Datasets:

rzhang123

/

US_Court_8_2

like 0

Petitioner, a member of Jehovah's Witnesses, was denied classification as a conscientious objector under 6 (j) of the Universal Military Training and Service Act. He appealed. After the usual investigation, the Department of Justice admitted his sincerity but recommended to the Appeal Board that classification as a conscientious objector be denied, on the ground that he was not entitled to exemption because he had indicated his willingness to fight in defense of "his ministry, Kingdom Interests and ... his fellow brethren." The Appeal Board denied petitioner classification as a conscientious objector, and he was convicted of failing to submit to induction under 12 (a) of the Act. Held: The recommendation of the Department of Justice was based on an error of law, and the conviction is reversed. Pp. 386-392. (a) In view of petitioner's emphasis throughout his selective service form that the weapons of his warfare were spiritual, not carnal, his willingness to use force in defense of Kingdom Interests and brethren is not sufficiently inconsistent with his claim to justify the conclusion that he fell short of being a conscientious objector to "participation in war in any form" within the meaning of 6 (j). Pp. 389-390. (b) By relating a registrant's conscientious objection to his religious training and belief, Congress has made the beliefs of his religious sect relevant; but it was erroneous as a matter of law to deny a member of Jehovah's Witnesses exemption as a conscientious objector merely because members of that sect are ready to engage in a "theocratic war," if Jehovah so commands, and willing to fight at Armageddon with spiritual, not carnal, weapons. Pp. 390-391. (c) When Congress referred to participation in war in any form, it had in mind actual military conflicts between nations of the earth in our time. P. 391. (d) If a registrant has the requisite conscientious objection, on religious grounds, to participation in war in any form, he does not forfeit his rights under 6 (j) because his other beliefs may extend beyond the exemption granted by Congress. P. 391. (e) The Department of Justice's error of law in its report to the Appeal Board must vitiate the entire proceedings, since it is not clear that the Board relied on some legitimate ground in denying petitioner's classification as a conscientious objector. Pp. 391-392. 213 F.2d 911, reversed. Petitioner was convicted of failing to submit to induction into the armed forces in violation of 12 (a) of the Universal Military Training and Service Act. The Court of Appeals affirmed. 213 F.2d 911. This Court granted certiorari. . Reversed, p. 392.Hayden C. Covington argued the cause and filed a brief for petitioner.John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop.MR. JUSTICE CLARK delivered the opinion of the Court.Petitioner was born in 1927 and was brought up as a Jehovah's Witness by his parents, both of whom were of that faith. He has been identified with the sect since he was 6 years old, "was immersed and became a consecrated servant of Jehovah" at 15, and was ordained when 17 years old. He registered with his local Board in 1948, and, although he worked 44 hours a week for the Railway Express Company, he was first classified as a minister. In 1950, however, petitioner was reclassified for general service and, shortly thereafter, he filed his conscientious objector claim.In the special form, petitioner included this statement: "The nature of my claim is that: I am already in the Army of Christ Jesus serving as a soldier of Jehovah's appointed Commander Jesus Christ. (2 Tim. 2:3 & 4). Inasmuch as the war weapons of the soldier of Jesus Christ are not carnal, I am not authorized by his Commander to engage in carnal warfare of this world. (2 Corinthians 10:3 & 4, Ephesians 6:11-18) Furthermore being enlisted in the army of Jesus Christ, I cannot desert the forces of Jehovah to assume the obligations of a soldier in any army of this world without being guilty of desertion and suffering the punishment meted out to deserters by Almighty God... ." In answer to the question, "Under what circumstances, if any, do you believe in the use of force," he wrote: "Only in the interests of defending Kingdom Interests, our preaching work, our meetings, our fellow brethren and sisters and our property against attack. I (as well as all Jehovah's Witnesses) defend those when they are attacked and are forced to protect such interests and scripturally so. Because in doing so we do not arm ourselves or carry carnal weapons in anticipation of or in preparation for trouble or to meet threats. In doing so I try to ward off blows and attacks only in defense. I do not use weapons of warfare in defense of myself or the Kingdom interests. I do not retreat when attacked in my home or at meeting places, but will retreat on public or other property and shake the dust off my feet; so not giving what is holy to dogs and not throwing my pearls before swine. (Matthew 10:14 & 7:6) So I retreat when I can do so and avoid a fight or trouble. Also following the admonition at Acts 24:16; which states `In this respect, indeed, I am exercising myself continually to have a consciousness of committing no offense against God and man.'" Upon a denial of this claim by the local Board, petitioner appealed and his file was referred to the Department of Justice. It appears that the report of the Federal Bureau of Investigation contained nothing unfavorable to petitioner's claim, and the hearing officer concluded that petitioner should be classified as a conscientious objector. In advising the Department of Justice, the hearing officer wrote that he "was convinced that [petitioner] has sincere objections to military service by reason of his religious training and beliefs." The Department of Justice, although admitting that the investigation was favorable to petitioner, recommended to the Appeal Board that petitioner's claim be denied on the ground that "While the registrant may be sincere in the beliefs he has expressed, he has, however, failed to establish that he is opposed to war in any form. As indicated by the statements on his SSS Form No. 150, registrant will fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren. He is, therefore, not entitled to exemption within the meaning of the Act." The Appeal Board retained petitioner in his I-A classification, and thereafter, when duly ordered to report, he refused to submit to induction. This prosecution followed and the Seventh Circuit affirmed petitioner's conviction. 213 F.2d 911. We granted certiorari. .In this case, unlike Witmer, ante, p. 375, it is admitted that petitioner is sincere; we are therefore relieved of the task of searching the record for basis in fact to support a finding of insincerity. The only question presented in this case is one of law - do the beliefs which petitioner says he holds amount to the conscientious opposition to "participation in war in any form" demanded by Congress as a prerequisite to the conscientious objector deferment? Stated in the light of the background, the question at issue is whether a registrant under the Universal Military Training and Service Act, who is admittedly a sincere Jehovah's Witness and conscientious objector to participation in war, but who believes in the use of force in defending "his ministry, Kingdom interests and ... his fellow brethren," is entitled to exemption under 6 (j) of the Act from service in the armed forces. The Government insists that petitioner's statements reveal qualified and varied objection to war - and that "petitioner's willingness to fight in defense of `Kingdom Interests', particularly when those words are considered in the light of the teachings of his sect, ..." is clearly not opposition to war in any form.The Government does not contend that the petitioner's belief in the use of force in self-defense, as well as the defense of his home, family and associates, is so inconsistent with his claim of conscientious objection as to serve as a basis for a denial of his claim.* The question here narrows to whether the willingness to use of force in defense of Kingdom interests and brethren is sufficiently inconsistent with petitioner's claim as to justify the conclusion that he fell short of being a conscientious objector. Throughout his selective service form, petitioner emphasized that the weapons of his warfare were spiritual, not carnal. He asserted that he was a soldier in the Army of Jesus Christ and that "the war weapons of the soldier of Jesus Christ are not carnal." With reference to the defense of his ministry, his brethren and Kingdom interests, he asserted that "we do not arm ourselves or carry carnal weapons ... . I do not use weapons of warfare in defense ... of Kingdom interests ... ." In letters to the local Board he reiterated these beliefs. On their face, these statements make it clear that petitioner's defense of "Kingdom Interests" has neither the bark nor the bite of war as we unfortunately know it today. It is difficult for us to believe that the Congress had in mind this type of activity when it said the thrust of conscientious objection must go to "participation in war in any form."But the Government urges that these statements of petitioner must be taken in the light of the teachings of Jehovah's Witnesses. While each case must of necessity be based on the particular beliefs of the individual registrant, it is true that the Congress, by relating the registrant's conscientious objection to his religious training and belief, has made the belief of his sect relevant. Moreover, the petitioner does parenthetically say that his belief in the use of force was "as well ... [the belief of] all Jehovah's Witnesses." On the other hand, though the Government has appended to its brief a copy of the Watchtower magazine of February 1, 1951, we do not find any such literature in the record. It is not at all clear that we may consider such material outside the record to support an Appeal Board decision, cf. Cox v. United States, , but we need not decide that here because in any event there is no substance to the Government's contention. Granting that these articles picture Jehovah's Witnesses as antipacifists, extolling the ancient wars of the Israelites and ready to engage in a "theocratic war" if Jehovah so commands them, and granting that the Jehovah's Witnesses will fight at Armageddon, we do not feel this is enough. The test is not whether the registrant is opposed to all war, but whether he is opposed, on religious grounds, to participation in war. As to theocratic war, petitioner's willingness to fight on the orders of Jehovah is tempered by the fact that, so far as we know, their history records no such command since Biblical times and their theology does not appear to contemplate one in the future. And although the Jehovah's Witnesses may fight in the Armageddon, we are not able to stretch our imagination to the point of believing that the yardstick of the Congress includes within its measure such spiritual wars between the powers of good and evil where the Jehovah's Witnesses, if they participate, will do so without carnal weapons.We believe that Congress had in mind real shooting wars when it referred to participation in war in any form - actual military conflicts between nations of the earth in our time - wars with bombs and bullets, tanks, planes and rockets. We believe the reasoning of the Government in denying petitioner's claim is so far removed from any possible congressional intent that it is erroneous as a matter of law.The Court of Appeals also rested its decision on the conclusion that petitioner's objection to participation in war was only a facet of his real objection to all governmental authority. We believe, however, that if the requisite objection to participation in war exists, it makes no difference that a registrant also claims, on religious grounds, other exemptions which are not covered by the Act. Once he comes within 6 (j), he does not forfeit its coverage because of his other beliefs which may extend beyond the exemption granted by Congress.The Government also contends, apparently for the first time, that petitioner objects to "participation in war in any form," if in fact he does, not from a feeling that it is wrong to participate in war but because such participation will require time which petitioner feels should be devoted to his religious activities. In its memorandum indicating its lack of opposition to certiorari, the Government gave no hint that it considered such an issue in the case, and it is unnecessary for us to consider it here. The report of the Department of Justice to the Appeal Board clearly bases its recommendation on petitioner's willingness to "fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren," and we feel that this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings at least where it is not clear that the Board relied on some legitimate ground. Here, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds. There is an impressive body of lower court cases taking this position and we believe that they state the correct rule. Cf. United States ex rel. Levy v. Cain, 149 F.2d 338, 342 (C. A. 2d Cir. 1945); United States v. Balogh, 157 F.2d 939, 943-944 (C. A. 2d Cir. 1946), judgment vacated on other grounds, ; United States v. Everngam, 102 F. Supp. 128 (S. D. W. Va. 1951).The decision below is therefore Reversed.[Footnote *] In United States v. Taffs, in which we denied certiorari, , the Government admitted as much in its petition. Its admission here does not extend to the category "brethren" which was not used in Taffs.MR. JUSTICE REED, dissenting.It is not important to the United States military strength that a few people eligible for military service are excused from combat and noncombatant duties as conscientious objectors. It is important to other American citizens that many without such scruples against war must serve while the few continue their assigned tasks with no exposure to danger greater than that of other civilians.Many, by reason of religious training or moral conviction, may be opposed to certain wars declared by the Nation. But they must serve because they do not meet the test of the statute, "conscientiously opposed to participation in war in any form." The Court assumes that Sicurella's conscience permits him to participate in theocratic wars, that is, those approved by Jehovah, such as the blood and flesh wars of the Israelites. Sicurella testified he would use force in defense of "Kingdom Interests." Those words also seem to me to include theocratic wars. Under the assumption of the Court and petitioner's statements, he is not covered by the statutory exemption. His position is inconsistent with his claimed opposition to war. I would require him to serve in the military service.MR. JUSTICE MINTON, dissenting.The findings and classification made by the Selective Service Board and the Appeal Board are final. 50 U.S.C. App. (1952 ed.) 460(b)(3). This Court does not sit as a court of review. It is not our province to substitute our judgment of the facts for that of the Board or to correct the Board's errors of law unless they are so wanton, arbitrary and capricious as to destroy the jurisdiction of the Board.This Court said in Estep v. United States, , at pp. 122-123:"The provision making the decisions of the local boards `final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant." (Emphasis added.) In that case, Estep had claimed that his classification was made arbitrarily and capriciously. This is always a question of jurisdiction. Was the Board acting in wanton disregard of its legal boundaries? If it was not, but made what we might consider an honest mistake in judgment, this Court should not intervene.In the instant case, the Court does not say that the Board acted capriciously and arbitrarily or that the judgment of the Board was not an allowable judgment of reasonable men. The Court states that a mistake in advice was made by the Department of Justice to the Appeal Board."The report of the Department of Justice ... clearly bases its recommendation on petitioner's willingness to `fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren,' and we feel that this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings ... ." It will be noted that the Court says there was error of law not by the Appeal Board but by the Department of Justice, whose recommendation is purely advisory and not binding upon the Appeal Board. 50 U.S.C. App. (1952 ed.) 456 (j). The Court concludes that the Department of Justice committed an error of law by recommending to the Appeal Board that the petitioner be denied conscientious objector classification because of petitioner's willingness to "fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren." The record in this case clearly establishes that this was the position and attitude of the petitioner as a faithful Jehovah's Witness. Petitioner says he is opposed to fighting a secular war but is not opposed to fighting a religious war where the interests of his sect are involved. This does not meet the test of the statute, 50 U.S.C. App. (1952 ed.) 456 (j), which provides: "Nothing contained in this title [sections 451-454 and 455-471 of this Appendix] shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." The petitioner is not opposed to "participation in war in any form." That is the congressional test. On the contrary, he reserves the right to choose the wars in which he will fight. The petitioner refused even to be inducted for any kind of limited service, combatant or otherwise.The Court's opinion gives the impression that the petitioner and his sect would not use force. In petitioner's own statement to the Board, he contradicts such a position. SSS Form No. 150, filled out by the petitioner and submitted to the Board, contains the following question and answer: "5. Under what circumstances, if any, do you believe in the use of force? "Only in the interests of defending Kingdom Interests, our preaching work, our meetings, our fellow brethren and sisters and our property against attack. I (as well as all Jehovah's Witnesses) defend those when they are attacked and are forced to protect such interests and scripturally so. Because in doing so we do not arm ourselves or carry carnal weapons in anticipation of or in preparation for trouble or to meet threats." This answer clearly shows that the petitioner and his sect will fight for Kingdom Interests, whatever that is, preaching work, their meetings, their fellow brethren and sisters, and their property. They do not, they say, carry carnal weapons in anticipation of attack, but they will use them in case of attack. This evidence clearly supports the District Court's finding of guilt; and the conclusion of the Selective Service Board based on such evidence was an allowable one.I think the Department of Justice might very well have believed petitioner did not meet the test laid down by Congress. By accepting the Department's recommendation, the Board might have been mistaken, but it was an honest mistake. There is not the slightest intimation of arbitrary or capricious conduct on the part of the Board.Because we do not sit to review errors of fact or law unless the latter be so arbitrary and capricious as to destroy the Board's jurisdiction, and because I think the decision of the Appeal Board, even if the Board accepted and relied upon the recommendation of the Department of Justice, was an honest opinion and, therefore, an allowable judgment not arbitrarily and capriciously made, I would affirm.

Certiorari dismissed. Reported below: 906 F.2d 624.Raymond J. LaJeunesse, Jr., argued the cause for petitioner. With him on the briefs were Hugh L. Reilly and Herbert R. Kraft.Barry Richard argued the cause and filed briefs for respondents.* [Footnote *] Anthony T. Caso and Ronald A. Zumbrun filed a brief for the Pacific Legal Foundation as amicus curiae urging reversal.Briefs of amici curiae were filed for the National Education Association et al. by Robert H. Chanin, Bruce R. Lerner, and Jeremiah A. Collins, for the State Bar of Wisconsin by John S. Skilton and William M. Conley, and for David P. Frankel et. al. by Mr. Frankel, pro se, and Joseph W. Little.PER CURIAM.The writ of certiorari is dismissed as improvidently granted.

The Due Process Clause of the Fourteenth Amendment is not violated when a state prosecutor carries out a threat made during plea negotiations to have the accused reindicted on more serious charges on which he is plainly subject to prosecution if he does not plead guilty to the offense with which he was originally charged. Pp. 360-365. (a) "[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Blackledge v. Allison, . Pp. 361-362. (b) Though to punish a person because he has done what the law allows violates due process, see North Carolina v. Pearce, , there is no such element of punishment in the "give-and-take" of plea bargaining as long as the accused is free to accept or reject the prosecutor's offer. Pp. 362-364. (c) This Court has accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty, and in pursuing that course here the prosecutor did not exceed constitutional bounds. Pp. 364-365. 547 F.2d 42, reversed.STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, REHNQUIST, and STEVENS, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 365. POWELL, J., filed a dissenting opinion, post, p. 368.Robert L. Chenoweth, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the brief was Robert F. Stephens, Attorney General.J. Vincent Aprile II argued the cause and filed a brief for respondent.* MR. JUSTICE STEWART delivered the opinion of the Court.The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.IThe respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of 2 to 10 years in prison. Ky. Rev. Stat. 434.130 (1973) (repealed 1975). After arraignment, Hayes, his retained counsel, and the Commonwealth's Attorney met in the presence of the Clerk of the Court to discuss a possible plea agreement. During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty and "save the court the inconvenience and necessity of a trial," he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act,1 then Ky. Rev. Stat. 431.190 (1973) (repealed 1975), which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions.2 Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the prosecutor was in possession of this evidence at the time of the original indictment, and that Hayes' refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute.A jury found Hayes guilty on the principal charge of uttering a forged instrument and, in a separate proceeding, further found that he had twice before been convicted of felonies. As required by the habitual offender statute, he was sentenced to a life term in the penitentiary. The Kentucky Court of Appeals rejected Hayes' constitutional objections to the enhanced sentence, holding in an unpublished opinion that imprisonment for life with the possibility of parole was constitutionally permissible in light of the previous felonies of which Hayes had been convicted,3 and that the prosecutor's decision to indict him as a habitual offender was a legitimate use of available leverage in the plea-bargaining process. On Hayes' petition for a federal writ of habeas corpus, the United States District Court for the Eastern District of Kentucky agreed that there had been no constitutional violation in the sentence or the indictment procedure, and denied the writ.4 The Court of Appeals for the Sixth Circuit reversed the District Court's judgment. Hayes v. Cowan, 547 F.2d 42. While recognizing "that plea bargaining now plays an important role in our criminal justice system," id., at 43, the appellate court thought that the prosecutor's conduct during the bargaining negotiations had violated the principles of Blackledge v. Perry, , which "protect[ed] defendants from the vindictive exercise of a prosecutor's discretion." 547 F.2d, at 44. Accordingly, the court ordered that Hayes be discharged "except for his confinement under a lawful sentence imposed solely for the crime of uttering a forged instrument." Id., at 45. We granted certiorari to consider a constitutional question of importance in the administration of criminal justice. .IIIt may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant's insistence on pleading not guilty.5 As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.The Court of Appeals nonetheless drew a distinction between "concessions relating to prosecution under an existing indictment," and threats to bring more severe charges not contained in the original indictment - a line it thought necessary in order to establish a prophylactic rule to guard against the evil of prosecutorial vindictiveness.6 Quite apart from this chronological distinction, however, the Court of Appeals found that the prosecutor had acted vindictively in the present case since he had conceded that the indictment was influenced by his desire to induce a guilty plea.7 The ultimate conclusion of the Court of Appeals thus seems to have been that a prosecutor acts vindictively and in violation of due process of law whenever his charging decision is influenced by what he hopes to gain in the course of plea bargaining negotiations.IIIWe have recently had occasion to observe: "Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Blackledge v. Allison, . The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, Brady v. United States, , the need for a public record indicating that a plea was knowingly and voluntarily made, Boykin v. Alabama, , and the requirement that a prosecutor's plea-bargaining promise must be kept, Santobello v. New York, . The decision of the Court of Appeals in the present case, however, did not deal with considerations such as these, but held that the substance of the plea offer itself violated the limitations imposed by the Due Process Clause of the Fourteenth Amendment. Cf. Brady v. United States, supra, at 751 n. 8. For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.IVThis Court held in North Carolina v. Pearce, , that the Due Process Clause of the Fourteenth Amendment "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a "realistic likelihood of `vindictiveness.'" Blackledge v. Perry, 417 U.S., at 27.In those cases the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction - a situation "very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power." Parker v. North Carolina, , 809 (opinion of BRENNAN, J.). The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, ; Chaffin v. Stynchcombe, , but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, at 26-28.To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, at 738 (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is "patently unconstitutional." Chaffin v. Stynchcombe, supra, at 32-33, n. 20. See United States v. Jackson, . But in the "give-and-take" of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.Plea bargaining flows from "the mutuality of advantage" to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, supra, at 752. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. 397 U.S., at 758. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See ABA Project on Standards for Criminal Justice, Pleas of Guilty 3.1 (App. Draft 1968); Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv. L. Rev. 564 (1977). Cf. Brady v. United States, supra, at 751; North Carolina v. Alford, .While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable" - and permissible - "attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, supra, at 31. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.8 Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, . To hold that the prosecutor's desire to induce a guilty plea is an "unjustifiable standard," which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged. See Blackledge v. Allison, 431 U.S., at 76.There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse.9 And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.Accordingly, the judgment of the Court of Appeals is Reversed.[Footnote *] John L. Hill, Attorney General, David M. Kendall, First Assistant Attorney General, Joe B. Dibrell, Jr., and Anita Ashton, Assistant Attorneys General, filed a brief for the State of Texas as amicus curiae urging reversal.Paul N. Halvonik, Charles M. Sevilla, Ephraim Margolin, and Sheldon Portman filed a brief for the California State Public Defender et al. as amici curiae urging affirmance.

[Footnote *] No. 778, Baltimore & Ohio Railroad Co. et al. v. United States et al.; No. 779, Norfolk & Western Railway Co. v. United States et al.; No. 830, Oscar Gruss & Son v. United States et al.; No. 831, New York, New Haven & Hartford Railroad Co. First Mortgage 4% Bondholders Committee et al. v. United States et al.; No. 832, Erie-Lackawanna Railroad Co. et al. v. United States et al.; No. 833, Boston & Maine Corp. v. United States et al.; No. 834, Reading Co. v. United States et al.; No. 835, City of Scranton et al. v. United States et al.; and No. 836, John Hancock Mutual Life Insurance Co. et al. v. United States et al., on appeal from the United States District Court for the Southern District of New York, argued December 4, 1967. No. 433, City of Pottsville v. United States et al., on appeal from the United States District Court for the Middle District of Pennsylvania; No. 663, Misc., Borough of Moosic v. United States District Court for the Middle District of Pennsylvania et al.; and No. 664, Misc., City of Scranton et al. v. United States District Court for the Middle District of Pennsylvania et al., on motions for leave to file petitions for writs of mandamus and/or certiorari to the United States District Court for the Middle District of Pennsylvania. Last Term this Court concluded () that the Interstate Commerce Commission (ICC) erred in permitting immediate consummation of the Penn-Central merger without determining the ultimate fate of the Erie-Lackawanna, Delaware & Hudson, and Boston & Maine railroads (the "protected roads"). The ICC then conducted proceedings on the petitions of those three lines for inclusion in the Norfolk & Western (N & W) system and ordered N & W to acquire the stock of the three "protected roads" on prescribed terms. In the remanded Penn-Central proceedings the ICC reconsidered certain protective conditions previously devised to aid the three roads, imposed amended protective conditions for the interim period between consummation of the Penn-Central merger and the protected lines' inclusion in a major system, and again authorized the immediate consummation of the Penn-Central merger. A three-judge district court for the Southern District of New York enjoined implementation of the merger order pending review. Actions were also filed in that court to set aside the ICC's order to include the protected roads in the N & W system. Suits challenging the merger and inclusion orders in other courts were stayed to permit orderly disposition of the issues in the Southern District of New York. The District Court for the Southern District of New York dismissed all complaints attacking the merger and inclusion orders and sustained the decisions of the ICC. The Borough of Moosic filed an action in the Middle District of Pennsylvania to set aside the ICC's orders, in which action the City of Scranton and one Shapp intervened. The City of Pottsville's request to intervene was denied. The action was stayed and Moosic, Scranton and Shapp filed petitions for mandamus or certiorari seeking to challenge the stay, which has since been dissolved. Held: 1. The ICC properly and lawfully discharged its duties with respect to the Penn-Central merger, as its findings and conclusions accord with 5 of the Interstate Commerce Act, as amended by the Transportation Act of 1940, and are supported by substantial evidence. Pp. 498-502. (a) Under the congressional policy, set forth in the Act, of consolidating railroads into a "limited number of systems" competition is only one of many considerations in determining the public interest in the merger. Pp. 499-500. (b) The evidence before the ICC, with negligible exceptions, attested to the probability of significant benefit from the merger, not only to the railroads and their investors, but also to shippers and the general public. P. 500. (c) The ICC retains authority over reductions of service and facilities not specifically approved in the merger plans. P. 501. (d) Rail service by the merged company will remain subject to restraining pressures and vigorous competition from other railroads and from motor, water, and air carriers. P. 501. 2. The attack on the orders by certain municipalities and Shapp based on the ICC's alleged failure to consider or properly evaluate the adverse effect of the merger considered in light of the inclusion order does not warrant reversal of the judgment of the District Court for the Southern District of New York. Pp. 502-506. (a) These complainants' petitions for mandamus or certiorari challenging the stay order of the District Court for the Middle District of Pennsylvania are dismissed as moot since the stay order has been dissolved. P. 503. (b) In its April 6, 1966, opinion approving the merger the ICC considered arguments made by participating communities and stated that the "merger will benefit rather than harm the Commonwealth." Pp. 503-504. (c) Claims of specific injury resulting from reduction of competition by curtailment of service now provided by the "protected roads" may be asserted in appropriate proceedings when such curtailment is proposed. P. 504. (d) The City of Scranton and Shapp were parties to the New York proceedings and the Borough of Moosic had adequate opportunity to join in that litigation following the stay of proceedings in the Pennsylvania court, and accordingly the New York court's decision which, with certain exceptions, is affirmed, precludes further judicial review of the issues on which it passes. Pp. 505-506. (e) Since the proceedings in the Pennsylvania court are not before this Court, except for the petitions challenging the stay order which have been dismissed as moot, it will be that court's task to determine the effect of the present decision upon the proceedings before it. P. 506. 3. The decision of the District Court for the Middle District of Pennsylvania denying intervention to the City of Pottsville is vacated. Pp. 506-507. 4. The appeals of bondholders of the New York, New Haven & Hartford Railroad Company (NH), which has been under reorganization since 1961, challenging the ICC's order of November 21, 1967, providing terms for NH's inclusion in the Penn-Central system and for a loan arrangement to keep NH operating, are rejected. Pp. 507-511. (a) The merits of the provisions of that order are not before this Court; they have not been reviewed by the bankruptcy court or by a statutory district court under the applicable statute. P. 509. (b) Continuation of NH's operations can be realistically assured only upon effectuation of the merger, and while the rights of bondholders are entitled to respect, they do not dictate that vital rail operations be jettisoned for this reason alone. Pp. 510-511. (c) The bondholders' objections may be adjudicated in the reorganization or upon proper judicial review; and the ICC has retained jurisdiction to make further necessary orders. P. 511. 5. The New York court's conclusion that the interim provisions for the "protected roads" are adequate and conform to the purposes insisted on by the ICC and which this Court sought to ensure by its decision last Term, is affirmed. Pp. 511-518. (a) The protective conditions do not constitute a pooling arrangement within the meaning of the applicable statute; and the ICC's holding may be sustained by the substantial evidence that even if these provisions established a pooling arrangement, "this record clearly supports findings ... that to protect these carriers clearly is in the interest of better service to the public" and "will not unduly restrain competition." Pp. 513-514. (b) The ICC has reserved jurisdiction under which it could modify these provisions should improper traffic diversions develop or if the conditions should otherwise prove inequitable. Pp. 514-515. (c) This Court's decision last Term was based on the ICC's failure to decide the question of the ultimate home of the "protected roads," and does not forbid consummation of the merger until the three roads are actually included in a larger system. Pp. 516-518. 6. The ICC's refusal to permit the Reading Company to reopen the merger record and submit evidence supporting its claim for protection similar to that given the "protected roads" is sustained, without prejudice to any proceeding by Reading, based on actual experience, for relief from undue prejudice caused by the merger. Pp. 519-520. 7. The New York court's disallowance of the claims of those appellants who challenge the ICC's order for inclusion of the "protected roads" in the N & W system is affirmed. Pp. 520-526. (a) If, after inclusion of Erie-Lackawanna (E-L) in the N & W system by stock acquisition, E-L bondholders feel that N & W has engaged in conduct invading their rights, they may apply to the ICC for relief under its reserved jurisdiction. P. 522. (b) The financial terms and property valuations involved in the inclusion of the "protected roads" were established by the ICC within the area of fairness and equity, were reviewed in detail by the District Court and sustained, and there is no basis for reversing the judgment of that court. Pp. 523-526. (c) The inclusion order has no compulsive or coercive effect on the roads to be included, and unless and until modified by the ICC, it remains available to the protected lines upon the terms specified. P. 526. (d) The conditions prescribed by the ICC to protect employees of the roads to be included in the N & W system are sustained. They are similar to those set by the ICC for N & W's employees at the time of the N & W-Nickel Plate merger. P. 526. Nos. 778, 779, 830-836, 279 F. Supp. 316, affirmed, subject to modifications and conditions stated in the opinion, and remanded; Nos. 663, Misc., and 664, Misc., petitions for mandamus or certiorari denied; No. 433, jurisdiction noted, 272 F. Supp. 513, vacated and remanded.Howard J. Trienens, Myron S. Isaacs, Edward A. McDermott, Ernest R. von Starck, Gordon P. MacDougall, Malcolm Fooshee and Lester C. Migdal argued the cause for appellants in Nos. 778, 779, 830-836.Solicitor General Griswold argued the cause for the United States et al. in Nos. 778, 779, 830-836.Thomas D. Barr, Harry G. Silleck, Jr., Joseph Auerbach and Hugh B. Cox argued the cause for the remaining appellees in Nos. 778, 779, 830-836.With Mr. Trienens on the briefs for Baltimore & Ohio Railroad Co. et al. were Richard J. Flynn, George L. Saunders, Jr., Lloyd N. Cutler, Daniel K. Mayers and Edward K. Wheeler. With Mr. Trienens on the briefs for Norfolk & Western Railway Co. were Messrs. Flynn, Cutler, Mayers and Albert Ritchie. With Mr. Isaacs on the briefs for Oscar Gruss & Son was Homer Kripke. With Mr. Migdal on the briefs for New York, New Haven & Hartford Railroad Co. First Mortgage 4% Bondholders Committee was Lawrence W. Pollack. With Mr. McDermott on the briefs for Boston & Maine Corp. was James A. Belson. With Mr. von Starck on the briefs for Reading Co. was H. Merle Mulloy. With Mr. MacDougall on the briefs for the City of Scranton et al. were Harvey Gelb, Israel Packel and Leon H. Keyserling. Mr. MacDougall was on the briefs for the City of Pottsville and the Borough of Moosic. With Mr. Fooshee on the briefs for John Hancock Mutual Life Insurance Co. et al. were Carl E. Newton, M. Lauck Walton and Ben Vinar.With Solicitor General Griswold on the briefs for the United States et al. were former Solicitor General Marshall, Assistant Attorney General Turner, Ralph S. Spritzer, Louis F. Claiborne, Howard E. Shapiro, Robert W. Ginnane, Fritz R. Kahn, Leonard S. Goodman, Betty Jo Christian and Jerome Nelson.With Mr. Barr on the briefs for Erie-Lackawanna Railroad Co. were Harry H. Voigt, Eldon Olson, John M. Linsenmeyer and J. Kenneth Campbell. Mr. Silleck was on the briefs for Delaware & Hudson Railroad Corp. With Mr. Auerbach on the briefs for Smith et al., trustees of the property of New York, New Haven & Hartford Railroad Co., were James Wm. Moore, Robert W. Blanchette, Arthur Blasberg, Jr., Robert G. Bleakney, Jr., Morris Raker and Robert M. Peet. With Mr. Cox on the briefs for Pennsylvania Railroad Co. and New York Central Railroad Co. were Henry P. Sailer, Windsor F. Cousins, Ulrich Schweitzer, Gerald E. Dwyer, James B. Gray, Edward F. Butler and David J. Mountan, Jr. Louis J. Lefkowitz, Attorney General, Dunton F. Tynan, Assistant Solicitor General, Mortimer Sattler, Assistant Attorney General, and Walter J. Myskowski filed briefs for the State of New York. Arthur J. Sills, Attorney General, and William Gural, Deputy Attorney General, filed a brief for the State of New Jersey. Robert K. Killian, Attorney General of Connecticut, Samuel Kanell, Special Assistant Attorney General, William J. Lynch, Elliot L. Richardson, Attorney General of Massachusetts, Howard M. Miller, Assistant Attorney General, Herbert F. DeSimone, Attorney General of Rhode Island, and Robert M. Schacht, Assistant Attorney General, filed a brief for their respective States. William G. Mahoney and William J. Hickey filed a brief for the Railway Labor Executives' Association.William C. Sennett, Attorney General, Edward Friedman, Counsel General, and Edward Munce and Robert M. Harris, Assistant Attorneys General, filed a brief for the Commonwealth of Pennsylvania, as amicus curiae.MR. JUSTICE FORTAS delivered the opinion of the Court.These cases again bring before us problems arising from the program to merge the Pennsylvania and New York Central railroads and related problems proceeding from an Interstate Commerce Commission order that certain railroads be included in the Norfolk & Western (N & W) system. The merger and the inclusion orders are part of a vast reorganization of rail transportation implementing the congressional policy of encouraging consolidation of the Nation's railroads into a "limited number of systems." Section 407 of the Transportation Act of 1920, amending 5 (4) of the Interstate Commerce Act, 41 Stat. 481. That policy has been with us, in one form or another, for more than 45 years. The original idea of the 1920 Act, that the ICC would formulate a national plan of consolidation, proved unworkable. It ran into heavy opposition from carriers and eventually had to be abandoned. The 1920 Act was replaced by the Transportation Act of 1940, 54 Stat. 898. Section 5 (2) (b) of the Interstate Commerce Act, as amended by the 1940 Act, 54 Stat. 906, 49 U.S.C. 5 (2) (b), governed the Commission's examination of the present transactions. Under the 1940 Act, the initiation of merger and consolidation proceedings is left to the carriers themselves, and the Commission possesses no power to compel carriers to merge. However, the congressional directive for a limited number of railroad systems has not been changed. The only change has been in the means of achieving that goal. See generally St. Joe Paper Co. v. Atlantic Coast Line R. Co., (Appendix) (1954).The Pennsylvania and the New York Central dominate rail transportation in the Northeast. Their freight operations extend over some 20,000 miles of road in 14 States and Canada. They are the two largest passenger carrying railroads in the United States. In 1965 their combined operating revenue surpassed $1,500,000,000 and their combined net income was more than $75,000,000. As independent lines, Pennsylvania and New York Central are, to some extent, in direct competition for rail traffic. There are 32 urban areas in which the two lines are in competition with each other and in which no other rail facilities are available. The two roads operate at 160 common points or junctions and have a substantial amount of parallel trackage and routes. The proposed merger which the ICC has approved contemplates the unification of these vast roads and, as time goes on, the rationalization and elimination of some of the dual facilities and services in various areas and in various respects. The merger will result in "enormous savings in transit time." It is estimated that in eight years, the savings in expense will amount to more than $80,000,000 annually. See Baltimore & Ohio R. Co. v. United States, .At the same time the combination of these two roads will directly and adversely affect various smaller railroads in the service area because of the more effective competitive service that the combined system will offer and because of the tendency of the combined roads, unless restrained by law, to favor their own system rather than to share traffic by interchange with nonsystem roads.In brief, the antecedents of the issues before us are as follows: the Penn-Central merger has been under consideration by the parties and the Commission for about 10 years. It was preceded by the vast N & W-Nickel Plate merger, which the Commission approved in 1964. That transaction, which, it is anticipated, will eventually produce savings for the N & W system of over $29,000,000 annually, resulted in a large rail network covering some 7,000 miles of track and extending in the north from Des Moines and Kansas City to Buffalo and Pittsburgh, and in the southern tier from Cincinnati to Norfolk. See Norfolk & Western Railway Co. and New York, Chicago & St. Louis Railroad Co. - Merger, etc., 324 I. C. C. 1 (1964). The transaction was not presented to this Court for review.In 1962 the parties to the Penn-Central transaction signed an agreement of merger including 36 rail carriers. The merger agreement did not include the New York, New Haven & Hartford Railroad (NH), although that road requested inclusion.Following the merger agreement, the parties submitted the proposal to the Commission for approval under 5 (2) of the Interstate Commerce Act. Exhaustive hearings were held in which States, municipalities, railroads, shippers, and public bodies - some 200 parties in all - took part. The Commission's own staff participated extensively as did the Department of Justice acting for affected interests of the United States other than the regulatory functions of the Commission. All participants, with relatively minor exceptions to which we shall later advert, agreed that the merger itself would be in the public interest. There were sharp differences, however, with respect to certain issues. These primarily concerned the provisions to be made for three smaller lines affected by the proposed merger: the Erie-Lackawanna (E-L), Delaware & Hudson (D & H), and Boston & Maine (B & M) railroads. The Commission approved immediate consummation of the merger, subject to a reservation of jurisdiction to establish protective provisions for the three roads. Pennsylvania Railroad Co. - Merger - New York Central Railroad Co., 327 I. C. C. 475 (1966). Its order was approved by a three-judge court in the Southern District of New York. Erie-Lackawanna R. Co. v. United States, 259 F. Supp. 964 (1966).At the last Term of Court, we reversed. We noted that the Commission itself had found that the survival of the E-L, D & H, and B & M was essential to the public interest and that these roads would be so seriously affected by the competition of the merged company that they might not be able to survive unless adequate protective arrangements were made. In these circumstances we concluded that the Commission should have determined the means to preserve the "protected roads," on both an interim and a permanent basis, before permitting consummation of the merger. We expressly stated that we were not passing upon the validity of the merger or the "peripheral points posed by the various parties." Baltimore & Ohio R. Co. v. United States, supra, at 378.The Court noted that in 1965 each of the three "protected roads" had filed applications for inclusion in the N & W system, and that these were pending before the Commission in the N & W-Nickel Plate merger case pursuant to the Commission's continuing jurisdiction over those proceedings. We further noted that the Commission, pursuant to its power under 5 of the Act to require as a condition of approval of a merger that other railroads be included in the merger, had obligated the merged N & W system to include the E-L, D & H, and B & M if the Commission should so direct, upon such equitable terms as the Commission might prescribe. We stated that if the three protected roads were ordered to be included in the N & W system, "such action would provide the solution to the problem of the necessary and indispensable protection to the three railroads that the Commission found prerequisite to the merger." 386 U.S., at 390.In accordance with our remand of the Penn-Central merger case, the Commission conducted further proceedings in the N & W case on the pending petitions of the three roads. On June 9, 1967, it issued its decision to the effect that "inclusion of the petitioners in the N & W system is preferable to their inclusion in the Penn-Central," and ordered N & W to acquire the stock of the three roads on prescribed terms. Norfolk & Western Railway Co. and New York, Chicago & St. Louis Railroad Co. - Merger, etc., 330 I. C. C. 780, 796 (1967). At the same time, in the remanded Penn-Central merger proceedings, the Commission reconsidered certain protective conditions it had previously devised to aid the three roads, imposed amended protective conditions to operate in the interim between consummation of the Penn-Central merger and the protected lines' inclusion in a major railroad system,1 and again authorized the immediate consummation of the Penn-Central merger. Pennsylvania Railroad Company - Merger - New York Central Railroad Company, 330 I. C. C. 328 (1967).On July 3, 1967, on application of parties opposing the Commission's merger order, the three-judge District Court for the Southern District of New York enjoined implementation of that order pending the decision of that court on review. Actions were also filed by several parties in the same court to set aside the order of the Commission requiring the N & W to include the three protected roads in its system. Suits challenging both the merger and inclusion orders were instituted in other courts, but were stayed so as to permit orderly disposition of the basic issues in the Southern District of New York.2 After expedited proceedings in that court, all complaints attacking the merger and the inclusion orders were dismissed3 and the decisions of the Interstate Commerce Commission in both the merger and the inclusion proceedings were sustained. 279 F. Supp. 316. Various of the parties then sought relief in this Court. Because of the importance and urgency of the matter, we granted a further stay of the merger order, consolidated all proceedings that were before us relating to the merger and inclusion decisions, and expedited consideration thereof. See post, p. 946.We have before us nine appeals, on behalf of 17 parties, from the decision of the District Court. Also docketed are two related petitions for mandamus or certiorari to the District Court for the Middle District of Pennsylvania, and one appeal from that court. The particular contentions urged upon us, in this multiplicity of proceedings, are many and varied. In general, however, the issues may be articulated as follows: Has the mandate of this Court been fulfilled, in that appropriate provision has now been made for the three smaller roads? Are the terms of the order providing for inclusion of the protected roads in the N & W system fair and equitable and in the public interest? Did the District Court err in refusing to enjoin consummation of the Penn-Central merger? Has adequate provision been made for resolution of the "peripheral" issues presented by the parties, which would not be foreclosed by a decision authorizing the consummation of the merger and inclusion of the protected roads in the N & W? I. THE MERGER DECISION. A. IN GENERAL. Most of the parties before us are in accord that the merger is in the public interest and should be consummated as promptly as possible. Those urging immediate consummation before this Court include the Department of Justice and the Commission, the States of Pennsylvania, Connecticut, Rhode Island, New York, Massachusetts, and New Jersey; the Railway Labor Executives' Association; the trustees of the NH; the Pennsylvania and New York Central railroads; B & M; and, in substance, the E-L, D & H, and N & W and its allies. While this consensus has reduced the attacks upon the merits of the merger to a minimum, considering the vast size and implications of the transaction, we must nevertheless address ourselves to the basic merits of the merger as well as to the specific objections that are before us.With respect to the merits of the merger, however, our task is limited. We do not inquire whether the merger satisfies our own conception of the public interest. Determination of the factors relevant to the public interest is entrusted by the law primarily to the Commission, subject to the standards of the governing statute. The judicial task is to determine whether the Commission has proceeded in accordance with law and whether its findings and conclusions accord with the statutory standards and are supported by substantial evidence. See, e. g., Illinois C. R. Co. v. Norfolk & W. R. Co., .Section 5 of the Interstate Commerce Act, as amended by the Transportation Act of 1940, 54 Stat. 905, 49 U.S.C. 5, sets forth the national transportation policy that is to guide the Commission in its scrutiny of mergers proposed by railroads. The Commission is to approve such proposals, pursuant to the terms of 5 (2) (b) of that Act, when they are made upon just and reasonable terms and are "consistent with the public interest." In reaching its decision, the Commission is to give weight to a number of factors, such as: "(1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected." 49 U.S.C. 5 (2) (c).We find no basis for reversing the decision of the District Court that the Commission's approval of the merger is in compliance with law and the statutory standards, and is based on adequate findings supported by substantial evidence. We shall first discuss considerations which are basic to the statutory standards, and we shall then turn to certain particular objections which have been made.It is, of course, true that the policy of Congress, set forth in the Transportation Act, to consolidate the railroads of this Nation into a "limited number of systems" is a variation from our traditional national policy, reflected in the antitrust laws, of insisting upon the primacy of competition as the touchstone of economic regulation. Competition is merely one consideration here. See Seaboard Air Line R. Co. v. United States, . This departure from the general and familiar standard of industrial regulation emphasizes the need for insistence that, before a rail merger is approved, there must be convincing evidence that it will serve the national interest and that terms are prescribed so that the congressional objective of a rail system serving the public more effectively and efficiently will be carried out. Obviously, not every merger or consolidation that may be agreed upon by private interests can pass the statutory tests.Examination of the record and of the findings in the present case, however, satisfies us that the Commission has properly and lawfully discharged its duties with respect to the merits of the merger. In these elaborate and lengthy proceedings the Commission has considered evidence tendered by others and compiled by its own staff. Upon the aggressive suit of parties representing conflicting interests, it has analyzed every pertinent aspect of the merger and the inclusion order. It has weighed conflicting viewpoints on all of the fundamental issues and many that are tangential. As the Commission concluded, the evidence before it, with negligible exceptions, attested to the probability of significant benefit from the merger, not only to the railroads and their investors, but also to shippers and the general public.The Commission carefully considered the implications of the fact that the Pennsylvania and the New York Central, as individual systems, have operated at a profit, and that there are reasonably good prospects for a continuation of such operation. But it was impressed by the fact that, as individual systems, these profits are not sufficient to put the roads in a position to make improvements important to the national interest, including the maintenance of services which, although essential to the public, are not self-supporting, and furnishing assistance to other roads serving public needs in their general territory. The Commission emphasized that the merger would enable the unified company to "accelerate investments in transportation property and continually modernize plant and equipment ... and provide more and better service." 327 I. C. C. 475, 501-502. And it pointed out that only by permitting the merger would it be possible for the Commission to compel Penn-Central to come to the rescue of the New Haven, as we shall describe.With respect to the lessening of competition where it now exists between the roads to be merged, the Commission pointed out that it will retain continuing power over reductions of service and facilities which are not specifically approved in the merger plans. Such consolidations and abandonments will have to be presented to the Commission for its approval and may be subjected to public criticism and hearings and to conditions or disapproval. It also noted that the rail service by the merged company will remain subject to vigorous competition from other roads, including the N & W and the C & O-B & O systems, and from motor, water, and air carriers. The Commission summarized some of the factors which would act as a restraint upon the merged company as follows:"The power of shippers to direct the routing, the availability of numerous routes in a dense network of interline routes, the influence of connecting carriers in preventing a deterioration in service on the joint routes in which they participate, the growing strength of the N & W and C & O-B & O systems, all stand to provide a check against any abuse of economic power by the merged applicants." 327 I. C. C., at 514. Considering the record, and the findings and analysis of the Commission, we see no basis for reversal of the District Court's decision that the Commission's "public interest" conclusions are adequately supported and are in accordance with law. We find no basis, consonant with the principles governing judicial review, for setting aside the Commission's determination, approved by the District Court, that the "public interest" directives of the governing statute have been reasonably satisfied: that the transaction is likely to have a beneficial and not an adverse effect upon transportation service to the public; and that, as we shall discuss, appropriate provisions have been made with respect to other railroads that are directly affected by the merger. B. OBJECTIONS OF CERTAIN PENNSYLVANIA INTERESTS. The only objectors in this Court to the public interest findings with respect to the merger are certain interests in the State of Pennsylvania. Appeal No. 835 was taken by the City of Scranton and Milton J. Shapp, a stockholder in the Pennsylvania Railroad Company. These parties filed complaints in the Southern District of New York challenging the Commission's original merger decision. After this Court's remand last Term, they were ordered by the District Court to file supplemental complaints. They declined to comply because, having intervened as plaintiffs in a proceeding challenging the merger in the Middle District of Pennsylvania, they chose to rely upon their asserted right to challenge the Commission's merger and inclusion decisions in the Pennsylvania action. After several warnings, their complaints in the New York court were dismissed, with prejudice.The action in the Middle District of Pennsylvania, in which Shapp and Scranton intervened, was filed by the Borough of Moosic on June 26, 1967, to set aside the Commission's orders, entered after our remand, approving the Penn-Central merger and the inclusion of the three protected roads in the N & W system. The Pennsylvania court stayed the Moosic proceeding by order of July 11, 1967, on the request of the United States and the Commission, for the sound purpose of preventing a multiplicity of litigation regarding the Commission's merger and inclusion decisions. Cf. Kansas City Southern R. Co. v. United States, . Petitions for mandamus or certiorari, on behalf of Moosic (No. 663, Misc.) and Scranton and Shapp (No. 664, Misc.), seeking to challenge the stay of proceedings entered by the Pennsylvania court, have been filed in this Court. Since it now appears that the Middle District of Pennsylvania has dissolved its stay and commenced hearings, it would be pointless for us to review the stay order. Accordingly, the petitions for mandamus or certiorari are dismissed as moot.Scranton, Shapp, and Moosic attack the Commission's merger and inclusion decisions along a broad front and claim error in the Commission's basic findings that the Penn-Central merger and inclusion of the protected lines in N & W are in the public interest. The thrust of this argument is that the Commission failed to consider or properly to evaluate the adverse effect of the Penn-Central merger, considered in light of the order requiring inclusion of the three protected roads in the N & W system, upon certain affected communities in the State of Pennsylvania. We do not agree. In its April 6, 1966, opinion approving the Penn-Central merger, the Commission examined the arguments made by participating communities in great detail and stated that the "contentions regarding the adverse effect of the merger on Pennsylvania's economy are not substantiated by the evidence. On this record, the prospects clearly import that the merger will benefit rather than harm the Commonwealth." 327 I. C. C. 475, 492. At the time it made this finding, the Commission was committed to the proposition enunciated in the April 6, 1966, opinion, that the three protected roads would be included in one of the larger systems because of their inability to survive as independent lines. This Court in its decision last Term emphasized the importance of such inclusion. The Commission's conclusion that the net result of the merger would be beneficial to the State of Pennsylvania is bolstered by the strong position taken by the State in this Court that the decision of the District Court for the Southern District of New York should be affirmed.As we discuss, infra, apart from the general and theoretical argument that the Penn-Central merger and the inclusion of the three roads in the N & W system may harm some Pennsylvania interests, complainants' fears of specific injury resulting from reduction of competition by specific curtailments of service now provided by the three protected lines may be asserted in appropriate proceedings when such curtailment is specifically proposed.All other complaints of these parties relate broadly and generally to the fundamental and underlying economic problems that are involved in the merger and inclusion decisions: for example, the anticompetitive consequences of these decisions and the financial situation and prospects of the Pennsylvania and New York Central as independent lines. They were all the subject of extensive evidence and were analyzed at length by the Commission. In dismissing the complaints of Scranton and Shapp for failure to go forward, Judge Friendly noted that "[w]hile we entertain no doubt of the sufficiency of this [procedural] ground, we think it well to add that ... we find no merit in the complaints of Shapp and The City of Scranton." The court remarked that, for the most part, "the attacks [of Scranton and Shapp] simply represent disagreement with procedural and policy determinations which Congress has committed to the Commission." 279 F. Supp., at 326, n. 6. We find no reason to reverse the judgment of the District Court for the Southern District of New York for dismissing the complaints of Scranton and Shapp for failure to prosecute, or to set aside its conclusions as to the lack of merit of their claims, particularly in light of the limited function of judicial review of decisions such as those now before us and the opportunity open to them to challenge proposals which may be made for specific curtailment of service.Scranton and Shapp, like the Borough of Moosic, wish now to go forward with their complaints in the Middle District of Pennsylvania, in which they seek an injunction against consummation of the Penn-Central merger and the effectiveness of the inclusion order. But Shapp and Scranton were parties to the New York proceedings and the Borough of Moosic had an adequate opportunity to join in the litigation in that court following the stay of proceedings in the Middle District of Pennsylvania. As we noted, supra, n. 2, all district courts in which actions to review the Commission's findings or for injunctive relief were filed continued their proceedings in deference to the New York court. All parties with standing to challenge the Commission's action might have joined in the New York proceedings.4 In these circumstances, it necessarily follows that the decision of the New York court which, with certain exceptions, we have affirmed, precludes further judicial review or adjudication of the issues upon which it passes. While it is therefore no longer open to the parties to challenge the Commission's approval of the Penn-Central merger and inclusion of the three protected lines in N & W, or its order that immediate consummation of the merger should be permitted, any claims for specific relief, such as particularized objections which may arise from specific proposals for consolidation or reduction of facilities or services, are unaffected by the decision in the present cases. Claims not precluded by the present decision may be pursued before the Commission or in the courts or both, as may be appropriate. This applies to Shapp, to the City of Scranton, and to the Borough of Moosic as well as to any other affected interests. The proceedings in the Middle District of Pennsylvania are not before us, except as we have dismissed as moot the petitions challenging that court's stay of its proceedings, and it will be the task of that court to determine the effect of the present decision upon the proceedings before it. Scranton, Shapp, and Moosic may, of course, seek such relief, if any, in that court as may be available and appropriate in light of our decision herein.Finally, we must mention the City of Pottsville, which has appealed to this Court (No. 433). Pottsville's request to intervene in the Moosic action, upon a complaint similar to that of Moosic, was denied by the Middle District of Pennsylvania. Like Moosic, Pottsville had the opportunity - which it failed to seize - to litigate in the Southern District of New York. It appears that a principal basis for denial of Pottsville's request to intervene was the objection interposed by the United States and that this objection will, after our decision in the instant cases, be withdrawn. Upon this representation by the United States, without reference to or any attempt to consider the scope or content of the action in which intervention is sought, or the issues, if any, which may remain for adjudication in that proceeding, we vacate the decision of the District Court for the Middle District of Pennsylvania denying intervention and remand Pottsville's case to that court for further consideration in light of our decision today. C. OBJECTIONS OF THE NEW HAVEN'S BONDHOLDERS. Two appeals, Nos. 830 and 831, have been taken on behalf of bondholders of the New York, New Haven and Hartford Railroad Company (NH). Since 1961 the NH has been in reorganization proceedings under 77 of the Bankruptcy Act, 11 U.S.C. 205. Despite the shelter of the bankruptcy court, it has been on the verge of financial collapse with the attendant risk to continuance of its rail service. The Commission has found that passenger as well as freight service by the NH is a national necessity and that termination of either would lead to distress in Connecticut, Massachusetts, and Rhode Island, and would severely damage New York City and the Nation generally. See New York, New Haven & Hartford Railroad Co., Trustees, Discontinuance of All Interstate Passenger Trains, 327 I. C. C. 151 (1966).The NH competes in a relatively small part of its service area with the New York Central; but in the NH's financial condition, diversion of even a small amount of the Pennsylvania's connecting traffic from the NH to the Central would inflict consequential injury. Even without reference to the hazard of such diversion, inclusion of the NH in the Penn-Central combination is the only possibility that has been advanced by any of the parties - including the complaining bondholders - for continued operation of NH, short of the sheer speculation that the States concerned or the Federal Government might take over the road and its operations. In June 1962, with permission of the bankruptcy court, the New Haven's trustees requested the ICC to make provision under 5 (2) (d) of the Act for its inclusion in the proposed Penn-Central merger. When the Commission first considered the merger, it stated that "we will require all the New Haven railroad [both passenger and freight operations] to be included in the applicants' transaction"; and in its initial report it provided that "our approval of the merger is conditioned upon such inclusion." 327 I. C. C., at 524, 527. It required that the parties to the merger irrevocably stipulate that they would consent to inclusion upon such terms as might be agreed between the NH and the merger parties or, failing this agreement, upon such terms as the Commission might prescribe with the approval of the bankruptcy court. 327 I. C. C., at 553.The trustees of the NH and the two companies conducted lengthy negotiations and finally arrived at an agreement as to inclusion terms dated April 21, 1966, amended October 4, 1966. In July 1967 the NH bankruptcy court warned that New Haven's cash depletion was "so serious that, if the present rate of loss continues, there will be insufficient left by late September to meet the payroll." Subsequent improvement of cash position permitted amendment of this dire prediction so that it was expected that operation could be financed to January 1968.The Commission on August 3, 1967, directed the negotiation of a lease between the New Haven trustees and Penn and Central, to be "immediately available upon consummation of the Penn-Central merger." The parties, however, reported that preparation of a lease in time to meet the New Haven's needs was not possible. Thereupon, the Commission ordered a hearing as to whether a lease, loan, or other arrangement should be made to assure the NH's continued operation until its acquisition by Penn-Central. On November 21, 1967, the Commission issued an order, subject to the approval of the bankruptcy court, providing (a) terms for the inclusion of the New Haven in the Penn-Central system upon effectuation of the Penn-Central merger; (b) for the Penn-Central to lend $25,000,000 to the New Haven over a three-year period in return for trustees' certificates; and (c) for the Penn-Central to bear 100% of the operating losses of the New Haven during the first year after the merger, 50% in the second, and 25% in the third, subject to a ceiling of $5,500,000 in each year on the total amount that Penn-Central could be required to absorb and subject to termination upon transfer of the New Haven assets. Acceptance of these terms by Penn and Central is a required condition of approval of their merger. The Commission has retained jurisdiction "for the purpose of making such further order or orders in these proceedings as may be necessary or appropriate."The merits of these provisions are not before us. They have not been reviewed by the bankruptcy court or by a statutory district court under the applicable statute. The New Haven trustees and the States of Connecticut, Massachusetts, Rhode Island, and New York, as well as the United States, have filed briefs urging this Court to affirm approval of the Penn-Central merger, citing the urgent need for this in order to salvage the New Haven's operations. The attack, so far as the New Haven is involved, has been launched by Oscar Gruss & Son, a holder of approximately 14% of the NH's first and refunding mortgage bonds and by the Protective Committee for that issue, which intervened in Gruss' action below. (Nos. 830 and 831.) The claim is that because continued operation of the New Haven at a loss involves progressive erosion of the bondholders' security and because the interim arrangement does not assure that Penn-Central will absorb all of the operating losses, we should not permit the Penn-Central merger to be consummated without simultaneous inclusion of the NH. In view of the probable difficulties in reaching agreement for inclusion of the NH which will satisfy its bondholders, it is virtually certain that this would mean lengthy delay during which the NH would not have access to the interim Penn-Central financial aid, and might be faced with collapse of its operations.The Commission, after hearing the bondholders' contention, pointed out that "[i]t is a fundamental aspect of our free enterprise economy that private persons assume the risks attached to their investments, and the NH creditors can expect no less because the NH's properties are devoted to a public use. Indeed, the assistance the creditors are receiving from the States and would receive from Penn-Central through the sharing of operating losses would raise some of that burden from their shoulders." Pennsylvania Railroad Company - Merger - New York Central Railroad Company, 331 I. C. C. 643, 704 (1967). The District Court, putting aside questions of the standing of the NH bondholders to attack the Penn-Central merger, affirmed the Commission's rejection of the attack.Continuation of the operations of the NH, which the Commission has found to be essential, can be assured only upon and after effectuation of the merger of the Penn-Central. The bondholders agree that to delay the Penn-Central merger until all proceedings necessary to include the NH have taken place may well mean the end of NH operations. The only realistic way to avoid this is to permit prompt consummation of the Penn-Central merger subject to appropriate conditions respecting the New Haven which Penn-Central will perforce accept by its act of merger. While the rights of the bondholders are entitled to respect, they do not command Procrustean measures. They certainly do not dictate that rail operations vital to the Nation be jettisoned despite the availability of a feasible alternative. The public interest is not merely a pawn to be sacrificed for the strategic purposes or protection of a class of security holders whose interests may or may not be served by the destructive move.While we reject the appeals of the NH bondholders, acceptance or rejection of the terms and conditions on behalf of the NH remains to be determined. The bondholders' objections may be registered and adjudicated in the bankruptcy court or upon judicial review as provided by law. Furthermore, as noted above, the Commission has retained jurisdiction to make further appropriate orders, if necessary, and has provided both that inclusion of the NH in Penn-Central and the making of the loan arrangement on such terms as are prescribed by the Commission, are conditions of approval of the merger.We affirm the District Court's dismissal of the appeals in No. 830 and No. 831. D. OBJECTIONS BASED ON THE PROVISIONS MADE FOR THE PROTECTED ROADS. The N & W and roads associated with its position (the Chesapeake & Ohio (C & O), Baltimore & Ohio (B & O), and Western Maryland) have filed an appeal (No. 778). In brief and upon argument they stated that they do not object to the Penn-Central merger itself. Their stated position is that they oppose "immediate consummation" - that is prior to the actual inclusion of E-L, D & H, and B & M in the N & W. They also assail the specific operation and effect of the protective conditions and urge modifications thereof, and attack the basic legality of the conditions as a revenue pool.The assailed protective provisions appear as Appendix G to the Commission's order in the merger case. They are essentially of two types: traffic conditions that require the merged Penn-Central not to change routes, rates, or service in such a way as to divert traffic from the protected lines; and revenue indemnity conditions establishing a formula whereby Penn-Central is to compensate the protected lines in the event of adverse revenue results following the merger.5 At the time the case was before us last Term, the Commission had withdrawn the revenue indemnity conditions pending further consideration. After our remand, the Commission further considered all the conditions, amended them in some respects not here material, and restored the revenue indemnity conditions. None of the protected roads has lodged objections against these provisions, nor has Penn-Central, and we affirm the District Court's conclusion that they appear to provide adequate interim protection for the three roads in conformity with the purposes insisted upon by the Commission and which this Court sought to ensure by its decision last Term.6 The objectors, however, attack the protective provisions on three grounds: First, they claim that the revenue indemnity provisions create a pooling agreement proscribed by 5 (1) of the Interstate Commerce Act, 49 U.S.C. 5 (1). Second, they say that the conditions give each of the protected lines an incentive to divert traffic to Penn-Central and vice versa. Such traffic diversion, they argue, would be at the expense of the objecting, "unprotected," lines. Third, they also assert that the shield which these provisions give the protected lines dilutes their incentive to join the N & W, permits them or some of them unfairly to "shop around" for better terms of inclusion, and may delay or abort their inclusion in the N & W.We first address ourselves to the argument assailing the indemnity provisions as an illegal pool. As the District Court pointed out, the legislative history of 5 (1) leads to the conclusion that the section was not intended to apply to cases such as this one, in which the putative revenue pool is not the creation of private parties but is imposed by the Commission itself as a condition to consummation of a merger. Additionally, even if we consider the section applicable in these circumstances, there is no merit to the contention that the protective conditions must be struck down. Section 5 (1) proscribes "any contract, agreement, or combination [among] ... carriers for the pooling or division of traffic, or of service, or of gross or net earnings, or of any portion thereof," unless the Commission finds that such pooling or division "will be in the interest of better service to the public or of economy in operation, and will not unduly restrain competition." The Commission has held that, even if the conditions it established were a pooling arrangement, "this record clearly supports findings ... that to protect these carriers clearly is `in the interest of better service to the public'" and "`will not unduly restrain competition.'" 330 I. C. C. 328, 345, n. 8. We agree with the District Court that this finding is supported by substantial evidence in the record. The interim protection of the protected lines is, in the Commission's view and under the decision of this Court last Term, essential. These conditions have been adopted for that purpose and we see no reason on the present record to conclude that they are unlawful. In the event that actual experience reveals that the provisions operate inequitably, recourse may be had to the Commission for relief pursuant to its reserved jurisdiction, subject to judicial review.With respect to the contention that, regardless of whether the indemnity provisions constitute a revenue pool, those provisions will induce the protected carriers and Penn-Central improperly to divert traffic to one another and thereby to injure the unprotected roads, the District Court correctly concluded that there is no basis for rejecting the Commission's findings that neither the protected roads nor Penn-Central "would have either the motive or the ability to engage in such diversion on any substantial scale." 279 F. Supp., at 328. This conclusion was reached largely because of the ability of the N & W to retaliate and the limitations imposed by economic conditions and geographic facts. The Commission included in its findings "a provision that would prohibit the protected carriers from engaging in manipulation, with sanctions if they do," 330 I. C. C., at 355, and it specifically reserved jurisdiction to reopen proceedings and modify the protective conditions "in the light of experience." The Commission has also included a general reservation of jurisdiction, under which it could revise the protective conditions.7 If, in light of experience, improper traffic diversions should develop or, as noted above, if these conditions should otherwise prove to be inequitable, recourse may be had to the Commission under these reservations, subject to judicial review as appropriate.8 N & W expresses the fear that the traffic and revenue indemnity provisions will be so attractive that the three lines or some of them will prefer to continue under their umbrella, and will not promptly accept the Commission's ticket of admission to the N & W system. The Commission's reserved power appears to be adequate to deter such conduct if and when it becomes abusive. Further, one of the protected lines, the largest of the three (E-L), already has accepted, by stockholder vote, its inclusion in N & W. The board of directors of another (D & H) has recommended to stockholders that inclusion be accepted.9 In view of these circumstances, the fears expressed by N & W and the other protestants as to the dangers which perpetuation of these provisions will pose must be regarded as speculative. Clearly, if one or more of the protected roads should decline to accept the terms for inclusion specified by the Commission's order, the Commission could be called upon to examine, pursuant to its reserved power, the appropriate action to be taken to terminate or modify the interim protective provisions or otherwise to ensure that the shield supplied to the roads is not converted into a sword. The fears expressed by the protestors fall far short of furnishing a reason for rejecting the District Court's approval of the Commission's order that the Penn-Central merger be immediately consummated. Nor is there merit to N & W's contention that it was error for the Commission to fail to rule, now and forever, that the protected roads may not be included in Penn-Central. Whether or not such permission appears likely, there is no occasion for such contingent foreclosure.Finally, we reject the contention that this Court's prior opinion in this matter now precludes us from permitting consummation of the merger until actual inclusion of the three roads in a larger system. With respect to the inclusion problem, our criticism of the original Commission order ran to the ICC's failure to decide the question over which it had undoubted jurisdiction and which the Commission itself had found to be important to the public interest: the determination, so far as the Commission was empowered, of the ultimate home of the three roads. As this Court said: "we can only conclude that it is necessary that the [Commission's] decision as to the future of the protected railroads and their inclusion in a major system be decided prior to consummation of the Penn-Central merger." 386 U.S., at 390. Our decision was not intended to require an indeterminate delay in the consummation of the merger, pending the resolution of the jockeying, negotiating, and fighting among all of the parties concerned and completion of the multitudinous procedures necessarily involved. This would place the public interest as well as the vast majority of the affected private interests at the mercy of decisions not merely of certain corporations whose interests are, in fact, secondary or derivative, but of classes of security holders. It was our intention that the public interest should be served with fairness to all private parties concerned, not that it should be the captive of parties some of whom are understandably engaged in maneuvering solely for the purpose of improving their competitive, strategic, or negotiating positions.There is no provision of law by which the Commission or the courts may compel the three protected roads to accept inclusion in the N & W, as ordered by the Commission, or in any other system: Section 5 (2) (d) of the Act provides: "The Commission shall have authority in the case of a proposed transaction under this paragraph involving a railroad or railroads, as a prerequisite to its approval of the proposed transaction, to require, upon equitable terms, the inclusion of another railroad or other railroads in the territory involved, upon petition by such railroad or railroads requesting such inclusion, and upon a finding that such inclusion is consistent with the public interest." It does not make provision for compelling an unwilling railroad which is not itself a party to a merger agreement to accept inclusion under the terms the Commission prescribes. Our opinion on the first appeals commanded the Commission to specify the opportunity provided for the smaller roads to be included in a major system, before approving consummation of the Penn-Central merger. It was not intended to give the protected corporations or the creditors or stockholders of each of them, or the N & W relying on their position, a veto over the public interest which the Commission has found to inhere in this merger.We need not pause to discuss in detail N & W's contention that the Commission's findings do not support a conclusion that N & W must proceed with inclusion of fewer than all three of the protected roads, if, for example, B & M does not accept the terms. The original decision in the N & W-Nickel Plate merger proceedings clearly contemplates action by the Commission upon a "petition or petitions" of one or more of the three roads. 324 I. C. C. 1, 148. Separate petitions were in fact filed by each of these roads. As the District Court concluded, in light of the favorable action already taken by E-L stockholders and the D & H Board of Directors, the possibility of noninclusion of B & M would not be cause for setting aside the Commission's order.10 E. THE POSITION OF READING CO. No. 834 is an appeal on behalf of the Reading railroad. Reading does not ask that the consummation of the merger be stayed. Its complaint is directed to the District Court's affirmance of the Commission's refusal to permit Reading to reopen the record and submit evidence in support of its claim that it should receive protective conditions similar to those the three "protected roads" were given in Appendix G to the merger order.Reading is controlled by the C & O-B & O system through stock ownership. It has been suggested under the so-called Dereco plan, that the proposed N & W-C & O merger should include the Reading, as well as certain other small roads. Reading did not and does not ask for inclusion in Penn-Central, or for inclusion at this time in N & W along with E-L, D & H, and B & M. It did not offer evidence in the Penn-Central proceedings as to possible traffic diversion, until its tender made after the record had been closed. It now claims, however, that since much of its trackage is paralleled by lines of the Pennsylvania, it will be injured by the merger and should have the benefit of the Appendix G provisions.Reading requests that we remand its case to the Commission for a decision as to whether protective conditions should be established for it. The Commission found, in its original report, that Reading would not be harmed by the merger and that protective conditions were therefore unnecessary. This finding was based in part on a letter submitted by Reading itself to the Commonwealth of Pennsylvania and introduced, without objection from Reading, in evidence before the Commission. Only after the Commission issued its report did Reading object to the finding of no adverse impact upon it as a result of the merger, and then Reading's fear appears to have been chiefly that a finding of no adverse impact might prejudice its eventual attempt to join in the N & W-C & O merger. The Commission held Reading to its "original concession that the effect of the merger transaction (without the indemnity conditions) upon them would be inconsequential." 330 I. C. C. 328, 357. In response to Reading's specific concern, the Commission modified its finding of no adverse impact to a finding that no adverse impact had been shown. The District Court upheld this decision and, in addition, concluded that Reading's claim of substantial adverse impact as a result of the Penn-Central merger was unpersuasive on the merits.Ordinarily, we would, without more, concur with the District Court's view. Because of the vastness and complexity of this matter, however, and in order to ensure that whatever substance there may be to Reading's claim is not sacrificed, we sustain the Commission's denial of Reading's submission on condition that it is without prejudice to any proceeding which Reading may hereafter institute, based on actual experience, for relief from undue prejudice caused by the merger. II. INCLUSION DECISION. Three appeals, No. 779, No. 833, and No. 836, relate to the Commission's order, entered in the N & W-Nickel Plate merger proceedings, prescribing that N & W accept inclusion of the E-L, D & H, and B & M in the N & W system and specifying the terms thereof. Norfolk & Western Railway Co. and New York, Chicago & St. Louis Railroad Co. - Merger, etc., 324 I. C. C. 1 (1964), supplemented, 330 I. C. C. 780, reconsidered, 331 I. C. C. 22 (1967). In 1964 the Commission approved the N & W-Nickel Plate merger subject, among other conditions, to the Commission's retention of jurisdiction for five years to permit the filing of petitions by E-L, D & H, and B & M for inclusion in the N & W system. The Commission's approval was also subject to the condition that N & W give its irrevocable consent to inclusion of the three roads on terms that the ICC would itself prescribe in the absence of agreement among the affected parties. 324 I. C. C. 1, 148. The three lines in due course filed petitions for inclusion. Hearings were held, and, on June 9, 1967, following our remand in the Penn-Central merger case, the Commission made findings and entered its order requiring N & W to include the three roads in its system under terms it prescribed.Appellants are the N & W, the B & M, and a number of E-L bondholders. As we shall discuss, only the N & W appeal raises issues which go broadly to the merits of the Commission's order implementing N & W's duty to accept inclusion of the three roads. B & M seeks remand on the grounds that the terms fixed by the Commission for N & W's offer to acquire the stock of the B & M are inadequate to reflect B & M's value as part of the N & W system. The third appeal, brought by E-L bondholders, turns on the question whether the Commission should have specifically retained jurisdiction to protect the E-L bondholders in the event that N & W attempts after inclusion improperly to divert E-L traffic to itself. We affirm the District Court's action in disallowing the claims of all of these appellants. Reference is made to preceding sections of this opinion for discussion of the bearing of claims respecting the inclusion order upon the Penn-Central proceeding. We first address ourselves to the demands of E-L bondholders for assurance that the reservation of jurisdiction by the Commission would enable them to obtain consideration of unwarranted traffic diversion by N & W, if that should develop. Since N & W will be acquiring stock control of E-L and E-L's bondholders will look to E-L's fortunes for payment and security, the bondholders fear that N & W may not be entirely solicitous of E-L's welfare. Appellants themselves note that the Commission, in adopting the report and order of the officer presiding over the original hearing, has reserved jurisdiction "to receive such petitions, institute such investigations, and make such orders to accomplish the objectives and purposes of the plan for inclusion and other terms and conditions prescribed herein ... ." The Commission has also retained jurisdiction "for the purpose of making such further order or orders in these proceedings as may be necessary or appropriate, in addition to those orders under jurisdiction expressly retained in the prior reports and orders of the Commission and to those orders which may be issued under section 5 (9) of the Interstate Commerce Act."11 Supplemental Order issued June 9, 1967. We have no doubt that if, after inclusion of E-L, N & W should engage in a course of conduct which invades the rights of E-L bondholders, the bondholders may apply to the Commission for relief and the Commission's reservation of jurisdiction will enable it to rule upon this complaint and to grant relief, if warranted, subject to judicial review.The other two appeals require somewhat more extended comment. We first note that our opinion at the last Term found adequate support for the Commission's conclusion that the public interest requires inclusion of the three roads in a larger system. As we have previously noted, see supra, at 503-505, the Commission's findings and order with respect to the "public interest considerations" involved in the inclusion of these lines in the N & W system are in conformity with the statute and are supported by substantial evidence.The attack of N & W and B & M upon the Commission's order centers, not upon the fundamental issues, but upon the particular terms of that order. In brief, the Commission has provided that N & W will purchase stock control of E-L and B & M through wholly owned subsidiaries. It has fixed the basis for such purchase in relation to the experienced income of the lines, their earnings having been adjusted for various factors including savings and gains which the Commission found would result from inclusion in the N & W system. The Commission has satisfied itself that traffic losses to the merged Penn-Central would be offset by benefits to N & W not otherwise taken into account. The shareholders of these roads are to receive stock of a newly created subsidiary of N & W, which will eventually be convertible into N & W common stock. In the case of D & H, the means of valuation was the same as for the other protected lines, but N & W is to pay for D & H assets either in cash or with a note and N & W stock.This is the first time in the Commission's history that it has undertaken to "replace the bargaining session." It did so here pursuant to the N & W stipulation, which was accepted by N & W as a condition to the N & W-Nickel Plate merger, and in response to the exigencies of the situation emphasized by this Court's decision at our last Term.As we have noted above, the E-L stockholders have voted approval of the inclusion terms. The D & H Board of Directors has recommended approval to its stockholders. N & W complains that the price set for inclusion of the three lines is too high and that some other aspects of inclusion are arbitrary. B & M, on the other hand, complains that the price set for its inclusion is too low. The District Court affirmed the Commission's findings and conclusions, and in the exercise of our reviewing function we find no basis for reversing that court's decision.The method for determining the value and exchange ratio which the Commission adopted, and which we have briefly described, is not attacked. It is a method that is reasonably conventional and generally accepted, always subject to the modifications and adaptations required by individual cases, and we see no basis for holding it erroneous as a matter of law. The attack that is launched is upon factors of particularized judgment and the weight to be ascribed to various values. These are matters as to which reasonable men may reasonably differ in detail, and we see no basis for setting aside the Commission's conclusions as sustained by the District Court. In setting inclusion terms, the Commission was dealing with complicated and elusive predictions about probable traffic patterns following the Penn-Central merger and the inclusion decision. We are no more competent than the Commission and the District Court to ascertain the accuracy of those predictions. We deem it our function, in the complexities of cases such as these, to review the judgment of the District Court with respect to agency actions to make certain that those actions are based upon substantial evidence and to guard against the possibility of gross error or unfairness. If we find those conclusions to be equitable and rational, it is not for us to second-guess each step in the Commission's process of deliberation. N & W's attack upon the inclusion order centers upon its disagreement with the Commission's findings as to prospective earnings of the three roads as part of the N & W system. It argues that the Commission had no basis for concluding that the earnings of E-L, D & H, and B & M, as subsidiaries of N & W, would be adequate to assure their "viability."12 It asserts that the Commission has made various invalid adjustments of actual earnings and failed to make others. This, N & W says, is "the principal area of dispute in these proceedings."On the other hand, the B & M contends that the Commission's findings substantially underestimate the savings which should be credited to it as an earnings adjustment, and that, therefore, the terms for its inclusion are unjust. Specifically, it urges that the Commission underestimated the probable amount of savings resulting from N & W control and the coordination of operations and equipment repair facilities and reduction of administrative expenses. The Commission, however, accepted and relied on figures submitted by B & M's own witness. B & M now assails these figures, but obviously the Commission was entitled to rely upon them.The District Court examined in some detail the contentions of the parties attacking the financial terms of the inclusion order. We have reviewed the findings of the Commission in light of the evidence of record and the District Court's analysis, and we find no basis for reversing the District Court's judgment. The terms fixed by the Commission are clearly within the area of fairness and equity. Although B & M argues forcefully that the Commission underestimated the savings that should redound to its credit, we cannot say in the circumstances that the order should be reversed and remanded in this respect. It must be noted, as we have discussed in connection with appeals relating to the Penn-Central merger decision, that the inclusion order has no compulsive or coercive effect upon the roads to be included. Unless and until modified by the Commission, it remains available to the protected lines upon the terms which it specifies and which the District Court found to be fair and equitable.13 Only one other point of the N & W attack upon the inclusion order requires comment. N & W objects to the conditions prescribed by the Commission to protect the interests of the employees affected by the order. We note that those conditions, protecting employees of the protected lines, are the same as the conditions set by the Commission for N & W's employees at the time of the N & W-Nickel Plate merger. As the District Court held, "[t]he Commission acted within its powers in requiring N & W to protect employees of the three roads as thoroughly as those of the roads it was permitted to absorb only on the condition that it would accept these lines if the Commission so directed." 279 F. Supp., at 337.14 III. CONCLUSION. The judgment of the District Court for the Southern District of New York is affirmed, subject to the modifications and conditions stated in this opinion. Nos. 778, 779, 830-836 are remanded to that court for the entry of such orders and for such further action as may be consistent with our opinion and judgment herein and as may be appropriate with respect to the exercise of that court's jurisdiction in the premises.The applications of Scranton, Shapp, and Moosic for mandamus or certiorari (Nos. 663, Misc. and 664, Misc.) are denied without prejudice to further proceedings in the District Court for the Middle District of Pennsylvania, consistent with this opinion.In No. 433, jurisdiction is noted, the judgment of the Middle District of Pennsylvania with respect to Pottsville is vacated, and the cause is remanded to that court for further proceedings in light of our decision today.MR. JUSTICE MARSHALL took no part in the consideration or decision of these cases.

