Except as otherwise specifically provided." A scan of the statute for other "specific provisions" concerning effective dates reveals that 402(b) and 109(c) are the most likely candidates. Since those provisions decree prospectivity, and since 402(a) tells us that the specific provisions are exceptions, 402(b) should be considered as prescribing a general rule of retroactivity. Petitioner's argument has some force, but we find it most unlikely that Congress intended the introductory clause to carry the critically important meaning petitioner assigns it. Had Congress wished 402(a) to have such a determinate meaning, it surely would have used language comparable to its reference to the predecessor Title VII damages provisions in the 1990 legislation: that the new provisions "shall apply to all proceedings pending on or commenced after the date of enactment of this Act." S. 2104, 101st Cong., 1st Sess. 15(a)(4) (1990).It is entirely possible that Congress inserted the "otherwise specifically provided" language not because it understood the "takes effect" clause to establish a rule of retroactivity to which only two "other specific provisions" would be exceptions, but instead to assure that any specific timing provisions in the Act would prevail over the general "take effect on enactment" command. [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 15] The drafters of a complicated piece of legislation containing more than 50 separate sections may well have inserted the "except as otherwise provided" language merely to avoid the risk of an inadvertent conflict in the statute.11 If the introductory clause of 402(a) was intended to refer specifically to 402(b), 109(c), or both, it is difficult to understand why the drafters chose the word "otherwise" rather than either or both of the appropriate section numbers.We are also unpersuaded by petitioner's argument that both 402(b) and 109(c) merely duplicate the "take effect upon enactment" command of 402(a) unless all other provisions, including the damages provisions of 102, apply to pending cases. That argument depends on the assumption that all those other provisions must be treated uniformly for purposes of their application to pending cases based on preenactment conduct. That thesis, however, is by no means an inevitable one. It is entirely possible - indeed, highly probable - that, because it was unable to resolve the retroactivity issue with the clarity of the 1990 legislation, Congress viewed the matter as an open issue to be resolved by the courts. Our precedents on retroactivity left doubts about what default rule would apply in the absence of congressional guidance, and suggested that some provisions might apply to cases arising before enactment while others might not.12 Compare Bowen v. Georgetown Univ. [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 16] Hospital, with Bradley v. Richmond School Bd., . See also Bennett v. New Jersey, . The only matters Congress did not leave to the courts were set out with specificity in 109(c) and 402(b). Congressional doubt concerning judicial retroactivity doctrine, coupled with the likelihood that the routine "take effect upon enactment" language would require courts to fall back upon that doctrine, provide a plausible explanation for both 402(b) and 109(c) that makes neither provision redundant.Turning to the text of 402(b), it seems unlikely that the introductory phrase ("Notwithstanding any other provision of this Act") was meant to refer to the immediately preceding subsection. Since petitioner does not contend that any other provision speaks to the general effective date issue, the logic of her argument requires us to interpret that phrase to mean nothing more than "Notwithstanding 402(a)." Petitioner's textual argument assumes that the drafters selected the indefinite word "otherwise" in 402(a) to identify two specific subsections and the even more indefinite term "any other provision" in 402(b) to refer to nothing more than 402(b)'s next-door neighbor - 402(a). Here again, petitioner's statutory argument would require us to assume that Congress chose a surprisingly indirect route to convey an important and easily expressed message concerning the Act's effect on pending cases.The relevant legislative history of the 1991 Act reinforces our conclusion that 402(a), 109(c) and 402(b) [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 17] cannot bear the weight petitioner places upon them. The 1991 bill as originally introduced in the House contained explicit retroactivity provisions similar to those found in the 1990 bill.13 However, the Senate substitute that was agreed upon omitted those explicit retroactivity provisions.14 The legislative history discloses some frankly partisan statements about the meaning of the final effective date language, but those statements cannot plausibly be read as reflecting any general agreement.15 The history reveals no evidence that [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 18] Members believed that an agreement had been tacitly struck on the controversial retroactivity issue, and little to suggest that Congress understood or intended the interplay of 402(a), 402(b) and 109(c) to have the decisive effect petitioner assigns them. Instead, the history of the 1991 Act conveys the impression that legislators agreed to disagree about whether and to what extent the Act would apply to preenactment conduct.Although the passage of the 1990 bill may indicate that a majority of the 1991 Congress also favored retroactive application, even the will of the majority does not become law unless it follows the path charted in Article I, 7, cl. 2 of the Constitution. See INS v. Chadha, . In the absence of the kind of unambiguous directive found in 15 of the 1990 bill, we must look elsewhere for guidance on whether 102 applies to this case.IVIt is not uncommon to find "apparent tension" between different canons of statutory construction. As Professor Llewellyn famously illustrated, many of the traditional canons have equal opposites.16 In order to resolve the question left open by the 1991 Act, federal courts have labored to reconcile two seemingly contradictory statements found in our decisions concerning the effect of [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 19] intervening changes in the law. Each statement is framed as a generally applicable rule for interpreting statutes that do not specify their temporal reach. The first is the rule that "a court is to apply the law in effect at the time it renders its decision," Bradley, 416 U.S., at 711. The second is the axiom that "[r]etroactivity is not favored in the law," and its interpretive corollary that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Bowen, 488 U.S., at 208.We have previously noted the "apparent tension" between those expressions. See Kaiser Aluminum & Chemical Corp. v. Bonjorno, ; see also Bennett, 470 U.S., at 639-640. We found it unnecessary in Kaiser to resolve that seeming conflict "because under either view, where the congressional intent is clear, it governs," and the prejudgment interest statute at issue in that case evinced "clear congressional intent" that it was "not applicable to judgments entered before its effective date." 499 U.S., at 837-838. In the case before us today, however, we have concluded that the Civil Rights Act of 1991 does not evince any clear expression of intent on 102's application to cases arising before the Act's enactment. We must, therefore, focus on the apparent tension between the rules we have espoused for handling similar problems in the absence of an instruction from Congress.We begin by noting that there is no tension between the holdings in Bradley and Bowen, both of which were unanimous decisions. Relying on another unanimous decision - Thorpe v. Housing Authority of Durham, - we held in Bradley that a statute authorizing the award of attorney's fees to successful civil rights plaintiffs applied in a case that was pending on appeal at the time the statute was enacted. Bowen held that the Department of Health and Human Services [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 20] lacked statutory authority to promulgate a rule requiring private hospitals to refund Medicare payments for services rendered before promulgation of the rule. Our opinion in Bowen did not purport to overrule Bradley or to limit its reach. In this light, we turn to the "apparent tension" between the two canons mindful of another canon of unquestionable vitality, the "maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used." Cohens v. Virginia, 6 Wheat. 264, 399 (1821).AAs JUSTICE SCALIA has demonstrated, the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.17 Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.18 For that reason, the "principle [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 21] that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal." Kaiser, 494 U.S., at 855 (SCALIA, J., concurring). In a free, dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions.It is therefore not surprising that the anti-retroactivity principle finds expression in several provisions of our Constitution. The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation.19 Article I, 10, cl. 1 prohibits States from passing another type of retroactive legislation, laws "impairing the Obligation of Contracts." The Fifth Amendment's Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a "public use" and upon payment of "just compensation." The prohibitions on "Bills of Attainder" in Art. I, 9-10, prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct. See, e.g., United States v. Brown, . The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute's prospective application under the Clause "may not suffice" to warrant its retroactive application. Usery v. Turner Elkhorn Mining Co., .These provisions demonstrate that retroactive statutes raise particular concerns. The Legislature's unmatched powers allow it to sweep away settled expectations [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 22] suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. As Justice Marshall observed in his opinion for the Court in Weaver v. Graham, , the Ex Post Facto Clause not only ensures that individuals have "fair warning" about the effect of criminal statutes, but also "restricts governmental power by restraining arbitrary and potentially vindictive legislation." Id. at 28-29 (citations omitted).20 [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 23] The Constitution's restrictions, of course, are of limited scope. Absent a violation of one of those specific provisions, the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.21 Retroactivity provisions often serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary. However, a requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness.While statutory retroactivity has long been disfavored, deciding when a statute operates "retroactively" is not always a simple or mechanical task. Sitting on Circuit, Justice Story offered an influential definition in Society for Propagation of the Gospel v. Wheeler, 22 F.Cas. 756 (No. 13,156) (CCDNH 1814), a case construing a provision of the New Hampshire Constitution that broadly prohibits "retrospective" laws both criminal and civil.22 [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 24] Justice Story first rejected the notion that the provision bars only explicitly retroactive legislation, i.e., "statutes ... enacted to take effect from a time anterior to their passage[.]" Id., at 767. Such a construction, he concluded, would be "utterly subversive of all the objects" of the prohibition. Ibid. Instead, the ban on retrospective legislation embraced "all statutes, which, though operating only from their passage, affect vested rights and past transactions." Ibid. "Upon principle," Justice Story elaborated,"every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective... ." Ibid. (citing Calder v. Bull, 3 Dall. 386 (1798) and Dash v. Van Kleek, 7 Johns. 