Rehearing Denied May 31, 1949. [ People of State of California v. Zook ], 726] Mr. John L. Bland, of Los Angeles, Cal., for petitioner. Mr. D. M. Manning, of Los Angeles, Cal., for respondents. Mr. Justice MURPHY delivered the opinion of the Court. A California statute prohibits the sale or arrangement of any transportation over the public highways of the State if the transporting carrier has no permit from the Interstate Commerce Commission. 1 The federal Motor , 727] Carrier Act has substantially the same provision. 2 The question is whether the State act as applied in this case is invalid in view of the federal act. Respondents operate a travel bureau in Los Angeles, and receive commissions for arranging 'share-expense' passenger transportation in automobiles. Owners of private cars desiring passengers for a trip register with respondents' agency, as do prospective passengers. State lines are crossed in many of the trips. Until 1942 the federal act specifically exempted such 'casual, occasional, or reciprocal' transportation. 3 But in that year the Interstate Commerce Commission removed the exemption,4 as the Motor Carrier Act empowered it to do.5 Both the California and federal statutes now require respondents to sell transportation only in carriers having permits from the I.C.C. Respondents were prosecuted under the State act. They admitted their unlawful activity, but demurred to the criminal complaint on the sole ground that the State statute entered an exclusive congressional domain. The trial court disagreed, and entered a judgment of con- , 728] viction, but the appellate court6 upheld respondents' contention, and ordered the complaint dismissed. 87 Cal.App.2d Supp. 921, 197 P.2d 851. The case is here on certiorari, . Certain first principles are no longer in doubt. Whether as inference from congressional silence, or as a negative implication from the grant of power itself, when Congress has not specifically acted we have accepted the Cooley case's broad delineation of the areas of state and national power over interstate commerce. Cooley v. Board of Wardens of Port of Philadelphia, to use of Soc. for Relief of Distressed Pilots, Their Widows and Children, 12 How. 299; Southern Pacific Co. v. State of Arizona ex rel. Sullivan, , 1519, 1520. See Ribble, State and National Power Over Commerce, ch. 10. Absent congressional action, the familiar test is that of uniformity versus locality: if a case falls within an area in commerce thought to demand a uniform national rule, State action is struck down. If the activity is one of predominantly local interest, State action is sustained. More accurately, the question is whether the State interest is outweighed by a national interest in the unhampered operation of interstate commerce. There is no longer any question that Congress can redefine the areas of local and national predominance, Prudential Insurance Co. v. Benjamin, , 164 A.L.R. 476; Southern Pacific Co. v. State of Arizona ex rel. Sullivan, supraat page 769, 65 S.Ct. at page 1520, despite theoretical inconsistency with the rationale of the Commerce Clause, art. 1, 8, cl. 3, as a limitation in its own right. The words of the Clause-a grant of power-admit of no other result. When Congress enters the field by legislation, we try to discover to what extent it intended to exercise its power of redefinition; here we are closer to an intent that can be demonstrated with assurance, although we may em- , 729] ploy presumptions grounded in experience in doubtful cases. But whether Congress has or has not expressed itself, the fundamental inquiry, broadly stated, is the same: does the State action conflict with national policy? The Cooley rule and its later application, Southern Pacific Co. v. State of Arizona ex rel. Sullivan, supra, the question of congressional 'occupation of the field,' and the search for conflict in the very terms of state and federal statutes are but three separate particularizations of this initial principle. We restate the familiar because respondents would have us pronounce an additional rule: that when Congress has made specified activity unlawful, 'coincidence is as ineffective as opposition,' and State laws 'aiding' enforcement are invalid. Respondents seem to argue that this is as fundamental as the rule of conflict with national authority, and that it rests upon wholly independent premis s. But respondents seize upon only one part of the familiar phrase in Charleston & Western C.R. Co. v. Varnville Furniture Co., , 716, 717, Ann.Cas.1916D, 333. We said that when 'Congress has taken the particular subject-matter in hand, coincidence is as ineffective as opposition * * *' See also, Pennsylvania R. Co. v. Public Service Commission of Commonwealth of Pennsylvania, , 37; Missouri Pac. R. Co. v. Porter, , 385. Respondents' argument assumes the stated premise-that Congress has 'taken the particular subject-matter in hand,' to the exclusion of state laws. The Court could not have intended to enunciate a mechanical rule, to be applied whatever the other circumstances indicating congressional intent. Neither the language nor the facts of the cases cited support an approach in such marked contrast with this Court's consistent decisional bases. The Varnville case struck down a South Carolina statute which had the effect of holding a connecting carrier liable for goods damaged in inter- , 730] state commerce, when Congress had determined that the initial carrier should bear primary responsibility; the Pennsylvania Railway case held invalid a state measure requiring a specified type of rear platform different from the detailed specifications of the Interstate Commerce Commission; and in the Porter case, the Court thought Congress intended to leave the terms of a uniform bill of lading to the I.C.C., and that state laws on the subject were meant to be ineffective. See Cloverleaf Butter Co. v. Patterson, , 157-159, 496-498, 786. The 'coincidence' rationale is only an application of the first principle of conflict with national policy. The phrase itself simply states that familiar rule. If State laws on commerce are identical with those of Congress, the Court may find congressional motive to exclude the States: Congress has provided certain limited penalties, 'and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go,' Varnville, supraat page 604, 35 S. Ct. at page 717, Ann.Cas.1916D, 333-that is, if Congress has 'occupied the field.' But the fact of identity does not mean the automatic invalidity of State measures. Coincidence is only one factor in a complicated pattern of facts guiding us to congressional intent. 7 As the Court , 731] stated in the Pennsylvania Railway caseat page 569, 40 S.Ct. at page 37, the 'question whether Congress and its commissions acting under it have so far exercised the exclusive jurisdiction that belongs to it as to exclude the State, must be answered by a judgment upon the particular case.' Statements concerning the 'exclusive jurisdiction' of Congress beg the only controversial question: whether Congress intended to make its jurisdiction exclusive. This has long been settled. Fox v. State of Ohio, 5 How. 410, announced uncertainly what United States v. Marigold, 9 How. 560, later made clear: that 'the same act might, as to its character and tendencies, and the consequences it involved, constitute an offence against both the State and Federal governments, and might draw to its commission the penalties denounced by either, as appropriate to its character in reference to each.' 9 How. at page 569.8 See Ex parte Siebold, ; United States v. Lanza, , 143. And see Union Brokerage Co. v. Jensen, , 971, 972, 152 A.L.R. 1072. Asbell v. State of Kansas, Ann.Cas. 1101, is a further illustration. A Kansas statute provided criminal penalties for the importation of cattle from any point south of the State, except for immediate slaughter, without approval of the proper State officials or the Bureau of Animal Industry of the United States. The congressional Act, 32 Stat. 791, 792, 21 U.S.C.A. 111-113, 120-122, allowed cattle to be transported into a state if inspected and passed by an inspector of the United States Bureau of Animal Industry. Violation of the federal act brought criminal sanctions. Yet we affirmed a conviction under the State law. We said that 'if the state law conflicts with ( federal law) the state law must yield. But the law of Kansas now before us recognizes the supremacy of the national law and conforms to it.' , 732] at page 258, 28 S.Ct. at page 487, 14 Ann.Cas. 1101. And see the similar problem and similar answer by Brandeis, J., for the Court in Dickson v. Uhlmann Grain Co., A.L.R. 492. To limit our inquiry to respondents' single standard would restrict us to unreality. For Congress is often explicit when it wishes state laws to conclude federal prosecution, to avoid the double punishment possible in a federal system. See, for example, 18 U.S.C. 659, 18 U.S.C.A. 659, defining the crime of stealing from an interstate carrier; 18 U.S.C. 660, 18 U.S.C.A. 660, misapplication of funds by an officer or employee of a carrier engaged in commerce. And when state enforcement mechanisms so helpful to federal officials are to be excluded, Congress may say so, as in the Taft-Hartley Act, 29 U.S.C.(Supp.), 160(a), 29 U.S.C.A. 160(a). That Congress has specifically saved state laws in some instances, see, e. g., the Securities Act, 15 U.S.C. 77r, 15 U.S.C.A. 77r, indicates no general policy save clarity. Respondents' automatic 'coincidence means invalidity' theory, applied in an area as imbued with the state's interest as is this one, see infra, would lead us to the conclusion that a state may not make a dealer in perishable agricultural commodities respect its laws on the fraudulent nonpayment of an obligation, if that fraud occurred after an interstate shipment, 7 U.S.C. 499b(4), 7 U.S.C.A. 499b(4), for Congress has not expressly saved such prosecutions. We would hold, too, that extortion or robbery from interstate commerce under 18 U.S.C. 1951, 18 U.S.C.A. 1951, or 18 U.S.C. 2117, 18 U.S.C.A. 2117, is immune from state action; that the wrecking of a bridge over an interstate railroad is an 'exclusively federal' offense, 18 U.S.C. 1992, 18 U.S.C.A. 1992; that the transmittal of a ransom note in interstate commerce cannot be punished by local authorities, 18 U.S.C. 875, 18 U.S.C.A. 875. And see 18 U.S.C . 331, 472, 479, 18 U.S.C.A. 331, 472 479. In short, we would be setting aside great numbers of state statutes to satisfy a congressional purpose which would be only the product of this Court's , 733] imagination. We cannot agree that each of the problems under the statutes cited may not be resolved by examination of the whole case. The question is whether Congress intended to override State laws identical with its own when it, through the Interstate Commerce Commission, regulated share-expense passenger automobile transportation, or whether it intended to let State laws stand. While the statute says nothing expressly on this point and we are aided by no legislative history directly in point, 9 we know that normally congressional purpose to displace local laws must be clearly manifested. H. P. Welch Co. v. State of New Hampshire, , and cases cited; Maurer v. Hamilton, , 734, 135 A.L.R. 1347; Kelly v. State of Washington ex rel. Foss Co., , 11, 14, 92, 93, 94; Mintz v. Baldwin, . Or if the claim is conflict in terms, it 'must be clear that the federal provisions are inconsistent with those of the state to justify the thwarting of state regulation.' Cloverleaf Butter Co. v. Patterson, supraat page 156, 62 S.Ct. at page 496, 786. See also Hines v. Davidowitz, , at page 67, at page 404. General propositions derived from the whole sweep of the Commerce Clause are often helpful, and we think those just stated are persuasive indications of congressional intent in the case now before us. But the , 734] quite separate Commerce Clause degree questions can be resolved only by careful scrutiny of the particular activity regulated. The Interstate Commerce Commission found these dangers present in the business of share- expense passenger transportation: abandonment of passengers before reaching the promised destination; personal injuries sustained by passengers because of irresponsible drivers, with attendant delay and expense; delays caused by arrest and detention of drivers for violations of traffic laws; crowded conditions in automobiles by reason of an excessive number of passengers and their baggage; and 'annoyance, anxiety, or fright caused by reckless and improper driving by the automobile operators, by the bad mechanical condition of the vehicles used, by the fatigue of drivers operating the automobiles for long periods without adequate rest, or by the improper conduct of the driver or other passengers.' Evidence of these evils led the I.C.C. to remove the exemption which had covered these respondents. Ex parte No. MC-35, 33 M.C. C. 69, 73, 74. See also Report of Federal Coordinator of Transportation on the Regulation of Transportation Agencies other than Railroads and on Proposed Changes in Railroad Regulation, Washington, 1934, Sen. Doc. 152, 73d Cong., 2d Sess., p. 226, mentioning the financial irresponsibility of these carriers. And see State of California v. Thompson, . Of course we no longer limit the states to the r 'traditional' police powers in considering a statute's validity under the Fourteenth Amendment. See Lincoln Federal Labor Union No. 19129, A.F. of L. v. Northwestern Iron & Metal Co., . But the tradition of 'usual police powers' is still of aid in determining congressional intent to exclude State action on interstate commerce, at least when Congress has legislated. Many of the evils discussed by the I.C.C., above, are of the oldest within the ambit of the police power: protection against fraud and physical harm to a , 735] State's residents. And consistent with the many cases giving the State's interest in its own highways more weight than the national interest against 'burdening' commerce,10 we have held that the highway regulation involved in this case is allowable State action before Congress acted. State of California v. Thompson, supra. Removal of the Motor Carrier Act's exemption since the Thompson case does not change our conclusion. The case would be different if there were conflict in the provisions of the federal and California statutes. But there is no conflict in terms, and no possibility of such conflict, for the state statute makes federal law its own in this particular. The case might also be different were there variegated state laws on this subject in 1941, when the I.C.C. removed the federal exemption. We might then infer congressional purpose to displace local laws and establish a uniform rule beyond which states may not go. See Southern R. Co. v. Railroad Commission of Indiana, . Whatever the result in that class of cases, it would be startling to discover congressional intention to 'displace' state laws when there were no state laws to displace when Congress acted. And that is nearly the situation in the present case. When the I.C.C. removed the federal exemption, it mentioned twelve cities, other than Los Angeles and San Francisco, in which the problem was particularly acute. 11 Of these twelve , 736] cities, only two were located in states which attempted regulation of the kind of transportation we are now considering. 12 Such striking absence of state law in states where the problem was recognized as serious by the I.C. C. clearly demonstrates a purpose to provide rather than displace local rules-to fill a void rather than nationalize a single rule. And we see nothing to show that a more serious problem in the State of California might not properly beget a more serious penalty, if the California legislature deemed it wise. I.C.C. recognition that the problem is more acute in some states than in others may well indicate acceptance of that proposition. It is said that I.C.C. recognition of the difficulties facing state regulation of interstate commerce, 33 M.C.C. at 76, because of cases such as Buck v. Kuykendall, supra, is of importance here. But this case concerns only the state's mechanisms for enforcing a statute identical with that of the federal government, though rooted in different policy considerations. We cannot predicate exclusion upon the simple recognition of Constitutional difficulties not present in the cause before us. Since the , 737] I.C.C. order was issued after State of California v. Thompson, supra, one would expect the federal agency to be specific if it intended to supersede state laws. And we do not see how a previous California statute conflicting with I.C.C. policy, cf. 1933 Cal.Stat., c. 390, 1, p. 1012, and Frank Broker Application, 8 M.C.C. 15, can have anything to do with the only California statute we are considering-a measure which does not conflict with I.C.C. policy. It is difficult to believe that the I.C.C. intended to deprive itself of effective aid from local officers experienced in the kind of enforcement necessary to combat this evil-aid of particular importance in view of the I.C.C.'s small staff. See 61st Annual Report of the I.C.C. (1947), p. 122; 62d Annual Report of the I.C.C . (1948), p. 109.13 This is not a hypothetical case on 'normal Congressional intent.' It is California's attempt to deal with a real danger to its residents. We know that coincidence, with its consequent possibility of double punishment, is an important factor to be considered. In many cases it may be a persuasive indication of congressional intent. But we must look at the whole case. In this case the factors indicating exclusion of state laws are of no consequence in the light of the small number of local regulations and the state's normal power to enforce safety and good-faith requirements for the use of its own highways. , 738] 'The state and federal regulations here applicable have their separate spheres of operation.' Union Brokerage Co. v. Jensen, supraat page 208, 64 S.Ct. at page 971, 152 A.L.R. 1072.14 So far as casual, occasional, or reciprocal transportation of passengers for hire is concerned, the State may punish as it has in the present case for the safety and welfare of its inhabitants; the nation may punish for the safety and welfare of interstate commerce. There is no conflict. Reversed. Mr. Justice FRANKFURTER, dissenting. My brother BURTON has set forth in convincing detail how the regulation of 'travel bureaus' for arranging transportation of passengers by motor carriers engaged in interstate commerce was taken over by federal authority, after experience had disclosed the inadequacy of state regulation. What I have to say only serves to emphasize my agreement with his conclusion. In State of California v. Thompson, , this Court recognized that positive intervention of Congress was required to displace the reserve power of the State to promote safety and honesty in the business of arranging for motor carrier transportation even beyond state lines. As to such business the power of Congress to regulate commerce 'among the several States' was an excluding, not an exclusive, power-State action was not barred by the Commerce Clause but only by appropriate congressional action. State action is displaced only to the extent that Congress chooses to displace it. One would suppose that, when Congress has proscribed defined conduct and attached specific consequences to violations of such out- , 739] lawry, the States were no longer free to impose additional or different consequences by making the same misconduct also a state offense. And that is this case. For the first time in the hundred and twenty-five years since the problem of determining when State regulation has been displaced by federal enactment came before this Court, Gibbons v. Ogden, 9 Wheat. 1, the Court today decides that the States can impose an additional punishment for a federal offense unless Congress in so many words forbids the States to do it. When Congress deals with a specific evil in a specific way, subject to specified sanctions, it is not reasonable to require Congress to add, 'and hereafter the States may not also punish for this very offense,' to preclude the States from outlawing the same specific evil under different sanctions. 1 To do so would impute to Congress the purpose of imposing upon a nationwide rule the crazy-quilt of diversity-actual or potential-in State legislation, when the federal policy was adopted by Congress precisely because it concluded that the manner in which the States, under their permissive power, dealt with the evil was unsatisfactory. , 740] Such an inference is a strained and strange way of interpreting the mind of Congress. It also disregards an important aspect of civil liberties, namely, avoidance of double punishment for the same act even though such double punishment may be constitutionally permissible. See Jerome v. United States, , 486. Of course the same physical act may offend a State policy and another policy of the United States. Assaulting a United States marshal would offend a State's policy against street brawls, but it may also be an obstruction to the administration of federal law. Scores of such instances, inevitable in a federal government, will readily suggest themselves. That was the kind of a situation presented by United States v. Marigold, 9 How. 560. Passing counterfeit currency may, in one aspect, be 'a private cheat practiced by one citizen of Ohio upon another,' and therefore invoke a State's concern in 'protecting her citizens against frauds,' 9 How. at pages 568, 569, but the same passing becomes of vital concern to the Federal Government because it tends to debase the currency. Such a situation is quite different from this case. It merits repetition to say that we are now reversing a State court for holding that the very same conduct for the disobedience of which federal regulation imposes a maximum fine of one hundred dollars for the first offense cannot be prosecuted in a State court under a State law imposing a larger fine and, perchance, a prison sentence. The talk about 'conflict' as a basis for displacing State by Federal enactment is relevant only in situations where Congress has chosen to 'circumscribe its regulation and occupy only a limited field,' while State regulation is 'outside that limited field,' and yet an inference of negation of State action is sought to be drawn. See Kelly v. State of Washington ex rel. Foss Co., , 92. Even in each circumstances this Court has drawn inferences of implied exclusion of , 741] State action although in no sense of the word would there have been physical clash between State and Federal regulation so as to preclude concurrence of vitality for both regulations. See, e.g., Cloverleaf Butter Co. v. Patterson, , 786; Hill v. State of Florida ex rel. Watson, . In this case we have the very conduct theretofore left to State regulation taken over by Federal regulation, and yet the Court superimposes upon the displacing Federal regulation the State regulation which was consciously displaced. That a Court which only on April 4, 1949, decided H. P. Hood & Sons v. Du Mond, , as it did, should now decide this case as it does, presents indeed a problem for reconciliation. Mr. Justice BURTON, with whom Mr. Justice DOUGLAS and Mr. Justice JACKSON join, dissenting. The question presented is whether 654.1 of the Penal Code of California1 is invalid as applied in this case to interstate commerce by the Municipal Court of Los Angeles. The respondents, Zook and Craig, were convicted of making a sale, in 1948, in California, of interstate motor transportation to Texas, on an individual fare basis, over the public highways of California, under conditions whereby the transportation was to be supplied by a carrier having no certificate of convenience and necessity or other permit from the Public Utilities Commission of California, or from the Interstate Commerce Commission of the United States. Such a sale was adjudged contrary to the terms of 654.1 but the Appellate Department of the Superior Court of California held that that Section was invalid as thus applied to interstate commerce in the face of the Interstate Commerce Act of the United States and of orders issued under the au- , 742] thority of that Act making precisely such a sale a federal offense. We agree with the court below that California could not, without the consent of Congress, lawfully thus share the exclusive jurisdiction being exercised by Congress to regulate commerce among the states and we find here no such consent. On the other hand, we do find here, under all the circumstances, that Congress has exercised its power of regulation of this precise form of interstate commerce to the exclusion of the states and in conflict with the regulation attempted here by the State of California. From 1933 until 1947 the California legislation on this subject expressly distinguished between intrastate and interstate transportation. It provided that the state legislation was to be applicable to interstate motor carriers only 'until such time as Congress of the United States shall act, * * *'2 or in 'the absence of action on the part of Congress or the Interstate Commerce Commission * * *.'3 California thus recognized not only the possibility but the propriety of federal regulation of this form of commerce to the extent of its interstate operations. In 19354 and in 19405 Congress, on its part, expressly recognized a federal responsibility for such regulation. It assumed jurisdiction over the qualifications and maximum hours of service of employees and over safety of operations and standards of equipment. As to other regulations, Congress temporarily and conditionally exempted this kind of transportation from the Interstate , 743] Commerce Act. In doing so, however, it authorized the Interstate Commerce Commission to determine from time to time to what extent, if any, the exemption should be removed. In 1942, after a thorough study, that Commission largely removed the exemption. 6 Thus, by express authority of Congress, the regulation of the interstate operations of this type of transportation was vested in the Interstate Commerce Commission after a determination by that Commission that such an application of federal law was necessary to carry out the policy of Congress. Section 654.1, which was added to the Penal Code of California in 1947, contained no provision distinguishing between intrastate and interstate commerce in this field. It mentioned only 'transportation * * * over the public highways of the State of California * * *.' The state court below nevertheless interpreted the Section as seeking to include interstate as well as ntrastate transportation and then held that it was invalid insofar as it applied to interstate transportation. 7 We accept the state court's , 744] interpretation and the question before us is only the validity of the statute as applied to interstate transportation. 8 If it were not for the interpretation given to the California statute by the court below, the issue might be disposed of by limiting that statute, like its predecessor, to intrastate transportation. , 745] The complaint is printed in the margin. 9 Its sufficiency is the precise issue presented to us on the demurrer which the court below has ordered sustained. In that court, the respondents successfully asserted the invalidity of the state statute in the face of the Interstate Commerce Act applicable to the same offense. The petitioner concedes that the two laws sought to forbid and punish the same acts, but contends that this was a permissible duplication. , 746] Agreeing that the two statutes forbid the same acts, our first duty is to see how far this identity of legislative effect extends. Our remaining duty then is to determine whether the state law is valid in the face of the federal law on the same subject. The substantial identity between the statutes ends with their definitions of the offense. Only the Federal Act requires a broker's license and the general exemptions from the respective Acts are in great conflict. 10 The penalties are substantially different. 11 For example, , 747] in the instant case each respondent was fined $150 more under the state law than would have been possible under the federal law for what apparently was a first offense under each Act. Under the state law the court also had an option to impose a jail sentence, whereas no such option would have been available to it under the federal law. The federal law also provided for a fine up to $500 for each offense after the first. Under the state law, convictions after the first were punishable solely by imprisonment. Accordingly, while the offense here charged was one which violated both the state and federal statutes, there was a substantial conflict between the sanctions available for the enforcement of those statutes. This conflict is by no means conclusive of this case but it is entitled to consideration as indicating the absence, rather than the presence, of an implied consent by the United States to the intrusion of the state law into the exclusive jurisdiction made available to the United States by the Federal Constitution. Prosecution and punishment under both the state and federal statutes would, in this instance, often result in greater punishment than the maximum permitted by the federal law. We cannot readily assume congressional consent to state legislation , 748] that makes an expressly stated congressional 'maximum' penalty no longer a maximum penalty. The issue requires answers to two questions: I. Did the California Code invade the exclusive jurisdiction which Congress was exercising through its Interstate Commerce Act? II. If so, was the conviction under the California Code invalid on the ground that Congress had taken exclusive jurisdiction over that offense and had not consented to share its jurisdiction with California as here proposed? For the reasons to be stated, we believe the answer to each of those questions should be yes. I. The California Code invaded the exclusive jurisdiction which Congress was exercising through its Interstate Commerce Act. The petitioner's concession that the respondents' acts simultaneously violated the terms of both statutes sharply distinguishes the issue here from those often presented in this general field of controversy. (1) We do not have here the much litigated issue as to the validity of state statutes prohibiting or otherwise regulating acts committed in the course of interstate commerce but in a field of that commerce where Congress has taken no action. In the instant case, Congress has taken jurisdiction by statute not only in this general field but over the precise type of interstate motor carrier transportation of passengers that is the subject of the state legislation and of the complaint in this case. (2) Similarly, we do not have here a case where a state has applied its prohibitory or otherwise regulatory measures to some intrastate transaction taking place before or after, and separable from, the transactions in interstate commerce over which the Federal Government has taken jurisdiction. (3) We , 749] do not have here an attempt by a state to supplement federal control over some activity related to but not specifically covered by the federal legislation. (4) Also, we do not have here a case where Congress has expressly consented to share with the states the plenary and supreme authority of Congress to take jurisdiction over the regulation of the interstate commerce in question. (5) On the other hand, we do have here the significant situation of a state attempting, by a new state law, to reach and punish, additionally, a transaction in interstate commerce in the face of the active exercise of substantially conflicting federal jurisdiction over the same transaction and in the absence of express congressional consent to such attempted duplication of jurisdiction. This is in contrast to an attempt by a state to help enforce, as such, an already existing federal statute covering the offense. We start not merely with the inherent right of a state to exercise its police power over acts within its jurisdiction. We start also with the constitutional provisions by which the supreme legislative power of the respective states has been delegated to Congress to regulate interstate commerce. 12 Once Congress has lawfully exercised its legislative supremacy in one of its allotted fields and has not accompanied that exercise with an indication of its consent to share it with the states, the burden of overcoming the supremacy of the federal law in that field is upon any state seeking to do so. , 750] An early statement of the general principle involved was made by Mr. Justice Story in Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539, 617- 618.13 That statement was approved and enlarged upon by Mr. Justice J. R. Lamar in Southern R. Co. v. Railroad Commission of Indiana, , in a case arising under the Interstate Commerce Act in which, on reasoning applicable in the instant case, an Indiana statute was held invalid because it required handholds on the sides or ends of railroad cars operating in interstate commerce in Indiana in substantial duplication of the Federal Safety Appliance Act, 45 U.S.C.A. 1 et seq., requiring handlods on both the sides and ends of such cars. There Mr. Justice Lamar said:'But the principle that the offender may, for one act, be prosecuted in two jurisdictions, has no application where one of the g vernments has exclusive , 751] jurisdiction of the subject-matter, and therefore the exclusive power to punish. Such is the case here where Congress, in the exercise of its power to regulate interstate commerce, has legislated as to the appliances with which certain instrumentalities of that commerce must be furnished in order to secure the safety of employees. Until Congress entered that field, the states could legislate as to equipment in such manner as to incidentally affect, without burdening, interstate commerce. But Congress could pass the safety appliance act only because of the fact that the equipment of cars moving on interstate roads was a regulation of interstate commerce. Under the Constitution the nature of that power is such that, when exercised, it is exclusive, and ipso facto supersedes existing state legislation on the same subject. Congress, of course, could have 'circumscribed its regulations' so as to occupy a limited field. Savage v. Jones, (725, 726), 1194; Atlantic Coast Line R. Co. v. (State of) Georgia, (832), 1318. But so far as it did legislate, the exclusive effect of the safety appliance act did not relate merely to details of the statute and the penalties it imposed, but extended to the whole subject of equipping cars with appliances intended for the protection of employees. The states thereafter could not legislate so as to require greater or less or different equipment; nor could they punish by imposing greater or less or different penalties.'The test, however, is not whether the state legislation is in conflict with the details of the Federal law or supplements it, but whether the state had any jurisdiction of a subject over which Congress had exerted its exclusive control.' (Emphasis added.) Id.at pages 446, 448, 35 S.Ct. at pages 305. , 752] Mr. Justice Holmes said in Charleston & Western C.R. Co. v. Varnville Furniture Co., , 717, Ann. Cas.1916D, 333:'When Congress has taken the particular subject-matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.' Mr. Justice Butler reemphasized this in sweeping terms in Missouri Pac. R. Co. v. Porter, , 385, by concluding the opinion of the Court as follows:'Its (Congress') power to regulate such (interstate) commerce and all its instrumentalities is supreme; and, as that power has been exerted, state laws have no application. They cannot be applied in coincidence with, as complementary to or as in opposition to, federal enactments which disclose the intention of Congress to enter a field of regulation that is within its jurisdiction.' (Emphasis added.) See also, Erie R. Co. v. People of State of New York, , 760, 52 L.R.A.,N.S., 266; Second Employers' Liability Cases, (Mondou v. New York, N.H. & H.R. Co.), , 177, 38 L.R.A.,N.S., 44. Related to this exclusive jurisdiction of Congress, established by Article VI of the Constitution, is the general policy against subjecting anyone to punishment more than once for the commission of a single act. Unless care is taken to prevent this, such double punishment may result from the overlapping of the federal and state jurisdictions. However, its unfairness to the individual, as well as its cumbersomeness for enforcement purposes, suggests that it should not be read into legislation in the absence of clear language demonstrating a purpose to permit it. In a case which related to the interpretation of a federal statute that might duplicate or build upon a state law, this Court said:'* * * it should be noted that the double jeopardy provision of the Fifth Amendment does not stand as a bar to federal prosecution though a state convic- , 753] tion based on the same acts has already been obtained. * * * That consideration gives additional weight to the view that where Congress is creating offenses which duplicate or build upon state law, courts should be reluctant to expand the defined offenses beyond the clear requirements of the terms of the statute.' Jerome v. United States, , 486. So here we should be reluctant to read into a federal statute congressional consent to state legislation which authorized prosecution and punishment by the State in addition to federal prosecution and punishment. Where there is legislative intent to share the exclusiveness of the congressional jurisdiction, appropriate language can make that intent clear. An outstanding example of such authorization is in the Eighteenth Amendment, now repealed. It was there provided that 'The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.' (U.S.Const.) More recently, clear language was used by Congress to insure the validity of state cooperation in the 'Migratory Bird Conservation Act,' approved February 18, 1929:'Sec. 17. That when any State shall, by suitable legislation, make provision adequately to enforce the provisions of this Act and all regulations promulgated thereunder, the Secretary of Agriculture may so certify, and then and thereafter said State may cooperate with the Secretary of Agriculture in the enforcement of this Act and the regulations thereunder.' 45 Stat. 1225, 16 U.S.C. 715p, 16 U.S.C.A. 715p. Still closer to the present situation is the language used by the Congress that passed the Motor Carrier Act, 1935. In 'The Whaling Treaty Act' it said:'Sec. 12. That nothing in this Act shall be construed to prevent the several States and Territories , 754] from making or enforcing laws or regulations not inconsistent with the provisions of said Convention (for the regulation of whaling) or of this Act, or from making or enforcing laws or regulations which shall give further protection to whales * * *.' 49 Stat. 1248, 16 U.S.C. 912, 16 U. S.C.A. 912.14 The Motor Carrier Act, 1935, did not overlook the subject of exclusive state and federal jurisdiction over the respective fields of intrastate and interstate commerce touched by the Act. It did not, however, approve joint and conflicting control by both at the same time. It expressly vested in the Interstate Commerce Commission , 755] the regulation of the transportation of passengers by motor carriers engaged in interstate commerce. With equal clarity it expressly provided that Part II of the Interstate Commerce Act should not affect the powers of taxation of the several states. It thus dealt with and preserved to the states their full powers to tax without added restriction because of the Motor Carrier Act's relation to interstate commerce. The state powers of taxation were thus distinguished from those of regulation because the power of regulation of interstate commerce was vested expressly in the Interstate Commerce Commission. Also, in relation to the regulation of intrastate commerce, Congress provided that nothing in Part II of the Interstate Commerce Act 'shall be construed * * * to authorize a motor carrier to do an intrastate business on the highways of any State, or to interfere with the exclusive exercise by each State of the power of regulation of intrastate commerce by motor carriers on the highways thereof.' (Emphasis added.) 202(c), 49 Stat. 543, later designated 202( b), 54 Stat. 920, 49 U.S.C. 302(b), 49 U.S.C.A. 302(b). For full text of original 202(b) and (c), later designated 202(a) and (b), see Appendix B(2), infra. Congress thus dealt directly with the problem of state and federal regulation of motor carrier transportation either interstate or intrastate in character. Congress indicated no consent to share with others its exclusive jurisdiction over the regulation of interstate commerce. If , 756] it had intended to do so, that would have been the place to express such an intent. The language used reflected not merely an absence of congressional consent to the sharing of its jurisdiction over any form of interstate commerce. On the contrary, especially when read with 203(b)(9 ), it evidenced a conscious congressional dissent from any such sharing of its jurisdiction over this form of interstate commerce described in this legislation. Section 203(b)(9) stated a positive insistence upon federal jurisdiction in the precise field which concerns us here. It provided that the federal jurisdiction become effective whenever and to the extent that the Interstate Commerce Commission found the necessity for it. In this narrow field, Congress thus expressly left temporarily on trial the substantially exclusive state regulation of interstate commerce which was already in effect. This express temporary conditional exemption created a special situation in which the consent of Congress to state regulation was to be continued or cut off by the Interstate Commerce Commission. It did not suggest any sharing or duplication of control by the Commission and the state. This temporary survival of state control was expressly and unequivocally terminated by the order of the Interstate Commerce Commission in 1942. That order called for a positive discontinuance of state control, coupled with a positive vesting of jurisdiction in the Interstate Commerce Commission over this particular type of interstate commerce. The procedure thus taken to substitute federal for state regulation of interstate commerce was the very opposite of a procedure permissive of joint or duplicating federal and state control. It is difficult to conceive of a more deliberate and obvious substitution of one for the other. The area available for such substitution of federal for state control was clearly defined and set aside in 203(b)(9) and then put into effect by , 757] order of the Interstate Commerce Commission. Ex parte No. 35, 33 M.C.C. 69, 49 C.F.R. Cum. Supp. 210.1. For an example of a substitution of exclusive federal regulation for exclusive state regulation of certain interstate commerce activities in the warehousing field, see Rice v. Santa Fe Elevator Corp., . This brings us to the final question of statutory interpretation. Did Congress impliedly consent to this attempted sharing of its established jurisdiction within the narrow limits of 203(b)(9)? II. The conviction under the California Code was invalid because Congress had taken exclusive jurisdiction over that offense and had not consented to share its jurisdiction with California. It is a contradiction in terms to say that a state, without the consent of Congress, may duplicate or share in the exclusive jurisdiction of Congress. If the jurisdiction of Congress has become exclusive, the state's jurisdiction must, by hypothesis, be derived thereafter from Congress or cease to exist. In this case there was no express consent by Congress to share with the states the federally protected exclusive jurisdiction over this type of transaction in interstate commerce. The question remains, however, whether, under all the circumstances, Congress shall be held to have impliedly consented to share its exclusive jurisdiction with California. The text of the legislation and the course of events, which led the Federal Government to take jurisdiction, not only disclose an absence of any basis for a claim that Congress impliedly consented to the California legislation but present overwhelming evidence of a deliberate, careful and unconditional assumption by Congress of federal juris- , 758] diction, consciously exclusive of the inadequate state regulation theretofore found to exist. See the reference, supra, to original 202(b) and (c) of the Act dealing with the jurisdiction of the Interstate Commerce Commission and of the states. For full text, see 202(a) and (b) in Appendix B(2), infra. In addition, we shall now consider in detail the action taken under the informed guidance of the Interstate Commerce Commission in accordance with the express terms of 203(b). The precise fundamental issue is not the identity, similarity, diversity, or even repugnance, of the two statutes. The fundamental issue is that of the presence or absence of congressional consent to the sharing of its exclusive jurisdiction. The degree of immediate or potential conflict between the statutes has a material relation to the issue of congressional consent. Clear conflict between the statutes would be practically conclusive against the state. The less the conflict, the less obvious is the basis for the objection of Congress to sharing its jurisdiction with the state. However, even a complete absence of conflict, resulting in a mere duplication of offenses, would not remove all basis for objection and would not necessarily establish the required congressional consent. For example, the inherent objectionability of the double punishment of an offender for a single act always argues against its implied authorization. Similarly, the difficulties inherent in diverse legislative and enforcement policies always argue against the introduction of new state offenses, as distinguished from state cooperation in prosecuting existing federal offenses. Here there was substantial potential conflict between the prescribed state penalties and the federal penalties, although the prohibited acts were the same. Likewise, there was a substantial difference between the two statutes in the exceptions to their application and in such related provisions , 759] as those for the licensing of the travel bureaus as distingui hed from the carriers. Furthermore, 203(b) expressly left it to the Interstate Commerce Commission to determine the extent, if any, to which the federal jurisdiction should be applied. In the instant case the most impressive material, emphasizing the unwillingness of Congress to share its exclusive control with a control through state legislation, is found in the legislative, administrative and judicial proceedings which led to the taking of complete jurisdiction by Congress. When federal jurisdiction was thus taken, in 1942, it was clear to Congress that there existed highly unsatisfactory state regulation of the interstate transactions in question. There is no evidence of a subsequent change in the attitude of Congress. The course of events tells the story. It suggests no consent by Congress to a duplication of federal and state control. On the other hand, it demonstrates the existence of ample reasons for taking and retaining exclusive federal jurisdiction over this kind of interstate transportation. It is an example of the effective integration of our federal and state jurisdictions when each is given exclusive control over designated activities, rather than simultaneous, dual and conflicting control over the same activities. 1. June 5, 1931.-A California statute was approved defining motor carrier transportation agents (comparable to travel bureaus arranging share-the-expense trips), and providing for the State's regulation, supervision and licensing of such agents. This Act referred expressly to transportation between points within California and to transportation to the border of that State when one of the points to be reached was outside the State. It expressly permitted these state-licensed transportation agencies to arrange for motor transportation by a motor carrier not holding a valid certificate of public conven- , 760] ience and necessity issued by the Railroad Commission of California. In substance, the Act thus recognized and licensed travel bureaus arranging for share-the-expense interstate, as well as intrastate, motor trips by unlicensed carriers. 1931 Cal.Stat., c. 638, 1, p. 1362 et seq. 2. May 15, 1933.-Another California statute repealed the Act of June 5, 1931. The new statute declared it to be the policy of California to regulate and control motor carrier transportation agents acting as 'intermediaries between the public and those motor carriers of passengers operating, as common carriers or otherwise, over the public highways of the State, for compensation, that are not required by law to obtain, or that have not obtained, a certificate from the Railroad Commission of the State of California * * *.' 1933 Cal.Stat., c. 390, 1, p. 1012. This statute, like that of 1931, recognized and prescribed licenses for the travel bureaus dealing in share-the-expense interstate, as well as intrastate, motor trips by unlicensed carriers. This statute and this declaration remained in effect until 1947. It was during this same time that the Interstate Commerce Commission, after investigation, declared that it found that such operations, at least as applied to interstate commerce, were contrary to public policy. The Commission's extended investigation resulted, in 1942, in the deliberate application of the Interstate Commerce Act to these interstate operations under express authority of Congress. The federal law thereupon expressly prohibited such transportation by unlicensed carriers, in interstate commerce, and also prohibited travel bureaus or brokers from selling or arranging such unlicensed trips in interstate commerce. The conflict in policy thus became clear, at least by 1942. The relation of the 1933 California Act to interstate commerce and its conflict with the federal policy stated by the Interstate Commerce Commission is emphasized , 761] by the foregoing declaration of state policy which remained in the State Act from 1933 until 1941: 'until such time as Congress of the United States shall act, the public welfare requires such re ulation and control of such intermediaries between the public and interstate motor carriers as well as between the public and intrastate motor carriers.' (Emphasis added .) Id., at p. 1012. The California Act also included, until 1941, the following: 'The provision of this act shall apply regardless of whether such transportation so sold, or offered to be sold, is interstate or intrastate.' Id., at p. 1013. In general, the Act amplified the plan of the 1931 Act. It required the bonding and licensing of motor carrier transportation agents (or travel bureaus) arranging for unlicensed interstate, as well as intrastate, motor carrier transportation. Both State Acts contained a section providing explicitly for the separability of any section, subsection, sentence, clause or phrase which might be held unconstitutional. 3. August 9, 1935.-Following an extended survey of the rapidly increasing volume of interstate motor transportation, the Motor Carrier Act, 1935, was enacted by Congress as Part II of the Interstate Commerce Act. For the purposes of this case, the most important feature of this Act was its provision for the partial and conditional exemption from its operation of the kind of motor carrier transportation here involved. Section 203(b)(9) excluded from its operation, except for safety purposes, 'the casual, occasional, or reciprocal transportation of passengers or property in interstate or foreign commerce for compensation by any person not engaged in transportation by motor vehicle as a regular occupation or business.' 49 Stat. 546. This exclusion of casual and occasional motor carriers was only a conditional exemption, expressive of federal concern over the apparent inadequacy of the state control over casual and occasional , 762] transportation involving interstate trips. The condition applied to the exclusion was-'(b) Nothing in this part (Part II of the Interstate Commerce Act ), * * * shall be construed to include * * * (clauses (1) to (7) incl.); nor, unless and to the extent that the (Interstate Commerce) Commission shall from time to time find that such application is necessary to carry out the policy of Congress enunciated in section 202,15 shall the provisions of this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employeed and safety of operation or standards of equipment apply to: (8) * * * or (9) * * * ( casual, occasional or reciprocal transportation as quoted above).' ( Emphasis added.) 49 Stat. 545-546. The close relation between the Commission, the policy of Congress enunciated in the Act and the federal control over the casual and occasional motor carrier transportation of passengers has been emphasized thus from the inception of the Motor Carrier Act, 1935, to the present. This provision conditionally exempted from federal control not only the casual and occasional transportation service itself but, by rendering such transportation not 'subject to' Part II of the Interstate Commerce Act, it also conditionally exempted, from the federal brokerage license requirements, the travel bureaus which sold or arranged for such casual and occasional unlicensed and unregulated interstate transportation. 16 4. June 14, 1938.-Frank Broker Application, 8 M.C.C. 15. Division 5 of the Interstate Commerce Commission made an important ruling on this application. February 11, 1936, the applicant, doing business as , 763] Frank's Travel Bureau, of Dallas, Texas, filed an application under 211 of the Motor Carrier Act, 1935, for a broker's license for the purpose of arranging motor transportation of persons in interstate commerce. For five years the applicant had operated a 'travel bureau' in Dallas, Texas. The nature of his business was to bring together persons desiring to travel from Dallas to any point as far west as Los Angeles, California, o as far east as New York, New York. The applicant also sold tickets, on a commission for certain competing licensed motor carriers. The Commission held that it was necessary for the applicant to obtain a broker's license under the Federal Act in order to continue to sell tickets for the licensed carriers. The rest of the applicant's interstate business, however, was that of a typical travel bureau, arranging for transportation by unlicensed carriers. The Commission's opinion discussed this activity at length and reached a conclusion that throws light on the future policy of the Commission and on the future course of the federal and state legislation. It demonstrates that the Commission, when taking its stand against this type of interstate transportation, did so, at least in California, in the face of a contrary state policy which then favored the continuance, rather than the prohibition, of such operations. The Commission finally issued the broker's license but only upon the express condition that the applicant would discontinue his travel bureau operations in arranging for the above-described unlicensed interstate transportation which the Commission found to be not in the public interest. It said (pp. 19-20):'The record convinces us that applicant's method of doing that portion of his business, namely the bringing together of prospective passengers and private individuals, not motor carriers, in order that they may enter into an arrangement whereby the passenger for compensation is transported in inter- , 764] state or foreign commerce by the private individual, is not in the public interest. Applicant's limited knowledge of the passenger and owner-driver, and his inability to secure authoritative information with respect to each, of necessity makes it impossible for him to safeguard the rights of either. As a result of this practice an unscrupulous passenger or owner-driver is given an opportunity to defraud honest citizens. Under section 204(a)(4) of the act, 49 U.S.C.A. 304(a)(4), we are authorized, among other things, to establish reasonable requirements with respect to the practices of a broker. We are of the opinion that it is reasonable to require applicant to discontinue his practice of securing private individuals not engaged in business as carriers, to transport passengers for compensation in interstate or foreign commerce, and the license granted herein will be subject to this condition and limitation.'We find that applicant is fit, willing, and able to perform the brokerage service proposed and to conform to the provisions of the act and our requirements, rules, and regulations thereunder; that the proposed service, subject to the condition and limitation stated in the next preceding paragraph, is consistent with the public interest and the policy declared in section 202(a)17 of the act; and that a brokerage license should be issued to him.' (Emphasis added.) 5. February 6, 1939.-Michaux Broker Application, 11 M.C.C. 317. Division 5 of the Interstate Commerce Commission denied this application, filed in June, 1936, for a broker's license under the Federal Act. The applicant sought to carry on an interstate travel bureau operation in Chicago. The Commission found that, if the , 765] operation were strictly limited to arrangements for interstate transportation by casual or occasional carriers, 'the transportation would not be subject to the act.' Id. at p. 318. The applicant, accordingly, would not require a broker's license for that activity. The Commission, however, said (p. 318): 'The extent of applicant's past operations gives rise to doubt that such a volume of business could be achieved without the employment of some persons regularly engaged in transportation of passengers by motor vehicle as an occupation.' He disclaimed intention to engage in such operations in the future. The Commission thereupon denied his request for a broker's license for those operations because no such license was required fo them. The Commission warned him of the penalties for unlawful operations and denied his application on the ground that he had 'not shown that his operation as broker will be consistent with the public interest or with the policy declared in section 202(a)18 of the act , * * *.' (P. 318.) His operations as thus described and condemned were of a type comparable to those previously condemned by the Commission in its decision on the Frank Broker Application, supra, but approved in California's statutory declaration of a contrary policy then in effect. 6. May 1, 1940, and May 17, 1940.19-The Interstate Commerce Commission entered upon its important investigations known, respectively, as Ex parte No. MC-35, 33 M.C.C. 69, and Ex parte No. 36, 32 M.C.C. 267. The first was made-'into the practices with respect to the casual, occasional, or reciprocal transportation of passengers in interstate or foreign commerce for compensation, for the purpose of determining whether the exemption , 766] of such transportation as provided in section 203(b)(9) of the Interstate Commerce Act should be removed to the extent of making applicable all provisions of part II of the act to such transportation * * * (when sold under travel bureau practices).' Ex parte No. MC-35, 33 M.C.C. 69, 70. The second was an investigation into the subject of rules and regulations to govern brokers of passenger transportation subject to Part II of the Interstate Commerce Act. The first investigation later disclosed, among other things, that the-'Board of Public Utilities and Transportation of the city of Los Angeles during the latter part of 1939 and the early part of 1940 received an average of 8 complaints daily involving travel bureaus. At other cities, abandoned passengers, who were usually found to be without funds, were assisted by private or public charity. In general, the testimony of the witnesses for such organizations as better-business bureaus, and travelers' aid societies, based upon a knowledge acquired in the performance of their duties, corroborates that of passengers who testified with regara to the difficulties they encountered while traveling by means of transportation arranged through travel bureaus.'The law-enforcement officials and representatives of eleemosynary and quasipublic organizations who testified favor the removal of the exemption in section 203(b)(9) of the casual, occasional, and reciprocal transportation of passengers for compensation, when such transportation is arranged through travel bureaus, and believe that regulation by this Commission of such transportation is necessary. Their opinions are based principally on the grounds that this type of transportation as now conducted is the cause of inconvenience and hardship to the trav- , 767] eling public using such transportation, for which adequate redress cannot be obtained, that numerous violations of State and local laws and regulations occur in connection therewith, that State and local officials are unable properly to requlate such operations because of the fact that a large proportion of the transportation is interstate, and that, because of the present practices in connection with such transportation, an unreasonable burden is placed upon private and public charities in caring for passengers abandoned or injured while traveling by this means of transportation.' (Emphasis added.) Id. at pp. 75-76. 7. September 18, 1940.-Amendments were enacted to Part II, Interstate Commerce Act. Although the final report in Ex parte No. MC-35 was not made until 1942, some of the conditions referred to above were reflected in an amendment made to 203(b)(9) in 1940.20 Congress still left the casual transportation operations generally unlicensed and unregulated by the Commission. Yet, through this 1940 Amendment, Congress did expressly provide that, at least when the sales or arrangements for the casual or occasiona interstate transportation were made by a licensed broker, then those sales and arrangements were to be considered 'subject to' the , 768] Act. The effect of this was to prohibit brokers licensed under the Interstate Commerce Commission from also conducting an unlicensed travel bureau business. This was, therefore, an express congressional recognition of the policy announced by the Commission in the Frank Broker Application, supra. In substance this amounted to a congressional assumption of jurisdiction, in 1940, in conflict with a part of the existing California policy which approved and attempted to regulate these transactions not only in intrastate but also in interstate transactions. This action of Congress, conforming to the Commission's declaration of policy in the Broker Application cases, substituted this federal prohibition in place of state regulation of these interstate activities. This attitude was strongly reenforced in 1942 and there has been no contrary federal action at any time. See also, Copes Broker Application, 27 M.C.C. 153, 155-156, 169-172, decided by the full Commission, December 20, 1940. 8. April 28, 1941.-State of California v. Thompson, . This case overruled Di Santo v. Commonwealth of Pennsylvania, . It held that the 1933 California Act, at least prior to 1940, was valid, but the Court made it clear that it did so because Congress had not then taken jurisdiction over travel bureau or brokerage operations in selling or arranging for casual or occasional interstate motor carrier transportation of passengers. The opinion of the Court is full of reservations as to what might be the contrary effect of the taking of federal jurisdiction over these transactions. For example, the Court said:'Congress has not undertaken to regulate the acts for which respondent was convicted or the interstate transportation to which they related. * * * Hence we are concerned here only with the constitutional authority of the state to regulate those who, within the state, aid or participate in a form of interstate , 769] commerce over which Congress has not undertaken to exercise its regulatory power.' Id.at page 112, and see pages 114 and 115, 61 S.Ct. at pages 931, 932, 933. 9. June 2, 1941.-The 1933 California Act, which had been slightly revised in 1935, was substantially amended. The Amendment struck out the express application of the Act to interstate as well as intrastate transportation. While the Act evidently still applied, through its general language, to both types of transportation, the omission reflected the State's anticipation of the coming federal control over the interstate transactions. This anticipation was expressly stated in an amendment to 2 limiting the State's regulation of these interstate transactions to a period in 'the absence of action on the part of Congress or the Interstate Commerce Commission regulating or requiring licenses of motor carrier transportation agents acting as such for motor carriers carrying passengers in interstate commerce * * *.'21 his demonstrated California's recognition of the lack of the necessity for, or even the lack of propriety in its attempting to exercise state control in the face of federal control. This provision was later held by the Superior Court of , 770] California to cut off completely and voluntarily the state control after the anticipated federal action was taken in 1942. People v. Van Horn, 76 Cal.App.2d 753, 174 P.2d 12. 10. March, 21, 1942.-This is the most significant date in these proceedings. It marked the issuance of the order of the Interstate Commerce Commission, effective May 15, 1942, in Ex parte No. MC-35, 33 M.C. C. 69, 49 C.F.R.Cum.Supp. 210.1.22 That order expressly removed the abovementioned exemption which theretofore had excluded from regulation, under Part II of the Interstate Commerce Act, the casual, occasional and reciprocal transportation of passengers by motor vehicle in interstate commerce for compensation as provided in 203(b)(9). This order removed that exemption 'to the extent necessary to make applicable all provisions of Part II of the Act to such transportation when sold * * * or arranged for, by any person who sells, * * * or arranges for such transportation for compensation or as a regular occupation or business.'23 It thus expressly , 771] brought under federal control the interstate passenger transportation arranged for through travel bureaus and it also brought those travel bureaus themselves under federal control. It required a license or permit to be secured for the trip and a broker's license to be secured by the bureau. 203(b)(9) and 211(a), 49 Stat. 546, , 772] 554, 54 Stat. 921, 49 U.S.C. 303(b)(9) and 311(a), 49 U.S.C.A. 303(b)( 9), 311(a). The federal control was coextensive with the problem and carefully adjusted to it. There was no need, desire or willingness expressed to accept duplicate parallel state control of these interstate operations. On the other hand, it was expressly stated that it was the inability of the state and local officials properly to regulate such interstate operations that convinced the Commission of the necessity of federal control. Ex parte No. MC-35, supra, p. 76. The intent of Congress and of its specially qualified Interstate Commerce Commission to take complete control of these interstate operations and to supersede the existing state regulation had been indicated in the amendment to 203(b)(9), made September 18, 1940. It was demonstrated beyond question in the Commission's report in Ex parte No. MC- 35, supra. That report summarized two years of nationwide investigations. It dealt with the travel bureau problem especially upon an interstate basis. It made specific reference to interstate operations between California and Texas. Typical excerpts from the report have been quoted supra, . , 773] Bearing further upon the unsuitability of state and local control over the interstate features of this kind of transportation and upon the need for a more uniform and complete federal control, the report said:'There can be little doubt that the removal of the exemption may in some instances work a hardship upon casual, occasional, or reciprocal transporters of passengers and upon persons traveling as passengers by that means of transportation, as well as upon travel bureaus. On the other hand, substantial benefits to the general public would result from the proper regulation of such transportation. If it were properly regulated, passengers using such transportatio would not encounter many of the difficulties arising at present. In their testimony, briefs, and exceptions, several travel bureaus admit that reasonable rules and regulations governing the operations of travel bureaus in their appropriate and legitimate field are desirable and necessary. Casual, occasional, and reciprocal transportation of passengers cannot be regulated unless the exemption in section 203(b)(9) is at least partially removed. The act does not give us power, without the removal of the exemption referred to, to prescribe reasonable rules and regulations governing, or to regulate in any other manner the operations of, travel bureaus. Proper regulation of travel bureaus engaged in legitimate operations can be accomplished only by amendment of the act.' Id. at p. 80. See also, pp. 76-81. The validity and binding effect of this order was upheld by the United States District Court for the Northern District of Illinois, November 18, 1942. See Findings of Fact and Conclusions of Law, in Levin v. United States, sub nom., T. A. Drake et al. v. United States et al.,3 Fed. Car.Cas. (CCH) 80,100, judgment affirmed, per curiam, , 63 S. Ct. 1163. , 774] 11. November 8, 1946.-People v. Van Horn, 76 Cal.App.2d 753, 174 P.2d 12. There could be no doubt that the Federal Government had thus taken jurisdiction over the regulation of travel bureaus engaged in selling or arranging motor transportation in interstate commerce or that the federal statute prohibited such transportation without a federal license or permit. The effect of this action as relating to California was tested in 1945. The operator of a travel bureau arranging for casual interstate motor transportation between San Diego and points outside of California was charged with violation of the 1933 California Act, as amended by the Act of 1941. The Appellate Department of the Superior Court of that State, in People v. Van Horn, supra, thereupon held that the California statute no longer applied to such interstate commerce because, under its 1941 Amendment, that Act was made to apply only in 'the absence of action on the part of Congress or the Interstate Commerce Commission regulating or requiring licenses of motor carrier transportation agents acting as such for motor carriers carrying passengers in interstate commerce * * *.' 1941 Cal.Stat., c. 539, 2, p. 1863. The court recognized that, since 1942, that condition had been met. Accordingly, although California formerly had regulated these transactions, it was held that it had voluntarily abandoned such regulation in favor of the Federal Government. 24 12. July 8, 1947.-The present California statute was approved. It repealed the Act of 1933, as amended in 1935 and 1941. While the application of the new Act to interstate transactions is not express, it was interpreted , 775] by the court below as being thus applicable. 25 It may indicate, therefore, a change in the legislative policy of California toward intrastate operations and an attempted change toward interstate operations but there is no evidence of a change in the policy of Congress. Jurisdiction over these interstate transactions was assumed by Congress after thorough investigation of the need for such action. That legislation enacted was supreme and therefore exclusive. This does not mean that it might not have been shared with the states if Congress had so provided. We believe, however, that it does mean that, in order for the federal jurisdiction to have been so shared, there must have been some express or implied consent by Congress to do so. The position of Congress was perfectly clear in 1942. There has been no evidenc of a change in it. In Appendix C, infra, there are placed in convenient juxtaposition the principal circumstances in this case which demonstrate conflicts between the California and federal legislation and policies, classified as follows: (1) Conflicts inherent in the statutory texts. (2) Emphasis expressly placed upon the mutual exclusiveness of the state and federal regulations. (3) Conflicts between state and federal policies which led to the taking of federal jurisdiction over travel bureaus and share-the-expense motor transportation engaged in casual interstate operations. In the absence of controverting evidence, the above list of circumstances presents a convincing argument against the conclusion that Congress, in this instance, either expressly or impliedly consented to share with California the regulation of casual, occasional or reciprocal transportation of passengers by motor vehicle in interstate commerce. , 776] While it may be uncertain where the line of exclusive federal jurisdiction impinges upon that of the states in the absence of the exercise of federal jurisdiction by Congress, there is no doubt that, when Congress has asserted its exclusive jurisdiction, it is for Congress to indicate the extent, if any, to which a state may then share it. To whatever extent that this is not so, federal law will have lost its constitutional supremacy over state law. For these reasons we believe that the judgment should be affirmed. Appendix A. The California Act of 1947.'An act to repeal 'An act to define motor carrier transportation agent; to provide for the regulation, supervision and licensing thereof, and to provide for the enforcement of said act and penalties for the violation thereof; and repealing an act entitled 'An act to define motor carrier transportation agent; to provide for the regulation, supervision and licensing thereof, and to provide for the enforcement of said act and penalties for the violation thereof,' approved June 5, 1931, and all acts or parts of acts inconsistent with the provisions of this act,' approved May 15, 1933, and to add Sections 654.1, 654.2, and 654.3 to the Penal Code, relating to transportation of persons.'(Approved by Governor July 8, 1947. Filed with Secretary of State July 8, 1947.)'The people of the State of California do enact as follows:'Section 1. The act cited in the title hereof is repealed.'Sec. 2. Section 654.1 is added to the Penal Code, to read:'654.1. It shall be unlawful for any person, acting individually or as an officer or employe of a corporation, or as a member of a copartnership or as a commis- , 777] sion agent or employee of another person, firm or corporation, to sell or offer for sale or, to engotiate, provide or arrange for, or to advertise or hold himself out as one who sells or offers for sale or negotiates, provides or arranges for transportation of a person or persons on an individual fare agent; to provide for the regulation, of California unless such transportation is to be furnished or provided solely by, and such sale is authorized by, a carrier having a valid and existing certificate of convenience and necessity, or other valid and existing permit from the Public Utilities Commission of the State of California, or from the Interstate Commerce Commission of the United States, authorizing the holder of such certificate or permit to provide such transportation.'Sec. 3. Section 654.2 is added to the Penal Code, to read:'654.2. The provisions of Section 654.1 of the Penal Code shall not apply to the selling, furnishing or providing of transportation of any person or persons'(1) When no compensation is paid or to be paid, either directly or indirectly, for such transportation;'(2) To the furnishing or providing of transportation to or from work, of employees engaged in farm work on any farm of the State of California;'(3) To the furnishing or providing of transportation to and from work of employees of any nonprofit coopera ive association, organized pursuant to any law of the State of California;'(4) To the transportation of persons wholly or substantially within the limits of a single municipality or of contiguous municipalities;'(5) To transportation of persons over a route wholly or partly within a national park or state park where such transportation is sold in conjunction with or as part of a rail trip or trip over a regularly operated motor bus transportation system or line; , 778] '(6) To the transportation of passengers by a person who is driving his own vehicle and the transportation of persons other than himself and members of his family when transporting such persons to or from their place of employment and when the owner of such vehicle is driving to or from his place of employment; provided that arrangements for any such transportation provided under the provisions of this subsection shall be made directly between the owner of such vehicle and the person who uses or intends to use such transportation.'Sec. 4. Section 654.3 is added to the Penal Code, to read:'654.3. Violation of Section 654.1 shall be a misdemeanor, and upon first conviction the punishment shall be a fine of not over two hundred fifty dollars ($250), or imprisonment in jail for not over 90 days, or both such fine and imprisonment shall be second conviction the punishment shall be imprisonment in jail for not less than 30 days and not more than 180 days. Upon a third or subsequent conviction the punishment shall be confinement in jail for not less than 90 days and not more than one year, and a person suffering three or more convictions shall not be eligible to probation, the provisions of any law to the contrary notwithstanding.' 1947 Cal.Stat., c. 1215, pp. 2723-2725. Appendix B.(1) National Transportation Policy.'It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster , 779] sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof; and to encourage fair wages and equitable working conditions;-all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.' Inserted before Part I of the Interstate Commerce Act 54 Stat. 899, 49 U.S.C., note preceding 1, 49 U.S.C.A. note preceding 1. The foregoing 'National Transportation Policy' has, for many purposes, superseded the declaration of the policy of Congress enunciated in the original 202 of the Motor Carrier Act, 1935, to which a cross reference was made expressly in 203(b), 49 Stat. 545. This cross reference prescribed that, in order to make Part II of the Interstate Commerce Act applicable to the kind of interstate transportation described in 203(b)(9), the Commission must 'find that such application is necessary to carry out the policy of Congress enunciated in Section 202, * * *.' The policy of Congress thus referred to as being enunciated in 202 was contained in the original form of 202(a), 49 Stat. 543. It read as follows:'Sec. 202. (a) It is hereby declared to be the policy of Congress to regulate transportation by motor carriers in such manner as to recognize and preserve the inherent advantages of, and foster sound economic conditions in, such transportation and among such carriers in the pub- , 780] lic interest; promote adequate, economical, and efficient service by motor carriers, and reasonable charges therefor, without unjust discriminations, undue preferences or advantages, and unfair or destructive competitive practices; improve the relations between, and coordinate transportation by and regulation of, motor carriers and other carriers; develop and preserve a highway transportation system properly adapted to the needs of the commerce of the United States and of the national defense; and cooperate with the several States and the duly authorized officials thereof and with any organization of motor carriers in the administration and enforcement of this part.' The foregoing original 202(a) was repealed, September 18, 1940, 54 Stat. 920. At the same time the designation of the original 202(b) and ( c) were changed respectively to 202(a) and (b). (Both of these subsections are material and they are printed in Appendix B(2), infra.) Accordingly, 202 of Part II of the Interstate Commerce Act ceased to contain any statement of the general 'policy of Congress' corresponding to that contained in the original form of 202(a). On the other hand, the very same Act which this removed this declaration of policy from Part II of the Interstate Commerce Act inserted 'before Part I' of that Act a new paragraph entitled 'National Transportation Policy.' This is the paragraph quoted above from 54 Stat. 899. In the codification of Title 49, a reference to this new paragraph was substituted for the original reference to 202. The codified clause thus required the Commission to 'find that such application is necessary to carry out the national transportation policy declared in the Interstate Commerce Act, * * *.' 49 U.S.C. 303(b), 49 U.S.C.A. 303(b), instead of 'the policy of Congress enunciated in section 202, * * *.' We have adopted that interpretation in this opinion. , 781] (2) Material Provisions of Part II of the Interstate Commerce Act.'Sec. 202. (a) The provisions of this part apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of facilities for such transportation, and the regulation of such transportation, and of the procurement thereof, and the provision of facilities therefor, is hereby vested in the Interstate Commerce Commission.'(b) Nothing in this part shall be construed to affect the powers of taxation of the several States or to authorize a motor carrier to do an intrastate business on the highways of any State, or to interfere with the exclusive exercise by each State of the power of regulation of intrastate commerce by motor carriers on the highways thereof.' 49 Stat. 543, as amended, 54 Stat. 920, 49 U.S.C. 302(a) and (b), 49 U.S.C.A. 302(a, b).'Sec. 203. * * *'(b) Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and , 782] national monuments; or (4a) motor vehicles controlled and operated by any farmer when used in the transportation of his agricultural commodities an products thereof, or in the transportation of supplies to his farm; or (5) motor vehicles controlled and operated by a cooperative association as defined in the Agricultural Marketing Act, approved June 15, 1929, as amended, or by a federation of such cooperative associations, if such federation possesses no greater powers or purposes than cooperative associations so defined; or (6) motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation; (7) motor vehicles used exclusively in the distribution of newspapers; or (7a) the transportation of persons or property by motor vehicle when incidental to transportation by aircraft; nor, unless and to the extent that the Commission shall from time to time find that such application is necessary to carry out the policy of Congress enunciated in section 202,26 shall the provisions of this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment apply to: (8) The transportation of passengers or property in interstate or foreign commerce wholly within a municipality or between contiguous municipalities or within a zone adjacent to and commercially a part of any such municipality or municipalities, except when such transportation is under a common control, management, or arrangement for a continuous carriage or shipment to or from a point without such municipality, municipalities, or zone, and provided that the motor carrier engaged in such transportation of passengers over regular or irregular route , 783] or routes in interstate commerce is also lawfully engaged in the intrastate transportation of passengers over the entire length of such interstate route or routes in accordance with the laws of each State having jurisdiction; or (9) the casual, occasional, or reciprocal transportation of passengers or property by motor vehicle in interstate or foreign commerce for compensation by any person not engaged in transportation by motor vehicle as a regular occupation or business, unless, in the case of transportation of passengers, such transportation is sold or offered for sale, or provided or procured or furnished or arranged for, by a broker, or by any other person who sells or offers for sale transportation furnished by a person lawfully engaged in the transportation of passengers by motor vehicle under a certificate or permit issued under this part or under a pending application for such a certificate or permit.' 49 Stat. 545-546, as amended by 52 Stat. 1029, 1237, 54 Stat. 921, 49 U.S.C. 303(b), 49 U.S.C.A. 303(b).'Sec. 211. (a) No person shall for compensation sell or offer for sale transportation subject to this part or shall make any contract, agreement, or arrangement to provide, procure, furnish, or arrange for such transportation or shall hold himself or itself out by advertisement, solicitation, or otherwise as one who sells, provides, procures, contracts, or arranges for such transportation, unless such person holds a broker's license issued by the Commission to engage in such transactions: Provided, however, That no such person shall engage in transportation subject to this part unless he holds a certificate or permit as provided in this part. In the execution of any contract, agreement, or arrangement to sell, provide, procure, furnish, or arrange for such transportation, it shall be unlawful for such person to employ any carrier by motor vehicle who or which is not the lawful holder of an effective certificate or permit issued as provided in this part: And provided further, That the provisions of this paragraph shall not apply to any carrier holding a certificate , 784] or a permit under the provisions of this part or to any bona fide employee or agent o such motor carrier, so far as concerns transportation to be furnished wholly by such carrier or jointly with other motor carriers holding like certificates or permits, or with a common carrier by railroad, express, or water.' 49 Stat. 554, 49 U.S.C. 311(a), 49 U.S.C.A. 311(a).'Sec. 222. (a) Any person knowingly and willfully violating any provision of this part, or any rule, regulation, requirement, or order thereunder, or any term or condition of any certificate, permit, or license, for which a penalty is not otherwise herein provided, shall, upon conviction thereof, be fined not more than $100 for the first offense and not more than $500 for any subsequent offense. Each day of such violation shall constitute a separate offense.' 49 Stat. 564, 49 U.S.C. 322(a), 49 U.S.C.A. 322(a). APPENDIX C. Summary of conflicts between California and federal legislation and policies. (1) Conflicts inherent in the statutory texts. CALIFORNIA STATUTE. (See Appendix A, supra) Persona Affected and Activities Prohibited. 654.1 It shall be unlawful for any person, acting individually or as an officer or employee of a corporation, or as a member of a copartnership or as a commission agent or employee of another person, firm or corporation, to sell or offer for sale or, to negotiate, provide or arrange for, or to advertise or hold himself out as one who sells or offers for sale or negotiates, provides or arranges for transportation of a person or persons on an individual fare basis over the public highways of the State of California unless such transportation is to be furnished or provided solely by, and such sale is authorized by, a carrier having a valid and existing certificate of convenience and necessity, or other valid and existing permit from the Public Utilities Commission of the State of California, or from the Interstate Commerce Commission of the United States, authorizing the holder of such certificate or permit to provide such transportation. (In addition to the textual variations between the state and federal prohibitions, this measure differs from the federal measure because this merely prohibits travel bureau operations as such unless the carrier has a state or federal license or permit and it does not require that the broker selling or arranging for the transportation must be a licensed broker.) , 785] (b) Exemptions. 654.2. The provisions of Section 654.1 of the Penal Code shall not apply to the selling, furnishing or providing of transportation of any person or persons (1) When no compensation is paid or to be paid, either directly or indirectly, for such transportation; (2) To the furnishing or providing of transportation to or from work, of employees engaged in farm work on any farm of the State of California; (3) To the furnishing or providing of transportation to and from work of employees of any nonprofit cooperative association, organized pursuant to any law of the State of California; (4) To the transportation of persons wholly or substantially within the limits of a single municipality or of contiguous municipalities; (5) To transportation of persons over a route wholly or partly within a national park or state park where such transportation is sold in conjunction with or as part of a rail trip or trip over a regularly operated motor bus transportation system or line; (6) To the transportation of passengers by a person who is driving his own vehicle and the transportation of persons other than himself and members of his family when transporting such persons to or from their place of employment and when the owner of such vehicle is driving to or from his place of employment; provided that arrangements for any such transportation provided under the provisions of this subsection shall be made directly between the owner of such vehicle and the person who uses or intends to use such transportation. (c) Penalties.654.3. Violation of Section 654.1 shall be a misdemeanor, and upon first conviction the punishment shall be a fine of not over two hundred fifty dollars ($250), or imprisonment in jail for not over 90 days, or both such fine and imprisonment. Upon second conviction the punishment shall be imprisonment in jail for not less than 30 days and not more than 180 days. Upon a third or subsequent conviction the punishment shall be confinement in jail for not less than 90 days and not more than one year, and a person suffering three or more convictions shall not be eligible to probation, the provisions of any law to the contrary notwithstanding. , 786] (2) Emphasis expressly placed upon the mutual exclusiveness of the state and federal regulations assigning intrastate regulation to the states,and interstate regulation to the Interstate Commerce Commission upon its finding it necessary. 1933 California Act. The state policy of regulation of motor carrier transportation agents and unlicensed share-the-expense motor carriers was to apply to interstate, as well as intrastate, transportation "until such time as Congress of the United States shall act, * * *." P.761, 69 S.Ct.857, supra. 1941 California Amendments.The state regulation of the interstate transportation was limited to a period in "the absence of action on the part of Congress or the Interstate Commerce Commission regulating or requiring licenses of motor carrier transportation agents acting as such for motor carriers carrying passengers in interstate commerce* * *" , supra. 1947 California Act. This repealed the 1933 Act, as amended in 1941, and mentioned only " transportation * * * over the public highways of the State of California * * *." Appendix A, supra. This could be interpreted as limited to intrastate transportation but it was interpreted, by the court below, as an invalid attempt to invade the federal jurisdiction over interstate commerce. Note 7, supra. (3) Conflicts between state and federal policies which led to the taking federal jurisdiction over travel bureaus and share-the-expensemotor transportation engaged in casual interstate operations. The 1931 California Act recognized and licensed travel bureaus arranging share-the-expense interstate, as well as intrastate, motor trips by unlicensed carriers. , supra. The 1933 California Act continued this policy as to interstate transportation. It stated, however, that such application to interstate transportation would continue only until such time as the Congress of the United States took action. , supra. The 1941 California Amendments emphasized the limitation upon state regulation of interstate transportation. , supra. In 1942, the anticipated federal action automatically cut off the California regulation of these interstate operations. -863, supra. , 787] FEDERAL STATUTE. (See Appendix A, supra.) Persona Affected and Activities Prohibited. SEC. 203. (a) As used in this part-- (1) The term "person" means any individual, firm, copartnership, corporation, company, association, or joint-stock association; and includes any trustee, receiver, assignee, or personal representative thereof. 49 Stat. 544, 49 U.S.C. 303(a) (1), 49 U.S.C.A. 303(a) (1). SEC. 211. (a) No person shall for compensation sell or offer for sale transportation subject to this part or shall make any contract, agreement, or arrangement to provide, procure, furnish, or arrange for such transportation or shall hold himself or itself out by advertisement, solicitation, or otherwise as one who sells, provides, procures, contracts, or arranges for such transportation, unless such person holds a broker's license issued by the Commission to engage in such transactions: Provided, however, That no such person shall engage in transportation subject to this part unless he holds a certificate or permit as provided in this part. In the execution of any contract, agreement, or arrangement to sell, provide, procure, furnish, or arrange for such transportation, it shall be unlawful for such person to employ any carrier by motor vehicle who or which is not the lawful holder of an effective certificate or permit issued as provided in this part: * * *. (In addition to the textual variations between the state and federal prohibitions, this differs form the state measure because this measure not only prohibits interstate travel ureau operations as such unless the carrier holds a federal license or permit, but it also requires that the broker selling or arranging for the transportation must hold a federal broker's license.) , 788] (b) Exemptions. SEC. 211 (a) * * * And provided further, That the provisions of this paragraph shall not apply to any carrier holding a certificate or a permit under the provisions of this part or to any bona fide employee or agent of such motor carrier, so far as concerns transportation to be furnished wholly by such carrier or jointly with other motor carriers holding like certificates or permits, or with a common carriers by railroad, express, or water. SEC. 203. * * * (b) Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards or equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled and operated by any farmer when used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farm; or , 789] (5) motor vehicles controlled and operated by a cooperative association as defined in the Agricultural Marketing Act, approved June 15, 1929, as amended, or by a federation of such cooperative associations, if such federation possesses no greater powers or purposes than cooperative associations so defined; or (6) motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish) or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation; (7) motor vehicles used exclusively in the distribution of newspapers; or (7a) the transportation of persons or property by motor vehicle when incidental to transportation by aircraft; nor, unless and to the extent that the Commission shall from tine to time find that such application is necessary to carry out the policy of Congress enunciated in section 202, shall the provisions of this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment apply to: , 790] (8) The transportation of passengers or property in interstate or foreign commerce wholly within a municipality or between contiguous municipalities or within a zone adjacent to and commercially a part of any such municipality or municipalities, except when such transportation is under a common control, management, or arrangement for a continuous carriage or shipment to or from a point without such municipality, municipalities, or zone, and provided that the motor carrier engaged in such transportation of passengers over regular or irregular route or routes in interstate commerce is also lawfully engaged in the intrastate transportation of passengers over the entire length of such interstate route of routes in accordance with the laws of each State having jurisdiction; or (9) the casual, occasional, or reciprocal transportation of passengers or property by motor vehicle in interstate or foreign commerce for compensation by any person not engaged in transportation by motor vehicle as a regular occupation or business, unless, in the case of transportation of passengers, such transportation is sold or offered for sale, or provided or procured or furnished or arranged for, by a broker, or by any other person who sells or offers for sale transportation furnished by a person lawfully engaged in the transportation of passengers by motor vehicle under a certificate or permit issued under this part or under a pending application for such a certificate or permit. (c) Penalties. SEC. 222. (a) Any person knowingly and willfully violating any provision of this part, or any rule, regulation, requirement, or order thereunder, or any term or condition of any certificate, permit, or license, for which a penalty is not otherwise herein provided, shall, upon conviction thereof, be fined not more than $100 for the first offense and not more that $500 for any subsequent offense. Each day of such violation shall constitute a separate offense. (2) Emphasis expressly placed upon the mutual exclusiveness of the state and federal regulations assigning intrastate regulation to the states,and interstate regulation to the Interstate Commerce Commission upon its finding it necessary. Federal Act — Motor Carrier Act, 1935, Part II. Interstate Commerce Act. , 791] "The provisions of this part apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce * * * and the regulation of such transportation, * * * is hereby vested in the Interstate Commerce Commission." 202(a). Appendix B (2), supra. "Nothing in this part shall be construed * * * to interfere with the exclusive exercise by each State of the power of regulation of intrastate commerce by motor carriers on the highways thereof." 202(b), Appendix B (2), supra. Nothing in this part was to include the casual, occasional, or reciprocal transportation of passengers by motor vehicle in interstate commerce for compensation by any person not engaged in such transportation as a regular occupation or business "unless and to the extent that the Commission shall from time to time find that such application is necessary to carry out the policy of Congress enunciated in section 202, * * *." 203(b), Appendix B (2), supra. Federal Act — 1940 Amendment to Part II of the Interstate Commerce Act. This partly removed the exemption of the Federal Act from the casual, occasional, or reciprocal transporters of persons or property in interstate commerce. The removal applied to cases, for example, where the transportation was sold or arranged for by a broker. Note 20, supra. Federal Order — 1942 Order of the Interstate Commerce Commission. This further removed the exemption from the casual, occasional, or reciprocal transporters of persons or property in interstate commerce. This federal order brought these interstate operations under the Federal Act and under the regulations of the Commission. By virtue of the self- terminating provisions of the California Act, this order cut off the state regulation of these interstate operations. Note 23, supra. , 792] (3) Conflicts between state and federal policies which led to the taking federal jurisdiction over travel bureaus and share-the-expensemotor transportation engaged in casual interstate operations. In 1935 and 1940, Part II of the Interstate Commerce Act gave warning that federal control would be taken when the Interstate Commerce Commission found it necessary in order to carry out the policy of Congress. , 858, 860, supra. In 1940, the Interstate Commerce Commission began its expressly authorized investigations into the operations of travel bureaus and share- the-expense interstate motor transportation. , supra. In 1942, these resulted in the Commission's conclusion t at such operations, as applied to interstate commerce, were contrary to public policy. It declined to issue a license even to a regular transportation broker unless he agreed to refrain from such operations. It expressly found that state and local officials were unable to regulate such operations because a large proportion of the transportation was interstate. In 1942, the Interstate Commerce Commission order largely removed the statutory exemption of these travel bureaus and operations from the Interstate Commerce Act and federal control has been continuously exercised over them since that date. -863, supra.