477 (N.Y. 1811)). Though the formulas have varied, similar functional conceptions of legislative "retroactivity" have found voice in this Court's decisions and elsewhere.23 [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 25] A statute does not operate "retrospectively" merely because it is applied in a case arising from conduct antedating the statute's enactment, see Republic Nat. Bank of Miami v. United States___, ___ (1992) (slip op., at 2) (THOMAS, J., concurring in part and concurring in judgment), or upsets expectations based in prior law.24 Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have "sound ... instinct[s]," see Danforth v. Groton Water [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 26] Co., 178 Mass. 472, 476, 59 N. E. 1033, 1034 (1901) (Holmes, J.), and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.Since the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent. Thus, in United States v. Heth, 3 Cranch 399 (1806), we refused to apply a federal statute reducing the commissions of customs collectors to collections commenced before the statute's enactment because the statute lacked "clear, strong, and imperative" language requiring retroactive application, id. at 413 (opinion of Paterson, J.). The presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact. Indeed, at common law a contrary rule applied to statutes that merely removed a burden on private rights by repealing a penal provision (whether criminal or civil); such repeals were understood to preclude punishment for acts antedating the repeal. See, e.g., United States v. Chambers; Gulf, C. & S. F. R. Co. v. Dennis; United States v. Tynen, 11 Wall. 88, 93-95 (1871); Norris v. Crocker, 13 How. 429, 440-441 (1852); Maryland v. Baltimore & Ohio R. Co., 3 How. 534, 552 (1845); Yeaton v. United States, 5 Cranch 281, 284 (1809). But see 1 U.S.C. 109 (repealing common law rule).The largest category of cases in which we have applied the presumption against statutory retroactivity has involved new provisions affecting contractual or property rights, matters in which predictability and stability are of prime importance.25 The presumption has not, [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 27] however, been limited to such cases. At issue in Chew Heong v. United States, for example, was a provision of the "Chinese Restriction Act" of 1882 barring Chinese laborers from reentering the United States without a certificate prepared when they exited this country. We held that the statute did not bar the reentry of a laborer who had left the United States before the certification requirement was promulgated. Justice Harlan's opinion for the Court observed that the law in effect before the 1882 enactment had accorded laborers a right to reenter without a certificate, and invoked the "uniformly" accepted rule against "giv[ing] to statutes a retrospective operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature." Id., at 559.Our statement in Bowen that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result," 488 U.S., at 208, was in step with this long line of cases.26 Bowen itself was a paradigmatic [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 28] case of retroactivity in which a federal agency sought to recoup, under cost limit regulations issued in 1984, funds that had been paid to hospitals for services rendered earlier, see id., at 207; our search for clear congressional intent authorizing retroactivity was consistent with the approach taken in decisions spanning two centuries.The presumption against statutory retroactivity had special force in the era in which courts tended to view legislative interference with property and contract rights circumspectly. In this century, legislation has come to supply the dominant means of legal ordering, and circumspection has given way to greater deference to legislative judgments. See Usery v. Turner Elkhorn Mining Co., 428 U.S., at 15-16; Home Bldg. & Loan Assn. v. Blaisdell. But while the constitutional impediments to retroactive civil legislation are now modest, prospectivity remains the appropriate default rule. Because it accords with widely held intuitions about how statutes ordinarily operate, a presumption against retroactivity will generally coincide with legislative and public expectations. Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits. Such a requirement allocates to Congress responsibility for fundamental policy judgments concerning the proper temporal reach of statutes, and has the additional virtue of giving legislators a predictable background rule against which to legislate.BAlthough we have long embraced a presumption against statutory retroactivity, for just as long we have recognized that, in many situations, a court should "apply the law in effect at the time it renders its [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 29] decision," Bradley, 416 U.S., at 711, even though that law was enacted after the events that gave rise to the suit. There is, of course, no conflict between that principle and a presumption against retroactivity when the statute in question is unambiguous. Chief Justice Marshall's opinion in United States v. Schooner Peggy, 1 Cranch 103 (1801), illustrates this point. Because a treaty signed on September 30, 1800, while the case was pending on appeal, unambiguously provided for the restoration of captured property "not yet definitively condemned," id., at 107 (emphasis in original), we reversed a decree entered on September 23, 1800, condemning a French vessel that had been seized in American waters. Our application of "the law in effect" at the time of our decision in Schooner Peggy was simply a response to the language of the statute. Id., at 109.Even absent specific legislative authorization, application of new statutes passed after the events in suit is unquestionably proper in many situations. When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive. Thus, in American Steel Foundries v. Tri-City Central Trades Council, we held that 20 of the Clayton Act, enacted while the case was pending on appeal, governed the propriety of injunctive relief against labor picketing. In remanding the suit for application of the intervening statute, we observed that "relief by injunction operates in futuro," and that the plaintiff had no "vested right" in the decree entered by the trial court. 257 U.S., at 201. See also, e.g., Hall v. Beals, ; Duplex Printing Press Co. v. Deering.We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. Thus, in Bruner v. United [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 30] States, , relying on our "consisten[t]" practice, we ordered an action dismissed because the jurisdictional statute under which it had been (properly) filed was subsequently repealed.27 See also Hallowell v. Commons; The Assessors v. Osbornes, 9 Wall. 567, 575 (1870). Conversely, in Andrus v. Charlestone Stone Products Co., , n. 6 (1978), we held that, because a statute passed while the case was pending on appeal had eliminated the "amount in controversy" requirement for federal question cases, the fact that respondent had failed to allege $10,000 in controversy at the commencement of the action was "now of no moment." See also United States v. Alabama, (per curiam); Stephens v. Cherokee Nation. Application of a new jurisdictional rule usually "takes away no substantive right, but simply changes the tribunal that is to hear the case." Hallowell, 239 U.S., at 508. Present law normally governs in such situations because jurisdictional statutes "speak to the power of the court, rather than to the rights or obligations of the parties," Republic Nat. Bank of Miami, 506 U.S., at ___ (slip op., at 2) (THOMAS, J., concurring).Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity. For example, in Ex parte Collett, , we held that 28 U.S.C. 1404(a) governed the transfer of an action [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 31] instituted prior to that statute's enactment. We noted the diminished reliance interests in matters of procedure. Id., at 71.28 Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive. Cf. McBurney v. Carson.29 Petitioner relies principally upon Bradley v. Richmond School Bd., , and Thorpe v. Housing Authority of Durham, , in support of her argument that our ordinary interpretive rules [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 32] support application of 102 to her case. In Thorpe, we held that an agency circular requiring a local housing authority to give notice of reasons and opportunity to respond before evicting a tenant was applicable to an eviction proceeding commenced before the regulation issued. Thorpe shares much with both the "procedural" and "prospective relief" cases. See supra, at 29-31. Thus, we noted in Thorpe that new hearing procedures did not affect either party's obligations under the lease agreement between the housing authority and the petitioner, 393 U.S., at 279, and, because the tenant had "not yet vacated," we saw no significance in the fact that the housing authority had "decided to evict her before the circular was issued," id. at 283. The Court in Thorpe viewed the new eviction procedures as "essential to remove a serious impediment to the successful protection of constitutional rights." Id., at 283.30 Cf. Youakim v. Miller, (per curiam) (citing Thorpe for propriety of applying new law to avoiding necessity of deciding constitutionality of old one).Our holding in Bradley is similarly compatible with the line of decisions disfavoring "retroactive" application of statutes. In Bradley, the District Court had awarded attorney's fees and costs, upon general equitable principles, to parents who had prevailed in an action seeking to desegregate the public schools of Richmond, Virginia. While the case was pending before the Court of Appeals, [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 33] Congress enacted 718 of the Education Amendments of 1972, which authorized federal courts to award the prevailing parties in school desegregation cases a reasonable attorney's fee. The Court of Appeals held that the new fee provision did not authorize the award of fees for services rendered before the effective date of the amendments. This Court reversed. We concluded that the private parties could rely on 718 to support their claim for attorney's fees, resting our decision "on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." 416 U.S., at 711.Although that language suggests a categorical presumption in favor of application of all new rules of law, we now make it clear that Bradley did not alter the well-settled presumption against application of the class of new statutes that would have genuinely "retroactive" effect. Like the new hearing requirement in Thorpe, the attorney's fee provision at issue in Bradley did not resemble the cases in which we have invoked the presumption against statutory retroactivity. Attorney's fee determinations, we have observed, are "collateral to the main cause of action" and "uniquely separable from the cause of action to be proved at trial." White v. New Hampshire Dept. of Employment Security, . See also Hutto v. Finney, , n. 24 (1978). Moreover, even before the enactment of 718, federal courts had authority (which the District Court in Bradley had exercised) to award fees based upon equitable principles. As our opinion in Bradley made clear, it would be difficult to imagine a stronger equitable case for an attorney's fee award than a lawsuit in which the plaintiff parents would otherwise have to bear the costs of desegregating their children's public schools. See 416 U.S., at 718 (noting that the [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 34] plaintiffs had brought the school board "into compliance with its constitutional mandate") (citing Brown v. Board of Education, ). In light of the prior availability of a fee award, and the likelihood that fees would be assessed under preexisting theories, we concluded that the new fee statute simply "did not impose an additional or unforeseeable obligation" upon the school board. Bradley, 416 U.S., at 721.In approving application of the new fee provision, Bradley did not take issue with the long line of decisions applying the presumption against retroactivity. Our opinion distinguished, but did not criticize, prior cases that had applied the anti-retroactivity canon. See 416 U.S., at 720 (citing Greene v. United States, ; Claridge Apartments Co. v. Commissioner, , and Union Pacific R. Co. v. Laramie Stock Yards Co.). The authorities we relied upon in Bradley lend further support to the conclusion that we did not intend to displace the traditional presumption against applying statutes affecting substantive rights, liabilities, or duties to conduct arising before their enactment. See Kaiser, 494 U.S., at 849-850 (SCALIA, J., concurring). Bradley relied on Thorpe and on other precedents that are consistent with a presumption against statutory retroactivity, including decisions involving explicitly retroactive statutes, see 416 U.S., at 713, n. 17 (citing, inter alia, Freeborn v. Smith, 2 Wall. 160 (1865)),31 the retroactive application of intervening judicial decisions, see 416 [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 35] U.S., at 713-714, n. 17 (citing, inter alia, Patterson v. Alabama),32 statutes altering jurisdiction, 416 U.S., at 713, n. 17 (citing, inter alia, United States v. Alabama, ), and repeal of a criminal statute, 416 U.S., at 713, n. 17 (citing United States v. Chambers ). Moreover, in none of our decisions that have relied upon Bradley or Thorpe have we cast doubt on the traditional presumption against truly "retrospective" application of a statute.33 [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 36] When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.VWe now ask whether, given the absence of guiding instructions from Congress, 102 of the Civil Rights Act of 1991 is the type of provision that should govern cases [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 37] arising before its enactment. As we observed supra, at 15, there is no special reason to think that all the diverse provisions of the Act must be treated uniformly for such purposes. To the contrary, we understand the instruction that the provisions are to "take effect upon enactment" to mean that courts should evaluate each provision of the Act in light of ordinary judicial principles concerning the application of new rules to pending cases and preenactment conduct.Two provisions of 102 may be readily classified according to these principles. The jury trial right set out in 102(c)(1) is plainly a procedural change of the sort that would ordinarily govern in trials conducted after its effective date. If 102 did no more than introduce a right to jury trial in Title VII cases, the provision would presumably apply to cases tried after November 21, 1991, regardless of when the underlying conduct occurred.34 However, because 102(c) makes a jury trial available only "[i]f a complaining party seeks compensatory or punitive damages," the jury trial option must stand or fall with the attached damages provisions.Section 102(b)(1) is clearly on the other side of the line. That subsection authorizes punitive damages if the plaintiff shows that the defendant "engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." The very labels given "punitive" or "exemplary" damages, as well as the rationales that support them, demonstrate that they share key characteristics of criminal sanctions. [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 38] Retroactive imposition of punitive damages would raise a serious constitutional question. See Turner Elkhorn, 428 U.S., at 17 (Court would "hesitate to approve the retrospective imposition of liability on any theory of deterrence ... or blameworthiness"); De Veau v. Braisted, ("The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts"). See also Louis Vuitton S. A. v. Spencer Handbags Corp., 765 F.2d 966, 972 (CA2 1985) (retroactive application of punitive treble damages provisions of Trademark Counterfeiting Act of 1984 "would present a potential ex post facto problem"). Before we entertained that question, we would have to be confronted with a statute that explicitly authorized punitive damages for preenactment conduct. The Civil Rights Act of 1991 contains no such explicit command.The provision of 102(a)(1) authorizing the recovery of compensatory damages is not easily classified. It does not make unlawful conduct that was lawful when it occurred; as we have noted, supra, at 6-8, 102 only reaches discriminatory conduct already prohibited by Title VII. Concerns about a lack of fair notice are further muted by the fact that such discrimination was in many cases (although not this one) already subject to monetary liability in the form of backpay. Nor could anyone seriously contend that the compensatory damages provisions smack of a "retributive" or other suspect legislative purpose. Section 102 reflects Congress' desire to afford victims of discrimination more complete redress for violations of rules established more than a generation ago in the Civil Rights Act of 1964. At least with respect to its compensatory damages provisions, then, 102 is not in a category in which objections to retroactive application on grounds of fairness have their greatest force. [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 39] Nonetheless, the new compensatory damages provision would operate "retrospectively" if it were applied to conduct occurring before November 21, 1991. Unlike certain other forms of relief, compensatory damages are quintessentially backward-looking. Compensatory damages may be intended less to sanction wrongdoers than to make victims whole, but they do so by a mechanism that affects the liabilities of defendants. They do not "compensate" by distributing funds from the public coffers, but by requiring particular employers to pay for harms they caused. The introduction of a right to compensatory damages is also the type of legal change that would have an impact on private parties' planning.35 In this case, the event to which the new damages provision relates is the discriminatory conduct of respondents' agent John Williams; if applied here, [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 40] that provision would attach an important new legal burden to that conduct. The new damages remedy in 102, we conclude, is the kind of provision that does not apply to events antedating its enactment in the absence of clear congressional intent.In cases like this one, in which prior law afforded no relief, 102 can be seen as creating a new cause of action, and its impact on parties' rights is especially pronounced. Section 102 confers a new right to monetary relief on persons like petitioner who were victims of a hostile work environment but were not constructively discharged, and the novel prospect of damages liability for their employers. Because Title VII previously authorized recovery of backpay in some cases, and because compensatory damages under 102(a) are in addition to any backpay recoverable, the new provision also resembles a statute increasing the amount of damages available under a preestablished cause of action. Even under that view, however, the provision would, if applied in cases arising before the Act's effective date, undoubtedly impose on employers found liable a "new disability" in respect to past events. See Society for Propagation of the Gospel, 22 F.Cas., at 767. The extent of a party's liability, in the civil context as well as the criminal, is an important legal consequence that cannot be ignored.36 Neither in Bradley itself, nor in [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 41] any case before or since in which Congress had not clearly spoken, have we read a statute substantially increasing the monetary liability of a private party to apply to conduct occurring before the statute's enactment. See Winfree v. Northern Pacific R. Co. (statute creating new federal cause of action for wrongful death inapplicable to case arising before enactment in absence of "explicit words" or "clear implication"); United States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells Co. (construing statute restricting subcontractors' rights to recover damages from prime contractors as prospective in absence of "clear, strong and imperative" language from Congress favoring retroactivity).37 [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 42] It will frequently be true, as petitioner and amici forcefully argue here, that retroactive application of a new statute would vindicate its purpose more fully.38 That consideration, however, is not sufficient to rebut the presumption against retroactivity. Statutes are seldom crafted to pursue a single goal, and compromises necessary to their enactment may require adopting [ LANDGRAF v. USI FILM PRODUCTS, ___ U.S. ___ (1994), 43] means other than those that would most effectively pursue the main goal. A legislator who supported a prospective statute might reasonably oppose retroactive application of the same statute. Indeed, there is reason to believe that the omission of the 1990 version's express retroactivity provisions was a factor in the passage of the 1991 bill. Section 102 is plainly not the sort of provision that must be understood to operate retroactively because a contrary reading would render it ineffective.The presumption against statutory retroactivity is founded upon sound considerations of general policy and practice, and accords with long held and widely shared expectations about the usual operation of legislation. We are satisfied that it applies to 102. Because we have found no clear evidence of congressional intent that 102 of the Civil Rights Act of 1991 should apply to cases arising before its enactment, we conclude that the judgment of the Court of Appeals must be affirmed. It is so ordered.
8	At the close of the evidence in a suit in a federal district court under the Jones Act for wrongful death, defendant moved to dismiss the complaint and for a directed verdict in its favor. The court reserved decision on the motion and submitted the case to the jury. A verdict was returned for plaintiff and judgment was entered thereon. Within ten days after reception of the verdict, defendant moved to have it set aside, but did not move for judgment notwithstanding the verdict. The court denied plaintiff's motion to set aside the verdict and denied the pre-verdict motions for dismissal and for a directed verdict. On appeal, the Court of Appeals held that the motion for a directed verdict should have been granted and reversed the judgment of the district court. Held: Under Rule 50 (b) of the Federal Rules of Civil Procedure, the Court of Appeals could not direct entry of a judgment for defendant notwithstanding the verdict. Pp. 49-54. (a) In the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of the verdict, Rule 50 (b) forbids the trial judge or an appellate court to enter such a judgment. P. 50. (b) Defendant's motion to set aside the verdict cannot be treated as a motion to enter judgment notwithstanding the verdict. Pp. 50-51. (c) The trial judge's express reservation of decision on the motion for a directed verdict did not relieve defendant from the duty under Rule 50 (b) to make a motion after the verdict for judgment notwithstanding the verdict. Pp. 51-54. (d) Defendant is entitled only to a new trial, not to a judgment in its favor. P. 54. 194 F.2d 194, judgment vacated and cause remanded. In a suit under the Jones Act, 46 U.S.C. 688, for wrongful death, the District Court rendered judgment for the plaintiff. The Court of Appeals reversed. 194 F.2d 194. This Court granted certiorari. . Judgment vacated and cause remanded, p. 54.Jacquin Frank argued the cause for petitioner. With him on the brief was Herman B. Gerringer.Robert M. Peet argued the cause for respondent. With him on the brief was Edward R. Brumley.MR. JUSTICE BLACK delivered the opinion of the Court.This case raises questions concerning the power of a Court of Appeals to render judgment for a defendant instead of merely ordering a new trial after it has set aside a jury verdict and trial court judgment for a plaintiff.The petitioner sued the respondent railroad under the Jones Act, 46 U.S.C. 688, for wrongful death of her husband. When the evidence was all in, the railroad moved to dismiss the complaint and also asked for a directed verdict in its favor on the grounds that no negligence had been proven and that the deceased had been responsible for his own death. The trial court reserved decision on the motion, submitted the case to the jury, a verdict of $20,000 was returned for petitioner, and judgment was entered on the verdict. Within ten days after reception of the verdict the railroad moved to have the verdict set aside on the ground that it was excessive, contrary to the law, to the evidence, to the weight of the evidence. More than two months later this motion was denied; in the same order denying that motion the court also denied the pre-verdict motions for dismissal and for a directed verdict on which action had been reserved prior to verdict. Holding that the motion for a directed verdict should have been granted, the Court of Appeals reversed. 194 F.2d 194. Both parties agree that this reversal requires the District Court to enter judgment for the railroad notwithstanding the verdict, thereby depriving petitioner of another trial. Whether the Court of Appeals could direct such a judgment consistently with Rule 50 (b) of the Federal Rules of Civil Procedure1 is the single question we granted certiorari to review. .On several recent occasions we have considered Rule 50 (b). We have said that in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict the rule forbids the trial judge or an appellate court to enter such a judgment. Cone v. West Virginia Pulp & Paper Co., . We repeated that construction of the rule in Globe Liquor Co. v. San Roman, , and reemphasized it in Fountain v. Filson, .Although this respondent made several motions it did not as the rule requires move within ten days after verdict "to have judgment entered in accordance with his [its] motion for a directed verdict." We are told, however, in respondent's brief that its motion to set aside the verdict "was intended to be a motion for judgment in its favor or for a new trial" and that "[o]bviously respondent did not merely want the verdict to be set aside but wanted the relief that invariably follows such a setting aside on the grounds urged: a judgment in its favor or a new trial." The defect in this argument is that respondent's motions cannot be measured by its unexpressed intention or wants. Neither the trial judge nor the Court of Appeals appears to have treated the motion to set aside the verdict as asking for anything but that. And surely petitioner is not to have her opportunity to remedy any short-comings in her case jeopardized by a failure to fathom the unspoken hopes of respondent's counsel. Respondent's motion should be treated as nothing but what it actually was, one to set aside the verdict - not one to enter judgment notwithstanding the verdict.Respondent separately argues that a trial judge's express reservation of decision on motion for a directed verdict relieves a party from any duty whatever under 50 (b) to make a motion for judgment after verdict. This contention not only flies in the teeth of the rule's unambiguous language but if sustained would undermine safeguards for litigants some of which have been pointed out in prior cases. The rule carefully sets out the steps and procedures to be followed by the parties as a pre-requisite to entry of judgments notwithstanding an adverse jury verdict. Montgomery Ward & Co. v. Duncan, . It was adopted following confusion in this field brought about in part by three cases decided by this Court, Slocum v. New York Life Ins. Co., ; Baltimore & Carolina Line, Inc. v. Redman, ; and Aetna Ins. Co. v. Kennedy, . The Slocum case was understood to hold that the Seventh Amendment forbade United States courts to enter judgments in favor of one party after jury verdict in favor of the other. The Redman case tried in New York held that the Seventh Amendment did not forbid entry of judgment notwithstanding a verdict where, prior to the verdict, the trial judge, following New York procedure, had expressly reserved his decision on a motion for a directed verdict. The New York District Court was authorized to follow this state practice because of the Conformity Act, R. S. (1878) 914. Thus the Redman case did not purport to adopt New York procedure for the general guidance of federal courts. Later the Kennedy case cast doubt on the Redman holding, at least as to its scope. In the Kennedy case plaintiff's request for directed verdict had not been followed by a timely motion for judgment notwithstanding the verdict as required by Pennsylvania law. Failure to conform to this Pennsylvania practice was a reason given by this Court for finding lack of power in the District Court to enter judgment contrary to the verdict.2 Rule 50 (b) was designed to provide a precise plan to end the prevailing confusion about directed verdicts and motions for judgments notwithstanding verdicts. State procedure was no longer to control federal courts as it had in the Redman and Kennedy cases. Federal courts were to be guided by this new rule, which provided its own exclusive procedural program. It rejected the New York procedure applied in the Redman case, which permitted judgment to be set aside even though no motion to do so had been filed after verdict. Instead it approached more closely the Pennsylvania rule, relied on in the Kennedy case, under which judgments contrary to verdicts would not be awarded in the absence of specific timely motions for them. But Rule 50 (b) departed from the New York and Pennsylvania procedures by making it wholly unnecessary for a judge to make an express reservation of his decision on a motion for directed verdict. The rule itself made the reservation automatic. A court is always "deemed to have submitted the action to the jury subject to a later determination" of the right to a directed verdict if a motion for judgment notwithstanding the verdict is made "within 10 days after the reception of a verdict ... ." This requirement of a timely application for judgment after verdict is not an idle motion. This verdict solves factual questions against the post-verdict movant and thus emphasizes the importance of the legal issues. The movant can also ask for a new trial either for errors of law or on discretionary grounds. The requirement for timely motion after verdict is thus an essential part of the rule, firmly grounded in principles of fairness. See Cone v. West Virginia Pulp & Paper Co., supra, at 217-218. Poor support for its abandonment would be afforded by the mere fact that a judge makes an express reservation of a decision which the rule reserves regardless of what the judge does.Rule 50 (b) as written and as construed by us is not difficult to understand or to observe. Rewriting the rule to fit counsel's unexpressed wants and intentions would make it easy to reintroduce the same type of confusion and uncertainty the rule was adopted to end. In 1946 this Court was asked to adopt an amendment to the rule which would have given appellate courts power to enter judgments for parties who, like this respondent, had made no timely motion for judgment notwithstanding the verdict. We did not adopt the amendment then. 5 Moore, Federal Practice (2d ed. 1951), §§ 50.01 7., 50.01 9., 50.11. No sufficiently persuasive reasons are presented why we should do so now under the guise of interpretation.Respondent made a motion to set aside the verdict and for new trial within the time required by Rule 50 (b). It failed to comply with permission given by 50 (b) to move for judgment n. o. v. after the verdict. In this situation respondent is entitled only to a new trial, not to a judgment in its favor. The judgment of the Court of Appeals is vacated and the cause is remanded to it for further proceedings consistent with this opinion.3 It is so ordered.