At least as applied in this case to a native-born citizen of the United States who did not voluntarily relinquish or abandon his citizenship or become involved in any way with a foreign nation, 401 (g) of the Nationality Act of 1940, as amended, which provides that a citizen "shall lose his nationality" by "deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as a result of such conviction is dismissed or dishonorably discharged from the service," is unconstitutional. Pp. 87-114. 239 F.2d 527, reversed.THE CHIEF JUSTICE, in an opinion joined by MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE WHITTAKER, concluded that: 1. Citizenship is not subject to the general powers of the National Government and therefore cannot be divested in the exercise of those powers. Pp. 91-93. 2. Even if citizenship could be divested in the exercise of some governmental power, 401 (g) violates the Eighth Amendment, because it is penal in nature and prescribes a "cruel and unusual" punishment. Pp. 93-104.MR. JUSTICE BLACK, in an opinion joined by MR. JUSTICE DOUGLAS, concurred in the opinion of THE CHIEF JUSTICE and expressed the view that, even if citizenship could be involuntarily divested, the power to denationalize may not be placed in the hands of military authorities. Pp. 104-105.MR. JUSTICE BRENNAN, while agreeing with the Court, in Perez v. Brownell, ante, p. 44, that there is no constitutional infirmity in 401 (e) which expatriates the citizen who votes in a foreign political election, concluded in this case that 401 (g) lies beyond the power of Congress to enact. Pp. 105-114. For dissenting opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BURTON, MR. JUSTICE CLARK and MR. JUSTICE HARLAN, see post, p. 114.Osmond K. Fraenkel argued the cause and filed the briefs for petitioner.Oscar H. Davis argued the cause for respondents on the original argument, and Solicitor General Rankin on the reargument. With them on the briefs were Warren Olney, III, then Assistant Attorney General, and J. F. Bishop. Beatrice Rosenberg was also with them on the brief on the reargument.MR. CHIEF JUSTICE WARREN announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE WHITTAKER join.The petitioner in this case, a native-born American, is declared to have lost his United States citizenship and become stateless by reason of his conviction by court-martial for wartime desertion. As in Perez v. Brownell, ante, p. 44, the issue before us is whether this forfeiture of citizenship comports with the Constitution.The facts are not in dispute. In 1944 petitioner was a private in the United States Army, serving in French Morocco. On May 22, he escaped from a stockade at Casablanca, where he had been confined following a previous breach of discipline. The next day petitioner and a companion were walking along a road towards Rabat, in the general direction back to Casablanca, when an Army truck approached and stopped. A witness testified that petitioner boarded the truck willingly and that no words were spoken. In Rabat petitioner was turned over to military police. Thus ended petitioner's "desertion." He had been gone less than a day and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base. He testified that at the time he and his companion were picked up by the Army truck, "we had decided to return to the stockade. The going was tough. We had no money to speak of, and at the time we were on foot and we were getting cold and hungry." A general court-martial convicted petitioner of desertion and sentenced him to three years at hard labor, forfeiture of all pay and allowances and a dishonorable discharge.In 1952 petitioner applied for a passport. His application was denied on the ground that under the provisions of Section 401 (g) of the Nationality Act of 1940, as amended,1 he had lost his citizenship by reason of his conviction and dishonorable discharge for wartime desertion. In 1955 petitioner commenced this action in the District Court, seeking a declaratory judgment that he is a citizen. The Government's motion for summary judgment was granted, and the Court of Appeals for the Second Circuit affirmed, Chief Judge Clark dissenting. 239 F.2d 527. We granted certiorari. . Section 401 (g), the statute that decrees the forfeiture of this petitioner's citizenship, is based directly on a Civil War statute, which provided that a deserter would lose his "rights of citizenship."2 The meaning of this phrase was not clear.3 When the 1940 codification and revision of the nationality laws was prepared, the Civil War statute was amended to make it certain that what a convicted deserter would lose was nationality itself.4 In 1944 the statute was further amended to provide that a convicted deserter would lose his citizenship only if he was dismissed from the service or dishonorably discharged.5 At the same time it was provided that citizenship could be regained if the deserter was restored to active duty in wartime with the permission of the military authorities.Though these amendments were added to ameliorate the harshness of the statute,6 their combined effect produces a result that poses far graver problems than the ones that were sought to be solved. Section 401 (g) as amended now gives the military authorities complete discretion to decide who among convicted deserters shall continue to be Americans and who shall be stateless. By deciding whether to issue and execute a dishonorable discharge and whether to allow a deserter to re-enter the armed forces, the military becomes the arbiter of citizenship. And the domain given to it by Congress is not as narrow as might be supposed. Though the crime of desertion is one of the most serious in military law, it is by no means a rare event for a soldier to be convicted of this crime. The elements of desertion are simply absence from duty plus the intention not to return.7 Into this category falls a great range of conduct, which may be prompted by a variety of motives - fear, laziness, hysteria or any emotional imbalance. The offense may occur not only in combat but also in training camps for draftees in this country.8 The Solicitor General informed the Court that during World War II, according to Army estimates, approximately 21,000 soldiers and airmen were convicted of desertion and given dishonorable discharges by the sentencing courts-martial and that about 7,000 of these were actually separated from the service and thus rendered stateless when the reviewing authorities refused to remit their dishonorable discharges. Over this group of men, enlarged by whatever the corresponding figures may be for the Navy and Marines, the military has been given the power to grant or withhold citizenship. And the number of youths subject to this power could easily be enlarged simply by expanding the statute to cover crimes other than desertion. For instance, a dishonorable discharge itself might in the future be declared to be sufficient to justify forfeiture of citizenship.Three times in the past three years we have been confronted with cases presenting important questions bearing on the proper relationship between civilian and military authority in this country.9 A statute such as Section 401 (g) raises serious issues in this area, but in our view of this case it is unnecessary to deal with those problems. We conclude that the judgment in this case must be reversed for the following reasons.I.In Perez v. Brownell, supra, I expressed the principles that I believe govern the constitutional status of United States citizenship. It is my conviction that citizenship is not subject to the general powers of the National Government and therefore cannot be divested in the exercise of those powers. The right may be voluntarily relinquished or abandoned either by express language or by language and conduct that show a renunciation of citizenship.Under these principles, this petitioner has not lost his citizenship. Desertion in wartime, though it may merit the ultimate penalty, does not necessarily signify allegiance to a foreign state. Section 401 (g) is not limited to cases of desertion to the enemy, and there is no such element in this case. This soldier committed a crime for which he should be and was punished, but he did not involve himself in any way with a foreign state. There was no dilution of his allegiance to this country. The fact that the desertion occurred on foreign soil is of no consequence. The Solicitor General acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country.Citizenship is not a license that expires upon misbehavior. The duties of citizenship are numerous, and the discharge of many of these obligations is essential to the security and well-being of the Nation. The citizen who fails to pay his taxes or to abide by the laws safeguarding the integrity of elections deals a dangerous blow to his country. But could a citizen be deprived of his nationality for evading these basic responsibilities of citizenship? In time of war the citizen's duties include not only the military defense of the Nation but also full participation in the manifold activities of the civilian ranks. Failure to perform any of these obligations may cause the Nation serious injury, and, in appropriate circumstances, the punishing power is available to deal with derelictions of duty. But citizenship is not lost every time a duty of citizenship is shirked. And the deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen's conduct, however reprehensible that conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship, and this petitioner has done neither, I believe his fundamental right of citizenship is secure. On this ground alone the judgment in this case should be reversed.II.Since a majority of the Court concluded in Perez v. Brownell that citizenship may be divested in the exercise of some governmental power, I deem it appropriate to state additionally why the action taken in this case exceeds constitutional limits, even under the majority's decision in Perez. The Court concluded in Perez that citizenship could be divested in the exercise of the foreign affairs power. In this case, it is urged that the war power is adequate to support the divestment of citizenship. But there is a vital difference between the two statutes that purport to implement these powers by decreeing loss of citizenship. The statute in Perez decreed loss of citizenship - so the majority concluded - to eliminate those international problems that were thought to arise by reason of a citizen's having voted in a foreign election. The statute in this case, however, is entirely different. Section 401 (g) decrees loss of citizenship for those found guilty of the crime of desertion. It is essentially like Section 401 (j) of the Nationality Act, decreeing loss of citizenship for evading the draft by remaining outside the United States.10 This provision was also before the Court in Perez, but the majority declined to consider its validity. While Section 401 (j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed, Section 401 (g), the provision in this case, accords the accused deserter at least the safeguards of an adjudication of guilt by a court-martial.The constitutional question posed by Section 401 (g) would appear to be whether or not denationalization may be inflicted as a punishment, even assuming that citizenship may be divested pursuant to some governmental power. But the Government contends that this statute does not impose a penalty and that constitutional limitations on the power of Congress to punish are therefore inapplicable. We are told this is so because a committee of Cabinet members, in recommending this legislation to the Congress, said it "technically is not a penal law."11 How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them! Manifestly the issue of whether Section 401 (g) is a penal law cannot be thus determined. Of course it is relevant to know the classification employed by the Cabinet Committee that played such an important role in the preparation of the Nationality Act of 1940. But it is equally relevant to know that this very committee acknowledged that Section 401 (g) was based on the provisions of the 1865 Civil War statute, which the committee itself termed "distinctly penal in character."12 Furthermore, the 1865 statute states in terms that deprivation of the rights of citizenship is "in addition to the other lawful penalties of the crime of desertion ... ."13 And certainly it is relevant to know that the reason given by the Senate Committee on Immigration as to why loss of nationality under Section 401 (g) can follow desertion only after conviction by court-martial was "because the penalty is so drastic."14 Doubtless even a clear legislative classification of a statute as "non-penal" would not alter the fundamental nature of a plainly penal statute.15 With regard to Section 401 (g) the fact is that the views of the Cabinet Committee and of the Congress itself as to the nature of the statute are equivocal, and cannot possibly provide the answer to our inquiry. Determination of whether this statute is a penal law requires careful consideration.In form Section 401 (g) appears to be a regulation of nationality. The statute deals initially with the status of nationality and then specifies the conduct that will result in loss of that status. But surely form cannot provide the answer to this inquiry. A statute providing that "a person shall lose his liberty by committing bank robbery," though in form a regulation of liberty, would nonetheless be penal. Nor would its penal effect be altered by labeling it a regulation of banks or by arguing that there is a rational connection between safeguarding banks and imprisoning bank robbers. The inquiry must be directed to substance.This Court has been called upon to decide whether or not various statutes were penal ever since 1798. Calder v. Bull, 3 Dall. 386. Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto laws,16 it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties.17 In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute.18 If the statute imposes a disability for the purposes of punishment - that is, to reprimand the wrongdoer, to deter others, etc. - it has been considered penal.19 But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.20 The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature. The point may be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote.21 If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise.22 The same reasoning applies to Section 401 (g). The purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve. Denationalization in this case is not even claimed to be a means of solving international problems, as was argued in Perez. Here the purpose is punishment, and therefore the statute is a penal law.It is urged that this statute is not a penal law but a regulatory provision authorized by the war power. It cannot be denied that Congress has power to prescribe rules governing the proper performance of military obligations, of which perhaps the most significant is the performance of one's duty when hazardous or important service is required. But a statute that prescribes the consequence that will befall one who fails to abide by these regulatory provisions is a penal law. Plainly legislation prescribing imprisonment for the crime of desertion is penal in nature. If loss of citizenship is substituted for imprisonment, it cannot fairly be said that the use of this particular sanction transforms the fundamental nature of the statute. In fact, a dishonorable discharge with consequent loss of citizenship might be the only punishment meted out by a court-martial. During World War II the threat of this punishment was explicitly communicated by the Army to soldiers in the field.23 If this statute taking away citizenship is a congressional exercise of the war power, then it cannot rationally be treated other than as a penal law, because it imposes the sanction of denationalization for the purpose of punishing transgression of a standard of conduct prescribed in the exercise of that power.The Government argues that the sanction of denationalization imposed by Section 401 (g) is not a penalty because deportation has not been so considered by this Court. While deportation is undoubtedly a harsh sanction that has a severe penal effect, this Court has in the past sustained deportation as an exercise of the sovereign's power to determine the conditions upon which an alien may reside in this country.24 For example, the statute25 authorizing deportation of an alien convicted under the 1917 Espionage Act26 was viewed, not as designed to punish him for the crime of espionage, but as an implementation of the sovereign power to exclude, from which the deporting power is derived. Mahler v. Eby, . This view of deportation may be highly fictional, but even if its validity is conceded, it is wholly inapplicable to this case. No one contends that the Government has, in addition to the power to exclude all aliens, a sweeping power to denationalize all citizens. Nor does comparison to denaturalization eliminate the penal effect of denationalization in this case. Denaturalization is not imposed to penalize the alien for having falsified his application for citizenship; if it were, it would be a punishment. Rather, it is imposed in the exercise of the power to make rules for the naturalization of aliens.27 In short, the fact that deportation and denaturalization for fraudulent procurement of citizenship may be imposed for purposes other than punishment affords no basis for saying that in this case denationalization is not a punishment.Section 401 (g) is a penal law, and we must face the question whether the Constitution permits the Congress to take away citizenship as a punishment for crime. If it is assumed that the power of Congress extends to divestment of citizenship, the problem still remains as to this statute whether denationalization is a cruel and unusual punishment within the meaning of the Eighth Amendment.28 Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime. The question is whether this penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment.At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment - and they are forceful - the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.The exact scope of the constitutional phrase "cruel and unusual" has not been detailed by this Court.29 But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688,30 and the principle it represents can be traced back to the Magna Carta.31 The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, . The Court recognized in that case that the words of the Amendment are not precise,32 and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.We believe, as did Chief Judge Clark in the court below,33 that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation.34 In short, the expatriate has lost the right to have rights.This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies.35 It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.36 The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance.37 Even statutes of this sort are generally applicable primarily to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion.38 In this country the Eighth Amendment forbids this to be done.In concluding as we do that the Eighth Amendment forbids Congress to punish by taking away citizenship, we are mindful of the gravity of the issue inevitably raised whenever the constitutionality of an Act of the National Legislature is challenged. No member of the Court believes that in this case the statute before us can be construed to avoid the issue of constitutionality. That issue confronts us, and the task of resolving it is inescapably ours. This task requires the exercise of judgment, not the reliance upon personal preferences. Courts must not consider the wisdom of statutes but neither can they sanction as being merely unwise that which the Constitution forbids.We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution. The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away the fundamental right of citizenship, the safeguards of the Constitution should be examined with special diligence.The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation. They are the rules of government. When the constitutionality of an Act of Congress is challenged in this Court, we must apply those rules. If we do not, the words of the Constitution become little more than good advice.When it appears that an Act of Congress conflicts with one of these provisions, we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. We must apply those limits as the Constitution prescribes them, bearing in mind both the broad scope of legislative discretion and the ultimate responsibility of constitutional adjudication. We do well to approach this task cautiously, as all our predecessors have counseled. But the ordeal of judgment cannot be shirked. In some 81 instances since this Court was established it has determined that congressional action exceeded the bounds of the Constitution. It is so in this case.The judgment of the Court of Appeals for the Second Circuit is reversed and the cause is remanded to the District Court for appropriate proceedings. Reversed and remanded.