8	Section 14 of the Commodity Exchange Act (CEA) provides that any person injured by a commodity broker's violation of the Act or regulations of the Commodity Futures Trading Commission (CFTC) may apply to the CFTC for an order directing the offender to pay reparations to the complainant and may enforce that order in federal district court. The CFTC promulgated a regulation that allows it in a reparations proceeding to adjudicate counterclaims "aris[ing] out of the transaction or occurrence or series of transactions or occurrences set forth in the complaint." Respondents filed separate reparations complaints (later consolidated) with the CFTC against petitioner commodity futures broker (petitioner) and one of its employees, alleging that a debit balance in their accounts with petitioner, resulting from respondents' futures trading losses and expenses being in excess of the funds deposited in the accounts, was the result of petitioner's violations of the CEA. In the meantime, petitioner filed a diversity action in Federal District Court to recover the debit balance, but, after respondents moved to dismiss on the ground that the reparations proceeding would resolve all rights of the parties, petitioner voluntarily dismissed the action and presented its debit balance claims as counterclaims in the CFTC reparations proceeding. The Administrative Law Judge (ALJ) in that proceeding ruled in petitioner's favor on both respondents' claims and petitioner's counterclaims. Respondents then for the first time challenged the CFTC's statutory authority to adjudicate the counterclaims. The ALJ rejected the challenge, and the CFTC declined to review the decision, allowing it to become final. Respondents filed a petition for review with the Court of Appeals, which upheld the CFTC's decision on respondents' claims in most respects, but ordered dismissal of petitioner's counterclaims on the ground that the CFTC lacked authority to adjudicate common law counterclaims. The court held that in light of the constitutional problems posed by the CFTC's adjudication of such counterclaims, the CEA should be construed to authorize the CFTC to adjudicate only counterclaims arising from violations of the CEA or CFTC regulations.Held: 1. The CEA empowers the CFTC to entertain state law counterclaims in reparations proceedings. Pp. 841-847. (a) While the Court of Appeals' reading of the CEA permitted it to avoid a potential Article III problem, it did so only by doing violence to the statute, for its distinction between common law counterclaims and counterclaims based on violations of the statute cannot be drawn from the statute's language or history nor reconciled with the congressional purpose in creating reparations proceedings to promote efficient dispute resolution. Pp. 841-842. (b) Section 8(a)(5) of the CEA, which empowers the CFTC to promulgate such regulations as are reasonably necessary "to effectuate any of the provisions or to accomplish any of the purposes of [the CEA]," clearly authorizes a regulation providing for adjudication of common law counterclaims. To require a bifurcated examination of a single dispute would destroy the efficacy of the reparations remedy. Pp. 842-844. (c) The CFTC's longstanding interpretation of the statute as empowering it to take jurisdiction over counterclaims such as petitioner's is reasonable, is well within the scope of its delegated authority, and accordingly is entitled to considerable weight, especially where Congress has twice amended the CEA since the CFTC issued its counterclaim regulation without overruling it and indeed has explicitly affirmed the CFTC's authority to dictate the scope of its counterclaim jurisdiction. Pp. 844-847. 2. The CFTC's assumption of jurisdiction over common law counterclaims does not violate Article III of the Constitution. Pp. 847-858. (a) As a personal right, Article III's guarantee of an impartial and independent adjudication by the federal judiciary is subject to waiver. Here, respondents indisputably waived any right they may have had to the full trial of petitioner's counterclaims before an Article III court by expressly demanding that petitioner proceed with its counterclaims in the reparations proceedings rather than before the District Court. Even if there were no express waiver, respondents' election to forgo their right to proceed in state or federal court and to seek relief in the CFTC constituted an effective waiver. Pp. 847-850. (b) Nor does the CFTC's common law counterclaim jurisdiction contravene the nonwaivable protections Article III affords separation of powers principles. Examination of the congressional scheme in light of a number of factors, including the extent to which the "essential attributes of judicial power" are reserved to Article III courts, and conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III, yields the conclusion that the limited jurisdiction the CFTC asserts over state law claims as a necessary incident to the adjudication of federal claims willingly submitted by the parties for initial agency adjudication does not impermissibly threaten the institutional integrity of the Judicial Branch. Pp. 850-856. (c) Even assuming that principles of federalism are relevant to Article III analysis, those principles do not require invalidation of the CFTC's counterclaim jurisdiction. The fact that petitioner's counterclaims are resolved by a federal rather than a state tribunal is not objectionable because federal courts can, without constitutional hazard, decide such counterclaims under their ancillary jurisdiction. Moreover, respondents have identified no historical support for the argument that Article III embodies a compact among the Framers that all state law claims heard in a federal forum be adjudicated by judges possessing the tenure and salary protections of Article III. Pp. 856-858. App. D.C. 155, 770 F.2d 211, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, JJ., joined, post, p. 859.[Footnote *] Together with No. 85-642, ContiCommodity Services. Inc. v. Schor et al. also on certiorari to the same court.Deputy Solicitor General Wallace argued the cause for petitioner in No. 85-621. With him on the briefs were Solicitor General Fried, Bruce N. Kuhlik, Kenneth M. Raisler, Pat G. Nicolette, Whitney Adams, and Anne H. Wright. Robert L. Byman argued the cause for petitioner in No. 85-642. With him on the briefs were Howard R. Barron and Lawrence G. Weppler.Leslie J. Carson, Jr., argued the cause for respondents. With him on the brief was H. Bartow Farr III.JUSTICE O'CONNOR delivered the opinion of the Court.The question presented is whether the Commodity Exchange Act (CEA or Act), 7 U.S.C. 1 et seq., empowers the Commodity Futures Trading Commission (CFTC or Commission) to entertain state law counterclaims in reparation proceedings and, if so, whether that grant of authority violates Article III of the Constitution.IThe CEA broadly prohibits fraudulent and manipulative conduct in connection with commodity futures transactions. In 1974, Congress "overhaul[ed]" the Act in order to institute a more "comprehensive regulatory structure to oversee the volatile and esoteric futures trading complex." H. R. Rep. No. 93-975, p. 1 (1974). See Pub. L. 93-463, 88 Stat. 1389. Congress also determined that the broad regulatory powers of the CEA were most appropriately vested in an agency which would be relatively immune from the "political winds that sweep Washington." H. R. Rep. No. 93-975, at 44, 70. It therefore created an independent agency, the CFTC, and entrusted to it sweeping authority to implement the CEA.Among the duties assigned to the CFTC was the administration of a reparations procedure through which disgruntled customers of professional commodity brokers could seek redress for the brokers' violations of the Act or CFTC regulations. Thus, 14 of the CEA, 7 U.S.C. 18 (1976 ed.),1 provides that any person injured by such violations may apply to the Commission for an order directing the offender to pay reparations to the complainant and may enforce that order in federal district court. Congress intended this administrative procedure to be an "inexpensive and expeditious" alternative to existing fora available to aggrieved customers, namely, the courts and arbitration. S. Rep. No. 95-850, p. 11 (1978). See also 41 Fed. Reg. 3994 (1976) (accompanying CFTC regulations promulgated pursuant to 14).In conformance with the congressional goal of promoting efficient dispute resolution, the CFTC promulgated a regulation in 1976 which allows it to adjudicate counterclaims "aris[ing] out of the transaction or occurrence or series of transactions or occurrences set forth in the complaint." Id., at 3995, 4002 (codified at 17 CFR 12.23(b)(2) (1983)). This permissive counterclaim rule leaves the respondent in a reparations proceeding free to seek relief against the reparations complainant in other fora.The instant dispute arose in February 1980, when respondents Schor and Mortgage Services of America, Inc., invoked the CFTC's reparations jurisdiction by filing complaints against petitioner ContiCommodity Services, Inc. (Conti), a commodity futures broker, and Richard L. Sandor, a Conti employee.2 Schor had an account with Conti which contained a debit balance because Schor's net futures trading losses and expenses, such as commissions, exceeded the funds deposited in the account. Schor alleged that this debit balance was the result of Conti's numerous violations of the CEA. See App. to Pet. for Cert. in No. 85-621, p. 53a.Before receiving notice that Schor had commenced the reparations proceeding, Conti had filed a diversity action in Federal District Court to recover the debit balance. ContiCommodity Services, Inc. v. Mortgage Services of America, Inc., No. 80-C-1089 (ND Ill., filed Mar. 4, 1980). Schor counterclaimed in this action, reiterating his charges that the debit balance was due to Conti's violations of the CEA. Schor also moved on two separate occasions to dismiss or stay the District Court action, arguing that the continuation of the federal action would be a waste of judicial resources and an undue burden on the litigants in view of the fact that "[t]he reparations proceedings ... will fully ... resolve and adjudicate all the rights of the parties to this action with respect to the transactions which are the subject matter of this action." App. 13. See also id., at 19.Although the District Court declined to stay or dismiss the suit, see id., at 15, 16, Conti voluntarily dismissed the federal court action and presented its debit balance claim by way of a counterclaim in the CFTC reparations proceeding. See id., at 29-32. Conti denied violating the CEA and instead insisted that the debit balance resulted from Schor's trading, and was therefore a simple debt owed by Schor. Schor v. Commodity Futures Trading Comm'nApp. D.C. 159, 162, 740 F.2d 1262, 1265 (1984); App. to Pet. for Cert. in No. 85-621, p. 53a.After discovery, briefing, and a hearing, the Administrative Law Judge (ALJ) in Schor's reparations proceeding ruled in Conti's favor on both Schor's claims and Conti's counterclaims. After this ruling, Schor for the first time challenged the CFTC's statutory authority to adjudicate Conti's counterclaim. See id., at 62a. The ALJ rejected Schor's challenge, stating himself "bound by agency regulations and published agency policies." Id., at 62a-63a. The Commission declined to review the decision and allowed it to become final, id., at 50a-52a, at which point Schor filed a petition for review with the Court of Appeals for the District of Columbia Circuit. Prior to oral argument, the Court of Appeals, sua sponte, raised the question whether CFTC could constitutionally adjudicate Conti's counterclaims in light of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., , in which this Court held that "Congress may not vest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law, without consent of the litigants, and subject only to ordinary appellate review." Thomas v. Union Carbide Agricultural Products Co., .After briefing and argument, the Court of Appeals upheld the CFTC's decision on Schor's claim in most respects, but ordered the dismissal of Conti's counterclaims on the ground that "the CFTC lacks authority (subject matter competence) to adjudicate" common law counterclaims. App. D.C., at 161, 740 F.2d, at 1264. In support of this latter ruling, the Court of Appeals reasoned that the CFTC's exercise of jurisdiction over Conti's common law counterclaim gave rise to "[s]erious constitutional problems" under Northern Pipeline. App. D.C., at 174, 740 F.2d, at 1277. The Court of Appeals therefore concluded that, under well-established principles of statutory construction, the relevant inquiry was whether the CEA was "`fairly susceptible' of [an alternative] construction," such that Article III objections, and thus unnecessary constitutional adjudication, could be avoided. Ibid. (quoting Ralpho v. BellApp. D.C. 368, 380, 569 F.2d 607, 619 (1977)).After examining the CEA and its legislative history, the court concluded that Congress had no "clearly expressed" or "explicit" intention to give the CFTC constitutionally questionable jurisdiction over state common law counterclaims. See App. D.C., at 166, 178, 740 F.2d, at 1269, 1281. The Court of Appeals therefore "adopt[ed] the construction of the Act that avoids significant constitutional questions," reading the CEA to authorize the CFTC to adjudicate only those counterclaims alleging violations of the Act or CFTC regulations. Id., at 175, 740 F.2d, at 1278. Because Conti's counterclaims did not allege such violations, the Court of Appeals held that the CFTC exceeded its authority in adjudicating those claims, and ordered that the ALJ's decision on the claims be reversed and the claims dismissed for lack of jurisdiction. Id., at 161, 740 F.2d, at 1264.The Court of Appeals denied rehearing en banc by a divided vote. In a dissenting statement, Judge Wald, joined by Judge Starr, urged that rehearing be granted because the panel's holding would "resul[t] in a serious evisceration of a congressionally crafted scheme for compensating victims of Commodity Futures Trading Act ... violations" and would in practical effect "decimat[e]" the efficacy of this "faster and less expensive alternative forum." App. to Pet. for Cert. in No. 85-621, p. 71a. This Court granted the CFTC's petition for certiorari, vacated the Court of Appeals' judgment, and remanded the case for further consideration in light of Thomas, supra, at 582-593. . We had there ruled that the arbitration scheme established under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., does not contravene Article III and, more generally, held that "Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, may create a seemingly `private' right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." 473 U.S., at 593.On remand, the Court of Appeals reinstated its prior judgment. It reaffirmed its earlier view that Northern Pipeline drew into serious question the Commission's authority to decide debit-balance counterclaims in reparations proceedings; concluded that nothing in Thomas altered that view; and again held that, in light of the constitutional problems posed by the CFTC's adjudication of common law counterclaims, the CEA should be construed to authorize the CFTC to adjudicate only counterclaims arising from violations of the Act or CFTC regulations. See App. D.C. 155, 157-158, 770 F.2d 211, 213-214 (1985). We again granted certiorari, , and now reverse.IIThe Court of Appeals was correct in its understanding that "[f]ederal statutes are to be so construed as to avoid serious doubt of their constitutionality." Machinists v. Street, . See also NLRB v. Catholic Bishop of Chicago, . Where such "serious doubts" arise, a court should determine whether a construction of the statute is "fairly possible" by which the constitutional question can be avoided. Crowell v. Benson, . See also Machinists v. Street, supra, at 750. It is equally true, however, that this canon of construction does not give a court the prerogative to ignore the legislative will in order to avoid constitutional adjudication; "`[a]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute ...' or judicially rewriting it." Aptheker v. Secretary of State, (quoting Scales v. United States, ). See also Heckler v. Mathews, .Assuming that the Court of Appeals correctly discerned a "serious" constitutional problem in the CFTC's adjudication of Conti's counterclaim, we nevertheless believe that the court was mistaken in finding that the CEA could fairly be read to preclude the CFTC's exercise of jurisdiction over that counterclaim. Our examination of the CEA and its legislative history and purpose reveals that Congress plainly intended the CFTC to decide counterclaims asserted by respondents in reparations proceedings, and just as plainly delegated to the CFTC the authority to fashion its counterclaim jurisdiction in the manner the CFTC determined necessary to further the purposes of the reparations program.Congress' assumption that the CFTC would have the authority to adjudicate counterclaims is evident on the face of the statute. See, e. g., 7 U.S.C. 18(c) (providing that before action will be taken on complaints filed by nonresident complainants, a bond must be filed which must cover, inter alia, "any reparation award that may be issued by the Commission against the complainant on any counterclaim by respondent") (emphasis added); 18(d) ("any person for whose benefit [a reparation award] was made" may enforce the judgment in district court) (emphasis added). See also 18(e) (judicial review available to "any party"). Accordingly, the court below did not seriously contest that Congress intended to authorize the CFTC to adjudicate some counterclaims in reparations proceedings. Rather, the court read into the facially unqualified reference to counterclaim jurisdiction a distinction between counterclaims arising under the Act or CFTC regulations and all other counterclaims. See App. D.C., at 173, 740 F.2d, at 1278. While the court's reading permitted it to avoid a potential Article III problem, it did so only by doing violence to the CEA, for its distinction cannot fairly be drawn from the language or history of the CEA, nor reconciled with the congressional purposes motivating the creation of the reparations proceedings.We can find no basis in the language of the statute or its legislative history for the distinction posited by the Court of Appeals. Congress empowered the CFTC "to make and promulgate such rules and regulations as, in the judgment of the Commission, are reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes of [the CEA]." 7 U.S.C. 12a(5) (emphasis added). The language of the congressional Report that specifically commented on the scope of the CFTC's authority over counterclaims unambiguously demonstrates that, consistent with the sweeping authority Congress delegated to the CFTC generally, Congress intended to vest in the CFTC the power to define the scope of the counterclaims cognizable in reparations proceedings: "Counterclaims will be recognized in the [reparations] proceedings ... on such terms and under such circumstances as the Commission may prescribe by regulation. It is the intent of the Committee that the Commission will promulgate appropriate regulations to implement this section." H. R. Rep. No. 93-975, p. 23 (1974). Moreover, quite apart from congressional statements of intent, the broad grant of power in 12a(5) clearly authorizes the promulgation of regulations providing for adjudication of common law counterclaims arising out of the same transaction as a reparations complaint because such jurisdiction is necessary, if not critical, to accomplish the purposes behind the reparations program.Reference to the instant controversy illustrates the crippling effect that the Court of Appeals' restrictive reading of the CFTC's counterclaim jurisdiction would have on the efficacy of the reparations remedy. The dispute between Schor and Conti is typical of the disputes adjudicated in reparations proceedings: a customer and a professional commodities broker agree that there is a debit balance in the customer's account, but the customer attributes the deficit to the broker's alleged CEA violations and the broker attributes it to the customer's lack of success in the market. The customer brings a reparations claim; the broker counterclaims for the amount of the debit balance. In the usual case, then, the counterclaim "arises out of precisely the same course of events" as the principal claim and requires resolution of many of the same disputed factual issues. Friedman v. Dean Witter & Co., [1980-1982 Transfer Binder] CCH Comm. Fut. L. Rep. § 21,307, p. 25,538 (1981).Under the Court of Appeals' approach, the entire dispute may not be resolved in the administrative forum. Consequently, the entire dispute will typically end up in court, for when the broker files suit to recover the debit balance, the customer will normally be compelled either by compulsory counterclaim rules or by the expense and inconvenience of litigating the same issues in two fora to forgo his reparations remedy and to litigate his claim in court. See, e. g., App. 13 (Schor's motion to dismiss Conti's federal court action) ("[C]ontinuation of this action, in light of the prior filed reparations proceedings, would be unjust to [Schor] in that it would require [him], at a great cost and expense, to litigate the same issues in two forums. If this action proceeds, defendants will be required pursuant to [Federal Rule of Civil Procedure 13(a)] to file a counterclaim in this action setting forth all the claims that they have already filed before the CFTC"). In sum, as Schor himself aptly summarized, to require a bifurcated examination of the single dispute "would be to emasculate if not destroy the purposes of the Commodity Exchange Act to provide an efficient and relatively inexpensive forum for the resolution of disputes in futures trading." Ibid. See also App. to Pet. for Cert. in No. 85-621, p. 71a (Wald, J., dissenting from denial of rehearing) ("To bifurcate, as the panel's decision now requires, the main reparations proceeding from counterclaims between the same parties ... will realistically mean that the courts, not the agency, will end up dealing with all of these claims. The faster and less expensive alternative forum will be decimated").As our discussion makes manifest, the CFTC's long-held position that it has the power to take jurisdiction over counterclaims such as Conti's is eminently reasonable and well within the scope of its delegated authority. Accordingly, as the CFTC's contemporaneous interpretation of the statute it is entrusted to administer, considerable weight must be accorded the CFTC's position. See Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., ; Red Lion Broadcasting Co., Inc. v. FCC, . The Court of Appeals declined to defer to the CFTC's interpretation because, in its view, the Commission had not maintained a consistent position on the scope of its authority to adjudicate counterclaims and the question was not one on which a specialized administrative agency, in contrast to a court of general jurisdiction, had superior expertise. App. D.C., at 176, 740 F.2d, at 1279. We find both these reasons insubstantial.First, the CFTC issued the counterclaim rule currently in force at the time that the reparations program first took effect and has never altered that rule. The only "inconsistency" identified by the Court of Appeals was a proposed rule, published by the Commission for notice and comment, that would have allowed a narrower class of counterclaims. 40 Fed. Reg. 55666-55667, 55672-55673 (1975). It goes without saying that a proposed regulation does not represent an agency's considered interpretation of its statute and that an agency is entitled to consider alternative interpretations before settling on the view it considers most sound. Indeed, it would be antithetical to the purposes of the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553, to tax an agency with "inconsistency" whenever it circulates a proposal that it has not firmly decided to put into effect and that it subsequently reconsiders in response to public comment.Second, the Court of Appeals was incorrect to state on the facts of this case that the CFTC's expertise was not deserving of deference because of the "statutory interpretation-jurisdictional" nature of the question at issue. App. D.C., at 176, 740 F.2d, at 1279. An agency's expertise is superior to that of a court when a dispute centers on whether a particular regulation is "reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes" of the Act the agency is charged with enforcing; the agency's position, in such circumstances, is therefore due substantial deference.Such deference is especially warranted here, for Congress has twice amended the CEA since the CFTC declared by regulation that it would exercise jurisdiction over counterclaims arising out of the same transaction as the principal reparations dispute but has not overruled the CFTC's assertion of jurisdiction. See Red Lion Broadcasting Co., Inc. v. FCC, supra, at 380-381. It is well established that when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the "congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress." NLRB v. Bell Aerospace Co., (footnotes omitted). See also FDIC v. Philadelphia Gear Corp., .Moreover, we need not, as the Court of Appeals argued, rely simply on congressional "silence" to find approval of the CFTC's position in the subsequent amendments to the CEA, see App. D.C., at 177, 740 F.2d, at 1280. Congress explicitly affirmed the CFTC's authority to dictate the scope of its counterclaim jurisdiction in the 1983 amendments to the Act: "The Commission may promulgate such rules, regulations, and orders as it deems necessary or appropriate for the efficient and expeditious administration of this section. Notwithstanding any other provision of law, such rules, regulations, and orders may prescribe, or otherwise condition, without limitation, ... the nature and scope of ... counterclaims, ... and all other matters governing proceedings before the Commission under this section." 