The Illinois Driver Licensing Law authorizes the Secretary of State of Illinois to suspend or revoke a driver's license without preliminary hearing upon a showing by his records or other sufficient evidence that the driver's conduct falls into any of 18 enumerated categories, one of which is that the driver has been repeatedly convicted of offenses against traffic laws to a degree indicating "lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway." ( 6-206 (a) (3)). Pursuant to this provision the Secretary issued a regulation requiring revocation in the event a driver's license is otherwise suspended three times within a 10-year period. Under the statutory scheme the Secretary must provide immediate written notice of a discretionary suspension or revocation and within 20 days of his receiving a written request from the licensee must schedule a full evidentiary hearing for a date "as early as practical," and his final decision is subject to judicial review. After the license of appellee, a truckdriver, became subject to suspension under another section of the statute, the Secretary ordered the license revoked under 6-206 (a) (3) and the corresponding rule. Without requesting an administrative hearing, appellee brought this action challenging the constitutionality of 6-206 (a) (3). A three-judge District Court, relying on Bell v. Burson, , granted appellee relief on the ground that a license cannot constitutionally be revoked under the challenged statute until after a hearing is held to determine whether the licensee meets the statutory criteria. Held: The Illinois statute, as implemented by the Secretary's regulations, is constitutionally adequate under the Due Process Clause of the Fourteenth Amendment, as analyzed in Mathews v. Eldridge, . Pp. 112-116. (a) The nature of the private interest involved here (the granted license to operate a motor vehicle) is not so great as to require a departure from "the ordinary principle ... that something less than an evidentiary hearing is sufficient prior to adverse administrative action," Eldridge, supra, at 343, particularly in light of statutory provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges. P. 113. (b) The risk of an erroneous deprivation absent a prior hearing is not great and additional procedures would not significantly reduce the number of erroneous deprivations. Here the Secretary's regulations make suspension and revocation decisions largely automatic, and appellee is asserting the right to appear at a prerevocation hearing merely to argue for leniency. Pp. 113-114. (c) The requirement of a pretermination hearing in every case would impede the public interests of administrative efficiency as well as highway safety, which is promoted by the prompt removal of hazardous drivers. Bell v. Burson, supra, distinguished. Pp. 114-115. Reversed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 116. BRENNAN, J., filed an opinion concurring in the result, post, p. 117. REHNQUIST, J., took no part in the consideration or decision of the case.Patricia Rosen, Assistant Attorney General of Illinois, argued the cause for appellant. With her on the briefs were William J. Scott, Attorney General, and Paul J. Bargiel, Stephen R. Swofford, and Mary Stafford, Assistant Attorneys General.James O. Latturner argued the cause for appellee. With him on the brief were Alan M. Freedman, Richard J. Hess, and Allen L. Ray.MR. JUSTICE BLACKMUN delivered the opinion of the Court.The issue in this case is whether Illinois has provided constitutionally adequate procedures for suspending or revoking the license of a driver who repeatedly has been convicted of traffic offenses. The statute and administrative regulations provide for an initial summary decision based on official records, with a full administrative hearing available only after the suspension or revocation has taken effect. IThe case centers on 6-206 of the Illinois Driver Licensing Law (c. 6 of the Illinois Vehicle Code). The section is entitled "Discretionary authority to suspend or revoke license or permit." It empowers the Secretary of State to act "without preliminary hearing upon a showing by his records or other sufficient evidence" that a driver's conduct falls into any one of 18 enumerated categories. Ill. Rev. Stat., c. 95 1/2, 6-206 (a) (1975). Pursuant to his rulemaking authority under this law, 6-211 (a),1 the Secretary has adopted administrative regulations that further define the bases and procedures for discretionary suspensions. These regulations generally provide for an initial summary determination based on the individual's driving record.2 The Secretary has established a comprehensive system of assigning "points" for various kinds of traffic offenses, depending on severity, to provide an objective means of evaluating driving records.One of the statutorily enumerated circumstances justifying license suspension or revocation is conviction of three moving traffic offenses within a 12-month period. 6-206 (a) (2).3 This is one of the instances where the Secretary, by regulation, has provided a method for determining the sanction according to the driver's accumulated "points."4 Another circumstance, specified in the statute, supporting suspension or revocation is where a licensee"[h]as been repeatedly involved as a driver in motor vehicle collisions or has been repeatedly convicted of offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway." 6-206 (a) (3). Here again the Secretary has limited his broad statutory discretion by an administrative regulation. This regulation allows suspension or revocation, where sufficient points have been accumulated to warrant a second suspension within a 5-year period.5 The regulation concludes flatly: "A person who has been suspended thrice within a 10 year period shall be revoked."Section 6-206 (c) (1)6 requires the Secretary "immediately" to provide written notice of a discretionary suspension or revocation under this statute, but no prior hearing is required. Within 20 days of his receiving a written request from the licensee, the Secretary must schedule a full evidentiary hearing for a date "as early as practical" in either Sangamon County or Cook County, as the licensee may specify. 2-118 (a). The final decision of the Secretary after such hearing is subject to judicial review in the Illinois courts. 2-118 (e). In addition, a person whose license is suspended or revoked may obtain a restricted permit for commercial use or in case of hardship. 6-206 (c) (2) and (3).7 IIAppellee Love, a resident of Chicago, is employed as a truck-driver. His license was suspended in November 1969, under 6-206 (a) (2), for three convictions within a 12-month period. He was then convicted of a charge of driving while his license was suspended, and consequently another suspension was imposed in March 1970 pursuant to 6-303 (b). Appellee received no further citation until August 1974, when he was arrested twice for speeding. He was convicted of both charges and then received a third speeding citation in February 1975. On March 27, he was notified by letter that he would lose his driving privileges if convicted of a third offense. On March 31 appellee was convicted of the third speeding charge. On June 3, appellee received a notice that his license was revoked effective June 6.8 The stated authority for the revocation was 6-206 (a) (3); the explanation, following the language of the statute, was: "This action has been taken as a result of: Your having been repeatedly convicted of offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates disrespect for the traffic laws." App. 13. Appellee, then aged 25, made no request for an administrative hearing. Instead, he filed this purported class action9 on June 5 against the Illinois Secretary of State in the United States District Court for the Northern District of Illinois. His complaint sought a declaratory judgment that 6-206 (a) (3) was unconstitutional, an injunction against enforcement of the statute, and damages. Appellee's application for a temporary restraining order was granted on condition that he apply for a hardship driving permit. He applied for that permit on June 10, and it was issued on July 25.A three-judge District Court was convened to consider appellee's claim that the Illinois statute was unconstitutional. On cross-motions for summary judgment, the court held that a license cannot constitutionally be suspended or revoked under 6-206 (a) (3) until after a hearing is held to determine whether the licensee meets the statutory criteria of "lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway." The court regarded such a prior hearing as mandated by this Court's decision in Bell v. Burson, . Accordingly, the court granted judgment for appellee and enjoined the Secretary of State from enforcing 6-206 (a) (3). The Secretary appealed, and we noted probable jurisdiction sub nom. Howlett v. Love, .IIIIt is clear that the Due Process Clause applies to the deprivation of a driver's license by the State:"Suspension of issued licenses ... involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment." Bell v. Burson, 402 U.S., at 539. It is equally clear that a licensee in Illinois eventually can obtain all the safeguards procedural due process could be thought to require before a discretionary suspension or revocation becomes final. Appellee does not challenge the adequacy of the administrative hearing, noted above, available under 2-118. The only question is one of timing. This case thus presents an issue similar to that considered only last Term in Mathews v. Eldridge, , namely, "the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter." We may analyze the present case, too, in terms of the factors considered in Eldridge:"[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id., at 335. The private interest affected by the decision here is the granted license to operate a motor vehicle. Unlike the social security recipients in Eldridge, who at least could obtain retroactive payments if their claims were subsequently sustained, a licensee is not made entirely whole if his suspension or revocation is later vacated. On the other hand, a driver's license may not be so vital and essential as are social insurance payments on which the recipient may depend for his very subsistence. See Goldberg v. Kelly, . The Illinois statute includes special provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges. See n. 7, supra. We therefore conclude that the nature of the private interest here is not so great as to require us "to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action." Mathews v. Eldridge, 424 U.S., at 343. See Arnett v. Kennedy, .Moreover, the risk of an erroneous deprivation in the absence of a prior hearing is not great. Under the Secretary's regulations, suspension and revocation decisions are largely automatic. Of course, there is the possibility of clerical error, but written objection will bring a matter of that kind to the Secretary's attention. In this case appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary's decision was based. Appellee has not challenged the validity of those convictions or the adequacy of his procedural rights at the time they were determined. Tr. of Oral Arg. 41, 47. Since appellee does not dispute the factual basis for the Secretary's decision, he is really asserting the right to appear in person only to argue that the Secretary should show leniency and depart from his own regulations.10 Such an appearance might make the licensee feel that he has received more personal attention, but it would not serve to protect any substantive rights. We conclude that requiring additional procedures would be unlikely to have significant value in reducing the number of erroneous deprivations.Finally, the substantial public interest in administrative efficiency would be impeded by the availability of a pretermination hearing in every case. Giving licensees the choice thus automatically to obtain a delay in the effectiveness of a suspension or revocation would encourage drivers routinely to request full administrative hearings. See Mathews v. Eldridge, 424 U.S., at 347. Far more substantial than the administrative burden, however, is the important public interest in safety on the roads and highways, and in the prompt removal of a safety hazard. See Perez v. Campbell, , 671 (1971) (opinion concurring in part and dissenting in part). This factor fully distinguishes Bell v. Burson, supra, where the "only purpose" of the Georgia statute there under consideration was "to obtain security from which to pay any judgments against the licensee resulting from the accident." 402 U.S., at 540.11 In contrast, the Illinois statute at issue in the instant case is designed to keep off the roads those drivers who are unable or unwilling to respect traffic rules and the safety of others.We conclude that the public interests present under the circumstances of this case are sufficiently visible and weighty for the State to make its summary initial decision effective without a predecision administrative hearing.The present case is a good illustration of the fact that procedural due process in the administrative setting does not always require application of the judicial model. When a governmental official is given the power to make discretionary decisions under a broad statutory standard, case-by-case decisionmaking may not be the best way to assure fairness. Here the Secretary commendably sought to define the statutory standard narrowly by the use of his rulemaking authority.12 The decision to use objective rules in this case provides drivers with more precise notice of what conduct will be sanctioned and promotes equality of treatment among similarly situated drivers. The approach taken by the District Court would have the contrary result of reducing the fairness of the system, by requiring a necessarily subjective inquiry in each case as to a driver's "disrespect" or "lack of ability to exercise ordinary and reasonable care."The second count of appellee's complaint challenged 6-206 (a) (3) on the grounds of vagueness and inadequacy of standards. The three-judge court did not reach the issue. App. 22. We regard the claim, in the light of Love's record, as frivolous.The judgment of the District Court is reversed. It is so ordered.MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.

Section 303 of the Clean Water Act requires each State, subject to federal approval, to institute comprehensive standards establishing water quality goals for all intrastate waters, and requires that such standards "consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." Under Environmental Protection Agency (EPA) regulations, the standards must also include an antidegradation policy to ensure that "[e]xisting instream water uses and the level of water quality necessary to protect [those] uses [are] maintained and protected." States are required by 401 of the Act to provide a water quality certification before a federal license or permit can be issued for any activity that may result in a discharge into intrastate navigable waters. As relevant here, the certification must "set forth any effluent limitations and other limitations ... necessary to assure that any applicant" will comply with various provisions of the Act and "any other appropriate" state law requirement. 401(d). Under Washington's comprehensive water quality standards, characteristic uses of waters classified as Class AA include fish migration, rearing, and spawning. Petitioners, a city and a local utility district, want to build a hydroelectric project on the Dosewallips River, a Class AA water, which would reduce the water flow in the relevant part of the River to a minimal residual flow of between 65 and 155 cubic feet per second (cfs). In order to protect the River's fishery, respondent state environmental agency issued a 401 certification imposing, among other things, a minimum stream flow requirement of between 100 and 200 cfs. A state administrative appeals board ruled that the certification condition exceeded respondent's authority Page II under state law, but the State Superior Court reversed. The State Supreme Court affirmed, holding that the antidegradation provisions of the State's water quality standards require the imposition of minimum stream flows, and that 401 authorized the stream flow condition and conferred on States power to consider all state action related to water quality in imposing conditions on 401 certificates.Held: Washington's minimum stream flow requirement is a permissible condition of a 401 certification. Pp. 8-21. (a) A State may impose conditions on certifications insofar as necessary to enforce a designated use contained in the State's water quality standard. Petitioners' claim that the State may only impose water quality limitations specifically tied to a "discharge" is contradicted by 401(d)'s reference to an applicant's compliance, which allows a State to impose "other limitations" on a project. This view is consistent with EPA regulations providing that activities - not merely discharges - must comply with state water quality standards, a reasonable interpretation of 401 which is entitled to deference. State standards adopted pursuant to 303 are among the "other limitations" with which a State may ensure compliance through the 401 certification process. Although 303 is not specifically listed in 401(d), the statute allows States to impose limitations to ensure compliance with 301 of the Act, and 301, in turn, incorporates 303 by reference. EPA's view supports this interpretation. Such limitations are also permitted by 401(d)'s reference to "any other appropriate" state law requirement. Pp. 8-11. (b) Washington's requirement is a limitation necessary to enforce the designated use of the River as a fish habitat. Petitioners err in asserting that 303 requires States to protect such uses solely through implementation of specific numerical "criteria." The section's language makes it plain that water quality standards contain two components and is most naturally read to require that a project be consistent with both: the designated use and the water quality criteria. EPA has not interpreted 303 to require the States to protect designated uses exclusively through enforcement of numerical criteria. Moreover, the Act permits enforcement of broad, narrative criteria based on, for example, "aesthetics." There is no anomaly in the State's reliance on both use designations and criteria to protect water quality. Rather, it is petitioners' reading that leads to an unreasonable interpretation of the Act, since specified criteria cannot reasonably be expected to anticipate all the water quality issues arising from every activity which can affect a State's hundreds of individual water bodies. Page III Washington's requirement also is a proper application of the state and federal antidegradation regulations, as it ensures that an existing instream water use will be "maintained and protected." Pp. 11-16. (c) Petitioners' assertion that the Act is only concerned with water quality, not quantity, makes an artificial distinction, since a sufficient lowering of quantity could destroy all of a river's designated uses, and since the Act recognizes that reduced stream flow can constitute water pollution. Moreover, 101(g) and 510(2) of the Act do not limit the scope of water pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation. Those provisions preserve each State's authority to allocate water quantity as between users, but the 401 certification does not purport to determine petitioners' proprietary right to the River's water. In addition, the Court is unwilling to read implied limitations into 401 based on petitioners' claim that a conflict exists between the condition's imposition and the Federal Energy Regulatory Commission's authority to license hydroelectric projects under the Federal Power Act, since FERC has not yet acted on petitioners' license application and since 401's certification requirement also applies to other statutes and regulatory schemes. Pp. 16-21. 121 Wash.2d 179, 849 P.2d 646, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined. STEVENS, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 1] JUSTICE O'CONNOR delivered the opinion of the Court.Petitioners, a city and a local utility district, want to build a hydroelectric project on the Dosewallips River in Washington State. We must decide whether respondent, the state environmental agency, properly conditioned a permit for the project on the maintenance of specific minimum stream flows to protect salmon and steelhead runs.IThis case involves the complex statutory and regulatory scheme that governs our Nation's waters, a scheme which implicates both federal and state administrative responsibilities. The Federal Water Pollution Control Act, commonly known as the Clean Water Act, 86 Stat. 816, as amended, 33 U.S.C. 1251 et seq., is a comprehensive water quality statute designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 1251(a). The Act also seeks to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife." 1251(a)(2). [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 2] To achieve these ambitious goals, the Clean Water Act establishes distinct roles for the Federal and State Governments. Under the Act, the Administrator of the Environmental Protection Agency is required, among other things, to establish and enforce technology-based limitations on individual discharges into the country's navigable waters from point sources. See 1311, 1314. Section 303 of the Act also requires each State, subject to federal approval, to institute comprehensive water quality standards establishing water quality goals for all intrastate waters. 1311(b)(1)(C), 1313. These state water quality standards provide a supplementary basis ... so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels. EPA v. California ex rel. State Water Resources Control Bd., , n. 12 (1976).A state water quality standard "shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S.C. 1313(c)(2)(A). In setting standards, the State must comply with the following broad requirements:"Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational [and other purposes.]" Ibid. See also 1251(a)(2).A 1987 amendment to the Clean Water Act makes clear that 303 also contains an "antidegradation policy" - that is, a policy requiring that state standards be sufficient to maintain existing beneficial uses of navigable [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 3] waters, preventing their further degradation. Specifically, the Act permits the revision of certain effluent limitations or water quality standards "only if such revision is subject to and consistent with the antidegradation policy established under this section." 1313(d)(4)(B). Accordingly, EPA's regulations implementing the Act require that state water quality standards include "a statewide antidegradation policy" to ensure that "[e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." 40 CFR 131.12 (1992). At a minimum, state water quality standards must satisfy these conditions. The Act also allows States to impose more stringent water quality controls. See 33 U.S.C. 1311(b)(1)(C), 1370. See also 40 CFR 131.4(a) ("As recognized by section 510 of the Clean Water Act [33 U.S.C. 1370], States may develop water quality standards more stringent than required by this regulation").The State of Washington has adopted comprehensive water quality standards intended to regulate all of the State's navigable waters. See Washington Administrative Code (WAC) 173-201-010 to 173-201-120 (1990). The State created an inventory of all the State's waters, and divided the waters into five classes. 173-201-045. Each individual fresh surface water of the State is placed into one of these classes. 173-201-080. The Dosewallips River is classified AA, extraordinary. 173-201-080(32). The water quality standard for Class AA waters is set forth at 173-201-045(1). The standard identifies the designated uses of Class AA waters as well as the criteria applicable to such waters.1 [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 4] In addition to these specific standards applicable to Class AA waters, the State has adopted a statewide antidegradation policy. That policy provides:"(a) Existing beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses will be allowed. [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 5] "(b) No degradation will be allowed of waters lying in national parks, national recreation areas, national wildlife refuges, national scenic rivers, and other areas of national ecological importance. ... . ."(f) In no case, will any degradation of water quality be allowed if this degradation interferes with or becomes injurious to existing water uses and causes long-term and irrepairable harm to the environment. 173-201-035(8). As required by the Act, EPA reviewed and approved the State's water quality standards. See 33 U.S.C. 1313(c)(3); 42 Fed. Reg. 56792 (1977). Upon approval by EPA, the state standard became "the water quality standard for the applicable waters of that State." 33 U.S.C. 1313(c)(3).States are responsible for enforcing water quality standards on intrastate waters. 33 U.S.C. 1319(a). In addition to these primary enforcement responsibilities, 401 of the Act requires States to provide a water quality certification before a federal license or permit can be issued for activities that may result in any discharge into intrastate navigable waters. 33 U.S.C. 1341. Specifically, 401 requires an applicant for a federal license or permit to conduct any activity "which may result in any discharge into the navigable waters" to obtain from the state a certification "that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title." 33 U.S.C. 1341(a). Section 401(d) further provides that [a]ny certification ... shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant ... will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title ... and with any other appropriate requirement of State [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 6] law set forth in such certification. 33 U.S.C. 1341(d). The limitations included in the certification become a condition on any Federal license. Ibid.2 IIPetitioners propose to build the Elkhorn Hydroelectric Project on the Dosewallips River. If constructed as presently planned, the facility would be located just outside the Olympic National Park on federally owned land within the Olympic National Forest. The project would divert water from a 1.2-mile reach of the River (the bypass reach), run the water through turbines to generate electricity, and then return the water to the River below the bypass reach. Under the Federal Power [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 7] Act (FPA), 41 Stat. 1063, as amended, 16 U.S.C. 791 et seq., the Federal Energy Regulatory Commission has authority to license new hydroelectric facilities. As a result, the petitioners must get a FERC license to build or operate the Elkhorn Project. Because a federal license is required, and because the project may result in discharges into the Dosewallips River, petitioners are also required to obtain State certification of the project pursuant to 401 of the Clean Water Act, 33 U.S.C. 1341.The water flow in the bypass reach, which is currently undiminished by appropriation, ranges seasonally between 149 and 738 cubic feet per second (cfs). The Dosewallips supports two species of salmon, Coho and Chinook, as well as Steelhead trout. As originally proposed, the project was to include a diversion dam which would completely block the river and channel approximately 75% of the River's water into a tunnel alongside the streambed. About 25% of the water would remain in the bypass reach, but would be returned to the original riverbed through sluice gates or a fish ladder. Depending on the season, this would leave a residual minimum flow of between 65 and 155 cfs in the River. Respondent undertook a study to determine the minimum stream flows necessary to protect the salmon and steelhead fisheries in the bypass reach. On June 11, 1986, respondent issued a 401 water quality certification imposing a variety of conditions on the project, including a minimum streamflow requirement of between 100 and 200 cfs depending on the season.A state administrative appeals board determined that the minimum flow requirement was intended to enhance, not merely maintain, the fishery, and that the certification condition therefore exceeded respondent's authority under state law. App. to Pet. for Cert. 55a-57a. On appeal, the state Superior Court concluded that respondent could require compliance with the minimum flow [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 8] conditions. Id., at 29a-45a. The Superior Court also found that respondent had imposed the minimum flow requirement to protect and preserve the fishery, not to improve it, and that this requirement was authorized by state law. Id., at 34a.The Washington Supreme Court held that the antidegradation provisions of the State's water quality standards require the imposition of minimum stream flows. 121 Wash.2d 179, 186-187, 849 P.2d 646, 650 (1993). The court also found that 401(d), which allows States to impose conditions based upon several enumerated sections of the Clean Water Act and "any other appropriate requirement of State law," 33 U.S.C. 1341(d), authorized the stream flow condition. Relying on this language and the broad purposes of the Clean Water Act, the court concluded that 401(d) confers on States power to "consider all state action related to water quality in imposing conditions on section 401 certificates." 121 Wash.2d, at 192, 849 P.2d, at 652. We granted certiorari___ (1993), to resolve a conflict among the state courts of last resort. See 121 Wash.2d 179, 849 P.2d 646 (1993); Georgia Pacific Corp. v. Dept. of Environmental Conservation, 628 A.2d 944 (1992) (table); Power Authority of New York v. Williams, 60 N.Y.2d 315, 457 N.E.2d 726 (1983). We now affirm.IIIThe principal dispute in this case concerns whether the minimum stream flow requirement that the State imposed on the Elkhorn project is a permissible condition of a 401 certification under the Clean Water Act. To resolve this dispute, we must first determine the scope of the State's authority under 401. We must then determine whether the limitation at issue here, the requirement that petitioners maintain minimum stream flows, falls within the scope of that authority. [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 9] AThere is no dispute that petitioners were required to obtain a certification from the State pursuant to 401. Petitioners concede that, at a minimum, the project will result in two possible discharges - the release of dredged and fill material during the construction of the project and the discharge of water at the end of the tailrace after the water has been used to generate electricity. Brief for Petitioners 27-28. Petitioners contend, however, that the minimum stream flow requirement imposed by the State was unrelated to these specific discharges, and that, as a consequence, the State lacked the authority under 401 to condition its certification on maintenance of stream flows sufficient to protect the Dosewallips fishery.If 401 consisted solely of subsection (a), which refers to a state certification that a "discharge" will comply with certain provisions of the Act, petitioners' assessment of the scope of the State's certification authority would have considerable force. Section 401, however, also contains subsection (d), which expands the State's authority to impose conditions on the certification of a project. Section 401(d) provides that any certification shall set forth "any effluent limitations and other limitations ... necessary to assure that any applicant" will comply with various provisions of the Act and appropriate state law requirements. 33 U.S.C. 1341(d) (emphasis added). The language of this subsection contradicts petitioners' claim that the State may only impose water quality limitations specifically tied to a "discharge." The text refers to the compliance of the applicant, not the discharge. Section 401(d) thus allows the State to impose "other limitations" on the project in general to assure compliance with various provisions of the Clean Water Act and with "any other appropriate requirement of State law." Although the dissent asserts [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 10] that this interpretation of 401(d) renders 401(a)(1) superfluous, infra, at 4, we see no such anomaly. Section 401(a)(1) identifies the category of activities subject to certification - namely those with discharges. And 401(d) is most reasonably read as authorizing additional conditions and limitations on the activity as a whole once the threshold condition, the existence of a discharge, is satisfied.Our view of the statute is consistent with EPA's regulations implementing 401. The regulations expressly interpret 401 as requiring the State to find that "there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards." 40 CFR 121.2(a)(3) (1992) (emphasis added). See also EPA, Wetlands and 401 Certification 23 (Apr. 1989) ("In 401(d), the Congress has given the States the authority to place any conditions on a water quality certification that are necessary to assure that the applicant will comply with effluent limitations, water quality standards, ... and with `any other appropriate requirement of State law.'"). EPA's conclusion that activities - not merely discharges - must comply with state water quality standards is a reasonable interpretation of 401, and is entitled to deference. See, e.g., Arkansas v. Oklahoma___, ___ (1992) (slip op., at 18-19); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., .Although 401(d) authorizes the State to place restrictions on the activity as a whole, that authority is not unbounded. The State can only ensure that the project complies with "any applicable effluent limitations and other limitations, under [33 U.S.C. 1311, 1312]" or certain other provisions of the Act, "and with any other appropriate requirement of State law." 33 U.S.C. 1341(d). The State asserts that the minimum stream flow requirement was imposed to ensure compliance with [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 11] the state water quality standards adopted pursuant to 303 of the Clean Water Act, 33 U.S.C. 1313.We agree with the State that ensuring compliance with 303 is a proper function of the 401 certification. Although 303 is not one of the statutory provisions listed in 401(d), the statute allows states to impose limitations to ensure compliance with 301 of the Act, 33 U.S.C. 1311. Section 301, in turn, incorporates 303 by reference. See 33 U.S.C. 1311(b)(1)(C); see also H.R.Conf.Rep. No. 95-830, p. 96 (1977) ("Section 303 is always included by reference where section 301 is listed"). As a consequence, state water quality standards adopted pursuant to 303 are among the "other limitations" with which a State may ensure compliance through the 401 certification process. This interpretation is consistent with EPA's view of the statute. See 40 CFR 121.2(a)(3) (1992); EPA, Wetlands and 401 Certification, supra. Moreover, limitations to assure compliance with state water quality standards are also permitted by 401(d)'s reference to "any other appropriate requirement of State law." We do not speculate on what additional state laws, if any, might be incorporated by this language.3 But, at a minimum, limitations imposed pursuant to state water quality standards adopted pursuant to 303 are "appropriate" requirements of state law. Indeed, petitioners appear to agree that [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 12] the State's authority under 401 includes limitations designed to ensure compliance with state water quality standards. Brief for Petitioners 9, 21.BHaving concluded that, pursuant to 401, States may condition certification upon any limitations necessary to ensure compliance with state water quality standards or any other "appropriate requirement of State law," we consider whether the minimum flow condition is such a limitation. Under 303, state water quality standards must "consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S.C. 1313(c)(2)(A). In imposing the minimum stream flow requirement, the State determined that construction and operation of the project as planned would be inconsistent with one of the designated uses of Class AA water, namely "[s]almonid [and other fish] migration, rearing, spawning, and harvesting." App. to Pet. for Cert. 83a-84a. The designated use of the River as a fish habitat directly reflects the Clean Water Act's goal of maintaining the "chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. 1251(a). Indeed, the Act defines pollution as "the man-made or man induced alteration of the chemical, physical, biological, and radiological integrity of water." 1362(19). Moreover, the Act expressly requires that, in adopting water quality standards, the State must take into consideration the use of waters for "propagation of fish and wildlife." 33 U.S.C. 1313(c)(2)(A).Petitioners assert, however, that 303 requires the State to protect designated uses solely through implementation of specific "criteria." According to petitioners, the State may not require them to operate their dam in a manner consistent with a designated "use"; instead, [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 13] say petitioners, under 303 the State may only require that the project comply with specific numerical "criteria."We disagree with petitioners' interpretation of the language of 303(c)(2)(A). Under the statute, a water quality standard must "consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S.C. 1313(c)(2)(A) (emphasis added). The text makes it plain that water quality standards contain two components. We think the language of 303 is most naturally read to require that a project be consistent with both components, namely the designated use and the water quality criteria. Accordingly, under the literal terms of the statute, a project that does not comply with a designated use of the water does not comply with the applicable water quality standards.Consequently, pursuant to 401(d), the State may require that a permit applicant comply with both the designated uses and the water quality criteria of the state standards. In granting certification pursuant to 401(d), the State "shall set forth any ... limitations ... necessary to assure that [the applicant] will comply with any ... limitations under [ 303] ... and with any other appropriate requirement of State law." A certification requirement that an applicant operate the project consistently with state water quality standards - i.e., consistently with the designated uses of the water body and the water quality criteria - is both a "limitation" to assure "compliance with ... limitations" imposed under 303 and an "appropriate" requirement of State law.EPA has not interpreted 303 to require the States to protect designated uses exclusively through enforcement of numerical criteria. In its regulations governing state water quality standards, EPA defines criteria as "elements of State water quality standards expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 14] particular use." 40 CFR 131.3(b) (1992)(emphasis added). The regulations further provide that, "[w]hen criteria are met, water quality will generally protect the designated use." Ibid. (emphasis added). Thus, the EPA regulations implicitly recognize that, in some circumstances, criteria alone are insufficient to protect a designated use.Petitioners also appear to argue that use requirements are too open-ended, and that the Act only contemplates enforcement of the more specific and objective "criteria." But this argument is belied by the open-ended nature of the criteria themselves. As the Solicitor General points out, even "criteria" are often expressed in broad, narrative terms, such as "`there shall be no discharge of toxic pollutants in toxic amounts.'" Brief for United States 18. See American Paper Institute, Inc. v. EPA, 996 F.2d 346, 349 (CADC 1993). In fact, under the Clean Water Act, only one class of criteria, those governing "toxic pollutants listed pursuant to section 1317(a)(1)" need be rendered in numerical form. See 33 U.S.C. 1313(c)(2)(B); 40 CFR 131.11(b)(2) (1992).Washington's Class AA water quality standards are typical in that they contain several open-ended criteria which, like the use designation of the River as a fishery, must be translated into specific limitations for individual projects. For example, the standards state that [t]oxic, radioactive, or deleterious material concentrations shall be less than those which may affect public health, the natural aquatic environment, or the desirability of the water for any use. WAC 173-201-045(c)(vii). Similarly, the state standards specify that "[a]esthetic values shall not be impaired by the presence of materials or their effects, excluding those of natural origin, which offend the senses of sight, smell, touch, or taste." 173-201-045(c)(viii). We think petitioners' attempt to distinguish between uses and criteria loses much of its force in light of the fact that the Act permits enforcement [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 15] of broad, narrative criteria based on, for example, "aesthetics."Petitioners further argue that enforcement of water quality standards through use designations renders the water quality criteria component of the standards irrelevant. We see no anomaly, however, in the State's reliance on both use designations and criteria to protect water quality. The specific numerical limitations embodied in the criteria are a convenient enforcement mechanism for identifying minimum water conditions which will generally achieve the requisite water quality. And, in most circumstances, satisfying the criteria will, as EPA recognizes, be sufficient to maintain the designated use. See 40 CFR 131.3(b) (1992). Water quality standards, however, apply to an entire class of water, a class which contains numerous individual water bodies. For example, in the State of Washington, the Class AA water quality standard applies to 81 specified fresh surface waters, as well as to all "surface waters lying within the mountainous regions of the state assigned to national parks, national forests, and/or wilderness areas," all "lakes and their feeder streams within the state," and all "unclassified surface waters that are tributaries to Class AA waters." WAC 173201-070. While enforcement of criteria will in general protect the uses of these diverse waters, a complementary requirement that activities also comport with designated uses enables the States to ensure that each activity - even if not foreseen by the criteria - will be consistent with the specific uses and attributes of a particular body of water.Under petitioners' interpretation of the statute, however, if a particular criterion, such as turbidity, were missing from the list contained in an individual state water quality standard, or even if an existing turbidity criterion were insufficient to protect a particular species of fish in a particular river, the State would nonetheless [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 16] be forced to allow activities inconsistent with the existing or designated uses. We think petitioners' reading leads to an unreasonable interpretation of the Act. The criteria components of state water quality standards attempt to identify, for all the water bodies in a given class, water quality requirements generally sufficient to protect designated uses. These criteria, however, cannot reasonably be expected to anticipate all the water quality issues arising from every activity which can affect the State's hundreds of individual water bodies. Requiring the States to enforce only the criteria component of their water quality standards would, in essence, require the States to study to a level of great specificity each individual surface water to ensure that the criteria applicable to that water are sufficiently detailed and individualized to fully protect the water's designated uses. Given that there is no textual support for imposing this requirement, we are loath to attribute to Congress an intent to impose this heavy regulatory burden on the States.The State also justified its minimum stream flow as necessary to implement the "antidegradation policy" of 303, 33 U.S.C. 1313(d)(4)(B). When the Clean Water Act was enacted in 1972, the water quality standards of all 50 States had antidegradation provisions. These provisions were required by federal law. See U.S. Dept. of Interior, Federal Water Pollution Control Administration, Compendium of Department of Interior Statements on Non-degradation of Interstate Waters 1-2 (Aug. 1968); see also Hines, A Decade of Nondegradation Policy in Congress and the Courts: The Erratic Pursuit of Clean Air and Clean Water, 62 Iowa L.Rev. 643, 658-660 (1977). By providing in 1972 that existing state water quality standards would remain in force until revised, the Clean Water Act ensured that the States would continue their antidegradation programs. See 33 U.S.C. 1313(a). EPA has consistently required [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 17] that revised state standards incorporate an antidegradation policy. And, in 1987, Congress explicitly recognized the existence of an "antidegradation policy established under [ 303]." 1313(d)(4)(B).EPA has promulgated regulations implementing 303's antidegradation policy, a phrase that is not defined elsewhere in the Act. These regulations require States to "develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy." 40 CFR 131.12 (1992). These "implementation methods shall at a minimum, be consistent with the ... [e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." Ibid. EPA has explained that, under its anti-degradation regulation, "no activity is allowable ... which could partially or completely eliminate any existing use." EPA, Questions and Answers re: Antidegradation 3 (1985). Thus, States must implement their antidegradation policy in a manner "consistent" with existing uses of the stream. The State of Washington's antidegradation policy, in turn, provides that "[e]xisting beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses will be allowed." WAC 173-201-035(8)(a). The State concluded that the reduced streamflows would have just the effect prohibited by this policy. The Solicitor General, representing EPA, asserts, Brief for United States 18-21, and we agree, that the State's minimum stream flow condition is a proper application of the state and federal antidegradation regulations, as it ensures that an "existing instream water us[e]" will be "maintained and protected." 40 CFR 131.12(a)(1) (1992).Petitioners also assert more generally that the Clean Water Act is only concerned with water "quality," and does not allow the regulation of water "quantity." This [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 18] is an artificial distinction. In many cases, water quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as here, as a fishery. In any event, there is recognition in the Clean Water Act itself that reduced stream flow, i.e., diminishment of water quantity, can constitute water pollution. First, the Act's definition of pollution as "the man-made or man induced alteration of the chemical, physical, biological, and radiological integrity of water" encompasses the effects of reduced water quantity. 33 U.S.C. 1362(19). This broad conception of pollution - one which expressly evinces Congress' concern with the physical and biological integrity of water - refutes petitioners' assertion that the Act draws a sharp distinction between the regulation of water "quantity" and water "quality." Moreover, 304 of the Act expressly recognizes that water "pollution" may result from "changes in the movement, flow, or circulation of any navigable waters ... including changes caused by the construction of dams." 33 U.S.C. 1314(f). This concern with the flowage effects of dams and other diversions is also embodied in the EPA regulations, which expressly require existing dams to be operated to attain designated uses. 40 CFR 131.10(g)(4).Petitioners assert that two other provisions of the Clean Water Act, 101(g) and 510(2), 33 U.S.C. 1251(g) and 1370(2), exclude the regulation of water quantity from the coverage of the Act. Section 101(g) provides "that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter." 33 U.S.C. 1251(g). Similarly, 510(2) provides that nothing in the Act shall "be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters ... [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 19] of such States." 33 U.S.C. 1370. In petitioners' view, these provisions exclude "water quantity issues from direct regulation under the federally controlled water quality standards authorized in 303." Brief for Petitioners 39 (emphasis omitted).This language gives the States authority to allocate water rights; we therefore find it peculiar that petitioners argue that it prevents the State from regulating stream flow. In any event, we read these provisions more narrowly than petitioners. Sections 101(g) and 510(2) preserve the authority of each State to allocate water quantity as between users; they do not limit the scope of water pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation. In California v. FERC, , construing an analogous provision of the Federal Power Act,4 we explained that "minimum stream flow requirements neither reflect nor establish `proprietary rights'" to water. Cf. First Iowa Hydro-Electric Cooperative v. FPC, , and n. 20 (1946). Moreover, the certification itself does not purport to determine petitioners' proprietary right to the water of the Dosewallips. In fact, the certification expressly states that a "State Water Right Permit (Chapters 90.03.250 RCW and 508-12 WAC) must be obtained prior to commencing construction of the project." App. to Pet. for Cert. 83a. The certification merely determines the nature of the use to which that proprietary right may be put under the Clean Water Act, if and when it is obtained from the State. Our [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 20] view is reinforced by the legislative history of the 1977 amendment to the Clean Water Act adding 101(g). See 3 Legislative History of the Clean Water Act of 1977 (Committee Print compiled for the Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 532 (1978) ("The requirements [of the Act] may incidentally affect individual water rights... . It is not the purpose of this amendment to prohibit those incidental effects. It is the purpose of this amendment to insure that State allocation systems are not subverted, and that effects on individual rights, if any, are prompted by legitimate and necessary water quality considerations").IVPetitioners contend that we should limit the State's authority to impose minimum flow requirements because FERC has comprehensive authority to license hydroelectric projects pursuant to the FPA, 16 U.S.C. 791a et seq. In petitioners' view, the minimum flow requirement imposed here interferes with FERC's authority under the FPA.The FPA empowers FERC to issue licenses for projects "necessary or convenient ... for the development, transmission, and utilization of power across, along, from, or in any of the streams ... over which Congress has jurisdiction." 797(e). The FPA also requires FERC to consider a project's effect on fish and wildlife. 797(e), 803(a)(1). In California v. FERC, supra, we held that the California Water Resources Control Board, acting pursuant to state law, could not impose a minimum stream flow which conflicted with minimum stream flows contained in a FERC license. We concluded that the FPA did not "save" to the States this authority. Id., at 498.No such conflict with any FERC licensing activity is presented here. FERC has not yet acted on petitioners' [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 21] license application, and it is possible that FERC will eventually deny petitioners' application altogether. Alternatively, it is quite possible, given that FERC is required to give equal consideration to the protection of fish habitat when deciding whether to issue a license, that any FERC license would contain the same conditions as the State 401 certification. Indeed at oral argument, the Solicitor General stated that both EPA and FERC were represented in this proceeding, and that the Government has no objection to the stream flow condition contained in the 401 certification. Tr. of Oral Arg. 43-44.Finally, the requirement for a state certification applies not only to applications for licenses from FERC, but to all federal licenses and permits for activities which may result in a discharge into the Nation's navigable waters. For example, a permit from the Army Corps of Engineers is required for the installation of any structure in the navigable waters which may interfere with navigation, including piers, docks, and ramps. Rivers and Harbors Appropriation Act of 1899, 30 Stat. 1151, 10, 33 U.S.C. 403. Similarly, a permit must be obtained from the Army Corps of Engineers for the discharge of dredged or fill material, and from the Secretary of the Interior or Agriculture for the construction of reservoirs, canals and other water storage systems on federal land. See 33 U.S.C. 1344(a), (e); 43 U.S.C. 1761 (1988 ed. and Supp. IV). We assume that a 401 certification would also be required for some licenses obtained pursuant to these statutes. Because 401's certification requirement applies to other statutes and regulatory schemes, and because any conflict with FERC's authority under the FPA is hypothetical, we are unwilling to read implied limitations into 401. If FERC issues a license containing a stream flow condition with which petitioners disagree, they may pursue judicial remedies at that time. Cf. Escondido Mut. [ JEFFERSON CTY. PUD v. ECOLOGY DEPT. OF WASH., ___ U.S. ___ (1994), 22] Water Co. v. La Jolla Band of Mission Indians, , n. 20 (1984).In summary, we hold that the State may include minimum stream flow requirements in a certification issued pursuant to 401 of the Clean Water Act insofar as necessary to enforce a designated use contained in a state water quality standard. The judgment of the Supreme Court of Washington, accordingly, is affirmed.So ordered.