7 U.S.C. 18(b). See also H. R. Rep. No. 97-565, pt. 1, p. 55 (1982) ("[T]he reparations program seeks to pass upon the whole controversy surrounding each claim, including counter-claims arising out of the same set of facts"). Where, as here, "Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation," we cannot but deem that construction virtually conclusive. See Red Lion Broadcasting Co., Inc. v. FCC, supra, at 380-381. See also Bell v. New Jersey, , and n. 12 (1983). In view of the abundant evidence that Congress both contemplated and authorized the CFTC's assertion of jurisdiction over Conti's common law counterclaim, we conclude that the Court of Appeals' analysis is untenable. The canon of construction that requires courts to avoid unnecessary constitutional adjudication did not empower the Court of Appeals to manufacture a restriction on the CFTC's jurisdiction that was nowhere contemplated by Congress and to reject plain evidence of congressional intent because that intent was not specifically embodied in a statutory mandate. See Heckler v. Mathews, 465 U.S., at 742-743. We therefore are squarely faced with the question whether the CFTC's assumption of jurisdiction over common law counterclaims violates Article III of the Constitution.IIIArticle III, 1, directs that the "judicial Power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish," and provides that these federal courts shall be staffed by judges who hold office during good behavior, and whose compensation shall not be diminished during tenure in office. Schor claims that these provisions prohibit Congress from authorizing the initial adjudication of common law counterclaims by the CFTC, an administrative agency whose adjudicatory officers do not enjoy the tenure and salary protections embodied in Article III.Although our precedents in this area do not admit of easy synthesis, they do establish that the resolution of claims such as Schor's cannot turn on conclusory reference to the language of Article III. See, e. g., Thomas, 473 U.S., at 583. Rather, the constitutionality of a given congressional delegation of adjudicative functions to a non-Article III body must be assessed by reference to the purposes underlying the requirements of Article III. See, e. g., id., at 590; Northern Pipeline, 458 U.S., at 64. This inquiry, in turn, is guided by the principle that "practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III." Thomas, supra, at 587. See also Crowell v. Benson, 285 U.S., at 53.AArticle III, 1, serves both to protect "the role of the independent judiciary within the constitutional scheme of tripartite government," Thomas, supra, at 583, and to safeguard litigants' "right to have claims decided before judges who are free from potential domination by other branches of government." United States v. Will, . See also Thomas, supra, at 582-583; Northern Pipeline, 458 U.S., at 58. Although our cases have provided us with little occasion to discuss the nature or significance of this latter safeguard, our prior discussions of Article III, 1's guarantee of an independent and impartial adjudication by the federal judiciary of matters within the judicial power of the United States intimated that this guarantee serves to protect primarily personal, rather than structural, interests. See, e. g., id., at 90 (REHNQUIST, J., concurring in judgment) (noting lack of consent to non-Article III jurisdiction); id., at 95 (WHITE, J., dissenting) (same). See also Currie, Bankruptcy Judges and the Independent Judiciary, 16 Creighton L. Rev. 441, 460, n. 108 (1983) (Article III, 1, "was designed as a protection for the parties from the risk of legislative or executive pressure on judicial decision"). Cf. Crowell v. Benson, supra, at 87 (Brandeis, J., dissenting).Our precedents also demonstrate, however, that Article III does not confer on litigants an absolute right to the plenary consideration of every nature of claim by an Article III court. See, e. g., Thomas, supra, at 583; Crowell v. Benson, supra. Moreover, as a personal right, Article III's guarantee of an impartial and independent federal adjudication is subject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil and criminal matters must be tried. See, e. g., Boykin v. Alabama, (waiver of criminal trial by guilty plea); Duncan v. Louisiana, (waiver of right to trial by jury in criminal case); Fed. Rule of Civ. Proc. 38(d) (waiver of right to trial by jury in civil cases). Indeed, the relevance of concepts of waiver to Article III challenges is demonstrated by our decision in Northern Pipeline, in which the absence of consent to an initial adjudication before a non-Article III tribunal was relied on as a significant factor in determining that Article III forbade such adjudication. See, e. g., 458 U.S., at 80, n. 31; id., at 91 (REHNQUIST, J., concurring in judgment); id., at 95 (WHITE, J., dissenting). See also Thomas, supra, at 584, 591, Cf. Kimberly v. Arms, ; Heckers v. Fowler, 2 Wall. 123 (1865).In the instant cases, Schor indisputably waived any right he may have possessed to the full trial of Conti's counterclaim before an Article III court. Schor expressly demanded that Conti proceed on its counterclaim in the reparations proceeding rather than before the District Court, see App. 13, 19, and was content to have the entire dispute settled in the forum he had selected until the ALJ ruled against him on all counts; it was only after the ALJ rendered a decision to which he objected that Schor raised any challenge to the CFTC's consideration of Conti's counterclaim.Even were there no evidence of an express waiver here, Schor's election to forgo his right to proceed in state or federal court on his claim and his decision to seek relief instead in a CFTC reparations proceeding constituted an effective waiver. Three years before Schor instituted his reparations action, a private right of action under the CEA was explicitly recognized in the Circuit in which Schor and Conti filed suit in District Court. See Hirk v. Agri-Research Council, Inc., 561 F.2d 96, 103, n. 8 (CA7 1977). See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, (affirming the existence of a private cause of action under the CEA). Moreover, at the time Schor decided to seek relief before the CFTC rather than in the federal courts, the CFTC's regulations made clear that it was empowered to adjudicate all counterclaims "aris[ing] out of the same transaction or occurrence or series of transactions or occurrences set forth in the complaint." 41 Fed. Reg. 3995 (1976) (codified in 17 CFR 12.23(b)(2) (1983)). Thus, Schor had the option of having the common law counterclaim against him adjudicated in a federal Article III court, but, with full knowledge that the CFTC would exercise jurisdiction over that claim, chose to avail himself of the quicker and less expensive procedure Congress had provided him. In such circumstances, it is clear that Schor effectively agreed to an adjudication by the CFTC of the entire controversy by seeking relief in this alternative forum. Cf. McElrath v. United States, .BAs noted above, our precedents establish that Article III, 1, not only preserves to litigants their interest in an impartial and independent federal adjudication of claims within the judicial power of the United States, but also serves as "an inseparable element of the constitutional system of checks and balances." Northern Pipeline, supra, at 58. See also United States v. Will, supra, at 217. Article III, 1, safeguards the role of the Judicial Branch in our tripartite system by barring congressional attempts "to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating" constitutional courts, National Insurance Co. v. Tidewater Co., (Vinson, C. J., dissenting), and thereby preventing "the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, (per curiam). See Thomas, 473 U.S., at 582-583; Northern Pipeline, 458 U.S., at 57-58, 73-74, 83, 86; id., at 98, 115-116 (WHITE, J., dissenting). To the extent that this structural principle is implicated in a given case, the parties cannot by consent cure the constitutional difficulty for the same reason that the parties by consent cannot confer on federal courts subject-matter jurisdiction beyond the limitations imposed by Article III, 2. See, e. g., United States v. Griffin, . When these Article III limitations are at issue, notions of consent and waiver cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect.In determining the extent to which a given congressional decision to authorize the adjudication of Article III business in a non-Article III tribunal impermissibly threatens the institutional integrity of the Judicial Branch, the Court has declined to adopt formalistic and unbending rules. Thomas, 473 U.S., at 587. Although such rules might lend a greater degree of coherence to this area of the law, they might also unduly constrict Congress' ability to take needed and innovative action pursuant to its Article I powers. Thus, in reviewing Article III challenges, we have weighed a number of factors, none of which has been deemed determinative, with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary. Id., at 590. Among the factors upon which we have focused are the extent to which the "essential attributes of judicial power" are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III. See, e. g., id., at 587, 589-593; Northern Pipeline, supra, at 84-86.An examination of the relative allocation of powers between the CFTC and Article III courts in light of the considerations given prominence in our precedents demonstrates that the congressional scheme does not impermissibly intrude on the province of the judiciary. The CFTC's adjudicatory powers depart from the traditional agency model in just one respect: the CFTC's jurisdiction over common law counterclaims. While wholesale importation of concepts of pendent or ancillary jurisdiction into the agency context may create greater constitutional difficulties, we decline to endorse an absolute prohibition on such jurisdiction out of fear of where some hypothetical "slippery slope" may deposit us. Indeed, the CFTC's exercise of this type of jurisdiction is not without precedent. Thus, in RFC v. Bankers Trust Co., , we saw no constitutional difficulty in the initial adjudication of a state law claim by a federal agency, subject to judicial review, when that claim was ancillary to a federal law dispute. Similarly, in Katchen v. Landy, , this Court upheld a bankruptcy referee's power to hear and decide state law counterclaims against a creditor who filed a claim in bankruptcy when those counterclaims arose out of the same transaction. We reasoned that, as a practical matter, requiring the trustee to commence a plenary action to recover on its counterclaim would be a "meaningless gesture." Id., at 334.In the instant cases, we are likewise persuaded that there is little practical reason to find that this single deviation from the agency model is fatal to the congressional scheme. Aside from its authorization of counterclaim jurisdiction, the CEA leaves far more of the "essential attributes of judicial power" to Article III courts than did that portion of the Bankruptcy Act found unconstitutional in Northern Pipeline. The CEA scheme in fact hews closely to the agency model approved by the Court in Crowell v. Benson, .The CFTC, like the agency in Crowell, deals only with a "particularized area of law," Northern Pipeline, supra, at 85, whereas the jurisdiction of the bankruptcy courts found unconstitutional in Northern Pipeline extended to broadly "all civil proceedings arising under title 11 or arising in or related to cases under title 11." 28 U.S.C. 1471(b) (quoted in Northern Pipeline, 458 U.S., at 85) (emphasis added). CFTC orders, like those of the agency in Crowell, but unlike those of the bankruptcy courts under the 1978 Act, are enforceable only by order of the district court. See 7 U.S.C. 18(f); Northern Pipeline, supra, at 85-86. CFTC orders are also reviewed under the same "weight of the evidence" standard sustained in Crowell, rather than the more deferential standard found lacking in Northern Pipeline. See 7 U.S.C. 9; Northern Pipeline, supra, at 85. The legal rulings of the CFTC, like the legal determinations of the agency in Crowell, are subject to de novo review. Finally, the CFTC, unlike the bankruptcy courts under the 1978 Act, does not exercise "all ordinary powers of district courts," and thus may not, for instance, preside over jury trials or issue writs of habeas corpus. 458 U.S., at 85.Of course, the nature of the claim has significance in our Article III analysis quite apart from the method prescribed for its adjudication. The counterclaim asserted in this litigation is a "private" right for which state law provides the rule of decision. It is therefore a claim of the kind assumed to be at the "core" of matters normally reserved to Article III courts. See, e. g., Thomas, supra, at 587; Northern Pipeline, 458 U.S., at 70-71, and n. 25; id., at 90 (REHNQUIST, J., concurring in judgment). Yet this conclusion does not end our inquiry; just as this Court has rejected any attempt to make determinative for Article III purposes the distinction between public rights and private rights, Thomas, supra, at 585-586, there is no reason inherent in separation of powers principles to accord the state law character of a claim talismanic power in Article III inquiries. See, e. g., Northern Pipeline, 458 U.S., at 68, n. 20; id., at 98 (WHITE, J., dissenting).We have explained that "the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that `could be conclusively determined by the Executive and Legislative Branches,' the danger of encroaching on the judicial powers" is less than when private rights, which are normally within the purview of the judiciary, are relegated as an initial matter to administrative adjudication. Thomas, 473 U.S., at 589 (quoting Northern Pipeline, supra, at 68). Similarly, the state law character of a claim is significant for purposes of determining the effect that an initial adjudication of those claims by a non-Article III tribunal will have on the separation of powers for the simple reason that private, common law rights were historically the types of matters subject to resolution by Article III courts. See Northern Pipeline, 458 U.S., at 68, n. 20, 84; id., at 90 (REHNQUIST, J., concurring in judgment). The risk that Congress may improperly have encroached on the federal judiciary is obviously magnified when Congress "withdraw[s] from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty" and which therefore has traditionally been tried in Article III courts, and allocates the decision of those matters to a non-Article III forum of its own creation. Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284 (1856). Accordingly, where private, common law rights are at stake, our examination of the congressional attempt to control the manner in which those rights are adjudicated has been searching. See, e. g., Northern Pipeline, 458 U.S., at 84; id., at 90 (REHNQUIST, J., concurring in judgment). In this litigation, however, "[l]ooking beyond form to the substance of what" Congress has done, we are persuaded that the congressional authorization of limited CFTC jurisdiction over a narrow class of common law claims as an incident to the CFTC's primary, and unchallenged, adjudicative function does not create a substantial threat to the separation of powers. Thomas, supra, at 589.It is clear that Congress has not attempted to "withdraw from judicial cognizance" the determination of Conti's right to the sum represented by the debit balance in Schor's account. Congress gave the CFTC the authority to adjudicate such matters, but the decision to invoke this forum is left entirely to the parties and the power of the federal judiciary to take jurisdiction of these matters is unaffected. In such circumstances, separation of powers concerns are diminished, for it seems self-evident that just as Congress may encourage parties to settle a dispute out of court or resort to arbitration without impermissible incursions on the separation of powers, Congress may make available a quasi-judicial mechanism through which willing parties may, at their option, elect to resolve their differences. This is not to say, of course, that if Congress created a phalanx of non-Article III tribunals equipped to handle the entire business of the Article III courts without any Article III supervision or control and without evidence of valid and specific legislative necessities, the fact that the parties had the election to proceed in their forum of choice would necessarily save the scheme from constitutional attack. See, e. g., Northern Pipeline, supra, at 73-74. But this case obviously bears no resemblance to such a scenario, given the degree of judicial control saved to the federal courts, see supra, at 852-853, as well as the congressional purpose behind the jurisdictional delegation, the demonstrated need for the delegation, and the limited nature of the delegation.When Congress authorized the CFTC to adjudicate counterclaims, its primary focus was on making effective a specific and limited federal regulatory scheme, not on allocating jurisdiction among federal tribunals. Congress intended to create an inexpensive and expeditious alternative forum through which customers could enforce the provisions of the CEA against professional brokers. Its decision to endow the CFTC with jurisdiction over such reparations claims is readily understandable given the perception that the CFTC was relatively immune from political pressures, see H. R. Rep. No. 93-975, pp. 44, 70 (1974), and the obvious expertise that the Commission possesses in applying the CEA and its own regulations. This reparations scheme itself is of unquestioned constitutional validity. See, e. g., Thomas, supra, at 589; Northern Pipeline, supra, at 80-81; Crowell v. Benson, . It was only to ensure the effectiveness of this scheme that Congress authorized the CFTC to assert jurisdiction over common law counterclaims. Indeed, as was explained above, absent the CFTC's exercise of that authority, the purposes of the reparations procedure would have been confounded.It also bears emphasis that the CFTC's assertion of counterclaim jurisdiction is limited to that which is necessary to make the reparations procedure workable. See 7 U.S.C. 12a(5). The CFTC adjudication of common law counterclaims is incidental to, and completely dependent upon, adjudication of reparations claims created by federal law, and in actual fact is limited to claims arising out of the same transaction or occurrence as the reparations claim.In such circumstances, the magnitude of any intrusion on the Judicial Branch can only be termed de minimis. Conversely, were we to hold that the Legislative Branch may not permit such limited cognizance of common law counterclaims at the election of the parties, it is clear that we would "defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task." Crowell v. Benson, supra, at 46. See also Thomas, supra, at 583-584. We do not think Article III compels this degree of prophylaxis.Nor does our decision in Bowsher v. Synar, ante, p. 714, require a contrary result. Unlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a coordinate branch. Instead, the separation of powers question presented in this litigation is whether Congress impermissibly undermined, without appreciable expansion of its own power, the role of the Judicial Branch. In any case, we have, consistent with Bowsher, looked to a number of factors in evaluating the extent to which the congressional scheme endangers separation of powers principles under the circumstances presented, but have found no genuine threat to those principles to be present in this litigation.In so doing, we have also been faithful to our Article III precedents, which counsel that bright-line rules cannot effectively be employed to yield broad principles applicable in all Article III inquiries. See, e. g., Thomas, . Rather, due regard must be given in each case to the unique aspects of the congressional plan at issue and its practical consequences in light of the larger concerns that underlie Article III. We conclude that the limited jurisdiction that the CFTC asserts over state law claims as a necessary incident to the adjudication of federal claims willingly submitted by the parties for initial agency adjudication does not contravene separation of powers principles or Article III.CSchor asserts that Article III, 1, constrains Congress for reasons of federalism, as well as for reasons of separation of powers. He argues that the state law character of Conti's counterclaim transforms the central question in this litigation from whether Congress has trespassed upon the judicial powers of the Federal Government into whether Congress has invaded the prerogatives of state governments.At the outset, we note that our prior precedents in this area have dealt only with separation of powers concerns, and have not intimated that principles of federalism impose limits on Congress' ability to delegate adjudicative functions to non-Article III tribunals. This absence of discussion regarding federalism is particularly telling in Northern Pipeline, where the Court based its analysis solely on the separation of powers principles inherent in Article III despite the fact that the claim sought to be adjudicated in the bankruptcy court was created by state law. See, e. g., 458 U.S., at 57-60, and n. 11.Even assuming that principles of federalism are relevant to Article III analysis, however, we are unpersuaded that those principles require the invalidation of the CFTC's counterclaim jurisdiction. The sole fact that Conti's counterclaim is resolved by a federal rather than a state tribunal could not be said to unduly impair state interests, for it is established that a federal court could, without constitutional hazard, decide a counterclaim such as the one asserted here under its ancillary jurisdiction, even if an independent jurisdictional basis for it were lacking. See, e. g., Baker v. Gold Seal Liquors, , n. 1 (1974); Moore v. New York Cotton Exchange, . Given that the federal courts can and do exercise ancillary jurisdiction over counterclaims such as the one at issue here, the question becomes whether the fact that a federal agency rather than a federal Article III court initially hears the state law claim gives rise to a cognizably greater impairment of principles of federalism.Schor argues that those Framers opposed to diversity jurisdiction in the federal courts acquiesced in its inclusion in Article III only because they were assured that the federal judiciary would be protected by the tenure and salary provisions of Article III. He concludes, in essence, that to protect this constitutional compact, Article III should be read to absolutely preclude any adjudication of state law claims by federal decisionmakers that do not enjoy the Article III salary and tenure protections. We are unpersuaded by Schor's novel theory, which suffers from a number of flaws, the most important of which is that Schor identifies no historical support for the critical link he posits between the provisions of Article III that protect the independence of the federal judiciary and those provisions that define the extent of the judiciary's jurisdiction over state law claims. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
7	The Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended in 1972, provides compensation for the death or disability of any person engaged in "maritime employment" (status requirement), if the disability or death results from an injury incurred upon the navigable waters of the United States or any adjoining pier or other area customarily used by an employer in loading, unloading, repairing, or building a vessel (situs requirement). Respondent Gray (hereinafter respondent), who worked for petitioner Herb's Welding, Inc., was injured while welding a gas flow line on a fixed offshore oil-drilling platform in Louisiana territorial waters. When petitioner United States Fidelity & Guaranty Co., the workers' compensation carrier for Herb's Welding, Inc., denied LHWCA benefits, respondent filed a complaint with the Department of Labor. Administrative proceedings ultimately resulted in the conclusion that respondent could recover by virtue of a provision of the Outer Continental Shelf Lands Act (Lands Act) that grants LHWCA benefits to offshore oil workers injured on the Outer Continental Shelf, since even though respondent had been injured in state waters rather than on the shelf, his injury could be said to have occurred "as a result of" operations on the shelf. The Court of Appeals affirmed, but relied directly on the LHWCA rather than on the Lands Act, concluding that both the status and the situs requirements of the LHWCA were met.Held: Because respondent's employment was not "maritime," he does not qualify for benefits under the LHWCA. Pp. 419-427. (a) The Court of Appeals' construction of the LHWCA - that offshore drilling is maritime commerce and that anyone performing any task that is part and parcel of that activity is in maritime employment for LHWCA purposes - is foreclosed by earlier decisions of this Court, and the legislative history of both the 1972 Amendments to the LHWCA and the Lands Act. Congress' purpose under the 1972 Amendments to the LHWCA was to cover those workers on a covered situs who are involved in the essential elements of the loading or unloading, or construction, of vessels. Respondent's welding work was far removed from such traditional LHWCA activities. Pp. 421-426. (b) The argument that to deny coverage to someone in respondent's position would result in the sort of inconsistent, checkered coverage that Congress sought to avoid in 1972 is not compelling. The inconsistent coverage here results primarily from the explicit geographic limitations to the Lands Act's incorporation of the LHWCA. If Congress' coverage decisions are mistaken as a matter of policy, it is for Congress to change them. Pp. 426-427. 703 F.2d 176 and 711 F.2d 666, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and O'CONNOR, JJ., joined, post, p. 428.Wood Brown III argued the cause and filed a brief for petitioners.Carolyn F. Corwin argued the cause for the federal respondent. With her on the brief were Solicitor General Lee, Deputy Solicitor General Geller, Karen I. Ward, Allen H. Feldman, and Joshua T. Gillelan II. T. Gerald Henderson argued the cause for respondent Gray. With him on the brief was David W. Robertson.* [Footnote *] Briefs of amici curiae urging reversal were filed for the Kerr-McGee Corp. by Christopher Tompkins and Rene H. Himel, Jr.; and for Texaco, Inc., et al. by Robert M. Contois, Jr.JUSTICE WHITE delivered the opinion of the Court.The Longshoremen's and Harbor Workers' Compensation Act (LHWCA or Act), 44 Stat. 1424, as amended, 33 U.S.C. 901 et seq., provides compensation for the death or disability of any person engaged in "maritime employment," 902(3), if the disability or death results from an injury incurred upon the navigable waters of the United States or any adjoining pier or other area customarily used by an employer in loading, unloading, repairing, or building a vessel, 903(a).1 Thus, a worker claiming under the Act must satisfy both a "status" and a "situs" test. The court below held that respondent Robert Gray, a welder working on a fixed offshore oil-drilling platform in state territorial waters, was entitled to benefits under the Act. We reverse for the reason that Gray was not engaged in maritime employment.IRespondent Gray worked for Herb's Welding, Inc., in the Bay Marchand oil and gas field off the Louisiana coast. Herb's Welding provided welding services to the owners of drilling platforms. The field was located partly in Louisiana territorial waters, i. e., within three miles of the shore, and partly on the Outer Continental Shelf. Gray ate and slept on a platform situated in Louisiana waters. He spent roughly three-quarters of his working time on platforms in state waters and the rest on platforms on the Outer Continental Shelf. He worked exclusively as a welder, building and replacing pipelines and doing general maintenance work on the platforms.On July 11, 1975, Gray was welding a gas flow line on a fixed platform2 located in Louisiana waters. He burnt through the bottom of the line and an explosion occurred. Gray ran from the area, and in doing so hurt his knee. He sought benefits under the LHWCA for lost wages, disability, and medical expenses.3 When petitioner United States Fidelity & Guaranty Co., the workers' compensation carrier for Herb's Welding, denied LHWCA benefits, Gray filed a complaint with the Department of Labor. The Administrative Law Judge (ALJ), relying on our decision in Rodrigue v. Aetna Casualty & Surety Co., , ruled that because Gray's work was totally involved in the exploration for, and development and transmission of, oil and gas from submerged lands, it was not relevant to traditional maritime law and lacked any significant maritime connection. Gray therefore did not satisfy the LHWCA's status requirement.The Benefits Review Board reversed on other grounds. 