The Commodity Futures Trading Commission (CFTC) brought this action, claiming that petitioners solicited investments in and operated a fraudulent scheme involving transactions in foreign currency options in violation of the Commodity Exchange Act (CEA) and CFTC regulations. Petitioners allegedly engaged in the transactions by contracting directly with international banks and others, rather than using a regulated exchange or board of trade. This is known as trading in the "off exchange" or "over the counter" market. Both petitioners and their customers suffered heavy losses. The District Court appointed a temporary receiver to take control of petitioners' property, rejecting their defense that the transactions were exempt from the CEA under the so called "Treasury Amendment," which excepts "transactions in foreign currency" unless they involve a sale "for future delivery" "conducted on a board of trade." The Court of Appeals affirmed.Held: The Treasury Amendment exempts from CFTC regulation off exchange trading in foreign currency options. Options (transactions in which the buyer purchases the right, but not the obligation, to buy or sell an agreed amount of a commodity at a set rate at any time prior to the option's expiration) like those at issue here are plainly "transactions in foreign currency" within the statute's meaning. The Court is not persuaded by any of the CFTC's arguments in support of a narrower reading that would exempt futures contracts (agreements to buy or sell a specified quantity of a commodity at a particular price for delivery at a set future date) without exempting options. The normal reading of the last quoted phrase encompasses all transactions in which foreign currency is the fungible good whose fluctuating market price provides the motive for trading. Reading the text toinclude only the actual purchase or sale of foreign currency, as the CFTC urges, violates the ordinary meaning of the key word "in." On the CFTC's reasoning, the exemption's application to futures contracts could not be sustained, in clear contravention of Congress' intent to exempt off exchange foreign currency futures from CFTC regulation. This interpretation would also render the provision mere surplusage, and is not supported by the Treasury Amendment's legislative history. Given the history of evolving congressional regulation in this area, it is natural to read the exemption as a complete exclusion of foreign currency transactions from the regulatory scheme, except to the extent that the proviso for transactions "conducted on a board of trade" qualifies that exclusion. Contrary to the CFTC's position, there is little to suggest that elsewhere in the CEA Congress used the term transactions "involving" a particular commodity to describe options, and transactions "in" the commodity to indicate a narrower exclusion. The proviso "conducted on a board of trade" does not aid the CFTC's cause because a broad reading of the proviso to include both options and futures is faithful to the contemporary legal context in which the amendment was drafted. The arguments favoring each side in the important public policy dispute over whether off exchange foreign currency options should be exempt from CEA regulation are best addressed to the Congress, not the Courts. Pp. 3-15.58 F. 3d 50, reversed and remanded.Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.U.S. Supreme CourtNo. 95-1181WILLIAM C. DUNN and DELTA CONSULTANTS, INC., PETITIONERS v. COMMODITY FUTURES TRADING COMMISSION et al.on writ of certiorari to the united states court of appeals for the second circuit[February 25, 1997]Justice Stevens delivered the opinion of the Court.The question presented is whether Congress has authorized the Commodity Futures Trading Commission (CFTC or Commission) to regulate "off exchange" trading in options to buy or sell foreign currency.The CFTC brought this action in 1994, alleging that, beginning in 1992, petitioners solicited investments in and operated a fraudulent scheme in violation of the Commodity Exchange Act (CEA), 7 U.S.C. § 1 et seq., and CFTC regulations. 1 App. 10. See 7 U.S.C. § 6c(b); 17 CFR § 32.9 (1996). 2 The CFTC's complaint, affidavits, and declarations submitted to the District Court indicate that customers were told their funds would be invested using complex strategies involving options to purchase or sell various foreign currencies. App. 8. Petitioners apparently did in fact engage in many such transactions. Ibid.; 58 F. 3d 50, 51 (CA2 1995). To do so, they contracted directly with international banks and others without making use of any regulated exchange or board of trade. In the parlance of the business, petitioners traded in the "off exchange" or "over the counter" (OTC) market. 3 Ibid. No options were ever sold directly to petitioners' customers. However, their positions were tracked through internal accounts, and investors were provided weekly reports showing the putative status of their holdings. Petitioners and their customers suffered heavy losses. Id., at 51-52. Subsequently, the CFTC commenced these proceedings.Rejecting petitioners' defense that off exchange transactions in foreign currency options are exempt from theCEA, the District Court appointed a temporary receiver to take control of their property for the benefit of their customers. App. to Pet. for Cert. 5b-6b. Relying on circuit precedent, 4 and acknowledging a conflict with another Circuit, 5 the Court of Appeals affirmed. 58 F. 3d, at 54. We granted certiorari to resolve the conflict. ___ (1996). For the reasons that follow, we reverse and remand for further proceedings.The outcome of this case is dictated by the so called "Treasury Amendment" to the CEA. 88 Stat. 1395, 7 U.S.C. § 2(ii). We have previously reviewed the history of the CEA and generally described how it authorizes the CFTC to regulate the "volatile and esoteric" market in futures contracts in fungible commodities. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, , 357-367 (1982). As a part of the 1974 amendments that created the CFTC and dramatically expanded the coverage of the statute to include nonagricultural commodities "in which contracts for future delivery are presently or in the future dealt in," see 88 Stat. 1395, 7 U.S.C. § 2 (1970 ed., Supp. IV), Congress enacted the following exemption, which has come to be known as the "Treasury Amendment":"Nothing in this chapter shall be deemed to govern or in any way be applicable to transactions in foreign currency, security warrants, security rights, resales of installment loan contracts, repurchase options, government securities, or mortgages and mortgage purchase commitments, unless such transactions involve the sale thereof for futuredelivery conducted on a board of trade." 7 U.S.C. § 2(ii) (emphasis added).The narrow issue that we must decide is whether the italicized phrase ("transactions in foreign currency") includes transactions in options to buy or sell foreign currency. An option, as the term is understood in the trade, is a transaction in which the buyer purchases from the seller for consideration the right, but not the obligation, to buy or sell an agreed amount of a commodity at a set rate at any time prior to the option's expiration. 6 We think it plain that foreign currency options are "transactions in foreign currency" within the meaning of the statute. We are not persuaded by any of the arguments advanced by the CFTC in support of a narrower reading that would exempt futures contracts (agreements to buy or sell a specified quantity of a commodity at a particular price for delivery at a set future date) 7 without exempting options."[A]bsent any `indication that doing so would frustrate Congress's clear intention or yield patent absurdity, our obligation is to apply the statute as Congress wrote it.' " Hubbard v. United States___ (1995) (slip. op.,at 8) (quoting BFP v. Resolution Trust Corporation, (Souter, J., dissenting)). The CFTC argues, and the Court of Appeals held, that an option is not itself a transaction "in" foreign currency, but rather is just a contract right to engage in such a transaction at a future date. Brief for Respondent 30-31; 58 F. 3d, at 53. Hence, the Commission submits that the term "transactions in foreign currency" includes only the "actual exercise of an option (i.e., the actual purchase or sale of foreign currency)" but not the purchase or sale of an option itself. Brief for Respondent 31. That reading of the text seems quite unnatural to us, and we decline to adopt it.The more normal reading of the key phrase encompasses all transactions in which foreign currency is the fungible good whose fluctuating market price provides the motive for trading. The CFTC's interpretation violates the ordinary meaning of the key word "in," which is usually thought to be "synonymous with [the] expressions `in regard to,' `respecting,' [and] `with respect to.' " Black's Law Dictionary 758 (6th ed. 1990); see Babbitt v. Sweet Home Chapter, Communities for Great Ore.___ (1995) (slip op., at 8-9). There can be no question that the purchase or sale of a foreign currency option is a transaction "respecting" foreign currency. We think it equally plain as a matter of ordinary meaning that such an option is a transaction "in" foreign currency for purposes of the Treasury Amendment.Indeed, adopting the Commission's reading would deprive the exemption of the principal effect Congress intended. The CFTC acknowledges that futures contracts fall squarely within the Treasury Amendment's exemption, Brief for Respondent 30, and there is no question that the exemption of off exchange foreign currency futures from CFTC regulation was one ofCongress' primary goals. 8 Yet on the CFTC's reasoning the exemption's application to futures contracts could not be sustained.A futures contract is no more a transaction "in" foreign currency as the Commission understands the term than an option. The Commission argues that because a futures contract creates a legal obligation to purchase or sell currency on a particular date, it is somehow more clearly a transaction "in" the underlying currencies than an option, which generates only the right to engage in a transaction. Brief for Respondent 30-32. This reasoning is wholly unpersuasive. No currency changes hands at the time a futures contract is made. And, the existence of a futures contract does not guarantee that currency will actually be exchanged. Indeed, the Commission concedes that, in most cases, futures contracts are "extinguished before delivery by entry into an offsetting futures contract." Id., at 30 (citing 1 T. Snider, Regulation of the Commodities Futures and Options Markets §2.05 (2d ed. 1995) (hereinafter Snider)); see also Munn & Garcia 414. Adopting the CFTC's reading would therefore place both futures and options outside the exemption, in clear contravention of Congress' intent.Furthermore, this interpretation would leave the Treasury Amendment's exemption for "transactions in foreign currency" without any significant effect at all, because it would limit the scope of the exemption to "forward contracts" (agreements that anticipate the actual delivery of a commodity on a specified future date) and "spot transactions" (agreements for purchase and sale of commodities that anticipate near term delivery). 9 Both are transactions "in" a commodity as the CFTC would have us understand the term. But neither type of transaction for any commodity was subject to intensive regulation under the CEA at the time of the Treasury Amendment's passage. See 7 U.S.C. § 2 (1970 ed., Supp. IV) ("term `future delivery,' as used in this chapter, shall not include any sale of any cash commodity for deferred shipment or delivery"); Snider §9.01; J. Markham, The History of Commodity Futures Trading and Its Regulation 201-203 (1987). Our reading of the exemption is therefore also consonant with the doctrine that legislative enactments should not be construed to render their provisions mere surplusage. See Babbitt, 515 U. S., at ___ (slip op., at 9) (noting "reluctance to treat statutory terms as surplusage"); Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, .Finally, including options in the exemption is consistent with Congress' purpose in enacting the Treasury Amendment. Although at the time the Treasury Amendment was drafted a thriving off exchange market inforeign currency futures was in place, the closely related options market at issue here had not yet developed. See City of New York Bar Association Committee on Futures Regulation, The Evolving Regulatory Framework for Foreign Currency Trading 18, 23 (1986). The CFTC therefore suggests that Congress could not have intended to exempt foreign currency options from the CEA's coverage. Brief for Respondent 41-42. The legislative history strongly suggests to the contrary that Congress' broad purpose in enacting the Treasury Amendment was to provide a general exemption from CFTC regulation for sophisticated off exchange foreign currency trading, which had previously developed entirely free from supervision under the commodities laws.In explaining the Treasury Amendment, the Senate Committee Report notes in broad terms that the amendment "provides that inter bank trading of foreign currencies and specified financial instruments is not subject to Commission regulation." S. Rep. No. 93-1131, p. 6 (1974). 10 Elsewhere, the Report again explains in general terms — without making reference to any distinction between options and futures — that the legislation:"included an amendment to clarify that the provisions of the bill are not applicable to trading in foreign currencies and enumerated financial instruments unless such trading is conducted on a formally organized futures exchange. A great deal of the trading in foreign currency in the United States is carried out through an informal network of banks and tellers. The Committee believes that this market is more properly supervised by the bankregulatory agencies and that, therefore, regulation under this legislation is unnecessary." Id., at 23.Similarly, the Treasury Department submitted to the Chairman of the relevant Senate Committee a letter that was the original source of the Treasury Amendment. While focusing on the need to exempt the foreign currency futures market from CFTC regulation, the letter points out that the "participants in this market are sophisticated and informed institutions," and "the [CFTC] would clearly not have the expertise to regulate a complex banking function and would confuse an already highly regulated business sector." Id., at 50 (letter of Donald Ritger, Acting General Counsel). The Department further explained that "new regulatory limitations and restrictions could have an adverse impact on the usefulness and efficiency of foreign exchange markets for traders and investors." Ibid.Although the OTC market for foreign currency options had not yet developed in 1974, the reasons underlying the Treasury Department's express desire at that time to exempt off exchange commodity futures trading from CFTC regulation apply with equal force to options today. Foreign currency options and futures are now traded in the same off exchange markets, by the same entities, for quite similar purposes. See Brief for Foreign Exchange Committee et al. as Amici Curiae 19. Contrary to the Commission's suggestion, we therefore think the purposes underlying the Treasury Amendment are most properly fulfilled by giving effect to the plain meaning of the language as Congress enacted it.The CFTC rejoins that the Treasury Amendment should be construed in the light of Congress' history of regulating options more strictly than futures. See Snider §§7.03-7.04; Brief for Respondent 38-39. The Commission submits that this distinction was motivated by the view that options lend themselves more readily to fraudulent schemes than futures contracts. Hence,the CFTC argues that Congress would have acted reasonably and consistently with prior practice had it regulated commodities differently from options. While that may be true, we give only slight credence to these general historical considerations, which are unsupported by statutory language, or any evidence evocative of the particular concerns focused on by the legislators who enacted the Treasury Amendment. We think the history of the Treasury Amendment suggests — contrary to the CFTC's view — that it was intended to take all transactions relating to foreign currency not conducted on a board of trade outside of the CEA's ambit. This interpretation is consistent with the fact that, prior to the enactment of the CEA in 1974, foreign currency trading had been entirely unregulated under the commodities laws.Our interpretation is also consonant with the history of evolving congressional regulation in this area. That history has been one of successively broadening the coverage of regulation by the addition of more and more commodities to the applicable legislation. 11 It seemsquite natural in this context to read the Treasury Amendment's exemption of transactions in foreign currencies as a complete exclusion of that commodity from the regulatory scheme, except, of course, to the extent that the proviso for transactions "conducted on a board of trade" qualifies that exclusion. See 7 U.S.C. § 2(ii).To buttress its reading of the statute, the CFTC argues that elsewhere in the CEA Congress referred to transactions "involving" a particular commodity to describe options or used other "more encompassing terminology," rather than what we are told is the narrower term transactions "in" the commodity, which was reserved for futures, spot transactions, and forward contracts. Brief for Respondent 30-33. Not only do we think it unlikely that Congress would adopt such a subtle method of drawing important distinctions, there is little to suggest that it did so.Congress' use of these terms has been far from consistent. Most strikingly, the use of the word "involving" in the Treasury Amendment itself completely eviscerates the force of the Commission's argument. After setting forth exemptions for, inter alia, "transactions in foreign currency," the Amendment contains a proviso sweeping back into the statute's coverage "such transactions involv[ing] the sale thereof for future delivery conducted on a board of trade." 7 U.S.C. § 2(ii) (emphasis added). As we have already noted, the CFTC agrees that futures contracts are a subset of "transactions in foreign currency." The Commission further submits that the proviso uses the word "involve" to make the exemption inapplicable to those futures contracts that are conducted on a board of trade. This contradicts the "in" versus "involving" distinction. We would expect on the Commission's reasoning that this provision would refer to "transactions in futures." The use of the term "involving" instead, within the very amendment that respondent claims embraces this distinction, weighs heavily against the view that any such distinction was intended by Congress. 12 The CFTC argues further that the proviso properly understood aids its cause. The proviso sweeps back into the CFTC's jurisdiction otherwise exempt "transactions in foreign currency" that "involve the sale thereof for future delivery" and are "conducted on a board of trade." Since the proviso refers to futures without mentioning options, the Commission submits that the exemption itself should be read only to cover futures because Congress cannot reasonably have intended to regulate exchange trading in foreign currency futures without also regulating exchange trading in such options. We agree that Congress intended no such anomaly. But we are satisfied that the anomaly is best avoided by reading the proviso broadly rather than reading the exemption narrowly.The proviso's language fairly accommodates inclusion of both options and futures. To fall within the proviso, a transaction must "involve the sale [of foreign currency] for future delivery." §2(ii) (emphasis added). Because options convey the right to buy or sell foreign currency at some future time prior to their expiration, they are transactions "involv[ing]" or related to the sale of foreign currency for future delivery. Thus, both futures and options are covered by both the exemption and the proviso. While that may not be the only possible reading of the literal text, and we do not intend to suggest that a similar construction would be required with respect to other provisions of the CEA, our interpretation is faithful to the "contemporary legal context" in which the Treasury Amendment was drafted. Cannon v. University of Chicago, ; see also Massachusetts v. Morash, (noting that " `in expounding a statute, we [are] not ... guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy' ") (quoting Pilot Life Ins. Co. v. Dedeaux, ).Finally, the CFTC calls our attention to statements in the legislative history of a 1982 amendment to the CEA, 13 indicating that the drafters of that amendment believed that the CFTC had the authority to regulateforeign currency options "when they are traded other than on a national securities exchange." See S. Rep. No. 97-384, p. 22 (1982). Those statements, at best, might be described as "legislative dicta" because the 1982 amendment itself merely resolved a conflict between the Securities Exchange Commission and the CFTC concerning their respective authority to regulate transactions on an exchange. See Snider §10.24. The amendment made no change in the law applicable to off exchange trading. Although the "dicta" is consistent with the position that the CFTC advocates, it sheds no light on the intent of the authors of the Treasury Amendment that had been adopted eight years earlier. See, e.g., Mackey v. Lanier Collection Agency & Service, Inc., " 840 (1988). 14 Underlying the statutory construction question before us, we recognize that there is an important public policy dispute — with substantial arguments favoring each side. Petitioners, their amici, and the Treasury Department, argue that if off exchange foreign currency options are not treated as exempt from CEA regulation, the increased costs associated with unnecessary regulation of the highly sophisticated OTC foreign currency markets might well drive this business out of the United States. 15 The Commission responds that to the extent limited exemptions from regulation are necessary, it will provide them, but argues that options are particularly susceptible to fraud and abuse if not carefully policed. Brief for Respondent 26, 49. As the Commission properly acknowledges, however, these are arguments best addressed to the Congress, not the courts. See United States v. Rutherford, . Lacking the expertise or authority to assess these important competing claims, we note only that "a literal construction of the statute" does not "yiel[d] results so manifestly unreasonable that they could not fairly be attributed to congressional design." Ibid.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.U.S. Supreme CourtNo. 95-1181WILLIAM C. DUNN and DELTA CONSULTANTS, INC., PETITIONERS v. COMMODITY FUTURES TRADING COMMISSION et al.on writ of certiorari to the united states court of appeals for the second circuit[February 25, 1997]Justice Scalia , concurring in part and concurring in I agree with the Court that "the purposes underlying the Treasury Amendment are most properly fulfilled by giving effect to the plain meaning of the language as Congress enacted it," ante, at 9, which includes options to buy or sell foreign currency. This principle is contradicted, however, by the Court's extensive discussion of legislative history, see ante, at 6, n. 8, 8-9, 14, as though that were necessary to confirm the "plain meaning of the language," or (worse) might have power to overcome it. I join all except those portions of the opinion, which achieve nothing useful and sow confusion in the law.

Respondent was charged with and convicted of felony theft. Based on two prior convictions, he was also charged as a habitual offender. Under Texas' habitual offender statute, a defendant convicted of a felony is subject to a sentence of 2 to 20 years if (1) he has two prior felony convictions, and (2) the conviction for the first prior offense became final before commission of the second. Texas law requires the State to prove the habitual offender allegations to a jury beyond a reasonable doubt at a separate penalty hearing. The jury here convicted respondent of the habitual offender charge, and the judge sentenced him to 16½ years. As it turned out, the evidence presented at the penalty phase showed that respondent had committed his second offense three days before his first conviction became final, meaning that he was not eligible for the habitual offender enhancement. No one, including defense counsel, noted the discrepancy — either at trial or on direct appeal. Respondent first raised the issue in a request for state postconviction relief, arguing that the evidence at the penalty hearing was insufficient to support the habitual offender conviction. The state court rejected his sufficiency of the evidence claim on procedural grounds, because he had not raised the issue earlier; the state court likewise rejected respondent's claim that counsel had been ineffective for failing to object. Respondent renewed his sufficiency of the evidence and ineffective assistance claims in a subsequent federal habeas application. Conceding that respondent was not, in fact, eligible for the habitual offender enhancement, the State nevertheless argued that respondent had procedurally defaulted his sufficiency of the evidence claim. The District Court excused the procedural default because respondent was actually innocent of the enhanced sentence; it thus did not reach the ineffective assistance claim. The Fifth Circuit affirmed, holding that the actual innocence exception applies to noncapital sentencing procedures involving career offenders and habitual felony offenders.Held: A federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default. Normally, a federal court will not entertain a procedurally defaulted constitutional claim in a habeas petition absent a showing of cause and prejudice to excuse the default. However, this Court recognizes a narrow exception to the general rule when the applicant can demonstrate actual innocence of the substantive offense, Murray v. Carrier, 477 U. S. 478, 496, or, in the capital sentencing context, of the aggravating circumstances rendering the inmate eligible for the death penalty, Sawyer v. Whitley, 505 U. S. 333. The Court declines to answer the question presented here, whether this exception should be extended to noncapital sentencing error, because the District Court failed first to consider alternative grounds for relief urged by respondent. This avoidance principle was implicit in Carrier itself, where the Court expressed confidence that, "for the most part, 'victims of fundamental miscarriage of justice will meet the cause-and-prejudice standard,' " 397 U. S. 358 — that each element of a criminal offense must be proved beyond a reasonable doubt — should be extended to proof of prior convictions used to support recidivist enhancements. Not all actual innocence claims will involve threshold constitutional questions, but, as this case illustrates, such claims are likely to present equally difficult questions regarding the scope of the actual innocence exception itself. Pp. 5-9.306 F. 3d 257, vacated and remanded. O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Kennedy and Souter, JJ., joined. Kennedy, J., filed a dissenting opinion.DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTI-TUTIONS DIVISION, PETITIONER v. MICHAEL WAYNE HALEYon writ of certiorari to the united states court of appeals for the fifth circuit[May 3, 2004] Justice O'Connor delivered the opinion of the Court. Out of respect for finality, comity, and the orderly administration of justice, a federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default. We have recognized a narrow exception to the general rule when the habeas applicant can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense or, in the capital sentencing context, of the aggravating circumstances rendering the inmate eligible for the death penalty. Murray v. Carrier, 477 U. S. 478 (1986); Sawyer v. Whitley, 505 U. S. 333 (1992). The question before us is whether this exception applies where an applicant asserts "actual innocence" of a noncapital sentence. Because the District Court failed first to consider alternative grounds for relief urged by respondent, grounds that might obviate any need to reach the actual innocence question, we vacate the judgment and remand.I In 1997, respondent Michael Wayne Haley was arrested after stealing a calculator from a local Wal-Mart and attempting to exchange it for other merchandise. Respondent was charged with, and found guilty at trial of, theft of property valued at less than $1,500, which, because respondent already had two prior theft convictions, was a "state jail felony" punishable by a maximum of two years in prison. App. 8; Tex. Penal Code Ann. §31.03(e)(4)(D) (Supp. 2004). The State also charged respondent as a habitual felony offender. The indictment alleged that respondent had two prior felony convictions and that the first — a 1991 conviction for delivery of amphetamine--"became final prior to the commission" of the second — a 1992 robbery. App. 9. The timing of the first conviction and the second offense is significant: Under Texas' habitual offender statute, only a defendant convicted of a felony who "has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, ... shall be punished for a second-degree felony." §12.42(a)(2) (emphasis added). A second degree felony carries a minimum sentence of 2 and a maximum sentence of 20 years in prison. §12.33(a). Texas provides for bifurcated trials in habitual offender cases. Tex. Code Crim. Proc. Ann., Art. 37.07, §3 (Vernon Supp. 2004). If a defendant is found guilty of the substantive offense, the State, at a separate penalty hearing, must prove the habitual offender allegations beyond a reasonable doubt. Ibid. During the penalty phase of respondent's trial, the State introduced records showing that respondent had been convicted of delivery of amphetamine on October 18, 1991, and attempted robbery on September 9, 1992. The record of the second conviction, however, showed that respondent had committed the robbery on October 15, 1991 — three days before his first conviction became final. Neither the prosecutor, nor the defense attorney, nor the witness tendered by the State to authenticate the records, nor the trial judge, nor the jury, noticed the 3-day discrepancy. Indeed, the defense attorney chose not to cross-examine the State's witness or to put on any evidence. The jury returned a verdict of guilty on the habitual offender charge and recommended a sentence of 16½ years; the court followed the recommendation. Respondent appealed. Appellate counsel did not mention the 3-day discrepancy nor challenge the sufficiency of the penalty-phase evidence to support the habitual offender enhancement. The State Court of Appeals affirmed respondent's conviction and sentence; the Texas Court of Criminal Appeals refused respondent's petition for discretionary review. Respondent thereafter sought state postconviction relief, arguing for the first time that he was ineligible for the habitual offender enhancement based on the timing of his second conviction. App. 83, 87-88. The state habeas court refused to consider the merits of that claim because respondent had not raised it, as required by state procedural law, either at trial or on direct appeal. Id., at 107, 108. The state habeas court rejected respondent's related ineffective assistance of counsel claim, saying only that "counsel was not ineffective" for failing to object to or to appeal the enhancement. Id., at 108. The Texas Court of Criminal Appeals summarily denied respondent's state habeas application. Id., at 109. In August 2000, respondent filed a timely pro se application for a federal writ of habeas corpus pursuant to 28 U. S. C. §2254, renewing his sufficiency of the evidence and ineffective assistance of counsel claims. App. 110, 118-119; id., at 122, 124, 126-127. The State conceded that respondent was "correct in his assertion that the enhancement paragraphs as alleged in the indictment do not satisfy section 12.42(a)(2) of the Texas Penal Code." Id., at 132, 140. Rather than agree to resentencing, however, the State argued that respondent had procedurally defaulted the sufficiency of the evidence claim by failing to raise it before the state trial court or on direct appeal. Id., at 142-144. The Magistrate Judge, to whom the habeas application had been referred, recommended excusing the procedural default and granting the sufficiency of the evidence claim because respondent was " 'actually innocent' of a sentence for a second-degree felony." Haley v. Director, Texas Dept. of Criminal Justice, Institutions Div., Civ. No. 6:00cv518 (ED Tex., Sept. 13, 2001) p. 10, App. to Pet. for Cert. 49a (quoting Sones v. Hargett, 61 F. 3d 410, 419 (CA5 1995)). Because she recommended relief on the erroneous enhancement claim, the Magistrate Judge did not address respondent's related ineffective assistance of counsel challenges. App. to Pet. for Cert. 50a-52a. The District Court adopted the Magistrate Judge's report, granted the application, and ordered the State to resentence respondent "without the improper enhancement." Id., at 36a-37a (Oct. 27, 2001). The Court of Appeals for the Fifth Circuit affirmed, holding narrowly that the actual innocence exception "applies to noncapital sentencing procedures involving a career offender or habitual felony offender." Haley v. Cockrell, 306 F. 3d 257, 264 (2002). The Fifth Circuit thus joined the Fourth Circuit in holding that the exception should not extend beyond allegedly erroneous recidivist enhancements to other claims of noncapital factual sentencing error: "[T]o broaden the exception further would 'swallow' the 'cause portion of the cause and prejudice requirement' and it 'would conflict squarely with Supreme Court authority indicating that generally more than prejudice must exist to excuse procedural default.' " Id., at 266 (quoting United States v. Mikalajunas, 186 F. 3d 490, 494-495 (CA4 1999)). Finding the exception satisfied, the panel then granted relief on the merits of respondent's otherwise defaulted sufficiency of the evidence claim. In so doing, the panel assumed that challenges to the sufficiency of noncapital sentencing evidence are cognizable on federal habeas under Jackson v. Virginia, 443 U. S. 307 (1979). 306 F. 3d, at 266-267 (citing French v. Estelle, 692 F. 2d 1021, 1024-1025 (CA5 1982)). The Fifth Circuit's decision exacerbated a growing divergence of opinion in the Courts of Appeals regarding the availability and scope of the actual innocence exception in the noncapital sentencing context. Compare Embrey v. Hershberger, 131 F. 3d 739 (CA8 1997) (en banc) (no actual innocence exception for noncapital sentencing error); Reid v. Oklahoma, 101 F. 3d 628 (CA10 1996) (same), with Spence v. Superintendent, Great Meadow Correctional Facility, 219 F. 3d 162 (CA2 2000) (actual innocence exception applies in noncapital sentencing context when error is related to finding of predicate act forming the basis for enhancement), and Mikalajunas, supra (actual innocence exception applies in noncapital sentencing context where error relates to a recidivist enhancement). We granted the State's request for a writ of certiorari, 540 U. S. ___ (2003), and now vacate and remand.II The procedural default doctrine, like the abuse of writ doctrine, "refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions." McCleskey v. Zant, 499 U. S. 467, 489 (1991). A corollary to the habeas statute's exhaustion requirement, the doctrine has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds. Wainwright v. Sykes, 433 U. S. 72, 81 (1977); Brown v. Allen, 344 U. S. 443, 486-487 (1953). But, while an adequate and independent state procedural disposition strips this Court of certiorari jurisdiction to review a state court's judgment, it provides only a strong prudential reason, grounded in "considerations of comity and concerns for the orderly administration of justice," not to pass upon a defaulted constitutional claim presented for federal habeas review. Francis v. Henderson, 425 U. S. 536, 538-539 (1976); see also Fay v. Noia, 372 U. S. 391, 399 (1963) ("[T]he doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute"). That being the case, we have recognized an equitable exception to the bar when a habeas applicant can demonstrate cause and prejudice for the procedural default. Wainwright, supra, at 87. The cause and prejudice requirement shows due regard for States' finality and comity interests while ensuring that "fundamental fairness [remains] the central concern of the writ of habeas corpus." Strickland v. Washington, 466 U. S. 668, 697 (1984). The cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice. Murray v. Carrier, 477 U. S. 478 (1986), thus recognized a narrow exception to the cause requirement where a constitutional violation has "probably resulted" in the conviction of one who is "actually innocent" of the substantive offense. Id., at 496; accord, Schlup v. Delo, 513 U. S. 298 (1995). We subsequently extended this exception to claims of capital sentencing error in Sawyer v. Whitley, 505 U. S. 333 (1992). Acknowledging that the concept of "actual innocence" did not translate neatly into the capital sentencing context, we limited the exception to cases in which the applicant could show "by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Id., at 336. We are asked in the present case to extend the actual innocence exception to procedural default of constitutional claims challenging noncapital sentencing error. We decline to answer the question in the posture of this case and instead hold that a federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default. This avoidance principle was implicit in Carrier itself, where we expressed confidence that, "for the most part, 'victims of fundamental miscarriage of justice will meet the cause-and-prejudice standard.' " 456 U. S. 107, 135 (1982)). Our confidence was bolstered by the availability of ineffective assistance of counsel claims — either as a ground for cause or as a free-standing claim for relief — to safeguard against miscarriages of justice. The existence of such safeguards, we observed, "may properly inform this Court's judgment in determining '[w]hat standards should govern the exercise of the habeas court's equitable discretion' with respect to procedurally defaulted claims." Carrier, supra, at 496 (quoting Reed v. Ross, 468 U. S. 1, 9 (1984)). Petitioner here conceded at oral argument that respondent has a viable and "significant" ineffective assistance of counsel claim. Tr. of Oral Arg. 18 ("[W]e agree at this point there is a very significant argument of ineffective assistance of counsel"); see also id., at 7 (agreeing "not [to] raise any procedural impediment" to consideration of the merits of respondent's ineffective assistance claim on remand). Success on the merits would give respondent all of the relief that he seeks — i.e., resentencing. It would also provide cause to excuse the procedural default of his sufficiency of the evidence claim. Carrier, supra, at 488. Contrary to the dissent's view, see post, at 2 (opinion of Stevens, J.), it is precisely because the various exceptions to the procedural default doctrine are judge-made rules that courts as their stewards must exercise restraint, adding to or expanding them only when necessary. To hold otherwise would be to license district courts to riddle the cause and prejudice standard with ad hoc exceptions whenever they perceive an error to be "clear" or departure from the rules expedient. Such an approach, not the rule of restraint adopted here, would have the unhappy effect of prolonging the pendency of federal habeas applications as each new exception is tested in the courts of appeals. And because petitioner has assured us that it will not seek to reincarcerate respondent during the pendency of his ineffective assistance claim, Tr. of Oral Arg., at 52 ("[T]he state is willing to allow the ineffective assistance claim to be litigated before proceeding to reincarcerate [respondent]"), the negative consequences for respondent of our judgment to vacate and remand in this case are minimal. While availability of other remedies alone would be sufficient justification for a general rule of avoidance, the many threshold legal questions often accompanying claims of actual innocence provide additional reason for restraint. For instance, citing Jackson v. Virginia, 443 U. S. 307 (1979), respondent here seeks to bring through the actual innocence gateway his constitutional claim that the State's penalty-phase evidence was insufficient to support the recidivist enhancement. But the constitutional hook in Jackson was In re Winship, 397 U. S. 358 (1970), in which we held that due process requires proof of each element of a criminal offense beyond a reasonable doubt. We have not extended Winship's protections to proof of prior convictions used to support recidivist enhancements. Almendarez-Torres v. United States, 523 U. S. 224 (1998); see also Apprendi v. New Jersey, 530 U. S. 466, 488-490 (2000) (reserving judgment as to the validity of Almendarez-Torres); Monge v. California, 524 U. S. 721, 734 (1998) (Double Jeopardy Clause does not preclude retrial on a prior conviction used to support recidivist enhancement). Respondent contends that Almendarez-Torres should be overruled or, in the alternative, that it does not apply because the recidivist statute at issue required the jury to find not only the existence of his prior convictions but also the additional fact that they were sequential. Brief for Respondent 30-31. These difficult constitutional questions, simply assumed away by the dissent, see post, at 2 (citing Jackson, supra, and Thompson v. Louisville, 362 U. S. 199 (1960)), are to be avoided if possible. To be sure, not all claims of actual innocence will involve threshold constitutional issues. Even so, as this case and the briefing illustrate, such claims are likely to present equally difficult questions regarding the scope of the actual innocence exception itself. Whether and to what extent the exception extends to noncapital sentencing error is just one example. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTI-TUTIONS DIVISION, PETITIONER v. MICHAEL WAYNE HALEYon writ of certiorari to the united states court of appeals for the fifth circuit[May 3, 2004] Justice Stevens, with whom Justice Kennedy and Justice Souter join, dissenting. The unending search for symmetry in the law can cause judges to forget about justice. This should be a simple case. Respondent was convicted of the theft of a calculator. Because of his prior theft convictions, Texas law treated respondent's crime as a "state jail felony," which is punishable by a maximum sentence of two years in jail. Tex. Penal Code Ann. §12.35(a) (2003). But as a result of a congeries of mistakes made by the prosecutor, the trial judge, and his attorney, respondent was also erroneously convicted and sentenced under Texas' habitual offender law, §12.42(a)(2) (Supp. 2004). Respondent consequently received a sentence of more than 16 years in the penitentiary. The State concedes that respondent does not qualify as a habitual offender and that the 16-year sentence was imposed in error.1 Respondent has already served more than 6 years of that sentence — a sentence far in excess of the 2-year maximum that Texas law authorizes for respondent's crime. Because, as all parties agree, there is no factual basis for respondent's conviction as a habitual offender, it follows inexorably that respondent has been denied due process of law. Thompson v. Louisville, 362 U. S. 199 (1960); Jackson v. Virginia, 443 U. S. 307 (1979). And because that constitutional error clearly and concededly resulted in the imposition of an unauthorized sentence, it also follows that respondent is a "victim of a miscarriage of justice," Wainwright v. Sykes, 433 U. S. 72, 91 (1977), entitled to immediate and unconditional release. The Magistrate Judge, the District Court, and the Court of Appeals all concluded that respondent is entitled to such relief. Not a word in any federal statute or any provision of the Federal Rules of Procedure provides any basis for challenging that conclusion. The Court's contrary determination in this case rests entirely on a procedural rule of its own invention. But having also invented the complex jurisprudence that requires a prisoner to establish "cause and prejudice" as a basis for overcoming procedural default, the Court unquestionably has the authority to recognize a narrow exception for the unusual case that is as clear as this one. Indeed, in the opinion that first adopted the cause and prejudice standard, the Court explained its purpose as providing "an adequate guarantee" that a procedural default would "not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who in the absence of such an adjudication will be the victim of a miscarriage of justice." Ibid. The Court has since held that in cases in which the cause and prejudice standard is inadequate to protect against fundamental miscarriages of justice, the cause and prejudice requirement "must yield to the imperative of correcting a fundamentally unjust incarceration." Engle v. Isaac, 456 U. S. 107, 135 (1982). If there were some uncertainty about the merits of respondent's claim that he has been incarcerated unjustly, it might make sense to require him to pursue other avenues for comparable relief before deciding the claim.2 But in this case, it is universally acknowledged that respondent's incarceration is unauthorized. The miscarriage of justice is manifest. Since the "imperative of correcting a fundamentally unjust incarceration" will lead to the issuance of the writ regardless of the outcome of the cause and prejudice inquiry, the Court's ruling today needlessly postpones final adjudication of respondent's claim and perversely prolongs the very injustice that the cause and prejudice standard was designed to prevent. That the State has decided to oppose the grant of habeas relief in this case, even as it concedes that respondent has already served more time in prison than the law authorized, might cause some to question whether the State has forgotten its overriding "obligation to serve the cause of justice." United States v. Agurs, 427 U. S. 97, 111 (1976); see post, p. ___ (Kennedy, J., dissenting). But this Court is surely no less at fault. In its attempt to refine the boundaries of the judge-made doctrine of procedural default, the Court has lost sight of the basic reason why the "writ of habeas corpus indisputably holds an honored position in our jurisprudence." Engle, 456 U. S., at 126. Habeas corpus is, and has for centuries been, a "bulwark against convictions that violate fundamental fairness." Ibid. (internal quotation marks omitted). Fundamental fairness should dictate the outcome of this unusually simple case. I respectfully dissent.DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTI-TUTIONS DIVISION, PETITIONER v. MICHAEL WAYNE HALEYon writ of certiorari to the united states court of appeals for the fifth circuit[May 3, 2004] Justice Kennedy, dissenting. For the reasons Justice Stevens sets forth, the Respondent should be entitled to immediate relief, and I join his dissenting opinion. The case also merits this further comment concerning the larger obligation of state or federal officials when they know an individual has been sentenced for a crime he did not commit. In 1997, Michael Haley was sentenced to serve 16 years and 6 months in prison for violating the Texas habitual offender law. Texas officials concede Haley did not violate this law. They agree that Haley is guilty only of theft, a crime with a 2-year maximum sentence. Yet, despite the fact that Haley served more than two years in prison for his crime, Texas officials come before our Court opposing Haley's petition for relief. They wish to send Haley back to prison for a crime they agree he did not commit. The rigors of the penal system are thought to be mitigated to some degree by the discretion of those who enforce the law. See, e.g., Jackson, The Federal Prosecutor, 31 J. Am. Inst. Crim. L. & Criminology 3, 6 (1940-1941). The clemency power is designed to serve the same function. Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider. These mechanisms hold out the promise that mercy is not foreign to our system. The law must serve the cause of justice. These mitigating elements seem to have played no role in Michael Haley's case. Executive discretion and clemency can inspire little confidence if officials sworn to fight injustice choose to ignore it. Perhaps some would say that Haley's innocence is a mere technicality, but that would miss the point. In a society devoted to the rule of law, the difference between violating or not violating a criminal statute cannot be shrugged aside as a minor detail. It may be that Haley's case provides a convenient mechanism to vindicate an important legal principle. Beyond that, however, Michael Haley has a greater interest in knowing that he will not be reincarcerated for a crime he did not commit. It is not clear to me why the State did not exercise its power and perform its duty to vindicate that interest in the first place.FOOTNOTESFootnote 1 Brief for Petitioner 4; Tr. of Oral Arg. 4 ("[I]t's almost a law school hypothetical, because the error is so clean"). Footnote 2 Because it is not always easy to discern the difference between "constitutional claims that call into question the reliability of an adjudication of legal guilt," to which the cause and prejudice requirement applies, and claims that a constitutional violation "probably resulted in the conviction of one who is actually innocent," for which failure to show cause is excused, Murray v. Carrier, 477 U. S. 478, 495-496 (1986), a court reviewing a claim of actual innocence must generally proceed with caution. But that type of caution is plainly unwarranted in a case in which constitutional error has concededly resulted in the imposition of an unlawful sentence. In such a case, there is simply no risk that entertaining the habeas applicant's procedurally defaulted claim will result in an unwarranted encroachment on the principles of comity and finality that underlie the procedural default doctrine.

When the National Government ordered its contractor, respondent Knolls, to reduce its work force, Knolls had its managers score their subordinates on "performance," "flexibility," and "critical skills"; these scores, along with points for years of service, were used to determine who was laid off. Of the 31 employees let go, 30 were at least 40 years old. Petitioners (Meacham, for short) were among those laid off, and they filed this suit asserting, inter alia, a disparate-impact claim under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. To show such an impact, Meacham relied on a statistical expert's testimony that results so skewed according to age could rarely occur by chance; and that the scores for "flexibility" and "criticality," over which managers had the most discretionary judgment, had the firmest statistical ties to the outcomes. The jury found for Meacham on the disparate-impact claim, and the Second Circuit initially affirmed. This Court vacated the judgment and remanded in light of its intervening decision in Smith v. City of Jackson, 544 U. S. 228. The Second Circuit then held for Knolls, finding its prior ruling untenable because it had applied a "business necessity" standard rather than a "reasonableness" test in assessing the employer's reliance on factors other than age in the layoff decisions, and because Meacham had not carried the burden of persuasion as to the reasonableness of Knolls's non-age factors.Held: An employer defending a disparate-impact claim under the ADEA bears both the burden of production and the burden of persuasion for the "reasonable factors other than age" (RFOA) affirmative defense under §623(f)(1). Pp. 5-17. (a) The ADEA's text and structure indicate that the RFOA exemption creates an affirmative defense, for which the burden of persuasion falls on the employer. The RFOA exemption is listed alongside one for bona fide occupational qualifications (BFOQ), which the Court has recognized to be an affirmative defense: "It shall not be unlawful for an employer ... to take any action otherwise prohibited under subsections (a), (b), (c), or (e) ... where age is a [BFOQ] reasonably necessary to the normal operation of the particular business, or where the differentiation is based on [RFOA] ... ." §623(f)(1). Given that the statute lays out its exemptions in a provision separate from the general prohibitions in §§623(a)-(c), (e), and expressly refers to the prohibited conduct as such, it is no surprise that this Court has spoken of both the BFOQ and RFOA as being among the ADEA's "five affirmative defenses," Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 122. This reading follows the familiar principle that "[w]hen a proviso ... carves an exception out of the body of a statute or contract those who set up such exception must prove it," Javierre v. Central Altagracia, 217 U. S. 502, 508. As this longstanding convention is part of the backdrop against which the Congress writes laws, the Court respects it unless there is compelling reason to think that Congress put the burden of persuasion on the other side. See Schaffer v. Weast, 546 U. S. 49, 57-58. The Court has given this principle particular weight in enforcing the Fair Labor Standards Act of 1968, Corning Glass Works v. Brennan, 417 U. S. 188, 196-197; and it has also recognized that "the ADEA [is] enforced in accordance with the 'powers, remedies, and procedures' of the FLSA," Lorillard v. Pons, 434 U. S. 575, 580. Nothing in §623(f)(1) suggests that Congress meant it to march out of step with either the general or specifically FLSA default rules placing the burden of proving an exemption on the party claiming it. Any further doubt would be dispelled by the natural implication of the "otherwise prohibited" language prefacing the BFOQ and RFOA defenses. Pp. 5-9. (b) Knolls argues that because the RFOA clause bars liability where action is taken for reasons "other than age," it should be read as mere elaboration on an element of liability. But City of Jackson confirmed that §623(a)(2)'s prohibition extends to practices with a disparate impact, inferring this result in part from the presence of the RFOA provision. 544 U. S., at 239, 243. And City of Jackson made it clear that action based on a "factor other than age" is the very premise for disparate-impact liability, not a negation of it or a defense to it. Thus, it is assumed that a non-age factor was at work in such a case, and the focus of the RFOA defense is on whether the factor relied on was "reasonable." Pp. 10-11. (c) The business necessity test has no place in ADEA disparate-impact cases; applying both that test and the RFOA defense would entail a wasteful and confusing structure of proof. The absence of a business necessity enquiry does not diminish, however, the reasons already given for reading the RFOA as an affirmative defense. City of Jackson cannot be read as implying that the burden of proving any business-related defense falls on the plaintiff, for it confirmed that the BFOQ is an affirmative defense, see 544 U. S., at 233, n. 3. Moreover, in referring to "Wards Cove's interpretation of identical language [in Title VII]," City of Jackson could not have had the RFOA clause in mind, for Title VII has no like-worded defense. And as Wards Cove did not purport to construe any Title VII defenses, only an over-reading of City of Jackson would find in it an assumption that Wards Cove has anything to say about statutory defenses in the ADEA. Pp. 12-15. (d) City of Jackson confirmed that an ADEA disparate-impact plaintiff must " ' "isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities." ' " 544 U. S., at 241. This is not a trivial burden, and it ought to allay some of the concern that recognizing an employer's burden of persuasion on an RFOA defense will encourage strike suits or nudge plaintiffs with marginal cases into court; but in the end, such concerns have to be directed at Congress, which set the balance by both creating the RFOA exemption and writing it in the orthodox format of an affirmative defense. Pp. 15-17.461 F. 3d 134, vacated and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Ginsburg, and Alito, JJ., joined, and in which Thomas, J., joined as to Parts I and II-A. Scalia, J., filed an opinion concurring in the judgment. Thomas, J., filed an opinion concurring in part and dissenting in part. Breyer, J., took no part in the consideration or decision of the case.CLIFFORD B. MEACHAM, et al., PETITIONERS v.KNOLLS ATOMIC POWER LABORATORY,aka KAPL, INC., et al.on writ of certiorari to the united states court of appeals for the second circuit[June 19, 2008] Justice Souter delivered the opinion of the Court. A provision of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., creates an exemption for employer actions "otherwise prohibited" by the ADEA but "based on reasonable factors other than age" (RFOA). §623(f)(1). The question is whether an employer facing a disparate-impact claim and planning to defend on the basis of RFOA must not only produce evidence raising the defense, but also persuade the factfinder of its merit. We hold that the employer must do both.I The National Government pays private companies to do some of the work maintaining the Nation's fleet of nuclear-powered warships. One such contractor is respondent KAPL, Inc. (Knolls), the operator of the Government's Knolls Atomic Power Laboratory, which has a history dating back to the first nuclear-powered submarines in the 1940s and 1950s. The United States Navy and the Department of Energy jointly fund Knolls's operations, decide what projects it should pursue, and set its annual staffing limits. In recent years, Knolls has been charged with designing prototype naval nuclear reactors and with training Navy personnel to run them. The demands for naval nuclear reactors changed with the end of the Cold War, and for fiscal year 1996 Knolls was ordered to reduce its work force. Even after a hundred or so employees chose to take the company's ensuing buyout offer, Knolls was left with thirty-some jobs to cut.1 Petitioners (Meacham, for short) are among those laid off in the resulting "involuntary reduction in force." In order to select those for layoff, Knolls told its managers to score their subordinates on three scales, "performance," "flexibility," and "critical skills."2 The scores were summed, along with points for years of service, and the totals determined who should be let go. Of the 31 salaried employees laid off, 30 were at least 40 years old.3 Twenty-eight of them sued, raising both disparate-treatment (discriminatory intent) and disparate-impact (discriminatory result) claims under the ADEA and state law, alleging that Knolls "designed and implemented its workforce reduction process to eliminate older employees and that, regardless of intent, the process had a discriminatory impact on ADEA-protected employees." Meacham v. Knolls Atomic Power Laboratory, 381 F. 3d 56, 61 (CA2 2004) (Meacham I). To show a disparate impact, the workers relied on a statistical expert's testimony to the effect that results so skewed according to age could rarely occur by chance;4 and that the scores for "flexibility" and "criticality," over which managers had the most discretionary judgment, had the firmest statistical ties to the outcomes. Id., at 65. The jury found for Meacham on the disparate-impact claim (but not on the disparate-treatment claim). The Court of Appeals affirmed, after examining the verdict through the lens of the so-called "burden shifting" scheme of inference spelled out in Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989). See Meacham I, supra, at 74-76.5 After Knolls sought certiorari, we vacated the judgment and remanded for further proceedings in light of Smith v. City of Jackson, 544 U. S. 228 (2005), decided while Knolls's petition was pending. See 544 U. S. 957 (2005). On remand, the same Court of Appeals panel ruled in favor of Knolls, over a dissent. 461 F. 3d 134 (CA2 2006) (case below) (Meacham II). The majority found its prior ruling "untenable" because it had applied the Wards Cove "business necessity" standard rather than a "reasonableness" test, contrary to City of Jackson; and on the latter standard, Meacham, the employee, had not carried the burden of persuasion. 461 F.3d, at 140-141, 144.6 In dissent, Judge Pooler took issue with the majority for confusing business justifications under Wards Cove with the statutory RFOA exemption, which she read to be an affirmative defense with the burden of persuasion falling on defendants. 461 F.3d, at 147, 149-152.7 Meacham sought certiorari, noting conflicting decisions assigning the burden of persuasion on the reasonableness of the factor other than age; the Court of Appeals in this case placed it on the employee (to show the non-age factor unreasonable), but the Ninth Circuit in Criswell v. Western Airlines, Inc., 709 F. 2d 544, 552 (1983), had assigned it to the employer (to show the factor was a reasonable one). In fact it was in Criswell that we first took up this question, only to find it not well posed in that case. Western Air Lines, Inc. v. Criswell, 472 U. S. 400, 408, n. 10 (1985). We granted certiorari, 552 U. S. ___ (2007), and now vacate the judgment of the Second Circuit and remand.8IIA The ADEA's general prohibitions against age discrimination, 29 U. S. C. §§623(a)-(c), (e), are subject to a separate provision, §623(f), creating exemptions for employer practices "otherwise prohibited under subsections (a), (b), (c), or (e)." The RFOA exemption is listed in §623(f) alongside one for bona fide occupational qualifications (BFOQ): "It shall not be unlawful for an employer ... to take any action otherwise prohibited under subsections (a), (b), (c), or (e) ... where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age ... ." §623(f)(1). Given how the statute reads, with exemptions laid out apart from the prohibitions (and expressly referring to the prohibited conduct as such), it is no surprise that we have already spoken of the BFOQ and RFOA provisions as being among the ADEA's "five affirmative defenses," Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 122 (1985). After looking at the statutory text, most lawyers would accept that characterization as a matter of course, thanks to the familiar principle that "[w]hen a proviso ... carves an exception out of the body of a statute or contract those who set up such exception must prove it." Javierre v. Central Altagracia, 217 U. S. 502, 508 (1910) (opinion for the Court by Holmes, J.); see also FTC v. Morton Salt Co., 334 U. S. 37, 44-45 (1948) ("[T]he burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits ..."); United States v. First City Nat. Bank of Houston, 386 U. S. 361, 366 (1967) (citing Morton Salt, supra, at 44-45). That longstanding convention is part of the backdrop against which the Congress writes laws, and we respect it unless we have compelling reasons to think that Congress meant to put the burden of persuasion on the other side. See Schaffer v. Weast, 546 U. S. 49, 57-58 (2005) ("Absent some reason to believe that Congress intended otherwise, therefore, we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief"). We have never been given any reason for a heterodox take on the RFOA clause's nearest neighbor, and our prior cases recognize that the BFOQ clause establishes an affirmative defense against claims of disparate treatment. See, e.g., City of Jackson, supra, at 233, n. 3; Western Air Lines, Inc., supra, at 414-419, and nn. 24, 29. We have likewise given the affirmative defense construction to the exemption in the Equal Pay Act of 1963 for pay differentials based on "any other factor other than sex," Corning Glass Works v. Brennan, 417 U. S. 188, 196 (1974) (internal quotation marks omitted); and there, we took account of the particular weight given to the interpretive convention already noted, when enforcing the Fair Labor Standards Act of 1938 (FLSA), id., at 196-197 ("[T]he general rule [is] that the application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof"). This focus makes the principle of construction the more instructive in ADEA cases: "[i]n enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undesirable or inappropriate for incorporation," Lorillard v. Pons, 434 U. S. 575, 581 (1978). And we have remarked and relied on the "significant indication of Congress' intent in its directive that the ADEA be enforced in accordance with the 'powers, remedies, and procedures' of the FLSA." Id., at 580 (quoting 29 U. S. C. §626(b); emphasis deleted); see also Fogerty v. Fantasy, Inc., 510 U. S. 517, 528 (1994) (applying reasoning of Lorillard); Thurston, supra, at 126 (same). As against this interpretive background, there is no hint in the text that Congress meant §623(f)(1) to march out of step with either the general or specifically FLSA default rules placing the burden of proving an exemption on the party claiming it. With these principles and prior cases in mind, we find it impossible to look at the text and structure of the ADEA and imagine that the RFOA clause works differently from the BFOQ clause next to it. Both exempt otherwise illegal conduct by reference to a further item of proof, thereby creating a defense for which the burden of persuasion falls on the "one who claims its benefits," Morton Salt Co., supra, at 44-45, the "party seeking relief," Schaffer, supra, at 57-58, and here, "the employer," Corning Glass Works, supra, at 196. If there were any doubt, the stress of the idiom "otherwise prohibited," prefacing the BFOQ and RFOA conditions, would dispel it.9 The implication of affirmative defense is underscored by contrasting §623(f)(1) with the section of the ADEA at issue in Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158 (1989), and by the way Congress responded to our decision there. In Betts, we said the issue was whether a provision in a former version of §623(f)(2), one about employee benefit plans, merely "redefine[d] the elements of a plaintiff's prima facie case," or instead "establish[ed] a defense" to what "otherwise would be a violation of the Act." Id., at 181.10 Although the provision contained no "otherwise prohibited" kind of language, we said that it "appears on first reading to describe an affirmative defense." Ibid. We nonetheless thought that this more natural view (which we had taken in Thurston) was overridden by evidence of legislative history, by the peculiarity of a pretext-revealing condition in the phrasing of the provision (that a benefit plan "not [be] a subterfuge to evade the purposes" of the ADEA), and by the parallel with a prior case construing an "analogous provision of Title VII" (analogous because it also contained a pretext-revealing condition). 492 U. S., at 181. A year later, however, Congress responded to Betts by enacting the Older Workers Benefit Protection Act, Pub. L. 101-433, 104 Stat. 978, avowedly to "restore the original congressional intent" that the ADEA's benefits provision be read as an affirmative defense, id., §101. What is instructive on the question at hand is that, in clarifying that §623(f)(2) specifies affirmative defenses, Congress not only set the burden in so many words but also added the phrase "otherwise prohibited" as a part of the preface (just as in the text of §623(f)(1)).11 Congress thus confirmed the natural implication that we find in the "otherwise prohibited" language in §623(f)(1): it refers to an excuse or justification for behavior that, standing alone, violates the statute's prohibition. The amendment in the aftermath of Betts shows that Congress understands the phrase the same way we naturally read it, as a clear signal that a defense to what is "otherwise prohibited" is an affirmative defense, entirely the responsibility of the party raising it.B Knolls ventures that, regardless, the RFOA provision should be read as mere elaboration on an element of liability. Because it bars liability where action is taken for reasons "other than age," the argument goes, the provision must be directed not at justifying age discrimination by proof of some extenuating fact but at negating the premise of liability under §623(a)(2), "because of age." The answer to this argument, however, is City of Jackson, where we confirmed that the prohibition in §623(a)(2) extends to practices with a disparate impact, inferring this result in part from the presence of the RFOA provision at issue here.12 We drew on the recognized distinction between disparate-treatment and disparate-impact forms of liability, and explained that "the very definition of disparate impact" was that "an employer who classifies his employees without respect to age may still be liable under the terms of this paragraph if such classification adversely affects the employee because of that employee's age." 544 U. S., at 236, n. 6 (plurality opinion); id., at 243 (Scalia, J., concurring in part and concurring in judgment) (expressing agreement with "all of the Court's reasoning" in the plurality opinion, but finding it a basis for deference to the EEOC rather than for independent judicial decision). We emphasized that these were the kinds of employer activities, "otherwise prohibited" by §623(a)(2), that were mainly what the statute meant to test against the RFOA condition: because "[i]n disparate-impact cases ... the allegedly 'otherwise prohibited' activity is not based on age," it is "in cases involving disparate-impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a nonage factor that was 'reasonable.' " Id., at 239 (plurality opinion). Thus, in City of Jackson, we made it clear that in the typical disparate-impact case, the employer's practice is "without respect to age" and its adverse impact (though "because of age") is "attributable to a nonage factor"; so action based on a "factor other than age" is the very premise for disparate-impact liability in the first place, not a negation of it or a defense to it. The RFOA defense in a disparate-impact case, then, is not focused on the asserted fact that a non-age factor was at work; we assume it was. The focus of the defense is that the factor relied upon was a "reasonable" one for the employer to be using. Reasonableness is a justification categorically distinct from the factual condition "because of age" and not necessarily correlated with it in any particular way: a reasonable factor may lean more heavily on older workers, as against younger ones, and an unreasonable factor might do just the opposite.13III The Court of Appeals majority rejected the affirmative defense reading and arrived at its position on the burden of proof question by a different route: because it read our decision in City of Jackson as ruling out the so-called "business necessity" enquiry in ADEA cases, the court concluded that the RFOA defense "replaces" it and therefore must conform to its burden of persuasion resting on the complaining party. But the court's premise (that City of Jackson modified the "business necessity" enquiry) is mistaken; this alone would be reason enough to reject its approach. And although we are now satisfied that the business necessity test should have no place in ADEA disparate-impact cases, we agree with the Government that this conclusion does not stand in the way of our holding that the RFOA exemption is an affirmative defense. See Brief for United States as Amicus Curiae 25-27. To begin with, when the Court of Appeals further inferred from the City of Jackson reference to Wards Cove that the Wards Cove burden of persuasion (on the employee, for the business necessity enquiry) also applied to the RFOA defense, it gave short shrift to the reasons set out in Part II-A, supra, for reading RFOA as an affirmative defense (with the burden on the employer). But we think that even on its own terms, City of Jackson falls short of supporting the Court of Appeals's conclusion. Although City of Jackson contains the statement that "Wards Cove's pre-1991 interpretation of Title VII's identical language remains applicable to the ADEA," 544 U. S., at 240, City of Jackson made only two specific references to aspects of the Wards Cove interpretation of Title VII that might have "remain[ed] applicable" in ADEA cases. One was to the existence of disparate-impact liability, which City of Jackson explained was narrower in ADEA cases than under Title VII. The other was to a plaintiff-employee's burden of identifying which particular practices allegedly cause an observed disparate impact, which is the employee's burden under both the ADEA and the pre-1991 Title VII. See 544 U. S., at 241. Neither of these references, of course, is at odds with the view of RFOA as an affirmative defense. If, indeed, City of Jackson's reference to Wards Cove could be read literally to include other aspects of the latter case, beyond what mattered in City of Jackson itself, the untoward consequences of the broader reading would rule it out. One such consequence is embraced by Meacham, who argues both that the Court of Appeals was wrong to place the burden of persuasion for the RFOA defense on the employee, and that the court was right in thinking that City of Jackson adopted the Wards Cove burden of persuasion on what Meacham views as one element of an ADEA impact claim. For Meacham takes the position that an impact plaintiff like himself has to negate business necessity in order to show that the employer's actions were "otherwise prohibited"; only then does the RFOA (with the burden of persuasion on the employer) have a role to play. To apply both tests, however, would force the parties to develop (and the court or jury to follow) two overlapping enquiries: first, whether the employment practice at issue (based on a factor other than age) is supported by a business justification; and second, whether that factor is a reasonable one. Depending on how the first enquiry proceeds, a plaintiff might directly contest the force of the employer's rationale, or else try to show that the employer invoked it as a pretext by pointing (for example) to alternative practices with less of a disparate impact. See Wards Cove, 490 U. S., at 658 ("first, a consideration of the justifications an employer offers for his use of these practices; and second, the availability of alternative practices to achieve the same business ends, with less racial impact"); see also id., at 658-661. But even if the plaintiff succeeded at one or the other, in Meacham's scheme the employer could still avoid liability by proving reasonableness. Here is what is so strange: as the Government says, "[i]f disparate-impact plaintiffs have already established that a challenged practice is a pretext for intentional age discrimination, it makes little sense then to ask whether the discriminatory practice is based on reasonable factors other than age." Brief for United States as Amicus Curiae 26 (emphasis in original). Conversely, proving the reasonableness defense would eliminate much of the point a plaintiff would have had for showing alternatives in the first place: why make the effort to show alternative practices with a less discriminatory effect (and besides, how would that prove pretext?), when everyone knows that the choice of a practice relying on a "reasonable" non-age factor is good enough to avoid liability?14 At the very least, developing the reasonableness defense would be substantially redundant with the direct contest over the force of the business justification, especially when both enquiries deal with the same, narrowly specified practice. It is not very fair to take the remark about Wards Cove in City of Jackson as requiring such a wasteful and confusing structure of proof. Nor is there any good way to read the same line from City of Jackson as implying that the burden of proving any business-related defense falls on the plaintiff; most obviously, this would entail no longer taking the BFOQ clause to be an affirmative defense, which City of Jackson confirmed that it is, see 544 U. S., at 233, n. 3. What is more, City of Jackson could not have had the RFOA clause in mind as "identical" to anything in Title VII (for which a Wards Cove's reading might be adopted), for that statute has no like-worded defense. And as Wards Cove did not purport to construe any statutory defenses under Title VII, only an over-reading of City of Jackson would find lurking in it an assumption that Wards Cove has anything to say about statutory defenses in the ADEA (never mind one that Title VII does not have).IV As mentioned, where City of Jackson did get help from our prior reading of Title VII was in relying on Wards Cove to repeat that a plaintiff falls short by merely alleging a disparate impact, or "point[ing] to a generalized policy that leads to such an impact." City of Jackson, 544 U. S., at 241. The plaintiff is obliged to do more: to "isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities." Ibid. (quoting Wards Cove, supra, at 656; emphasis in original; internal quotation marks omitted). The aim of this requirement, as City of Jackson said, is to avoid the "result [of] employers being potentially liable for 'the myriad of innocent causes that may lead to statistical imbalances.' " 544 U. S., at 241 (quoting Wards Cove, supra, at 657; some internal quotation marks omitted). And as the outcome in that case shows, the requirement has bite: one sufficient reason for rejecting the employees' challenge was that they "ha[d] done little more than point out that the pay plan at issue [was] relatively less generous to older workers than to younger workers," and "ha[d] not identified any specific test, requirement, or practice within the pay plan that ha[d] an adverse impact on older workers." City of Jackson, supra, at 241. Identifying a specific practice is not a trivial burden, and it ought to allay some of the concern raised by Knolls's amici, who fear that recognizing an employer's burden of persuasion on an RFOA defense to impact claims will encourage strike suits or nudge plaintiffs with marginal cases into court, in turn inducing employers to alter business practices in order to avoid being sued. See, e.g., Brief for General Electric Co. as Amicus Curiae 18-31. It is also to the point that the only thing at stake in this case is the gap between production and persuasion; nobody is saying that even the burden of production should be placed on the plaintiff. Cf. Schaffer, 546 U. S., at 56 (burden of persuasion answers "which party loses if the evidence is closely balanced"); id., at 58 ("In truth, however, very few cases will be in evidentiary equipoise"). And the more plainly reasonable the employer's "factor other than age" is, the shorter the step for that employer from producing evidence raising the defense, to persuading the factfinder that the defense is meritorious. It will be mainly in cases where the reasonableness of the non-age factor is obscure for some reason, that the employer will have more evidence to reveal and more convincing to do in going from production to persuasion. That said, there is no denying that putting employers to the work of persuading factfinders that their choices are reasonable makes it harder and costlier to defend than if employers merely bore the burden of production; nor do we doubt that this will sometimes affect the way employers do business with their employees. But at the end of the day, amici's concerns have to be directed at Congress, which set the balance where it is, by both creating the RFOA exemption and writing it in the orthodox format of an affirmative defense. We have to read it the way Congress wrote it.* * * As we have said before, Congress took account of the distinctive nature of age discrimination, and the need to preserve a fair degree of leeway for employment decisions with effects that correlate with age, when it put the RFOA clause into the ADEA, "significantly narrow[ing] its coverage." City of Jackson, 544 U. S., at 233. And as the outcome for the employer in City of Jackson shows, "it is not surprising that certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group." Id., at 241. In this case, we realize that the Court of Appeals showed no hesitation in finding that Knolls prevailed on the RFOA defense, though the court expressed its conclusion in terms of Meacham's failure to meet the burden of persuasion. Whether the outcome should be any different when the burden is properly placed on the employer is best left to that court in the first instance. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered. Justice Breyer took no part in the consideration or decision of this case.CLIFFORD B. MEACHAM, et al., PETITIONERS v. KNOLLS ATOMIC POWER LABORATORY, aka KAPL, INC., et al.on writ of certiorari to the united states court of appeals for the second circuit[June 19, 2008] Justice Scalia, concurring in the judgment. I do not join the majority opinion because the Court answers for itself two questions that Congress has left to the sound judgment of the Equal Employment Opportunity Commission. As represented by the Solicitor General of the United States in a brief signed by the Commission's General Counsel, the Commission takes the position that the reasonable-factor-other-than-age provision is an affirmative defense on which the employer bears the burden of proof, and that, in disparate-impact suits brought under the Age Discrimination in Employment Act of 1967 (ADEA), that provision replaces the business-necessity test of Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989). Neither position was contrived just for this case. Indeed, the Commission has arguably held its view on the burden-of-proof point for nearly 30 years. See 44 Fed. Reg. 68858, 68861 (1979). Although its regulation applied only to cases involving "discriminatory treatment," 29 CFR §1625.7(e) (2007), even if that covers only disparate treatment, see ante, at 7-8, n. 9, the logic of its extension to disparate-impact claims is obvious and unavoidable. See Brief for United States as Amicus Curiae 16, n. 1. At the very least, the regulation does not contradict the Commission's current position: It does not say that the employer bears the burden of proof only in discriminatory-treatment cases. The Commission's view on the business-necessity test is newly minted, but that does not undermine it. The Commission has never expressed the contrary view that the factfinder must consider both business necessity and reasonableness when an employer applies a factor that has a disparate impact on older workers. In fact, before Smith v. City of Jackson, 544 U. S. 228 (2005), the Commission had not even considered the relationship between the two standards, because it used to treat the two as identical. See 29 CFR §1625.7(d). After City of Jackson rejected that equation, see 544 U. S., at 243, the Commission decided that the business-necessity standard plays no role in ADEA disparate-impact claims, see Brief for United States as Amicus Curiae 25-27, and has even proposed new rules setting forth that position, see 73 Fed. Reg. 16807-16809 (2008). Because administration of the ADEA has been placed in the hands of the Commission, and because the agency's positions on the questions before us are unquestionably reasonable (as the Court's opinion ably shows), I defer to the agency's views. See Raymond B. Yates, M. D., P. C. Profit Sharing Plan v. Hendon, 541 U. S. 1, 24-25 (2004) (Scalia, J., concurring in judgment). I therefore concur in the Court's judgment to vacate the judgment of the Court of Appeals.CLIFFORD B. MEACHAM, et al., PETITIONERS v. KNOLLS ATOMIC POWER LABORATORY, aka KAPL, INC., et al.on writ of certiorari to the united states court of appeals for the second circuit[June 19, 2008] Justice Thomas, concurring in part and dissenting in part. I write separately to note that I continue to believe that disparate-impact claims are not cognizable under the Age Discrimination in Employment Act of 1967, 29 U. S. C. §621 et seq. See Smith v. City of Jackson (O'Connor, J., joined by Kennedy and Thomas, JJ., concurring in judgment). Moreover, I disagree with the Court's statement that the "reasonable factors other than age" (RFOA) exception, §623(f)(1), is principally relevant in disparate-impact cases. Compare City of Jackson, supra, at 251-253 (opinion concurring in judgment), with ante, at 10-11 (citing City of Jackson, supra, at 239 (plurality opinion)). I therefore join only Parts I and II-A of the Court's opinion because I agree that the RFOA exception is an affirmative defense — when it arises in disparate-treatment cases. Here, although the Court of Appeals erred in placing the burden of proof on petitioners, I would nonetheless affirm because the only claims at issue are disparate-impact claims.FOOTNOTESFootnote 1 The Naval Reactors program had lowered Knolls's staffing limit by 108 people; as Knolls also had to hire 35 new employees for work existing personnel could not do, a total of 143 jobs would have to go. Footnote 2 The "performance" score was based on the worker's two most recent appraisals. The "flexibility" instruction read: "Rate the employee's flexibility within the Laboratory. Can his or her documented skills be used in other assignments that will add value to current or future Lab work? Is the employee retrainable for other Lab assignments?" The "critical skills" instruction read: "How critical are the employee's skills to continuing work in the Lab? Is the individual's skill a key technical resource for the [Naval Reactors] program? Is the skill readily accessible within the Lab or generally available from the external market?" App. 94-95 (emphasis in original). Footnote 3 For comparison: after the voluntary buyouts, 1,203 out of 2,063 salaried workers (or 58%) were at least 40 years old; and of the 245 who were at risk of involuntary layoff, and therefore included in the rankings scheme, 179 (or 73%) were 40 or over. Meacham v. Knolls Atomic Power Laboratory, 185 F. Supp. 2d 193, 203 (NDNY 2002).Footnote 4 The expert cut the data in different ways, showing the chances to be 1 in 348,000 (based on a population of all 2,063 salaried workers); 1 in 1,260 (based on a population of the 245 workers at risk of layoff); or 1 in 6,639 (when the analysis was broken down by sections of the company). Meacham I, 381 F. 3d, at 64-65.Footnote 5 Taking the Wards Cove steps in turn, the Court of Appeals concluded that the "jury could have found that the degree of subjective decision making allowed in the [layoff procedure] created the disparity," 381 F. 3d, at 74; that the employer had answered with evidence of a "facially legitimate business justification," a need "to reduce its workforce while still retaining employees with skills critical to the performance of [Knolls's] functions," ibid. (internal quotation marks omitted); and that petitioners would prevail nonetheless because "[a]t least one suitable alternative is clear from the record," that Knolls "could have designed [a procedure] with more safeguards against subjectivity, in particular, tests for criticality and flexibility that are less vulnerable to managerial bias," id., at 75. Footnote 6 Distinguishing the two tests mattered, the Court of Appeals explained, because even though "[t]here may have been other reasonable ways for [Knolls] to achieve its goals (as we held in [Meacham I]), ... the one selected was not unreasonable." Meacham II, 461 F. 3d, at 146 (citation and internal quotation marks omitted). The burden of persuasion for either test was said to fall on the plaintiff, however, because "the employer is not to bear the ultimate burden of persuasion with respect to the legitimacy of its business justification." Id., at 142 (citing Wards Cove, 490 U. S., at 659-660; internal quotation marks omitted). The majority took note of the textual signs that the RFOA was an affirmative defense, but set them aside because "City of Jackson ... emphasized that there are reasonable and permissible employment criteria that correlate with age," thereby leaving it to plaintiffs to prove that a criterion is not reasonable. 461 F.3d, at 142-143.Footnote 7 In Judge Pooler's view, a jury "could permissibly find that defendants had not established a RFOA based on the unmonitored subjectivity of [Knolls's] plan as implemented." Id., at 153 (dissenting opinion).Footnote 8 Petitioners also sought certiorari as to "[w]hether respondents' practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a 'reasonable factor other than age' as a matter of law." Pet. for Cert. i. We denied certiorari on this question and express no views on it here.Footnote 9 We do not need to seek further relief from doubt by looking to the Equal Employment Opportunity Commission (EEOC) regulations on burdens of proof in ADEA cases. The parties focus on two of them, but we think neither clearly answers the question here. One of them the Government has disavowed as overtaken by our decision in Smith v. City of Jackson, 544 U. S. 228 (2005), Brief for United States as Amicus Curiae 16, n. 1 (noting that 29 CFR §1625.7(d) (2007) "takes a position that does not survive" City of Jackson), for the regulation seems to require a showing of business necessity as a part of the RFOA defense. Compare 29 CFR §1625.7(d) ("When an employment practice, including a test, is claimed as a basis for different treatment ... on the grounds that it is a 'factor other than' age, and such a practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity"), with City of Jackson, supra, at 243 ("Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement"). And the second regulation would take a bit of stretching to cover disparate-impact cases, for its text speaks in terms of disparate treatment. See 29 CFR §1625.7(e) (concerning use of the RFOA defense against an "individual claim of discriminatory treatment"). The EEOC has lately proposed rulemaking that would revise both of these regulations, eliminating any reference to "business necessity" and placing the burden of proof on the employer "[w]henever the exception of 'a reasonable factor other than age' is raised." 73 Fed. Reg. 16807-16809 (Mar. 31, 2008) (proposed 29 CFR §1625.7(e)).Footnote 10 The provision read: "It shall not be unlawful for an employer ... to observe the terms of ... any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter ... because of the age of such individual." 29 U. S. C. §623(f)(2) (1982 ed.).Footnote 11 Congress surely could not have meant this phrase to contradict its express allocation of the burden, in the same amendment. But that would be the upshot of Knolls's suggestion that the only way to read the word "otherwise" as not redundant in the phrase "otherwise prohibited under subsection (a), (b), (c), or (e)" is to say that the word must refer only to §623(f)(1) itself, implying that §623(f)(1) must be a liability-creating provision for which the burden falls on the plaintiff. Brief for Respondents 33, and n. 7. Besides, this argument proves too much, for it implies that even the BFOQ exemption is not an affirmative defense. Footnote 12 In doing so, we expressly rejected the so-called "safe harbor" view of the RFOA provision. See City of Jackson, 544 U. S., at 238-239 (plurality opinion); id., at 252-253 (O'Connor, J., concurring in judgment) (describing "safe harbor" view). Footnote 13 The factual causation that §623(a)(2) describes as practices that "deprive or tend to deprive ... or otherwise adversely affect [employees] ... because of ... age" is typically shown by looking to data revealing the impact of a given practice on actual employees. See, e.g., City of Jackson, 544 U. S., at 241 (opinion of the Court); cf. Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 657, 658-659 (1989) (under Title VII, "specific causation" is shown, and a "prima facie case" is "establish[ed]," when plaintiff identifies a specific employment practice linked to a statistical disparity); Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 995 (1988) (plurality opinion) (in Title VII cases, "statistical disparities must be sufficiently substantial that they raise ... an inference of causation"). This enquiry would be muddled if the value, "reasonableness," were to become a factor artificially boosting or discounting the factual strength of the causal link, or the extent of the measured impact. It would open the door to incoherent undershooting, for example, if defendants were heard to say that an impact is "somewhat less correlated with age, seeing as the factor is a reasonable one"; and it would be overshooting to make them show that the impact is "not correlated with age, and the factor is reasonable, besides."Footnote 14 See City of Jackson, 544 U. S., at 243 ("While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement").

Respondent state prisoner, while attempting to escape after receiving treatment at a local dentist's office, shot and killed the resident of a nearby house with a stolen pistol when, at the moment the resident slammed the front door as respondent demanded the key to the resident's car, the pistol fired and a bullet pierced the door hitting the resident in the chest. Respondent was tried in Georgia Superior Court on a charge of malice murder. His sole defense was a lack of the requisite intent to kill, claiming that the killing was an accident. The trial judge instructed the jury on the issue of intent as follows: "The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted. A person will not be presumed to act with criminal intention but the trier of facts ... may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all of the circumstances connected with the act for which the accused is prosecuted." The jury was also instructed that the respondent was presumed innocent and that the State was required to prove every element of the offense beyond a reasonable doubt. The jury returned a guilty verdict, and respondent was sentenced to death. After an unsuccessful appeal to the Georgia Supreme Court and after exhausting state postconviction remedies, respondent sought habeas corpus relief in Federal District Court. That court denied relief, but the Court of Appeals reversed, holding that the jury charge on intent could have been interpreted by a reasonable juror as a mandatory presumption that shifted to respondent a burden of persuasion on the intent element of the offense, and accordingly violated the Fourteenth Amendment due process guarantees set forth in Sandstrom v. Montana, .Held: The instruction on intent, when read in the context of the jury charge as a whole, violated the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt. Sandstrom v. Montana, supra. Pp. 313-327. (a) A jury instruction that creates a mandatory presumption whereby the jury must infer the presumed fact if the State proves certain predicate facts violates the Due Process Clause if it relieves the State of the burden of persuasion on an element of an offense. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating such a presumption, the potentially offending words must be considered in the context of the charge as a whole. Pp. 313-315. (b) Here, a reasonable juror could have understood that the first two sentences of the instruction on intent created a mandatory presumption that shifted to respondent the burden of persuasion on the element of intent once the State had proved the predicate acts. The fact that the jury was informed that the presumption "may be rebutted" does not cure the infirmity in the charge, since, when combined with the immediately preceding language, the instruction could be read as telling the jury that it was required to infer intent to kill as a natural and probable consequence of the act of firing the pistol unless respondent persuaded the jury that such an inference was unwarranted. Pp. 315-318. (c) The general instructions as to the prosecution's burden and respondent's presumption of innocence did not dissipate the error in the challenged portion of the instruction on intent because such instructions are not necessarily inconsistent with language creating a mandatory presumption of intent. Nor did the more specific "criminal intention" instruction following the challenged sentences provide a sufficient corrective, since it may well be that it was not directed to the element of intent at all but to another element of malice murder in Georgia - the absence of provocation or justification. That is, a reasonable juror may well have thought that the instructions related to different elements of the crime and were therefore not contradictory - that he could presume intent to kill but not the absence of provocation or justification. But even if a juror could have understood the "criminal intention" instruction as applying to the element of intent, that instruction did no more than contradict the immediately preceding instructions. Language that merely contradicts and does not explain a constitutionally infirm instruction does not suffice to absolve the infirmity. Pp. 318-325. (d) Whether or not Sandstrom error can ever be harmless, the constitutional infirmity in this jury charge was not harmless error because intent was plainly at issue and was not overwhelmingly proved by the evidence. Pp. 325-326. 720 F.2d 1206 and 723 F.2d 770, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, post, p. 327. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and O'CONNOR, J., joined, post, p. 331. Susan V. Boleyn, Assistant Attorney General of Georgia, argued the cause for petitioner. With her on the brief were Michael J. Bowers, Attorney General, James P. Googe, Jr., Executive Assistant Attorney General, Marion O. Gordon, First Assistant Attorney General, and William B. Hill, Jr., Senior Assistant Attorney General.Ronald J. Tabak argued the cause for respondent. With him on the brief was John Charles Boger.JUSTICE BRENNAN delivered the opinion of the Court.This case requires that we decide whether certain jury instructions in a criminal prosecution in which intent is an element of the crime charged and the only contested issue at trial satisfy the principles of Sandstrom v. Montana, . Specifically, we must evaluate jury instructions stating that: (1) "[t]he acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted" and (2) "[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted." App. 8a-9a. The question is whether these instructions, when read in the context of the jury charge as a whole, violate the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt. See Sandstrom, supra; In re Winship, .IRespondent Raymond Lee Franklin, then 21 years old and imprisoned for offenses unrelated to this case, sought to escape custody on January 17, 1979, while he and three other prisoners were receiving dental care at a local dentist's office. The four prisoners were secured by handcuffs to the same 8-foot length of chain as they sat in the dentist's waiting room. At some point Franklin was released from the chain, taken into the dentist's office and given preliminary treatment, and then escorted back to the waiting room. As another prisoner was being released, Franklin, who had not been reshackled, seized a pistol from one of the two officers and managed to escape. He forced the dentist's assistant to accompany him as a hostage.In the parking lot Franklin found the dentist's automobile, the keys to which he had taken before escaping, but was unable to unlock the door. He then fled with the dental assistant after refusing her request to be set free. The two set out across an open clearing and came upon a local resident. Franklin demanded this resident's car. When the resident responded that he did not own one, Franklin made no effort to harm him but continued with the dental assistant until they came to the home of the victim, one Collie. Franklin pounded on the heavy wooden front door of the home and Collie, a retired 72-year-old carpenter, answered. Franklin was pointing the stolen pistol at the door when Collie arrived. As Franklin demanded his car keys, Collie slammed the door. At this moment Franklin's gun went off. The bullet traveled through the wooden door and into Collie's chest killing him. Seconds later the gun fired again. The second bullet traveled upward through the door and into the ceiling of the residence.Hearing the shots, the victim's wife entered the front room. In the confusion accompanying the shooting, the dental assistant fled and Franklin did not attempt to stop her. Franklin entered the house, demanded the car keys from the victim's wife, and added the threat "I might as well kill you." When she did not provide the keys, however, he made no effort to thwart her escape. Franklin then stepped outside and encountered the victim's adult daughter. He repeated his demand for car keys but made no effort to stop the daughter when she refused the demand and fled. Failing to obtain a car, Franklin left and remained at large until nightfall.Shortly after being captured, Franklin made a formal statement to the authorities in which he admitted that he had shot the victim but emphatically denied that he did so voluntarily or intentionally. He claimed that the shots were fired in accidental response to the slamming of the door. He was tried in the Superior Court of Bibb County, Georgia, on charges of malice murder1 - a capital offense in Georgia - and kidnaping. His sole defense to the malice murder charge was a lack of the requisite intent to kill. To support his version of the events Franklin offered substantial circumstantial evidence tending to show a lack of intent. He claimed that the circumstances surrounding the firing of the gun, particularly the slamming of the door and the trajectory of the second bullet, supported the hypothesis of accident, and that his immediate confession to that effect buttressed the assertion. He also argued that his treatment of every other person encountered during the escape indicated a lack of disposition to use force.On the dispositive issue of intent, the trial judge instructed the jury as follows:"A crime is a violation of a statute of this State in which there shall be a union of joint operation of act or omission to act, and intention or criminal negligence. A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking or intention or criminal negligence. The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted. A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted." App. 8a-9a. Approximately one hour after the jury had received the charge and retired for deliberation, it returned to the court-room and requested reinstruction on the element of intent and the definition of accident. Id., at 13a-14a. Upon receiving the requested reinstruction, the jury deliberated 10 more minutes and returned a verdict of guilty. The next day Franklin was sentenced to death for the murder conviction.Franklin unsuccessfully appealed the conviction and sentence to the Georgia Supreme Court. Franklin v. State, 245 Ga. 141, 263 S. E. 2d 666, cert. denied, . He then unsuccessfully sought state postconviction relief. See Franklin v. Zant, Habeas Corpus File No. 5025 (Super. Ct. Butts Cty., Ga., Sept. 10, 1981), cert. denied, . Having exhausted state postconviction remedies, Franklin sought federal habeas corpus relief, pursuant to 28 U.S.C. 2254, in the United States District Court for the Middle District of Georgia on May 14, 1982. That court denied the application without an evidentiary hearing. App. 16a.Franklin appealed to the United States Court of Appeals for the Eleventh Circuit. The Court of Appeals reversed the District Court and ordered that the writ issue. 720 F.2d 1206 (1983). The court held that the jury charge on the dispositive issue of intent could have been interpreted by a reasonable juror as a mandatory presumption that shifted to the defendant a burden of persuasion on the intent element of the offense. For this reason the court held that the jury charge ran afoul of fundamental Fourteenth Amendment due process guarantees as explicated in Sandstrom v. Montana, . See 720 F.2d, at 1208-1212. In denying petitioner Francis' subsequent petition for rehearing, the panel elaborated its earlier holding to make clear that the effect of the presumption at issue had been considered in the context of the jury charge as a whole. See 723 F.2d 770, 771-772 (1984) (per curiam).We granted certiorari. . We affirm.IIThe Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S., at 364. This "bedrock, `axiomatic and elementary' [constitutional] principle," id., at 363, prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, supra, at 520-524; Patterson v. New York, , 215 (1977); Mullaney v. Wilbur, ; see also Morissette v. United States, . The prohibition protects the "fundamental value determination of our society," given voice in Justice Harlan's concurrence in Winship, that "it is far worse to convict an innocent man than to let a guilty man go free." 397 U.S., at 372. See Speiser v. Randall, . The question before the Court in this case is almost identical to that before the Court in Sandstrom: "whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of ... state of mind," 442 U.S., at 521, by creating a mandatory presumption of intent upon proof by the State of other elements of the offense.The analysis is straightforward. "The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes." Id., at 514. The court must determine whether the challenged portion of the instruction creates a mandatory presumption, see id., at 520-524, or merely a permissive inference, see Ulster County Court v. Allen, . A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts.2 A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.Mandatory presumptions must be measured against the standard of Winship as elucidated in Sandstrom. Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense. Patterson v. New York, supra, at 215 ("[A] State must prove every ingredient of an offense beyond a reasonable doubt and ... may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense"). See also Sandstrom, supra, at 520-524; Mullaney v. Wilbur, supra, at 698-701.3 A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved. Such inferences do not necessarily implicate the concerns of Sandstrom. A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. Ulster County Court, supra, at 157-163.Analysis must focus initially on the specific language challenged, but the inquiry does not end there. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. Cupp v. Naughten, . This analysis "requires careful attention to the words actually spoken to the jury ..., for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom, supra, at 514.AFranklin levels his constitutional attack at the following two sentences in the jury charge: "The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted." App. 8a-9a.4 The Georgia Supreme Court has interpreted this language as creating no more than a permissive inference that comports with the constitutional standards of Ulster County Court v. Allen, supra. See Skrine v. State, 244 Ga. 520, 521, 260 S. E. 2d 900, 901 (1979). The question, however, is not what the State Supreme Court declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning. Sandstrom, 442 U.S., at 516-517 (state court "is not the final authority on the interpretation which a jury could have given the instruction"). The federal constitutional question is whether a reasonable juror could have understood the two sentences as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts.The challenged sentences are cast in the language of command. They instruct the jury that "acts of a person of sound mind and discretion are presumed to be the product of the person's will," and that a person "is presumed to intend the natural and probable consequences of his acts," App. 8a-9a (emphasis added). These words carry precisely the message of the language condemned in Sandstrom, 442 U.S., at 515 ("`The law presumes that a person intends the ordinary consequences of his voluntary acts'"). The jurors "were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory." Ibid. (emphasis added). The portion of the jury charge challenged in this case directs the jury to presume an essential element of the offense - intent to kill - upon proof of other elements of the offense - the act of slaying another. In this way the instructions "undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt." Ulster County Court v. Allen, supra, at 156 (emphasis added).The language challenged here differs from Sandstrom, of course, in that the jury in this case was explicitly informed that the presumptions "may be rebutted." App. 8a-9a. The State makes much of this additional aspect of the instruction in seeking to differentiate the present case from Sandstrom. This distinction does not suffice, however, to cure the infirmity in the charge. Though the Court in Sandstrom acknowledged that the instructions there challenged could have been reasonably understood as creating an irrebuttable presumption, 442 U.S., at 517, it was not on this basis alone that the instructions were invalidated. Had the jury reasonably understood the instructions as creating a mandatory rebuttable presumption the instructions would have been no less constitutionally infirm. Id., at 520-524.An irrebuttable or conclusive presumption relieves the State of its burden of persuasion by removing the presumed element from the case entirely if the State proves the predicate facts. A mandatory rebuttable presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding. A mandatory rebuttable presumption is perhaps less onerous from the defendant's perspective, but it is no less unconstitutional. Our cases make clear that "[s]uch shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause." Patterson v. New York, 432 U.S., at 215. In Mullaney v. Wilbur we explicitly held unconstitutional a mandatory rebuttable presumption that shifted to the defendant a burden of persuasion on the question of intent. 421 U.S., at 698-701. And in Sandstrom we similarly held that instructions that might reasonably have been understood by the jury as creating a mandatory rebuttable presumption were unconstitutional. 442 U.S., at 524.5 When combined with the immediately preceding mandatory language, the instruction that the presumptions "may be rebutted" could reasonably be read as telling the jury that it was required to infer intent to kill as the natural and probable consequence of the act of firing the gun unless the defendant persuaded the jury that such an inference was unwarranted. The very statement that the presumption "may be rebutted" could have indicated to a reasonable juror that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption. Standing alone, the challenged language undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent.BThe jury, of course, did not hear only the two challenged sentences. The jury charge taken as a whole might have explained the proper allocation of burdens with sufficient clarity that any ambiguity in the particular language challenged could not have been understood by a reasonable juror as shifting the burden of persuasion. See Cupp v. Naughten, . The State argues that sufficient clarifying language exists in this case. In particular, the State relies on an earlier portion of the charge instructing the jurors that the defendant was presumed innocent and that the State was required to prove every element of the offense beyond a reasonable doubt.6 The State also points to the sentence immediately following the challenged portion of the charge, which reads: "[a] person will not be presumed to act with criminal intention ... ." App. 9a.As we explained in Sandstrom, general instructions on the State's burden of persuasion and the defendant's presumption of innocence are not "rhetorically inconsistent with a conclusive or burden-shifting presumption," because "[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied." 442 U.S., at 518-519, n. 7. In light of the instructions on intent given in this case, a reasonable juror could thus have thought that, although intent must be proved beyond a reasonable doubt, proof of the firing of the gun and its ordinary consequences constituted proof of intent beyond a reasonable doubt unless the defendant persuaded the jury otherwise. Cf. Mullaney v. Wilbur, 421 U.S., at 703, n. 31. These general instructions as to the prosecution's burden and the defendant's presumption of innocence do not dissipate the error in the challenged portion of the instructions.Nor does the more specific instruction following the challenged sentences - "A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted," App. 9a - provide a sufficient corrective. It may well be that this "criminal intention" instruction was not directed to the element of intent at all, but to another element of the Georgia crime of malice murder. The statutory definition of capital murder in Georgia requires malice aforethought. Ga. Code Ann. 16-5-1(1984) (formerly Ga. Code Ann. 26-1101(a)(1978)). Under state law malice aforethought comprises two elements: intent to kill and the absence of provocation or justification. See Patterson v. State, 239 Ga. 409, 416-417, 238 S. E. 2d 2, 8 (1977); Lamb v. Jernigan, 683 F.2d 1332, 1337 (CA11 1982) (interpreting Ga. Code Ann. 16-5-1), cert. denied, . At another point in the charge in this case, the trial court, consistently with this understanding of Georgia law, instructed the jury that malice is "the unlawful, deliberate intention to kill a human being without justification or mitigation or excuse." App. 10a.The statement "criminal intention may not be presumed" may well have been intended to instruct the jurors that they were not permitted to presume the absence of provocation or justification but that they could infer this conclusion from circumstantial evidence. Whatever the court's motivation in giving the instruction, the jury could certainly have understood it this way. A reasonable juror trying to make sense of the juxtaposition of an instruction that "a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts," id., at 8a-9a, and an instruction that "[a] person will not be presumed to act with criminal intention," id., at 9a, may well have thought that the instructions related to different elements of the crime and were therefore not contradictory - that he could presume intent to kill but not the absence of justification or provocation.7 Even if a reasonable juror could have understood the prohibition of presuming "criminal intention" as applying to the element of intent, that instruction did no more than contradict the instruction in the immediately preceding sentence. A reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption and ignore the prohibition of presumption. Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.8 Had the instruction "[a] person ... is presumed to intend the natural and probable consequences of his acts," App. 8a-9a, been followed by the instruction "this means that a person will not be presumed to act with criminal intention but the jury may find criminal intention upon consideration of all circumstances connected with the act for which the accused is prosecuted," a somewhat stronger argument might be made that a reasonable juror could not have understood the challenged language as shifting the burden of persuasion to the defendant. Cf. Sandstrom, 442 U.S., at 517 ("[G]iven the lack of qualifying instructions as to the legal effect of the presumption, we cannot discount the possibility that the jury may have interpreted the instruction" in an unconstitutional manner). See also Corn v. Zant, 708 F.2d 549, 559 (CA11 1983), cert. denied, . Whether or not such explanatory language might have been sufficient, however, no such language is present in this jury charge. If a juror thought the "criminal intention" instruction pertained to the element of intent, the juror was left in a quandary as to whether to follow that instruction or the immediately preceding one it contradicted.9 Because a reasonable juror could have understood the challenged portions of the jury instruction in this case as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge read as a whole does not explain or cure the error, we hold that the jury charge does not comport with the requirements of the Due Process Clause.IIIPetitioner argues that even if the jury charge fails under Sandstrom this Court should overturn the Court of Appeals because the constitutional infirmity in the charge was harmless error on this record. This Court has not resolved whether an erroneous charge that shifts a burden of persuasion to the defendant on an essential element of an offense can ever be harmless. See Connecticut v. Johnson, . We need not resolve the question in this case. The Court of Appeals conducted a careful harmless-error inquiry and concluded that the Sandstrom error at trial could not be deemed harmless. 720 F.2d, at 1212. The court noted: "[Franklin's] only defense was that he did not have the requisite intent to kill. The facts did not overwhelmingly preclude that defense. The coincidence of the first shot with the slamming of the door, the second shot's failure to hit anyone, or take a path on which it would have hit anyone, and the lack of injury to anyone else all supported the lack of intent defense. A presumption that Franklin intended to kill completely eliminated his defense of `no intent.' Because intent was plainly at issue in this case, and was not overwhelmingly proved by the evidence ... we cannot find the error to be harmless." Ibid. Even under the harmless-error standard proposed by the dissenting Justices in Connecticut v. Johnson, supra, at 97, n. 5 (evidence "so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption") (POWELL, J., joined by BURGER, C. J., and REHNQUIST and O'CONNOR, JJ., dissenting), this analysis by the Court of Appeals is surely correct.10 The jury's request for reinstruction on the elements of malice and accident, App. 13a-14a, lends further substance to the court's conclusion that the evidence of intent was far from overwhelming in this case. We therefore affirm the Court of Appeals on the harmless-error question as well.IVSandstrom v. Montana made clear that the Due Process Clause of the Fourteenth Amendment prohibits the State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of intent in a criminal prosecution. 442 U.S., at 521. Today we reaffirm the rule of Sandstrom and the wellspring due process principle from which it was drawn. The Court of Appeals faithfully and correctly applied this rule, and the court's judgment is therefore Affirmed.