12 BRBS 752 (1980). By a vote of 2-1, it concluded that irrespective of the nature of his employment, Gray could recover by virtue of a provision of the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. 1331 et seq. (Lands Act), that grants LHWCA benefits to offshore oil workers injured on the Outer Continental Shelf.4 Although Gray had been injured in state waters, the Board felt that his injury nonetheless could be said to have occurred, in the words of the statute, "as a result of" operations on the outer shelf. It considered his work "integrally related" to such operations. 12 BRBS, at 757. The dissenting Board member argued that the Lands Act provides LHWCA benefits only for injuries actually occurring in the geographic area of the outer shelf. Id., at 761-763.The Board reaffirmed its position after the case was remanded to the ALJ for entry of judgment and calculation of benefits, and petitioners sought review in the Court of Appeals for the Fifth Circuit. That court affirmed, relying directly on the LHWCA rather than on the Lands Act. 703 F.2d 176 (1983). With regard to the Act's situs requirement, it noted that this Court had compared drilling platforms to wharves in Rodrigue v. Aetna Casualty & Surety Co., supra. Given that the 1972 Amendments to the LHWCA extended coverage to accidents occurring on wharves, it would be incongruous if they did not also reach accidents occurring on drilling platforms. Also, since workers injured on movable barges, on fixed platforms on the Outer Continental Shelf, or en route to fixed platforms, are all covered, there would be a "curious hole" in coverage if someone in Gray's position was not. 703 F.2d, at 177-178. As for Gray's status, the Court of Appeals, differing with the ALJ, held that Gray's work bore "a realistically significant relationship to traditional maritime activity involving navigation and commerce on navigable waters," id., at 179-180, because it was an integral part of the offshore drilling process, which, the court had held in Pippen v. Shell Oil Co., 661 F.2d 378 (1981), was itself maritime commerce. We granted certiorari. .IIAWhen extractive operations first moved offshore, all claims for injuries on fixed platforms proceeded under state workers' compensation schemes. See Hearings, at 396, 409, 411. See also Robertson 993. With the 1953 passage of the Lands Act, Congress extended LHWCA coverage to oil workers more than three miles offshore. 43 U.S.C. 1333(b). Because until 1972 the LHWCA itself extended coverage only to accidents occurring on navigable waters, 33 U.S.C. 903 (1970 ed.), and because stationary rigs were considered to be islands, Rodrigue v. Aetna Casualty & Surety Co., supra, oil rig workers inside the 3-mile limit were left to recover under state schemes. See, e. g., Freeman v. Chevron Oil Co., 517 F.2d 201 (CA5 1975); Gifford v. Aurand Mfg. Co., 207 So.2d 160 (La. App. 1968). Any worker, inside or outside the 3-mile limit, who qualified as a seaman was not covered by the LHWCA, but could sue under the Jones Act, 46 U.S.C. 688, the Death on the High Seas Act, 46 U.S.C. 761 et seq., and the general maritime law. Hearings, at 411-414, 450-459, 487; see n. 1, supra. See also Wright, Jurisdiction in the Tidelands, 32 Tulane L. Rev. 175, 186 (1958).So matters stood when Congress amended the LHWCA in 1972. What is known about the congressional intent behind that legislation has been amply described in our prior opinions. See, e. g., Director, OWCP v. Perini North River Associates, ; Sun Ship, Inc. v. Pennsylvania, ; Northeast Marine Terminal Co. v. Caputo, . The most important of Congress' concerns, for present purposes, was the desire to extend coverage to longshoremen, harbor-workers, and others who were injured while on piers, docks, and other areas customarily used to load and unload ships or to repair or build ships, rather than while actually afloat. Whereas prior to 1972 the Act reached only accidents occurring on navigable waters, the amended 33 U.S.C. 903 expressly extended coverage to "adjoining area[s]." At the same time, the amended definition of an "employee" limited coverage to employees engaged in "maritime employment."The Act, as amended, does not mention offshore drilling rigs or the workers thereon. The legislative history of the amendments is also silent, although early in the legislative process, a bill was introduced to extend the Act to all offshore oil workers. The bill died in Committee. While hardly dispositive, it is worth noting that the same Committee considered the 1972 Amendments to the LHWCA, and the possible extension of the Lands Act's application of the LHWCA to drilling platforms, apparently without it ever occurring to anyone that the two might have been duplicative. The concurrent but independent reconsideration of both the Lands Act and the LHWCA, the congressional view that the amendments to the latter involved the "[e]xtension of [c]overage to [s]horeside [a]reas," H. R. Rep. No 92-1441, p. 10 (1972), and the absence of any mention of drilling platforms in the discussion of the LHWCA, combine to suggest that the 1972 Congress at least did not intentionally extend the LHWCA to workers such as Gray.5 BThe rationale of the Court of Appeals was that offshore drilling is maritime commerce and that anyone performing any task that is part and parcel of that activity is in maritime employment for LHWCA purposes. Since it is doubtful that an offshore driller will pay and maintain a worker on an offshore rig whose job is unnecessary to the venture, this approach would extend coverage to virtually everyone on the stationary platform. We think this construction of the Act is untenable.The Act does not define the term "maritime employment," but our cases and the legislative history of the amendments foreclose the Court of Appeals' reading. Rodrigue involved two men killed while working on an offshore drilling rig on the Outer Continental Shelf. Their families brought third-party negligence suits in federal court, claiming recovery under both the Death on the High Seas Act and the state law of Louisiana. The District Court ruled that resort could not be had to state law and that the High Seas Act provided the exclusive remedy. The Court of Appeals for the Fifth Circuit affirmed, holding that the men had been engaged in maritime activity on the high seas and that maritime law was the exclusive source of relief. We reversed. First, the platforms involved were artificial islands and were to be treated as though they were federal enclaves in an upland State. Federal law was to govern accidents occurring on these islands; but, contrary to the Court of Appeals, we held that the Lands Act and borrowed state law, not the maritime law, constituted the controlling federal law. The platforms "were islands, albeit artificial ones, and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers."6 395 U.S., at 360. Indeed, observing that the Court had previously "held that drilling platforms are not within admiralty jurisdiction," we indicated that drilling platforms were not even suggestive of traditional maritime affairs. Id., at 360-361.We also went on to examine the legislative history of the Lands Act and noted (1) that Congress was of the view that maritime law would not apply to fixed platforms unless a statute expressly so provided; and (2) that Congress had seriously considered applying maritime law to these platforms but had rejected that approach because it considered maritime law to be inapposite, a view that would be untenable if drilling from a fixed platform is a maritime operation. The history of the Lands Act at the very least forecloses the Court of Appeals' holding that offshore drilling is a maritime activity and that any task essential thereto is maritime employment for LHWCA purposes.7 We cannot assume that Congress was unfamiliar with Rodrigue and the Lands Act when it referred to "maritime employment" in defining the term "employee" in 1972.8 It would have been a significant departure from prior understanding to use that phrase to reach stationary drilling rigs generally.The Fifth Circuit's expansive view of maritime employment is also inconsistent with our prior cases under the 1972 Amendments to the LHWCA. The expansion of the definition of navigable waters to include rather large shoreside areas necessitated an affirmative description of the particular employees working in those areas who would be covered. This was the function of the maritime employment requirement. But Congress did not seek to cover all those who breathe salt air. Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading; it is "clear that persons who are on the situs but not engaged in the overall process of loading or unloading vessels are not covered." Northeast Marine Terminal Co. v. Caputo, 432 U.S., at 267. While "maritime employment" is not limited to the occupations specifically mentioned in 2(3),9 neither can it be read to eliminate any requirement of a connection with the loading or construction of ships. As we have said, the "maritime employment" requirement is "an occupational test that focuses on loading and unloading." P. C. Pfeiffer Co. v. Ford, . The Amendments were not meant "to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity." H. R. Rep. No. 92-1441, p. 11 (1972); S. Rep. No. 92-1125, p. 13 (1972). We have never read "maritime employment" to extend so far beyond those actually involved in moving cargo between ship and land transportation. Both Caputo and P. C. Pfeiffer Co. make this clear and lead us to the conclusion that Gray was not engaged in maritime employment for purposes of the LHWCA.10 Gray was a welder. His work had nothing to do with the loading or unloading process, nor is there any indication that he was even employed in the maintenance of equipment used in such tasks. Gray's welding work was far removed from traditional LHWCA activities, notwithstanding the fact that he unloaded his own gear upon arriving at a platform by boat. Tr. of Oral Arg. 56. He built and maintained pipelines and the platforms themselves. There is nothing inherently maritime about those tasks. They are also performed on land, and their nature is not significantly altered by the marine environment,11 particularly since exploration and development of the Continental Shelf are not themselves maritime commerce.The dissent emphasizes that Gray was generally on or near the water and faced maritime hazards. Post, at 445-449. To the extent this is so, it is relevant to "situs," not "status." To hold that Gray was necessarily engaged in maritime employment because he was on a drilling platform would ignore Congress' admonition that not everyone on a covered situs automatically satisfies the status test. See S. Rep. No. 92-1125, p. 13 (1972). The dissent considers "[t]he maritime nature of the occupation ... apparent from examining its location in terms of the expanded situs coverage of the 1972 Amendments." Post, at 446. We recognize that the nature of a particular job is defined in part by its location. But to classify Gray's employment as maritime because he was on a covered situs, post, at 448, or in a "maritime environment," post, at 450, would blur together requirements Congress intended to be distinct. We cannot thus read the status requirement out of the statute.12 IIIRespondents, and the dissenters, object that denying coverage to someone in Gray's position will result in exactly the sort of inconsistent, checkered coverage that Congress sought to eliminate in 1972. In the words of the court below, it creates a "curious hole" in coverage, 703 F.2d, at 178, because Gray would have been covered had he been injured on navigable waters or on the outer shelf.We do not find the argument compelling. First, this submission goes far beyond Congress' undoubted desire to treat equally all workers engaged in loading or unloading a ship, whether they were injured on the ship or on an adjoining pier or dock. The former were covered prior to 1972; the latter were not. Both are covered under the 1972 Amendments. Second, there will always be a boundary to coverage, and there will always be people who cross it during their employment. Nacirema Operating Co. v. Johnson, . If that phenomenon was enough to require coverage, the Act would have to reach much further than anyone argues that it does or should. Third, the inconsistent coverage here results primarily from the explicit geographic limitation to the Lands Act's incorporation of the LHWCA. Gray would indeed have been covered for a significant portion of his work-time, but because of the Lands Act, not because he fell within the terms of the LHWCA.13 Congress' desire to make LHWCA coverage uniform reveals little about the position of those for whom partial coverage results from a separate statute. This is especially true because that statute draws a clear geographical boundary that will predictably result in workers moving in and out of coverage.As we have said before in this area, if Congress' coverage decisions are mistaken as a matter of policy, it is for Congress to change them. We should not legislate for them. See Victory Carriers, Inc. v. Law, .IVBecause Gray's employment was not "maritime," he does not qualify for benefits under the LHWCA. We need not determine whether he satisfied the Act's situs requirement. We express no opinion on his argument that he is covered by 43 U.S.C. 1333(b). The judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered.

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