Section 3 (a) of the Bank Holding Company Act of 1956 (Act) prohibits any company from acquiring control of a bank without prior approval by the Board of Governors of the Federal Reserve System (Board). Under 3 (c) of the Act, the Board must disapprove a transaction that would, inter alia, generate anticompetitive effects not clearly outweighed by beneficial effects upon the acquired bank's ability to serve the community. Section 3 (c) also directs the Board "[i]n every case" to "take into consideration the financial and managerial resources and future prospects of the company or companies and the banks concerned, and the convenience and needs of the community to be served." Individual stockholders who controlled an existing bank organized respondent corporation to acquire their bank stock. Respondent submitted the transaction for the Board's approval. Upon review, the Board found that the transaction would have no anticompetitive effects and would not change the services offered by the bank to customers. However, it ultimately disapproved the transaction, against the recommendation of the Comptroller of the Currency, on the ground that formation of the holding company would not bring the bank's financial position up to the Board's standards. The Court of Appeals set aside the Board's order, holding that 3 (c) empowers the Board to withhold approval because of financial or managerial deficiencies only if those deficiencies would be "caused or enhanced by the proposed transaction." Held: 1. The Board has authority under 3 (c) to disapprove formation of a bank holding company solely on grounds of financial or managerial unsoundness. This conclusion is supported by the language of the statute and the legislative history and in addition comports with the Board's own longstanding construction, which is entitled to great respect. Pp. 242-248. 2. The Board's authority is not limited to instances in which the financial or managerial unsoundness would be caused or exacerbated by the proposed transaction. Such a limitation would be inconsistent with the language and legislative history of the statute and with the Board's own construction of its mandate, a construction in which Congress has acquiesced. Nor does the legislative history suggest that Congress intended to reserve questions of bank safety to the Comptroller of the Currency or state agencies except where a transaction would harm the financial condition of an applicant or a bank. Pp. 249-252. 3. The Board's denial of the application is supported by substantial evidence that respondent would not be a sufficient source of financial and managerial strength to its subsidiary bank. Pp. 252-254. 560 F.2d 258, reversed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 254.Stephen M. Shapiro argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Babcock, Harriet S. Shapiro, Ronald R. Glancz, Neal L. Petersen, and J. Virgil Mattingly.George B. Collins argued the cause and filed a brief for respondent.* [Footnote *] Horace R. Hansen and Wayne P. Dordell filed a brief for the Independent Bankers Association of America urging affirmance.MR. JUSTICE MARSHALL delivered the opinion of the Court.Section 3 (a) of the Bank Holding Company Act of 1956, 12 U.S.C. 1842 (a), prohibits any company from acquiring control of a bank without prior approval by the Board of Governors of the Federal Reserve System (Board).1 Under 3 (c) (1) of the Act, 12 U.S.C. 1842 (c) (1), the Board may not approve a transaction that would create a monopoly or further an attempt to monopolize the business of banking. In addition, it must disapprove a transaction that would generate anticompetitive effects not clearly outweighed by beneficial effects upon the bank's ability to serve the community. 1842 (c) (2). The final sentence of 3 (c) directs that "[i]n every case, the Board shall take into consideration the financial and managerial resources and future prospects of the company or companies and the banks concerned, and the convenience and needs of the community to be served."2 The threshold question before us is whether this final sentence authorizes the Board to disapprove a transaction on grounds of financial unsoundness in the absence of any anticompetitive impact. If so, we must decide whether the Board can only exercise that authority when the transaction would cause or exacerbate the financial unsoundness of the holding company or a subsidiary bank.IThe First National Bank of Lincolnwood, Ill., is controlled by four individuals who hold 86% of its stock in a voting trust. These individuals organized respondent, the First Lincolnwood Corp., to serve as a bank holding company. They planned to exchange their shares in the bank for shares of respondent and, in addition, to have respondent assume a $3.7 million debt they had incurred in acquiring control of the bank.3 Respondent intended to use the dividends it would receive on the bank's shares to retire this debt over a 12-year period. Further, in order to augment the bank's capital, respondent would issue $1.5 million in capital notes and then use the proceeds to purchase new shares issued by the bank. The purpose of restructuring ownership interests in this fashion was to enable the holding company and the bank to file a consolidated tax return and thereby realize substantial tax savings.4 Because under the proposed transaction respondent would become a bank holding company, 3 (a) of the Act required that the proposal be submitted for the Board's approval. See n. 1, supra. Respondent filed its application with the Federal Reserve Bank of Chicago, as specified by Board regulations.5 The Chicago Reserve Bank concluded that the Lincolnwood bank's capital position - in essence, the difference between its assets and its liabilities - was inadequate and, under respondent's proposal, was unlikely to improve enough to attain the minimum level the Board had determined necessary to protect the bank's depositors.6 Nonetheless, the Lincolnwood bank's favorable earnings prospects and strong management led the Chicago Reserve Bank to recommend that the transaction be approved. The Comptroller of the Currency, however, independently reviewed respondent's application and concluded that it should be denied unless the bank's capital position was strengthened. Respondent thereupon modified its proposal to accommodate the Comptroller's objections. Instead of issuing $1.5 million in capital notes and using the proceeds to purchase new bank stock, respondent proposed that the bank itself sell $1 million in long-term capital notes and $1.1 million in new common stock. In addition, respondent proposed a substantial reduction in the dividends to be paid on the bank stock. Upon review of the modified proposal, the Chicago Reserve Bank adhered to its original recommendation, finding the modification salutary insofar as it increased the total addition to the bank's capital, though "slightly unfavorable" insofar as it decreased the addition to the bank's equity capital from $1.5 to $1.1 million.7 The Comptroller considered the revised plan superior to the original proposal; therefore, he, too, recommended approval.The Board staff independently evaluated the application and determined that the bank's projected capital position would fall below the Board's requirements.8 The staff also found that respondent had not established its ability to raise the additional capital without the individual shareholders' incurring more debt. Although acknowledging that the bank's management was capable, the staff concluded that"it would appear desirable that Bank's overall capital position should be materially improved and that financing arrangements for the proposed capital injections into Bank [should] be made more definite." App. 54-55. The Board concurred. It reviewed each of the elements enumerated in 3 (c), determining first that the proposal had no anticompetitive impact because the transaction merely transferred control of the bank "from individuals to a corporation owned by the same individuals." First Lincolnwood Corp., 62 Fed. Res. Bull. 153 (1976). Similarly, the Board found that the proposal would effect no significant changes in the services offered by the bank to customers, so factors relating to the convenience and needs of the community militated neither for nor against approval. Id., at 154. Thus, the financial and managerial considerations specified in the final sentence of 3 (c) were dispositive of respondent's application.Addressing these considerations, the Board ruled that a bank holding company "should provide a source of financial and managerial strength to its subsidiary bank (s)." 62 Fed. Res. Bull., at 153. Here, the Board found, even if the bank's optimistic earnings projections were realized, respondent would lack the financial flexibility necessary both to service its debt and to maintain adequate capital at the bank. This, as well as the uncertainty regarding the proposed source of the capital injections, raised serious doubts as to respondent's financial ability to resolve unforeseen problems that could arise at the bank. The Board therefore concluded that"it would not be in the public interest to approve the formation of a bank holding company with an initial debt structure that could result in the weakening of Bank's overall financial condition." Id., at 154. A divided panel of the Court of Appeals for the Seventh Circuit affirmed, the majority finding substantial evidence to support the denial of respondent's application. 546 F.2d 718, 720-721 (1976).9 On rehearing en banc, the court unanimously set aside the Board's order. The court recognized that Congress had empowered the Board "to deny approval of a bank acquisition upon finding it not to be in the public interest for reasons other than an anticompetitive tendency." 560 F.2d 258, 261 (1977). However, in the court's view, 3 (c) of the Act did not permit the Board to withhold approval because of financial or managerial deficiencies unless those deficiencies were "caused or enhanced by the proposed transaction." 560 F.2d, at 262. This transaction, the court observed, merely reshuffled ownership interests in the bank. Apart from the proposed addition to capital and the tax advantage, which could accelerate reduction of the $3.7 million debt, respondent's proposal was without financial consequence. The court therefore held that the Board had overstepped its authority under 3 (c) in denying respondent's application. 560 F.2d, at 262-263.We granted certiorari because of the impact of this holding on the Board's ability to fulfill its regulatory responsibilities under the Bank Holding Company Act. . We conclude that the court below improperly restricted the Board's authority, and, accordingly, we reverse.IIRespondent contends that the Court of Appeals misinterpreted the legislative history of the Bank Holding Company Act in sustaining the Board's authority to deny applications for holding-company status solely on grounds of financial or managerial unsoundness. As respondent reads the legislative history, Congress' only concern in passing the Act was with the anticompetitive potential in the concentration of banking resources and the combination of banking and nonbanking enterprises. See S. Rep. No. 1095, 84th Cong., 1st Sess., 2 (1955); S. Rep. No. 1179, 89th Cong., 2d Sess., 2 (1966). This focus on competitive considerations was reflected in the amendment of the Act in 1966 to conform 3 (c) with the standards enunciated in the Bank Merger Act amendments of the same year. See 80 Stat. 8, 12 U.S.C. 1828 (c) (5). The amended standards in the Bank Merger Act were intended to provide an exception to the antitrust laws for those bank mergers in which the benefits to the community outweighed the anticompetitive impact. See United States v. Third Nat. Bank, . By incorporating these same standards into the Bank Holding Company Act, respondent infers, Congress intended to authorize the Board to consider financial and managerial resources only as counter-weights to a transaction's anticompetitive impact. We do not agree that the Board's authority under the Bank Holding Company Act is so limited.The language of the statute supports the Board's interpretation of 3 (c) as an authorization to deny applications on grounds of financial and managerial unsoundness even in the absence of any anticompetitive impact. Section 3 (c) directs the Board to consider the financial and managerial resources and future prospects of the applicants and banks concerned "[i]n every case," not just in cases in which the Board finds that the transaction will have an anticompetitive effect.Moreover, the Board's interpretation of 3 (c) draws support from the legislative history. Section 19 of the original version of the Banking Act of 1933, 48 Stat. 186, authorized the Board to regulate the financial and managerial soundness of bank holding companies and their banking subsidiaries. Holding companies were required to obtain a permit from the Board before voting the shares of a national bank. Section 19 directed the Board to consider, in acting upon an application for a voting permit, the financial condition of the company and the general character of its management. 48 Stat. 186. In addition, an applicant had to submit to financial examination by the Board and to maintain a prescribed reserve of liquid assets. 48 Stat. 187. However, the voting-permit provisions applied only if the bank was a member of the Federal Reserve System and the holding company sought to exercise control by actually voting the bank shares. Because of this limitation, 19 ultimately proved of little value in ensuring the financial responsibility of bank holding companies and their subsidiaries. See H. R. Rep. No. 609, 84th Cong., 1st Sess., 4-5 (1955).To ameliorate this deficiency, Congress expanded the Board's authority by enacting the Bank Holding Company Act of 1956. Section 3 (c) of the Act enumerated five factors for the Board to consider whenever a company sought to acquire control of a bank:"(1) the financial history and condition of the company or companies and the banks concerned; (2) their prospects; (3) the character of their management; (4) the convenience, needs, and welfare of the communities and the area concerned; and (5) whether or not the effect of such acquisition or merger or consolidation would be to expand the size or extent of the bank holding company system involved beyond limits consistent with adequate and sound banking, the public interest, and the preservation of competition in the field of banking." 70 Stat. 135. The House Report on the Act noted the similarity between these factors and those specified in other banking statutes as the basis for admitting state banks to membership in the Federal Reserve System and for granting federal deposit-insurance coverage. H. R. Rep. No. 609, supra, at 15. In both instances, the adequacy of the bank's capital is an important factor to be considered by the reviewing agency. See 12 U.S.C. 329, 1816.10 In amending 3 (c) to conform to the language of the Bank Merger Act in 1966, see supra, at 243, Congress did not intend to confine the Board's consideration of financial and managerial soundness only to transactions that would have an anticompetitive impact. The sole reason given for the change was "the interests of uniform standards" in regulating both mergers and acquisitions in the banking industry. S. Rep. No. 1179, supra, at 9. Regardless of whether Congress intended to limit the inquiry under the Bank Merger Act,11 there is no indication that it intended to incorporate that limitation into the Bank Holding Company Act. Indeed, in 1966 Congress repealed the voting-permit provisions of the 1933 Act. which had been left intact in 1956, because it believed that the Board retained authority under 3 (c), even as amended, to ensure the financial and managerial soundness of holding companies and their subsidiary banks. The Senate Committee on Banking and Currency stated:"Since the Bank Holding Company Act makes it necessary for any bank holding company to obtain the Board's prior approval before acquiring the stock of any bank (whether member or nonmember) and since, in granting that approval, the Board must consider the financial condition and management of the holding company, the voting permit procedure ... serves no substantial purpose." S. Rep. No. 1179, supra, at 12. In 1970, Congress amended the Bank Holding Company Act to extend its coverage to holding companies that controlled only one bank. 84 Stat. 1760, 12 U.S.C. 1841 (a). Previously, the Act had applied only to multibank holding companies. The principal purpose of this change was to prevent one-bank holding companies from entering businesses not related to banking. S. Rep. No. 91-1084, pp. 2-4 (1970). Nothing in the legislative history of the 1970 amendments suggests that in extending the Act, Congress intended to depart from its prior understanding of the Board's authority or to establish a different rule for one-bank holding companies.12 Our conclusion as to the scope of the Board's authority is bolstered by reference to the principle that an agency's longstanding construction of its statutory mandate is entitled to great respect, "especially when Congress has refused to alter the administrative construction." Red Lion Broadcasting Co. v. FCC, ; Zemel v. Rusk, ; Udall v. Tallman, . The Board has regularly treated deficiencies in the financial and managerial resources of holding companies and their banking subsidiaries as sufficient grounds for denying an application. Clayton Bancshares Corp., 50 Fed. Res. Bull. 1261, 1264-1265 (1964); Mid-Continent Bancorporation, 52 Fed. Res. Bull. 198, 200-201 (1966); Midwest Bancorporation, Inc., 56 Fed. Res. Bull. 948, 950 (1970); Citizens Bancorp, 61 Fed. Res. Bull. 806 (1975); Bankshares of Hawley, Inc., 62 Fed. Res. Bull. 610 (1976); see 12 CFR 265.2 (f) (22) (vii) (1978). Moreover, Congress has been made aware of this practice,13 yet four times has "revisited the Act and left the practice untouched." Saxbe v. Bustos, . See 80 Stat. 236; 84 Stat. 1760; 91 Stat. 1388; 92 Stat. 3641.14 We therefore agree with the Court of Appeals that the Board can disapprove formation of a bank holding company solely on grounds of financial or managerial unsoundness. IIIWhile the Court of Appeals recognized the Board's authority to treat financial or managerial unsoundness as a dispositive consideration, it held that this authority was limited to instances in which the unsoundness was caused or exacerbated by the proposed transaction.15 The Court of Appeals rejected the Board's argument that permission to form a holding company is "a reward which it may withhold until the applicant's financial status fulfills the Board's standard of desirability." 560 F.2d, at 262. The legislative history, the court held, revealed nothing that would allow the Board to disapprove formation of a bank holding company where the transaction would not weaken a subsidiary bank's financial condition. In addition, the already extensive regulation of the financial integrity of banks by the Comptroller of the Currency and state regulatory agencies persuaded the court that Congress could not have intended to extend identical authority to the Federal Reserve Board. Id., at 262-263.We perceive no basis for the limitation the Court of Appeals imposed. Certainly, it is not compelled by the language of the statute. By its terms, 3 (c) requires the Board to consider financial and managerial factors in "every case." Just as we observed earlier that this language encompasses cases in which the proposed transaction would have no anti-competitive effect, supra, at 243, so, too, it encompasses cases in which the transaction would not weaken the bank or the bank holding company. Indeed, the Court of Appeals' construction of the statute would require the Board to approve formation of a bank holding company with corrupt management simply because management would become no more corrupt by virtue of the transaction. We hesitate to adopt a construction that would yield such an anomalous result.Furthermore, the legislative record does provide support for the Board's actions. In deliberations on the Bank Holding Company Act, see, e. g., H. R. Rep. No. 609, 84th Cong., 1st Sess., 4-5 (1955); H. R. Rep. No. 95-1383, p. 19 (1978), and in subsequent inquiries into banking regulation, see, e. g., Hearing on Problem Banks, supra, n. 6; Hearings on the Safe Banking Act of 1977, pts. 1-4, supra, n. 13, Congress has evinced substantial concern for the financial soundness of the banking system. And Congress has long regarded capital adequacy as a measure of bank safety. See, e. g., 12 U.S.C. 329 (Federal Reserve Act), 1816 (Federal Deposit Insurance Act); S. Rep. No. 133, 63d Cong., 1st Sess., pt. 2, p. 11 (1913); S. Rep. No. 1623, 82d Cong., 2d Sess., 2 (1952). To rule that the Board could not require applicants for holding-company status and their subsidiary banks to meet minimum capital-adequacy requirements would be inconsistent with this general legislative mandate.Nor can we accept the conclusion that Congress intended to reserve questions of bank safety to the Comptroller or state agencies except where a transaction would harm the financial condition of an applicant or the bank. The history of the Bank Holding Company Act nowhere suggests that Congress sought to delineate such a jurisdictional boundary. Indeed, our decision in Whitney Nat. Bank v. Bank of New Orleans, , indicates that the Board's jurisdiction is paramount. We ruled there that the Comptroller could not deny a new bank a license to do business - a decision normally within his competence, see 12 U.S.C. 26, 27 - once the Board approved a bank holding company transaction that entailed formation of the new bank. 379 U.S., at 419, 423. It follows that the Federal Reserve Board's actions here are not invalid merely because the powers exercised duplicate those of other regulators.Again, our conclusion is influenced by the principle that courts should defer to an agency's construction of its own statutory mandate, Red Lion Broadcasting Co. v. FCC, 395 U.S., at 381; Commissioner v. Sternberger's Estate, , particularly when that construction accords with well-established congressional goals. The Board has frequently reiterated that holding companies should be a source of strength to subsidiary financial institutions. See, e. g., Northern States Financial Corp., 58 Fed. Res. Bull. 827, 828 (1972); Citizens Bancorp, 61 Fed. Res. Bull. 806 (1975); Downs Bancshares, Inc., 61 Fed. Res. Bull. 673 (1975). It has used the substantial advantages of bank holding-company status to induce applicants to improve their own and their subsidiaries' capital positions. See P. Heller, Handbook of Federal Bank Holding Company Law 127, and n. 195 (1976); The Bank Holding Company - 1973, pp. 35, 83 (R. Johnson ed. 1973).16 In fact, between 1970 and 1975, the Board convinced 397 applicants to provide additional capital totaling $788 million and indirectly prompted the infusion of even more capital. Hearings on Financial Institutions and the Nation's Economy, supra n. 13, at 2403 (testimony of Philip Coldwell, member of the Board of Governors of the Federal Reserve System). Congress has been apprised of this consistent administrative practice, ibid.; Compendium of Major Issues in Bank Regulation, supra n. 13, at 379, and has not undertaken to change it. Indeed, a Report of the Senate Committee on Banking, Housing, and Urban Affairs in 1977 echoed the exact language of the Board's standard. S. Rep. No. 95-323, p. 11 ("Holding companies are supposed to be a source of strength to subsidiary financial institutions").17 We hold that the Board may deny applications for holding-company status solely on grounds of financial or managerial unsoundness, regardless of whether that unsoundness would be caused or exacerbated by the proposed transaction.18 IVRespondent contends that the Board's denial of its application was arbitrary and capricious. We have already determined that the Board's "source of strength" requirement is consistent with the language, purpose, and legislative history of the Bank Holding Company Act. Our only remaining inquiry is whether substantial evidence supports the Board's finding that respondent fell short of this standard. 12 U.S.C. 1848.[Footnote 19]The Court of Appeals panel had "no difficulty" in finding substantial evidence to sustain the Board's decision, 546 F.2d, at 720, and respondent did not press this issue in its petition for rehearing en banc. We, too, find in this record more than the amount of evidence "a reasonable mind might accept as adequate to support [the Board's] conclusion." Consolidated Edison Co. v. NLRB, ; accord, Richardson v. Perales, ; Consolo v. FMC, . The application failed to establish that respondent could raise the $2.1 million in additional capital in the manner proposed. Moreover, it revealed that even with this infusion, the bank's capital would have been well below the level the Board had determined necessary to sustain the financial soundness of the enterprise. Thus, the Board was entitled to conclude that respondent would not be a sufficient source of financial and managerial strength to its subsidiary bank. Having so determined, the Board was entitled to deny the application.20 We hold that the Board's actions were within the authority conferred by Congress and were supported by substantial evidence. Consequently, the judgment is Reversed.

Petitioner, Hana Financial, Inc., and respondent Hana Bank both provide financial services to individuals in the United States. When Hana Financial sued Hana Bank for trademark infringement, Hana Bank invoked in defense the tacking doctrine, under which lower courts have provided that a trademark user may make certain modifications to its mark over time while, in limited circumstances, retaining its priority position. Petitioner's claim was tried before a jury, and the District Court adopted in substantial part the jury instruction on tacking proposed by petitioner. The jury returned a verdict in respondent's favor. Affirming, the Ninth Circuit explained that the tacking inquiry was an exceptionally limited and highly fact-sensitive matter reserved for juries, not judges.Held: Whether two trademarks may be tacked for purposes of determining priority is a question for the jury. Pp. 3-8. (a) Lower courts have held that two marks may be tacked when they are considered to be "legal equivalents," i.e., they "create the same, continuing commercial impression." Van Dyne-Crotty, Inc. v. Wear-Guard Corp. 926 F. 2d 1156, 1159. And "commercial impression" "must be viewed through the eyes of a consumer." DuoProSS Meditech Corp. v. Inviro Medical Devices, Ltd., 695 F. 3d 1247, 1253. When the relevant question is how an ordinary person or community would make an assessment, the jury is generally the decisionmaker that ought to provide the fact-intensive answer. See, e.g., United States v. Gaudin, 515 U. S. 506, 512. Pp. 3-5. (b) Each of petitioner's four arguments in support of its view that tacking is a question of law to be resolved by a judge is unpersuasive. First, it may be true that the "legal equivalents" test involves a legal standard, but such " 'mixed question[s] of law and fact,' [have] typi-cally been resolved by juries." Gaudin, 515 U. S., at 512. And any concern that a jury may improperly apply the relevant legal standard can be remedied by crafting careful jury instructions. Second, petitioner offers no support for its claim that tacking determinations create new law in a unique way that requires those determinations to be reserved for judges. Third, petitioner worries that the predictability required for a functioning trademark system will be absent if tacking questions are assigned to juries, but offers no reason why trademark tacking should be treated differently from the tort, contract, and criminal justice systems, where juries answer often-dispositive factual questions or make dispositive applications of legal standards to facts. Finally, in arguing that judges have historically resolved tacking disputes, petitioner points to cases arising in the contexts of bench trials, summary judgment, and the like, in which it is undisputed that judges may resolve tacking disputes. Pp. 5-8.735 F. 3d. 1158, affirmed. Sotomayor, J., delivered the opinion for a unanimous Court.Opinion of the Court 574 U. S. ____ (2015)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 13-1211HANA FINANCIAL, INC., PETITIONER v. HANA BANK, et al. on writ of certiorari to the united states court of appeals for the ninth circuit[January 21, 2015] Justice Sotomayor delivered the opinion of the Court. Rights in a trademark are determined by the date of the mark's first use in commerce. The party who first uses a mark in commerce is said to have priority over other users. Recognizing that trademark users ought to be permitted to make certain modifications to their marks over time without losing priority, lower courts have provided that, in limited circumstances, a party may clothe a new mark with the priority position of an older mark. This doctrine is called "tacking," and lower courts have found tacking to be available when the original and revised marks are "legal equivalents" in that they create the same, continuing commercial impression. The question presented here is whether a judge or a jury should determine whether tacking is available in a given case. Because the tacking inquiry operates from the perspective of an ordinary purchaser or consumer, we hold that a jury should make this determination.I Petitioner, Hana Financial, and respondent Hana Bank, a subsidiary of respondent Hana Financial Group, both provide financial services to individuals in the United States. Hana Bank (hereinafter respondent) was established in 1971 as a Korean entity called Korea Investment Finance Corporation. In 1991, that entity changed its name to "Hana Bank" and began using this name in Korea. In 1994, it established a service called Hana Overseas Korean Club to provide financial services to Korean expatriates, and specifically advertised that service in the United States. Those advertisements used the name "Hana Overseas Korean Club" in both English and Korean, and included the name "Hana Bank" in Korean and respondent's "dancing man" logo. See App. 206. In 2000, respondent changed the name of the Hana Overseas Ko-rean Club to "Hana World Center." In 2002, respondent began operating a bank in the United States under the name "Hana Bank." This enterprise amounted to respondent's first physical presence in the United States. Petitioner was established in 1994 as a California corporation called Hana Financial. It began using that name and an associated trademark in commerce in 1995. In 1996, it obtained a federal trademark registration for a pyramid logo with the name "Hana Financial" for use in connection with financial services. In 2007, petitioner sued respondent, alleging infringement of its "Hana Financial" mark. As relevant here, respondent denied infringement by invoking the tacking doctrine and claiming that it had priority. The District Court initially granted summary judgment to respondent on the infringement claim, but the Court of Appeals for the Ninth Circuit reversed, holding that there were genuine issues of material fact as to priority. On remand, the infringement claim was tried before a jury. The District Court adopted in substantial part the jury instruction proposed by petitioner, and, without objection from petitioner, instructed the jury as follows:"A party may claim priority in a mark based on the first use date of a similar but technically distinct mark where the previously used mark is the legal equivalent of the mark in question or indistinguish-able therefrom such that consumers consider both as the same mark. This is called 'tacking.' The marks must create the same, continuing commercial impression, and the later mark should not materially differ from or alter the character of the mark attempted to be tacked." App. 173; see id., at 140 (proposed instruction).The jury returned a verdict in favor of respondent, and the District Court denied petitioner's motion for judgment as a matter of law. The Court of Appeals for the Ninth Circuit affirmed. The court explained that, although tacking applies only in "exceptionally narrow circumstances," 735 F. 3d 1158, 1160 (2013) (internal quotation marks omitted), it " 'requires a highly fact-sensitive inquiry' " that is "reserved for the jury," ibid. (quoting One Industries, LLC v. Jim O'Neal Distributing, Inc., 578 F. 3d 1154, 1160 (CA9 2009)). The court acknowledged, however, that whether tacking should be decided by juries or judges "is the subject of a circuit split." 735 F. 3d, at 1164, n. 5 (noting that the Federal and Sixth Circuits "evaluate tacking as a question of law"); see Van Dyne-Crotty, Inc. v. Wear-Guard Corp., 926 F. 2d 1156, 1159 (CA Fed. 1991); Data Concepts, Inc. v. Digital Consulting, Inc., 150 F. 3d 620, 623 (CA6 1998). We granted certiorari, 573 U. S. ___ (2014), and now affirm.II As discussed above, the general rule adopted by lower courts has been that two marks may be tacked when the original and revised marks are "legal equivalents." This term refers to two marks that "create the same, continuing commercial impression" so that consumers "consider both as the same mark."1 Van Dyne-Crotty, Inc., 926 F. 2d, at 1159 (internal quotation marks omitted); see, e.g., George & Co., LLC v. Imagination Entertainment Ltd., 575 F. 3d 383, 402 (CA4 2009); Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F. 3d 1036, 1047-1048 (CA9 1999); Data Concepts, Inc., 150 F. 3d, at 623. "The commercial impression that a mark conveys must be viewed through the eyes of a consumer." DuoProSS Medi-tech Corp. v. Inviro Medical Devices, Ltd., 695 F. 3d 1247, 1253 (CA Fed. 2012); see 3 J. McCarthy, Trademarks and Unfair Competition §17:26, p. 17-71 (4th ed. 2014) (" 'Commercial impression,' like most issues in trademark law, should be determined from the perspective of the ordinary purchaser of these kinds of goods or services"). Application of a test that relies upon an ordinary consumer's understanding of the impression that a mark conveys falls comfortably within the ken of a jury. Indeed, we have long recognized across a variety of doctrinal contexts that, when the relevant question is how an ordinary person or community would make an assessment, the jury is generally the decisionmaker that ought to provide the fact-intensive answer. See, e.g., United States v. Gaudin, 515 U. S. 506, 512 (1995) (recognizing that " 'delicate assessments of the inferences a 'reasonable [decisionmaker]' would draw ... [are] peculiarly one[s] for the trier of fact' " (quoting TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 450 (1976); first alteration in original); id., at 450, n. 12 (observing that the jury has a "unique competence in applying the 'reasonable man' standard"); Hamling v. United States (emphasizing "the ability of the juror to ascertain the sense of the 'average person' " by drawing upon "his own knowledge of the views of the average person in the community or vicinage from which he comes" and his "knowledge of the propensities of a 'reasonable' person"); Railroad Co. v. Stout, 17 Wall. 657, 664 (1874) ("It is assumed that twelve men know more of the common affairs of life than does one man, [and] that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge"). This is certainly not to say that a judge may never determine whether two marks may be tacked. If the facts warrant it, a judge may decide a tacking question on a motion for summary judgment or for judgment as a matter of law. See Fed. Rules Civ. Proc. 50, 56(a). And if the parties have opted to try their case before a judge, the judge may of course decide a tacking question in his or her factfinding capacity. We hold only that, when a jury trial has been requested and when the facts do not warrant entry of summary judgment or judgment as a matter of law, the question whether tacking is warranted must be decided by a jury.III Attempting to overcome our conclusion, petitioner offers four reasons why, in its view, tacking is a question of law that should be resolved by a judge. None persuades us. Petitioner first observes that the "legal equivalents" test involves the application of a legal standard. See Brief for Petitioner 20. True enough, but "the application-of-legal-standard-to-fact sort of question ... , commonly called a 'mixed question of law and fact,' has typically been resolved by juries." Gaudin, 515 U. S., at 512; see id., at 514 ("[T]he jury's constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion ..."); Miller v. Fenton ("[A]n issue does not lose its factual character merely because its resolution is dispositive of the ultimate ... question"). The "mixed" analysis that takes place during the tacking inquiry is no different. And insofar as petitioner is concerned that a jury may improperly apply the relevant legal standard, the solution is to craft careful jury instructions that make that standard clear. Here, however, petitioner can hardly criticize the instruction the District Court gave the jury, as it was essentially the instruction petitioner proposed. Second, petitioner argues that tacking determinations will "create new law that will guide future tacking disputes"--a task reserved for judges. Brief for Petitioner 21. It is not at all clear, however, why a tacking determination in a particular case will "create new law" any more than will a jury verdict in a tort case, a contract dispute, or a criminal proceeding. Petitioner insists that tacking questions "have to be" resolved by comparing two marks in a given case "against those addressed in other tacking cases," id., at 22, but we do not agree. Of course, in deciding summary judgment motions, or in making rulings in bench trials, judges may look to past cases holding that trademark owners either were or were not entitled to tacking as a matter of law. But petitioner offers no support for the claim that tacking cases "have to be" resolved by reliance on precedent. Indeed, in many of the cases petitioner cites in support of this argument, the courts in question relied on precedent only to define the relevant legal standard. See, e.g., Specht v. Google Inc., 758 F. Supp. 2d 570, 583-585 (ND Ill. 2010), aff'd, 747 F. 3d 929 (CA7 2014); Children's Legal Servs. PLLC v. Kresch, 2008 WL 1901245, *1-*2 (ED Mich., Apr. 25, 2008), aff 'd sub nom. Children's Legal Servs., P. L. L. C. v. Saiontz, Kirk & Miles, P. A., 2009 WL 1868809 (CA6, June 18, 2009).2 Third, and related, petitioner worries that the predict-ability required for a functioning trademark system will be absent if tacking questions are assigned to juries. See Brief for Petitioner 25-27. But, again, the same could be said about the tort, contract, and criminal justice systems: In all of these areas, juries answer often-dispositive fac-tual questions or make dispositive applications of legal standards to facts. The fact that another jury, hearing the same case, might reach a different conclusion may make the system "unpredictable," but it has never stopped us from employing juries in these analogous contexts. Petitioner has offered no reason why trademark tacking ought to be treated differently. Moreover, decisionmaking in fact-intensive disputes necessarily requires judgment calls. Regardless of whether those judgment calls are made by juries or judges, they necessarily involve some degree of uncertainty, particularly when they have to do with how reasonable persons would behave. Finally, petitioner argues that, as a historical matter, judges have resolved tacking disputes. See Brief for Petitioner 30-35. But petitioner relies on cases in which judges have resolved tacking disputes in bench trials, at summary judgment, or the like. See, e.g., Drexel Enterprises, Inc. v. Richardson, 312 F. 2d 525, 526 (CA10 1962) ("[This action] was tried without a jury"); Perfectform Corp. v. Perfect Brassiere Co., 256 F. 2d 736, 738 (CA3 1958) ("The district court dismissed the complaint"); John Morrell & Co. v. Hauser Packing Co., 20 F. 2d 713 (CA9 1927) ("In the court below, there was a dismissal of both the bill and of defendant's counterclaim"); Beech-Nut Packing Co. v. P. Lorillard Co., 299 F. 834, 835 (NJ 1924) (equitable claims tried solely before a judge). As we have noted, it is undisputed that judges may resolve tacking disputes in those contexts. But recognizing as much does not gainsay our conclusion that, when a jury is to be empaneled and when the facts warrant neither summary judgment nor judgment as a matter of law, tacking is a question for the jury.* * * The Ninth Circuit correctly held that whether two marks may be tacked for purposes of determining priority is a question for the jury. Accordingly, the judgment of the Ninth Circuit is affirmed.It is so ordered.FOOTNOTESFootnote 1 The parties do not question the existence of the tacking doctrine or this substantive standard.Footnote 2 Our decision in Markman v. Westview Instruments, Inc., 517 U. S. 370 (1996), is not to the contrary. In Markman, we held that the task of construing patent terms falls to judges and not to juries. We held as much because "[t]he construction of written instruments is one of those things that judges often do and are likely to do better than jurors unburdened by training in exegesis." Id., at 388; see Teva Pharmaceuticals USA, Inc., v. Sandoz, Inc., ante, at 5. The tacking inquiry, by contrast, involves a factual judgment about whether two marks give the same impression to consumers. Making that kind of judgment is, as discussed above, not "one of those things that judges often do" better than jurors.

In a proceeding instituted in 1950, a lawyer was disbarred by a State Supreme Court in 1954 for forging a promissory note in 1935, when he concededly was suffering from a degree of insanity which resulted in his confinement in an insane asylum for several years thereafter. After release from the asylum, he had practiced law for six years without any charge of misconduct being brought against him. Solely because of his disbarment by the State Court, petitioner subsequently was disbarred by a Federal District Court under a Rule providing for such action "Whenever ... any member of its bar has been disbarred ... from practice ... in any other court." Held: The District Court erred in considering itself conclusively bound by the state-court disbarment, and the case is remanded to the District Court for disposition on the merits under its Rules, in accordance with the standards defined in Selling v. Radford, , and in this Court's opinion in this case. Pp. 279-283. (a) While a lawyer is admitted into a federal court by way of a state court, he is not automatically sent out of the federal court by the same route. P. 281. (b) Ample opportunity must be afforded to show cause why an accused practitioner should not be disbarred: and an order of disbarment by a state court is not conclusively binding on federal courts. P. 282. (c) The "principles of right and justice" do not require a federal court to enforce automatic disbarment of a lawyer 18 years after he had uttered a forgery when concededly he was suffering from some form of insanity. P. 282. 228 F.2d 617, reversed and remanded.Delvaille H. Theard argued the cause and filed a brief pro se.Edward H. Hickey argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub and Paul A. Sweeney.James G. Schillin filed a brief for the Committee on Professional Ethics and Grievances of the Louisiana State Bar Association supporting the United States.MR. JUSTICE FRANKFURTER delivered the opinion of the Court.Because of petitioner's disbarment by the Supreme Court of Louisiana, the United States District Court for the Eastern District of Louisiana struck him from its roll of attorneys, and the Court of Appeals for the Fifth Circuit affirmed the order. 228 F.2d 617. The case raises an important question regarding disbarment by a federal court on the basis of disbarment by a state court and so we granted certiorari. .A proceeding for disbarment of a lawyer is always painful. The circumstances of this case make it puzzling as well as painful. The facts are few and clear. It is undisputed that petitioner, in 1935, forged a promissory note and collected its proceeds. Criminal prosecution and action for disbarment were duly initiated but both were aborted because the petitioner was "suffering under an exceedingly abnormal mental condition, some degree of insanity" at the time of this behavior, to such a degree that he was committed to an insane asylum and was under a decree of interdiction until 1948. Years after, criminal prosecution was unsuccessfully revived, State v. Theard, 212 La. 1022, 34 So.2d 248. The disbarment proceedings, which led to the order in the federal court now under review, got under way in 1950 and the Supreme Court of Louisiana, acting on the findings of a committee of the Louisiana State Bar Association, overruled exceptions to the petition for disbarment. In so doing, the court met the plea of insanity against the claim of misconduct with the statement that it did not "view the mental deficiency of a lawyer at the time of his misconduct to be a valid defense to his disbarment." Louisiana State Bar Association v. Theard, 222 La. 328, 334, 62 So.2d 501, 503. The next year, "after issue had been joined," the Supreme Court of Louisiana appointed a Commissioner to take evidence and to report to that court his findings of fact and conclusions of law. The Commissioner did so and reported to the Supreme Court this fact that we deem vital to the issue before us: "It must then, from the record, be held that the respondent was suffering under an exceedingly abnormal mental condition, some degree of insanity." 225 La. 98, 104, 105, 72 So.2d 310, 312. The Commissioner deemed himself, however, bound by "the law of the case" as announced by the Supreme Court in 222 La. 328, 334, 62 So.2d 501, 503, supra, according to which it was immaterial to disbarment that the petitioner "was probably suffering from amnesia and other mental deficiencies at the time of his misdeeds." Ibid. The Supreme Court of Louisiana in its second decision approved the Commissioner's view about "the law of the case," and added that, were the doctrine otherwise, it would not change its previous ruling. 225 La. 98, 108, 72 So.2d 310, 313.The state proceedings thus establish that petitioner was disbarred in 1954 for an action in 1935, although at the time of the fateful conduct he was concededly in a condition of mental irresponsibility so pronounced that for years he was in an insane asylum under judicial restraint. The proceedings also establish that as an active practitioner for six years preceding disbarment, after recovering his capacity, including the argument of thirty-six cases before the Louisiana Supreme Court and the Court of Appeals for the Parish of Orleans, no charge of misconduct or impropriety was brought against him. It is not for this Court, except within the narrow limits for review open to this Court, as recently canvassed in Konigsberg v. California, , and Schware v. Board of Bar Examiners, , to sit in judgment on Louisiana disbarments, and we are not in any event sitting in review of the Louisiana judgment. While a lawyer is admitted into a federal court by way of a state court, he is not automatically sent out of the federal court by the same route. The two judicial systems of courts, the state judicatures and the federal judiciary, have autonomous control over the conduct of their officers, among whom, in the present context, lawyers are included. The court's control over a lawyer's professional life derives from his relation to the responsibilities of a court. The matter was compendiously put by Mr. Justice Cardozo, while Chief Judge of the New York Court of Appeals. "`Membership in the bar is a privilege burdened with conditions' (Matter of Rouss, [221 N. Y. 81, 84, 116 N. E. 782, 783]). The appellant was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice." People ex rel. Karlin v. Culkin, 248 N. Y. 465, 470-471, 162 N. E. 487, 489. The power of disbarment is necessary for the protection of the public in order to strip a man of the implied representation by courts that a man who is allowed to hold himself out to practice before them is in "good standing" so to do.The rules of the various federal courts, more particularly the District Court which disbarred this petitioner, have provisions substantially like the present Rule 8 of this Court dealing with disbarment. "Where it is shown to the court that any member of its bar has been disbarred from practice in any State, Territory, District, Commonwealth, or Possession, or has been guilty of conduct unbecoming a member of the bar of this court, he will be forthwith suspended from practice before this court. He will thereupon be afforded the opportunity to show good cause, within forty days, why he should not be disbarred." Disbarment being the very serious business that it is, ample opportunity must be afforded to show cause why an accused practitioner should not be disbarred. If the accusation rests on disbarment by a state court, such determination of course brings title deeds of high respect. But it is not conclusively binding on the federal courts. The recognition that must be accorded such a state judgment and the extent of the responsibility that remains in the federal judiciary were authoritatively expounded in Selling v. Radford, . The short of it is that disbarment by federal courts does not automatically flow from disbarment by state courts. Of the conditions that qualify such a state court judgment, the one here relevant is that some "grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do." Id., at 51.We do not think that "the principles of right and justice" require a federal court to enforce disbarment of a man eighteen years after he had uttered a forgery when concededly he "was suffering under an exceedingly abnormal mental condition, some degree of insanity." Neither considerations relating to "the law of the case," cf. Messenger v. Anderson, , nor the temptation to get bogged down in the quagmire of controversy about the M'Naghten rule, require automatic acceptance by a federal court of the state disbarment in the circumstances of this case. The District Court apparently felt itself so bound. This we deem error. The case must therefore be remanded to that court for disposition of the motion for disbarment under that court's Rule 1 (f) of its General Rules, in accordance with the standards defined in Selling v. Radford, supra, and this opinion. It is so ordered. THE CHIEF JUSTICE and MR. JUSTICE BLACK concur in the result.MR. JUSTICE WHITTAKER took no part in the consideration or decision of this case.

Counsel of RecordFor Petitioner Roper:Stephen D. Hawke Assistant Attorney General Jefferson City, MO For Respondent Simmons:Jennifer Herndon St. Louis, MO At age 17, respondent Simmons planned and committed a capital murder. After he had turned 18, he was sentenced to death. His direct appeal and subsequent petitions for state and federal postconviction relief were rejected. This Court then held, in Atkins v. Virginia, 536 U. S. 304, that the Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the execution of a mentally retarded person. Simmons filed a new petition for state postconviction relief, arguing that Atkins' reasoning established that the Constitution prohibits the execution of a juvenile who was under 18 when he committed his crime. The Missouri Supreme Court agreed and set aside Simmons' death sentence in favor of life imprisonment without eligibility for release. It held that, although Stanford v. Kentucky, 492 U. S. 361, rejected the proposition that the Constitution bars capital punishment for juvenile offenders younger than 18, a national consensus has developed against the execution of those offenders since Stanford. Held: The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. Pp. 6-25. (a) The Eighth Amendment's prohibition against "cruel and unusual punishments" must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework this Court has established the propriety and affirmed the necessity of referring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be "cruel and unusual." Trop v. Dulles, 356 U. S. 86, 100-101. In 1988, in Thompson v. Oklahoma, 487 U. S. 815, 818-838, a plurality determined that national standards of decency did not permit the execution of any offender under age 16 at the time of the crime. The next year, in Stanford, a 5-to-4 Court referred to contemporary standards of decency, but concluded the Eighth and Fourteenth Amendments did not proscribe the execution of offenders over 15 but under 18 because 22 of 37 death penalty States permitted that penalty for 16-year-old offenders, and 25 permitted it for 17-year-olds, thereby indicating there was no national consensus. 492 U. S. 302, 334, that the Eighth Amendment did not mandate a categorical exemption from the death penalty for mentally retarded persons because only two States had enacted laws banning such executions. Three Terms ago in Atkins, however, the Court held that standards of decency had evolved since Penry and now demonstrated that the execution of the mentally retarded is cruel and unusual punishment. The Atkins Court noted that objective indicia of society's standards, as expressed in pertinent legislative enactments and state practice, demonstrated that such executions had become so truly unusual that it was fair to say that a national consensus has developed against them. 536 U. S., at 314-315. The Court also returned to the rule, established in decisions predating Stanford, that the Constitution contemplates that the Court's own judgment be brought to bear on the question of the acceptability of the death penalty. Id., at 312. After observing that mental retardation diminishes personal culpability even if the offender can distinguish right from wrong, id., at 318, and that mentally retarded offenders' impairments make it less defensible to impose the death penalty as retribution for past crimes or as a real deterrent to future crimes, id., at 319-320, the Court ruled that the death penalty constitutes an excessive sanction for the entire category of mentally retarded offenders, and that the Eighth Amendment places a substantive restriction on the State's power to take such an offender's life, id., at 321. Just as the Atkins Court reconsidered the issue decided in Penry, the Court now reconsiders the issue decided in Stanford. Pp. 6-10. (b) Both objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question, and the Court's own determination in the exercise of its independent judgment, demonstrate that the death penalty is a disproportionate punishment for juveniles. Pp. 10-21. (1) As in Atkins, the objective indicia of national consensus here — the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice — provide sufficient evidence that today society views juveniles, in the words Atkins used respecting the mentally retarded, as "categorically less culpable than the average criminal," 536 U. S., at 316. The evidence of such consensus is similar, and in some respects parallel, to the evidence in Atkins: 30 States prohibit the juvenile death penalty, including 12 that have rejected it altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. Moreover, even in the 20 States without a formal prohibition, the execution of juveniles is infrequent. Although, by contrast to Atkins, the rate of change in reducing the incidence of the juvenile death penalty, or in taking specific steps to abolish it, has been less dramatic, the difference between this case and Atkins in that respect is counterbalanced by the consistent direction of the change toward abolition. Indeed, the slower pace here may be explained by the simple fact that the impropriety of executing juveniles between 16 and 18 years old gained wide recognition earlier than the impropriety of executing the mentally retarded. Pp. 10-13. (2) Rejection of the imposition of the death penalty on juvenile offenders under 18 is required by the Eighth Amendment. Capital punishment must be limited to those offenders who commit "a narrow category of the most serious crimes" and whose extreme culpability makes them "the most deserving of execution." Atkins, 487 U. S. 815, 835. Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, supra, at 395. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. The Thompson plurality recognized the import of these characteristics with respect to juveniles under 16. 487 U. S., at 833-838. The same reasoning applies to all juvenile offenders under 18. Once juveniles' diminished culpability is recognized, it is evident that neither of the two penological justifications for the death penalty — retribution and deterrence of capital crimes by prospective offenders, e.g., Atkins, 536 U. S., at 319 — provides adequate justification for imposing that penalty on juveniles. Although the Court cannot deny or overlook the brutal crimes too many juvenile offenders have committed, it disagrees with petitioner's contention that, given the Court's own insistence on individualized consideration in capital sentencing, it is arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on an offender under 18. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. While drawing the line at 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest. Stanford should be deemed no longer controlling on this issue. Pp. 14-21. (c) The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court's determination that the penalty is disproportionate punishment for offenders under 18. See, e.g., Thompson, supra, at 830-831, and n. 31. The United States is the only country in the world that continues to give official sanction to the juvenile penalty. It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom. Pp. 21-25.112 S. W. 3d 397, affirmed. Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. O'Connor, J., filed a dissenting opinion. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined.DONALD P. ROPER, SUPERINTENDENT, POTOSICORRECTIONAL CENTER, PETITIONER v.CHRISTOPHER SIMMONSon writ of certiorari to the supreme court ofmissouri[March 1, 2005] Justice Kennedy delivered the opinion of the Court. This case requires us to address, for the second time in a decade and a half, whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime. In Stanford v. Kentucky, 492 U. S. 361 (1989), a divided Court rejected the proposition that the Constitution bars capital punishment for juvenile offenders in this age group. We reconsider the question.I At the age of 17, when he was still a junior in high school, Christopher Simmons, the respondent here, committed murder. About nine months later, after he had turned 18, he was tried and sentenced to death. There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could "get away with it" because they were minors. The three met at about 2 a.m. on the night of the murder, but Tessmer left before the other two set out. (The State later charged Tessmer with conspiracy, but dropped the charge in exchange for his testimony against Simmons.) Simmons and Benjamin entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, "Who's there?" In response Simmons entered Mrs. Crook's bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her. Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below. By the afternoon of September 9, Steven Crook had returned home from an overnight trip, found his bedroom in disarray, and reported his wife missing. On the same afternoon fishermen recovered the victim's body from the river. Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman "because the bitch seen my face." The next day, after receiving information of Simmons' involvement, police arrested him at his high school and took him to the police station in Fenton, Missouri. They read him his Miranda rights. Simmons waived his right to an attorney and agreed to answer questions. After less than two hours of interrogation, Simmons confessed to the murder and agreed to perform a videotaped reenactment at the crime scene. The State charged Simmons with burglary, kidnaping, stealing, and murder in the first degree. As Simmons was 17 at the time of the crime, he was outside the criminal jurisdiction of Missouri's juvenile court system. See Mo. Rev. Stat. §§211.021 (2000) and 211.031 (Supp. 2003). He was tried as an adult. At trial the State introduced Simmons' confession and the videotaped reenactment of the crime, along with testimony that Simmons discussed the crime in advance and bragged about it later. The defense called no witnesses in the guilt phase. The jury having returned a verdict of murder, the trial proceeded to the penalty phase. The State sought the death penalty. As aggravating factors, the State submitted that the murder was committed for the purpose of receiving money; was committed for the purpose of avoiding, interfering with, or preventing lawful arrest of the defendant; and involved depravity of mind and was outrageously and wantonly vile, horrible, and inhuman. The State called Shirley Crook's husband, daughter, and two sisters, who presented moving evidence of the devastation her death had brought to their lives. In mitigation Simmons' attorneys first called an officer of the Missouri juvenile justice system, who testified that Simmons had no prior convictions and that no previous charges had been filed against him. Simmons' mother, father, two younger half brothers, a neighbor, and a friend took the stand to tell the jurors of the close relationships they had formed with Simmons and to plead for mercy on his behalf. Simmons' mother, in particular, testified to the responsibility Simmons demonstrated in taking care of his two younger half brothers and of his grandmother and to his capacity to show love for them. During closing arguments, both the prosecutor and defense counsel addressed Simmons' age, which the trial judge had instructed the jurors they could consider as a mitigating factor. Defense counsel reminded the jurors that juveniles of Simmons' age cannot drink, serve on juries, or even see certain movies, because "the legislatures have wisely decided that individuals of a certain age aren't responsible enough." Defense counsel argued that Simmons' age should make "a huge difference to [the jurors] in deciding just exactly what sort of punishment to make." In rebuttal, the prosecutor gave the following response: "Age, he says. Think about age. Seventeen years old. Isn't that scary? Doesn't that scare you? Mitigating? Quite the contrary I submit. Quite the contrary." The jury recommended the death penalty after finding the State had proved each of the three aggravating factors submitted to it. Accepting the jury's recommendation, the trial judge imposed the death penalty. Simmons obtained new counsel, who moved in the trial court to set aside the conviction and sentence. One argument was that Simmons had received ineffective assistance at trial. To support this contention, the new counsel called as witnesses Simmons' trial attorney, Simmons' friends and neighbors, and clinical psychologists who had evaluated him. Part of the submission was that Simmons was "very immature," "very impulsive," and "very susceptible to being manipulated or influenced." The experts testified about Simmons' background including a difficult home environment and dramatic changes in behavior, accompanied by poor school performance in adolescence. Simmons was absent from home for long periods, spending time using alcohol and drugs with other teenagers or young adults. The contention by Simmons' postconviction counsel was that these matters should have been established in the sentencing proceeding. The trial court found no constitutional violation by reason of ineffective assistance of counsel and denied the motion for postconviction relief. In a consolidated appeal from Simmons' conviction and sentence, and from the denial of postconviction relief, the Missouri Supreme Court affirmed. State v. Simmons, 944 S. W. 2d 165, 169 (en banc), cert. denied, 522 U. S. 953 (1997). The federal courts denied Simmons' petition for a writ of habeas corpus. Simmons v. Bowersox, 235 F. 3d 1124, 1127 (CA8), cert. denied, 534 U. S. 924 (2001). After these proceedings in Simmons' case had run their course, this Court held that the Eighth and Fourteenth Amendments prohibit the execution of a mentally retarded person. Atkins v. Virginia, 536 U. S. 304 (2002). Simmons filed a new petition for state postconviction relief, arguing that the reasoning of Atkins established that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed. The Missouri Supreme Court agreed. State ex rel. Simmons v. Roper, 112 S. W. 3d 397 (2003) (en banc). It held that since Stanford,"a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade." 112 S. W. 3d, at 399.On this reasoning it set aside Simmons' death sentence and resentenced him to "life imprisonment without eligibility for probation, parole, or release except by act of the Governor." Id., at 413. We granted certiorari, 540 U. S. 1160 (2004), and now affirm.II The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The provision is applicable to the States through the Fourteenth Amendment. Furman v. Georgia, 408 U. S. 238, 239 (1972) (per curiam); Robinson v. California, 370 U. S. 660, 666-667 (1962); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463 (1947) (plurality opinion). As the Court explained in Atkins, the Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions. The right flows from the basic " 'precept of justice that punishment for crime should be graduated and proportioned to [the] offense.' " 217 U. S. 349, 367 (1910)). By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons. The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity of referring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual. Trop v. Dulles, 356 U. S. 86, 100-101 (1958) (plurality opinion). In Thompson v. Oklahoma, a plurality of the Court determined that our standards of decency do not permit the execution of any offender under the age of 16 at the time of the crime. Id., at 818-838 (opinion of Stevens, J., joined by Brennan, Marshall, and Blackmun, JJ.). The plurality opinion explained that no death penalty State that had given express consideration to a minimum age for the death penalty had set the age lower than 16. Id., at 826-829. The plurality also observed that "[t]he conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community." Id., at 830. The opinion further noted that juries imposed the death penalty on offenders under 16 with exceeding rarity; the last execution of an offender for a crime committed under the age of 16 had been carried out in 1948, 40 years prior. Id., at 832-833. Bringing its independent judgment to bear on the permissibility of the death penalty for a 15-year-old offender, the Thompson plurality stressed that "[t]he reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult." Id., at 835. According to the plurality, the lesser culpability of offenders under 16 made the death penalty inappropriate as a form of retribution, while the low likelihood that offenders under 16 engaged in "the kind of cost-benefit analysis that attaches any weight to the possibility of execution" made the death penalty ineffective as a means of deterrence. Id., at 836-838. With Justice O'Connor concurring in the judgment on narrower grounds, id., at 848-859, the Court set aside the death sentence that had been imposed on the 15-year-oldoffender. The next year, in Stanford v. Kentucky, 492 U. S. 361 (1989), the Court, over a dissenting opinion joined by four Justices, referred to contemporary standards of decency in this country and concluded the Eighth and Fourteenth Amendments did not proscribe the execution of juvenile offenders over 15 but under 18. The Court noted that 22 of the 37 death penalty States permitted the death penalty for 16-year-old offenders, and, among these 37 States, 25 permitted it for 17-year-old offenders. These numbers, in the Court's view, indicated there was no national consensus "sufficient to label a particular punishment cruel and unusual." Id., at 370-371. A plurality of the Court also "emphatically reject[ed]" the suggestion that the Court should bring its own judgment to bear on the acceptability of the juvenile death penalty. Id., at 377-378 (opinion of Scalia, J., joined by Rehnquist, C. J., and White and Kennedy, JJ.); see also id., at 382 (O'Connor, J., concurring in part and concurring in judgment) (criticizing the plurality's refusal "to judge whether the ' "nexus between the punishment imposed and the defendant's blameworthiness" ' is proportional"). The same day the Court decided Stanford, it held that the Eighth Amendment did not mandate a categorical exemption from the death penalty for the mentally retarded. Penry v. Lynaugh, 492 U. S. 302 (1989). In reaching this conclusion it stressed that only two States had enacted laws banning the imposition of the death penalty on a mentally retarded person convicted of a capital offense. Id., at 334. According to the Court, "the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 States that have rejected capital punishment completely, [did] not provide sufficient evidence at present of a national consensus." Ibid. Three Terms ago the subject was reconsidered in Atkins. We held that standards of decency have evolved since Penry and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment. The Court noted objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions of the mentally retarded. When Atkins was decided only a minority of States permitted the practice, and even in those States it was rare. 536 U. S., at 314-315. On the basis of these indicia the Court determined that executing mentally retarded offenders "has become truly unusual, and it is fair to say that a national consensus has developed against it." Id., at 316. The inquiry into our society's evolving standards of decency did not end there. The Atkins Court neither repeated nor relied upon the statement in Stanford that the Court's independent judgment has no bearing on the acceptability of a particular punishment under the Eighth Amendment. Instead we returned to the rule, established in decisions predating Stanford, that " 'the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.' " 433 U. S. 584, 597 (1977) (plurality opinion)). Mental retardation, the Court said, diminishes personal culpability even if the offender can distinguish right from wrong. 477 U. S. 399, 405 (1986)). Just as the Atkins Court reconsidered the issue decided in Penry, we now reconsider the issue decided in Stanford. The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. This data gives us essential instruction. We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.IIIAThe evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the mentally retarded. When Atkins was decided, 30 States prohibited the death penalty for the mentally retarded. This number comprised 12 that had abandoned the death penalty altogether, and 18 that maintained it but excluded the mentally retarded from its reach. 536 U. S., at 313-315. By a similar calculation in this case, 30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. See Appendix A, infra. Atkins emphasized that even in the 20 States without formal prohibition, the practice of executing the mentally retarded was infrequent. Since Penry, only five States had executed offenders known to have an IQ under 70. 536 U. S., at 316. In the present case, too, even in the 20 States without a formal prohibition on executing juveniles, the practice is infrequent. Since Stanford, six States have executed prisoners for crimes committed as juveniles. In the past 10 years, only three have done so: Okla-homa, Texas, and Virginia. See V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executionsfor Juvenile Crimes, January 1, 1973-December 31,2004, No. 76, p. 4 (2005), available at http://www.law.onu.edu/faculty/streib/documents/JuvDeathDec2004.pdf(last updated Jan. 31, 2005) (as visited Feb. 25, 2005, and available in the Clerk of Court's case file). In December 2003 the Governor of Kentucky decided to spare the life of Kevin Stanford, and commuted his sentence to one of life imprisonment without parole, with the declaration that " '[w]e ought not be executing people who, legally, were children.' " Lexington Herald Leader, Dec. 9, 2003, p. B3, 2003 WL 65043346. By this act the Governor ensured Kentucky would not add itself to the list of States that have executed juveniles within the last 10 years even by the execution of the very defendant whose death sentence the Court had upheld in Stanford v. Kentucky. There is, to be sure, at least one difference between the evidence of consensus in Atkins and in this case. Impressive in Atkins was the rate of abolition of the death penalty for the mentally retarded. Sixteen States that permitted the execution of the mentally retarded at the time of Penry had prohibited the practice by the time we heard Atkins. By contrast, the rate of change in reducing the incidence of the juvenile death penalty, or in taking specific steps to abolish it, has been slower. Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years — four through legislative enactments and one through judicial decision. Streib, supra, at 5, 7; State v. Furman, 122 Wash. 2d 400, 858 P. 2d 1092 (1993) (en banc). Though less dramatic than the change from Penry to Atkins ("telling," to borrow the word Atkins used to describe this difference, 536 U. S., at 315, n. 18), we still consider the change from Stanford to this case to be significant. As noted in Atkins, with respect to the States that had abandoned the death penalty for the mentally retarded since Penry, "[i]t is not so much the number of these States that is significant, but the consistency of the direction of change." 536 U. S., at 315. In particular we found it significant that, in the wake of Penry, no State that had already prohibited the execution of the mentally retarded had passed legislation to reinstate the penalty. 536 U. S., at 315-316. The number of States that have abandoned capital punishment for juvenile offenders since Stanford is smaller than the number of States that abandoned capital punishment for the mentally retarded after Penry; yet we think the same consistency of direction of change has been demonstrated. Since Stanford, no State that previously prohibited capital punishment for juveniles has reinstated it. This fact, coupled with the trend toward abolition of the juvenile death penalty, carries special force in light of the general popularity of anticrime legislation, Atkins, supra, at 315, and in light of the particular trend in recent years toward cracking down on juvenile crime in other respects, see H. Snyder & M. Sickmund, National Center for Juvenile Justice, Juvenile Offenders and Victims: 1999 National Report 89, 133 (Sept. 1999); Scott & Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. Crim. L. & C. 137, 148 (1997). Any difference between this case and Atkins with respect to the pace of abolition is thus counterbalanced by the consistent direction of the change. The slower pace of abolition of the juvenile death penalty over the past 15 years, moreover, may have a simple explanation. When we heard Penry, only two death penalty States had already prohibited the execution of the mentally retarded. When we heard Stanford, by contrast, 12 death penalty States had already prohibited the execution of any juvenile under 18, and 15 had prohibited the execution of any juvenile under 17. If anything, this shows that the impropriety of executing juveniles between 16 and 18 years of age gained wide recognition earlier than the impropriety of executing the mentally retarded. In the words of the Missouri Supreme Court: "It would be the ultimate in irony if the very fact that the inappropriateness of the death penalty for juveniles was broadly recognized sooner than it was recognized for the mentally retarded were to become a reason to continue the execution of juveniles now that the execution of the mentally retarded has been barred." 112 S. W. 3d, at 408, n. 10. Petitioner cannot show national consensus in favor of capital punishment for juveniles but still resists the conclusion that any consensus exists against it. Petitioner supports this position with, in particular, the observation that when the Senate ratified the International Covenant on Civil and Political Rights (ICCPR), Dec. 19, 1966, 999 U. N. T. S. 171 (entered into force Mar. 23, 1976), it did so subject to the President's proposed reservation regarding Article 6(5) of that treaty, which prohibits capital punishment for juveniles. Brief for Petitioner 27. This reservation at best provides only faint support for petitioner's argument. First, the reservation was passed in 1992; since then, five States have abandoned capital punishment for juveniles. Second, Congress considered the issue when enacting the Federal Death Penalty Act in 1994, and determined that the death penalty should not extend to juveniles. See 18 U. S. C. §3591. The reservation to Article 6(5) of the ICCPR provides minimal evidence that there is not now a national consensus against juvenile executions. As in Atkins, the objective indicia of consensus in this case — the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice — provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as "categorically less culpable than the average criminal." 536 U. S., at 316.B A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment. Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. Thompson, 446 U. S. 420, 428-429 (1980) (plurality opinion). In any capital case a defendant has wide latitude to raise as a mitigating factor "any aspect of [his or her] character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion); Eddings v. Oklahoma, 455 U. S. 104, 110-112 (1982); see also Johnson v. Texas, 509 U. S. 350, 359-362 (1993) (summarizing the Court's jurisprudence after Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), with respect to a sentencer's consideration of aggravating and mitigating factors). There are a number of crimes that beyond question are severe in absolute terms, yet the death penalty may not be imposed for their commission. Coker v. Georgia, 433 U. S. 584 (1977) (rape of an adult woman); Enmund v. Florida, 458 U. S. 782 (1982) (felony murder where defendant did not kill, attempt to kill, or intend to kill). The death penalty may not be imposed on certain classes of offenders, such as juveniles under 16, the insane, and the mentally retarded, no matter how heinous the crime. Thompson v. Oklahoma, supra; Ford v. Wainwright, 477 U. S. 399 (1986); Atkins, supra. These rules vindicate the underlying principle that the death penalty is reserved for a narrow category of crimes and offenders. Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions." Johnson, supra, at 367; see also Eddings, supra, at 115-116 ("Even the normal 16-year-old customarily lacks the maturity of an adult"). It has been noted that "adolescents are overrepresented statistically in virtually every category of reckless behavior." Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Review 339 (1992). In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. See Appendixes B-D, infra. The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. Eddings, supra, at 115 ("[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage"). This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003) (hereinafter Steinberg & Scott) ("[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting"). The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis (1968). These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult." Thompson, supra, at 835 (plurality opinion). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, 492 U. S., at 395 (Brennan, J., dissenting). The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, "[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside." Johnson, supra, at 368; see also Steinberg & Scott 1014 ("For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood"). In Thompson, a plurality of the Court recognized the import of these characteristics with respect to juveniles under 16, and relied on them to hold that the Eighth Amendment prohibited the imposition of the death penalty on juveniles below that age. 487 U. S., at 833-838. We conclude the same reasoning applies to all juvenile offenders under 18. Once the diminished culpability of juveniles is recognized, it is evident that the penological justifications for the death penalty apply to them with lesser force than to adults. We have held there are two distinct social purposes served by the death penalty: " 'retribution and deterrence of capital crimes by prospective offenders.' " Atkins, 428 U. S. 153, 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). As for retribution, we remarked in Atkins that "[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution." 536 U. S., at 319. The same conclusions follow from the lesser culpability of the juvenile offender. Whether viewed as an attempt to express the community's moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Retribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity. As for deterrence, it is unclear whether the death penalty has a significant or even measurable deterrent effect on juveniles, as counsel for the petitioner acknowledged at oral argument. Tr. of Oral Arg. 48. In general we leave to legislatures the assessment of the efficacy of various criminal penalty schemes, see Harmelin v. Michigan, 501 U. S. 957, 998-999 (1991) (Kennedy, J., concurring in part and concurring in judgment). Here, however, the absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence. In particular, as the plurality observed in Thompson, "[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent." 487 U. S., at 837. To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person. In concluding that neither retribution nor deterrence provides adequate justification for imposing the death penalty on juvenile offenders, we cannot deny or overlook the brutal crimes too many juvenile offenders have committed. See Brief for Alabama et al. as Amici Curiae. Certainly it can be argued, although we by no means concede the point, that a rare case might arise in which a juvenile offender has sufficient psychological maturity, and at the same time demonstrates sufficient depravity, to merit a sentence of death. Indeed, this possibility is the linchpin of one contention pressed by petitioner and his amici. They assert that even assuming the truth of the observations we have made about juveniles' diminished culpability in general, jurors nonetheless should be allowed to consider mitigating arguments related to youth on a case-by-case basis, and in some cases to impose the death penalty if justified. A central feature of death penalty sentencing is a particular assessment of the circumstances of the crime and the characteristics of the offender. The system is designed to consider both aggravating and mitigating circumstances, including youth, in every case. Given this Court's own insistence on individualized consideration, petitioner maintains that it is both arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on any offender under 18 years of age. We disagree. The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. In some cases a defendant's youth may even be counted against him. In this very case, as we noted above, the prosecutor argued Simmons' youth was aggravating rather than mitigating. Supra, at 4. While this sort of overreaching could be corrected by a particular rule to ensure that the mitigating force of youth is not overlooked, that would not address our larger concerns. It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. See Steinberg & Scott 1014-1016. As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under 18 as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and contempt for the feelings, rights, and suffering of others. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 701-706 (4th ed. text rev. 2000); see also Steinberg & Scott 1015. If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, we conclude that States should refrain from asking jurors to issue a far graver condemnation — that a juvenile offender merits the death penalty. When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. The plurality opinion in Thompson drew the line at 16. In the intervening years the Thompson plurality's conclusion that offenders under 16 may not be executed has not been challenged. The logic of Thompson extends to those who are under 18. The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest. These considerations mean Stanford v. Kentucky should be deemed no longer controlling on this issue. To the extent Stanford was based on review of the objective indicia of consensus that obtained in 1989, 492 U. S., at 370-371, it suffices to note that those indicia have changed. Supra, at 10-13. It should be observed, furthermore, that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty, 492 U. S., at 370, n. 2; a State's decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders, including juveniles. Last, to the extent Stanford was based on a rejection of the idea that this Court is required to bring its independent judgment to bear on the proportionality of the death penalty for a particular class of crimes or offenders, id., at 377-378 (plurality opinion), it suffices to note that this rejection was inconsistent with prior Eighth Amendment decisions, Thompson, 487 U. S., at 833-838 (plurality opinion); Enmund, 458 U. S., at 797; Coker, 433 U. S., at 597 (plurality opinion). It is also inconsistent with the premises of our recent decision in Atkins. 536 U. S., at 312-313, 317-321. In holding that the death penalty cannot be imposed upon juvenile offenders, we take into account the circumstance that some States have relied on Stanford in seeking the death penalty against juvenile offenders. This consideration, however, does not outweigh our conclusion that Stanford should no longer control in those few pending cases or in those yet to arise.IV Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments." 356 U. S., at 102-103 (plurality opinion) ("The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime"); see also Atkins, supra, at 317, n. 21 (recognizing that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved"); Thompson, supra, at 830-831, and n. 31 (plurality opinion) (noting the abolition of the juvenile death penalty "by other nations that share our Anglo-American heritage, and by the leading members of the Western European community," and observing that "[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual"); Enmund, supra, at 796-797, n. 22 (observing that "the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe"); Coker, supra, at 596, n. 10 (plurality opinion) ("It is ... not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue"). As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committedby juveniles under 18. United Nations Convention onthe Rights of the Child, Art. 37, Nov. 20, 1989, 1577U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470 (entered into force Sept. 2, 1990); Brief for Respondent 48; Brief for European Union et al. as Amici Curiae 12-13; Brief for President James Earl Carter, Jr., et al. as Amici Curiae 9; Brief for Former U. S. Diplomats Morton Abramowitz et al. as Amici Curiae 7; Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 13-14. No ratifying country has entered a reservation to the provision prohibiting the execution of juvenile offenders. Parallel prohibitions are contained in other significant international covenants. See ICCPR, Art. 6(5), 999 U. N. T. S., at 175 (prohibiting capital punishment for anyone under 18 at the time of offense) (signed and ratified by the United States subject to a reservation regarding Article 6(5), as noted, supra, at 13); American Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5), Nov. 22, 1969, 1144 U. N. T. S. 146 (entered into force July 19, 1978) (same); African Charter on the Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/24.9/49 (1990) (entered into force Nov. 29, 1999) (same). Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. Brief for Respondent 49-50. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty. Though the international covenants prohibiting the juvenile death penalty are of more recent date, it is instructive to note that the United Kingdom abolished the juvenile death penalty before these covenants came into being. The United Kingdom's experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment's own origins. The Amendment was modeled on a parallel provision in the English Declaration of Rights of 1689, which provided: "[E]xcessive Bail ought not to be required nor excessive Fines imposed; nor cruel and unusuall Punishments inflicted." 1 W. & M., ch. 2, §10, in 3 Eng. Stat. at Large 441 (1770); see also Trop, supra, at 100 (plurality opinion). As of now, the United Kingdom has abolished the death penalty in its entirety; but, decades before it took this step, it recognized the disproportionate nature of the juvenile death penalty; and it abolished that penalty as a separate matter. In 1930 an official committee recommended that the minimum age for execution be raised to 21. House of Commons Report from the Select Committee on Capital Punishment (1930), 193, p. 44. Parliament then enacted the Children and Young Person's Act of 1933, 23 Geo. 5, ch. 12, which prevented execution of those aged 18 at the date of the sentence. And in 1948, Parliament enacted the Criminal Justice Act, 11 & 12 Geo. 6, ch. 58, prohibiting the execution of any person under 18 at the time of the offense. In the 56 years that have passed since the United Kingdom abolished the juvenile death penalty, the weight of authority against it there, and in the international community, has become well established. It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Waleset al. as Amici Curiae 10-11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our ownconclusions. Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.*** The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. The judgment of the Missouri Supreme Court setting aside the sentence of death imposed upon Christopher Simmons is affirmed.It is so ordered.APPENDIX A TO OPINION OF THE COURTI.STATES THAT PERMIT THE IMPOSITION OF THE DEATH PENALTY ON JUVENILESAlabamaAla. Code §13A-6-2(c) (West 2004) (no express minimum age)ArizonaAriz. Rev. Stat. Ann. §13-703(A) (West Supp. 2004) (same)ArkansasArk. Code Ann. §5-4-615 (Michie 1997) (same)DelawareDel. Code Ann., Tit. 11, (Lexis 1995) (same)FloridaFla. Stat. §985.225(1) (2003) (same)GeorgiaGa. Code Ann. §17-9-3 (Lexis 2004) (same)IdahoIdaho Code §18-4004 (Michie 2004) (same)KentuckyKy. Rev. Stat. Ann. §640.040(1) (Lexis 1999) (minimum age of 16)LouisianaLa. Stat. Ann. §14:30(c) (West Supp. 2004) (no express minimum age)MississippiMiss. Code Ann. §97-3-21 (Lexis 2000) (same)MissouriMo. Rev. Stat. Ann. §565.020 (1999) (minimum age of 16)NevadaNev. Rev. Stat. §176.025 (2003) (minimum age of 16)New HampshireN. H. Rev. Stat. Ann. §630:1(V) (West 1996) (minimum age of 17)North CarolinaN. C. Gen. Stat. §14-17 (Lexis 2003) (minimum age of 17, except that those under 17 who commit murder while serving a prison sentence for a previous murder may receive the death penalty)OklahomaOkla. Stat. Ann., Tit. 21, §701.10 (West 2002) (no express minimum age)Pennsylvania18 Pa. Cons. Stat. §1102 (2002) (same)South CarolinaS. C. Code Ann. §16-3-20 (West Supp. 2003 and main ed.) (same)TexasTex. Penal Code Ann. §8.07(c) (West 2003) (minimum age of 17)Utah Utah Code Ann. §76-3-206(1) (Lexis 2002) (no express minimum age)VirginiaVa. Code Ann. §18.2-10(a) (Lexis Supp. 2003) (minimum age of 16)II.STATES THAT RETAIN THE DEATH PENALTY, BUT SET THE MINIMUM AGE AT 18CaliforniaCal. Penal Code Ann. §190.5 (West 1999)ColoradoColo. Rev. Stat. §18-1.4-102(1)(a) (Lexis 2004)ConnecticutConn. Gen. Stat. Ann. §53a-46a(h) (West 2001)IllinoisIll. Comp. Stat. Ann., ch. 720, §5/9-1(b) (West Supp. 2004)IndianaInd. Code Ann. §35-50-2-3 (1993)KansasKan. Stat. Ann. §21-4622 (1995)MarylandMd. Crim. Law Code Ann. §2-202(b)(2)(i) (Lexis 2002)Montana Mont. Code Ann. §45-5-102 (2003)NebraskaNeb. Rev. Stat. §28-105.01(1) (1995)New JerseyN. J. Stat. Ann. §2C:11-3(g) (West Supp. 2003)New MexicoN. M. Stat. Ann. §31-18-14(A) (West Supp. 2000)New YorkN. Y. Penal Law Ann. §125.27(West 2004)OhioOhio Rev. Code Ann. §2929.02(A) (Lexis 2003)Oregon Ore. Rev. Stat. §§161.620, 137.707(2) (1997)South Dakota2004 S. D. Laws ch. 166 to be codified in S. D. Codified Laws §23A-27A-42TennesseeTenn. Code Ann. §37-1-134(a)(1) (Lexis 1996)WashingtonMinimum age of 18 established by judicial decision. State v. Furman, 122 Wash. 2d 440, 858 P. 2d 1092 (1993)WyomingWyo. Stat. §6-2-101(b) (Lexis 2003)***During the past year, decisions by the highest courts of Kansas and New York invalidated provisions in those States' death penalty statutes. State v. Marsh, ___ Kan. ___, 102 P. 3d 445 (2004) (invalidating provision that required imposition of the death penalty if aggravating and mitigating circumstances were found to be in equal balance); People v. LaValle, 3 N. Y. 3d 88, 817 N. E. 2d 341 (2004) (invalidating mandatory requirement to instruct the jury that, in the case of jury deadlock as to the appropriate sentence in a capital case, the defendant would receive a sentence of life imprisonment with parole eligibility after serving a minimum of 20 to 25 years). Due to these decisions, it would appear that in these States the death penalty remains on the books, but that as a practical matter it might not be imposed on anyone until there is a change of course in these decisions, or until the respective state legislatures remedy the problems the courts have identified. Marsh, supra, at ___, ___, 102 p. 3d, at 452, 464; LaValle, supra, at 99, 817 N. E 2d, at 344.III.STATES WITHOUT THE DEATH PENALTYAlaskaHawaiiIowaMaineMassachusettsMichiganMinnesotaNorth DakotaRhode IslandVermontWest VirginiaWisconsinAPPENDIX B TO OPINION OF THE COURTSTATE STATUTES ESTABLISHING A MINIMUM AGE TO VOTESTATE AGESTATUTEAlabama18Ala. Const., Amdt. No. 579Alaska18Alaska Const., Art. V, §1Alaska Stat. §15-05-010 (Lexis 2002)Arizona18Ariz. Const., Art. VII, §2Ariz. Rev. Stat. §16-101 (West 1996)Arkansas 18Ark. Code Ann. §9-25-101 (Lexis 2002)California18Cal. Const., Art. 2, §2Colorado18Colo. Rev. Stat. §1-2-101 (Lexis 2004)Connecticut18Conn. Const., Art. 6, §1Conn. Gen. Stat. §9-12 (2003)Delaware18Del. Code Ann., Tit. 15, §1701 (Michie 2002)District of Columbia18D. C. Code §1-1001.02(2)(B) (West Supp. 2004)Florida18Fla. Stat. ch. 97.041 (2003)Georgia18Ga. Const., Art. 2, §1, ¶2Ga. Code Ann. §21-2-216 (Lexis 2003)HawaiiHaw. Const., Art. II, §1Haw. Rev. Stat. §11-12 (1995)Idaho18Idaho Code §34-402 (Michie 2001)Illinois18Ill. Const., Art. III, §1Ill. Comp. Stat. Ann., ch. 10, §5/3-1 (West 2003)Indiana18Ind. Code Ann. §3-7-13-1 (Lexis 1997)Iowa18Iowa Code §48A.5 (2003)Kansas18Kan. Const., Art. 5, §1Kentucky18Ky. Const., §145Louisiana18La. Const., Art. I, §10La. Rev. Stat. Ann. §18:101 (West 2004)Maine18Me. Const., Art. II, §1Me. Rev. Stat. Ann., Tit. 21-A, §111 (West 1998 and Supp. 2004)Maryland18Md. Elec. Law Code Ann. §3-102 (Lexis 2002)Massachusetts18Mass. Gen. Laws Ann., ch. 51, §1 (West Supp. 2004)Michigan18Mich. Comp. Laws Ann. §168.492 (West 1989)Minnesota18Minn. Stat. §201.014(1)(a) (2002)Mississippi18Miss. Const., Art. 12, §241Missouri18Mo. Const., Art. VIII, §2Montana18Mont. Const., Art. IV, §2Mont. Code Ann. §13-1-111 (2003)Nebraska18Neb. Const., Art. VI, §1Neb. Rev. Stat. §32-110 (2004)Nevada18Nev. Rev. Stat. §293.485 (2003)New Hampshire18N. H. Const., Art., pt. 1, 11New Jersey18N. J. Const., Art. II, §1, ¶3New Mexico18[no provision other than U. S. Const., Amdt. XXVI]New York18N. Y. Elec. Law Ann. §5-102 (West 1998)North Carolina18N. C. Gen. Stat. Ann. §163-55 (Lexis 2003)North Dakota18N. D. Const., Art. II, §1 Ohio18Ohio Const., Art. V, §1Ohio Rev. Code Ann. §3503.01 (Anderson 1996)Oklahoma18Okla. Const., Art. III, §1 Oregon18Ore. Const., Art. II, §2Pennsylvania1825 Pa. Cons. Stat. Ann. §2811 (1994)Rhode Island18R. I. Gen. Laws §17-1-3 (Lexis 2003)South Carolina18S. C. Code Ann. §7-5-610 (West Supp. 2003)South Dakota18S. D. Const., Art. VII, §2S. D. Codified Laws Ann. §12-3-1 (Michie 1995)Tennessee18Tenn. Code Ann. §2-2-102 (Lexis 2003)Texas18Tex. Elec. Code Ann. §11.002 (West 2003)Utah18Utah Const., Art. IV, §2Utah Code Ann. §20A-2-101 (Lexis 2002)Vermont18Vt. Stat. Ann., Tit. 17, §2121 (Lexis 2002)Virginia18Va. Const., Art. II, §1Washington18Wash. Const., Art. VI, §1West Virginia18W. Va. Code §3-1-3 (Lexis 2002)Wisconsin18Wis. Const., Art. III, §1Wis. Stat. §6.02 (West 2004)Wyoming18Wyo. Stat. Ann. §§22-1-102, 22-3-102 (West 2004)***The Twenty-Sixth Amendment to the Constitution of the United States provides that "[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."APPENDIX C TO OPINION OF THE COURTSTATE STATUTES ESTABLISHING A MINIMUM AGE FOR JURY SERVICESTATEAGE STATUTEAlabama19Ala. Code §12-16-60(a)(1) (West 2002)Alaska18Alaska Stat. §09.20.010(a)(3) (Lexis 2002)Arizona18Ariz. Rev. Stat. §21-301(D) (West 2002)Arkansas18Ark. Code Ann. §§16-31-101, 16-32-302 (Lexis 2003)California18Cal. Civ. Proc. §203(a)(2) (West Supp. 2004)Colorado18Colo. Rev. Stat. §13-71-105(2)(a) (Lexis 2004)Connecticut18Conn. Gen. Stat. Ann. §51-217(a) (West Supp. 2004)Delaware18Del. Code Ann., Tit. 10, §4509(b)(2) (Michie 1999)District of Columbia18D. C. Code §11-1906(b)(1)(C) (West 2001)Florida18Fla. Stat. §40.01 (2003)Georgia18Ga. Code Ann. §§15-12-60, 15-12-163 (Lexis 2001)Hawaii18Haw. Rev. Stat. §612-4(a)(1) (2003)Idaho18Idaho Code §2-209(2)(a) (Michie 2003)Illinois18Ill. Comp. Stat. Ann., ch. 705, §305/2 (West 2002)Indiana18Ind. Code Ann. §33-28-4-8 (Lexis 2004)Iowa18Iowa Code §607A.4(1)(a) (2003)Kansas18Kan. Stat. Ann. §43-156 (2000) (jurors must be qualified to be electors); Kan. Const., Art. 5, §1 (person must be 18 to be qualified elector)Kentucky18Ky. Rev. Stat. Ann. §29A.080(2)(a) (Lexis Supp. 2004)Louisiana18La. Code Crim. Proc. Ann., Art. 401(A)(2) (West 2003)Maine18Me. Rev. Stat. Ann., Tit. 14, §1211 (West 1980)Maryland18Md. Cts. & Jud. Proc. Code Ann. §8-104 (Lexis 2002)Massachusetts18Mass. Gen. Laws. Ann., ch. 234, §1 (West 2000) (jurors must be qualified to vote); ch. 51, §1 (West Supp. 2004) (person must be 18 to vote)Michigan18Mich. Comp. Laws Ann. §600.1307a(1)(a) (West Supp. 2004)Minnesota18Minn. Dist. Ct. Rule 808(b)(2) (2002)Mississippi21Miss. Code Ann. §13-5-1 (Lexis 2002)Missouri21Mo. Rev. Stat. §494.425(1) (2000)Montana18Mont. Code Ann. §3-15-301 (2003)Nebraska19Neb. Rev. Stat. §25-1601 (Supp. 2003)Nevada18Nev. Rev. Stat. §6.010 (2003) (juror must be qualified elector); §293.485 (person must be 18 to vote)New Hampshire18N. H. Rev. Stat. Ann. §500-A:7-a(I) (Lexis Supp. 2004)New Jersey18N. J. Stat. Ann. §2B:20-1(a) (West 2004 Pamphlet)New Mexico18N. M. Stat. Ann. §38-5-1 (1998)New York18N. Y. Jud. Law Ann. §510(2) (West 2003)North Carolina18N. C. Gen. Stat. Ann. §9-3 (Lexis 2003)North Dakota18N. D. Cent. Code §27-09.1-08(2)(b) (Supp. 2003)Ohio18Ohio Rev. Code Ann. §2313.42 (Anderson 2001)Oklahoma18Okla. Stat. Ann., Tit. 38, §28 (West Supp. 2005)Rhode Island18R. I. Gen. Laws §9-9-1.1(a)(2) (Lexis Supp. 2004)South Carolina18S. C. Code Ann. §14-7-130 (West Supp. 2003)South Dakota18S. D. Codified Laws §16-13-10 (Lexis Supp. 2003)Tennessee18Tenn. Code Ann. §22-1-101 (Lexis Supp. 2003)Texas18Tex. Govt. Code Ann. §62.102(1) (West 1998)Utah18Utah Code Ann. §78-46-7(1)(b) (Lexis 2002)Vermont18Vt. Stat. Ann., Tit. 4, §962(a)(1) (Lexis 1999); (jurors must have attained age of majority); Tit. 1, §173 (Lexis 2003) (age of majority is 18) Virginia18Va. Code Ann. §8.01-337 (Lexis 2000)Washington18Wash. Rev. Ann. Code §2.36.070 (West 2004)West Virginia18W. Va. Code §52-1-8(b)(1) (Lexis 2000)Wisconsin18Wis. Stat. §756.02 (West 2001)Wyoming18Wyo. Stat. Ann. §1-11-101 (Lexis 2003) (jurors must be adults); §14-1-101 (person becomes an adult at 18) APPENDIX D TO OPINION OF THE COURTSTATE STATUTES ESTABLISHING A MINIMUM AGE FOR MARRIAGE WITHOUT PARENTAL OR JUDICIAL CONSENTSTATEAGESTATUTEAlabama18Ala. Code §30-1-5 (West Supp. 2004)Alaska18Alaska Stat. §§25.05.011, 25.05.171 (Lexis 2002)Arizona18Ariz. Rev. Stat. Ann. §25-102 (West Supp. 2004)Arkansas18Ark. Code Ann. §§9-11-102, 9-11-208 (Lexis 2002)California18Cal. Fam. Code Ann. §301 (West 2004)Colorado18Colo. Rev. Stat. Ann. §14-2-106 (Lexis 2004)Connecticut18Conn. Gen. Stat. §46b-30 (2003)Delaware18Del. Code Ann., Tit. 13, §123 (Lexis 1999)District of Columbia18D. C. Code §46-411 (West 2001)Florida18Fla. Stat. §§741.04, 741.0405 (2003)Georgia16Ga. Code Ann. §§19-3-2, 19-3-37 (Lexis 2004) (those under 18 must obtain parental consent unless female applicant is pregnant or both applicants are parents of a living child, in which case minimum age to marry without consent is 16)Hawaii18Haw. Rev. Stat. §572-2 (1993)Idaho18Idaho Code §32-202 (Michie 1996)Illinois18Ill. Comp. Stat. Ann., ch. 750, §5/203 (West 1999)Indiana18Ind. Code Ann. §§31-11-1-4, 31-11-1-5, 31-11-2-1, 31-11-2-3 (Lexis 1997)Iowa18Iowa Code §595.2 (2003)Kansas18Kan. Stat. Ann. §23-106 (Supp. 2003)Kentucky18Ky. Rev. Stat. Ann. §§402.020, 402.210 (Lexis 1999)Louisiana18La. Children's Code Ann., Arts. 1545, 1547 (West 2004) (minors may not marry without consent); La. Civ. Code Ann., Art. 29 (West 1999) (age of majority is 18)Maine18Me. Rev. Stat. Ann., Tit. 19-A, §652 (West 1998 and Supp. 2004)Maryland16Md. Fam. Law Code Ann. §2-301 (Lexis 2004) (those under 18 must obtain parental consent unless female applicant can present proof of pregnancy or a child, in which case minimum age to marry without consent is 16) Massachusetts18Mass. Gen. Laws Ann., ch. 207, §§7, 24, 25 (West 1998)Michigan18Mich. Comp. Laws Ann. §551.103 (West 1988)Minnesota18Minn. Stat. §517.02 (2002)Mississippi15/17Miss. Code Ann. §93-1-5 (Lexis 2004) (female applicants must be 15; male applicants must be 17)Missouri18Mo. Rev. Stat. §451.090 (2000)Montana18Mont. Code Ann. §§40-1-202, 40-1-213 (2003)Nebraska19Neb. Rev. Stat. §42-105 (2004) (minors must have parental consent to marry); §43-2101 (defining "minor" as a person under 19)Nevada18Nev. Rev. Stat. §122.020 (2003)New Hampshire18N. H. Rev. Stat. Ann. §457:5 (West 1992)New Jersey18N. J. Stat. Ann. §37:1-6 (West 2002)New Mexico18N. M. Stat. Ann. §40-1-6 (1999)New York18N. Y. Dom. Rel. Law Ann. §15 (West Supp. 2004)North Carolina18N. C. Gen. Stat. Ann. §51-2 (Lexis 2003)North Dakota18N. D. Cent. Code §14-03-02 (Lexis 2004)Ohio18Ohio Rev. Code Ann. §3101.01 (Lexis 2003)Oklahoma18Okla. Stat. Ann., Tit. 43, §3 (West Supp. 2005)Oregon18Ore. Rev. Stat. §106.060 (2003)Pennsylvania1823 Pa. Cons. Stat. §1304 (1997)Rhode Island18R. I. Gen. Laws §15-2-11 (Lexis Supp. 2004)South Carolina18S. C. Code Ann. §20-1-250 (West Supp. 2003)South Dakota18S. D. Codified Laws §25-1-9 (Lexis 1999)Tennessee18Tenn. Code Ann. §36-3-106 (Lexis 1996)Texas18Tex. Fam. Code Ann. §§2.101-2.103 (West 1998)Utah18Utah Code Ann. §30-1-9 (Lexis Supp. 2004)Vermont18Vt. Stat. Ann., Tit. 18, §5142 (Lexis 2000)Virginia18Va. Code Ann. §§20-45.1, 20-48, 20-49 (Lexis 2004)Washington18Wash. Rev. Code Ann. §26.04.210 (West Supp. 2005)West Virginia18W. Va. Code §48-2-301 (Lexis 2004)Wisconsin18Wis. Stat. §765.02 (1999-2000)Wyoming18Wyo. Stat. Ann. §20-1-102 (Lexis 2003)DONALD P. ROPER, SUPERINTENDENT, POTOSICORRECTIONAL CENTER, PETITIONER v.CHRISTOPHER SIMMONSon writ of certiorari to the supreme court ofmissouri[March 1, 2005] Justice Stevens, with whom Justice Ginsburg joins, concurring. Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court's interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. See Stanford v. Kentucky, 492 U. S. 361, 368 (1989) (describing the common law at the time of the Amendment's adoption). The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day — Alexander Hamilton, for example — were sitting with us today, I would expect them to join Justice Kennedy's opinion for the Court. In all events, I do so without hesitation.DONALD P. ROPER, SUPERINTENDENT, POTOSICORRECTIONAL CENTER, PETITIONER v.CHRISTOPHER SIMMONSon writ of certiorari to the supreme court ofmissouri[March 1, 2005] Justice O'Connor, dissenting. The Court's decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court's moral proportionality analysis, nor the two in tandem suffice to justify this ruling. Although the Court finds support for its decision in the fact that a majority of the States now disallow capital punishment of 17-year-old offenders, it refrains from asserting that its holding is compelled by a genuine national consensus. Indeed, the evidence before us fails to demonstrate conclusively that any such consensus has emerged in the brief period since we upheld the constitutionality of this practice in Stanford v. Kentucky, 492 U. S. 361 (1989). Instead, the rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender. I do not subscribe to this judgment. Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant's maturity or of giving due weight to the mitigating characteristics associated with youth. On this record — and especially in light of the fact that so little has changed since our recent decision in Stanford — I would not substitute our judgment about the moral propriety of capital punishment for 17-year-old murderers for the judgments of the Nation's legislatures. Rather, I would demand a clearer showing that our society truly has set its face against this practice before reading the Eighth Amendment categorically to forbid it.IA Let me begin by making clear that I agree with much of the Court's description of the general principles that guide our Eighth Amendment jurisprudence. The Amendment bars not only punishments that are inherently " 'barbaric,' " but also those that are " ' excessive' in relation to the crime committed. " Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion). A sanction is therefore beyond the state's authority to inflict if it makes "no measurable contribution" to acceptable penal goals or is "grossly out of proportion to the severity of the crime." Ibid. The basic "precept of justice that punishment for crime should be ... proportioned to [the] offense," Weems v. United States, 217 U. S. 349, 367 (1910), applies with special force to the death penalty. In capital cases, the Constitution demands that the punishment be tailored both to the nature of the crime itself and to the defendant's "personal responsibility and moral guilt." Enmund v. Florida, 458 U. S. 782, 801 (1982); see also id., at 825 (O'Connor, J., dissenting); Tison v. Arizona, 481 U. S. 137, 149 (1987); Eddings v. Oklahoma, 455 U. S. 104, 111-112 (1982). It is by now beyond serious dispute that the Eighth Amendment's prohibition of "cruel and unusual punishments" is not a static command. Its mandate would be little more than a dead letter today if it barred only those sanctions — like the execution of children under the age of seven — that civilized society had already repudiated in 1791. See ante, at 1 (Stevens, J., concurring); cf. Stanford, supra, at 368 (discussing the common law rule at the time the Bill of Rights was adopted). Rather, because "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man," the Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 100-101 (1958) (plurality opinion). In discerning those standards, we look to "objective factors to the maximum possible extent." Coker, supra, at 592 (plurality opinion). Laws enacted by the Nation's legislatures provide the "clearest and most reliable objective evidence of contemporary values." Penry v. Lynaugh, 492 U. S. 302, 331 (1989). And data reflecting the actions of sentencing juries, where available, can also afford " 'a significant and reliable objective index' " of societal mores. Coker, supra, at 596 (plurality opinion) (quoting Gregg v. Georgia, 428 U. S. 153, 181 (1976)) (joint opinion of Stewart, Powell, and Stevens, JJ.). Although objective evidence of this nature is entitled to great weight, it does not end our inquiry. Rather, as the Court today reaffirms, see ante, at 9, 20-21, "the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Coker, supra, at 597 (plurality opinion). "[P]roportionality — at least as regards capital punishment — not only requires an inquiry into contemporary standards as expressed by legislators and jurors, but also involves the notion that the magnitude of the punishment imposed must be related to the degree of the harm inflicted on the victim, as well as to the degree of the defendant's blameworthiness." Enmund, supra, at 815 (O'Connor, J., dissenting). We therefore have a "constitutional obligation" to judge for ourselves whether the death penalty is excessive punishment for a particular offense or class of offenders. See Stanford, 492 U. S., at 382 (O'Connor, J., concurring in part and concurring in judgment); see also Enmund, supra, at 797 ("[I]t is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty").B Twice in the last two decades, the Court has applied these principles in deciding whether the Eighth Amendment permits capital punishment of adolescent offenders. In Thompson v. Oklahoma, 487 U. S. 815 (1988), a plurality of four Justices concluded that the Eighth Amendment barred capital punishment of an offender for a crime committed before the age of 16. I concurred in that judgment on narrower grounds. At the time, 32 state legislatures had "definitely concluded that no 15-year-old should be exposed to the threat of execution," and no legislature had affirmatively endorsed such a practice. Id., at 849 (O'Connor, J., concurring in judgment). While acknowledging that a national consensus forbidding the execution of 15-year-old offenders "very likely" did exist, I declined to adopt that conclusion as a matter of constitutional law without clearer evidentiary support. Ibid. Nor, in my view, could the issue be decided based on moral proportionality arguments of the type advanced by the Court today. Granting the premise "that adolescents are generally less blameworthy than adults who commit similar crimes," I wrote, "it does not necessarily follow that all 15-year-olds are incapable of the moral culpability that would justify the imposition of capital punishment." Id., at 853. Similarly, we had before us no evidence "that 15-year-olds as a class are inherently incapable of being deterred from major crimes by the prospect of the death penalty." Ibid. I determined instead that, in light of the strong but inconclusive evidence of a national consensus against capital punishment of under-16 offenders, concerns rooted in the Eighth Amendment required that we apply a clear statement rule. Because the capital punishment statute in Thompson did not specify the minimum age at which commission of a capital crime would be punishable by death, I concluded that the statute could not be read to authorize the death penalty for a 15-year-old offender. Id., at 857-858. The next year, in Stanford v. Kentucky, supra, the Court held that the execution of 16- or 17-year-old capital murderers did not violate the Eighth Amendment. I again wrote separately, concurring in part and concurring in the judgment. At that time, 25 States did not permit the execution of under-18 offenders, including 13 that lacked the death penalty altogether. See id., at 370. While noting that "[t]he day may come when there is such general legislative rejection of the execution of 16- or 17-year-old capital murderers that a clear national consensus can be said to have developed," I concluded that that day had not yet arrived. Id., at 381-382 (opinion concurring in part and concurring in judgment). I reaffirmed my view that, beyond assessing the actions of legislatures and juries, the Court has a constitutional obligation to judge for itself whether capital punishment is a proportionate response to the defendant's blameworthiness. Id., at 382. Nevertheless, I concluded that proportionality arguments similar to those endorsed by the Court today did not justify a categorical Eighth Amendment rule against capital punishment of 16- and 17-year-old offenders. See ibid. (citing Thompson, supra, at 853-854 (O'Connor, J., concurring in judgment)). The Court has also twice addressed the constitutionality of capital punishment of mentally retarded offenders. In Penry v. Lynaugh, 492 U. S. 302 (1989), decided the same year as Stanford, we rejected the claim that the Eighth Amendment barred the execution of the mentally retarded. At that time, only two States specifically prohibited the practice, while 14 others did not have capital punishment at all. 536 U. S. 304 (2002). In Atkins, the Court reversed Penry and held that the Eighth Amendment forbids capital punishment of mentally retarded offenders. 536 U. S., at 321. In the 13 years between Penry and Atkins, there had been a wave of legislation prohibiting the execution of such offenders. By the time we heard Atkins, 30 States barred the death penalty for the mentally retarded, and even among those States theoretically permitting such punishment, very few had executed a mentally retarded offender in recent history. 536 U. S., at 314-316. On the basis of this evidence, the Court determined that it was "fair to say that a national consensus ha[d] developed against" the practice. Id., at 316. But our decision in Atkins did not rest solely on this tentative conclusion. Rather, the Court's independent moral judgment was dispositive. The Court observed that mentally retarded persons suffer from major cognitive and behavioral deficits, i.e., "subaverage intellectual functioning" and "significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18." Id., at 318. "Because of their impairments, [such persons] by definition ... have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." Ibid. We concluded that these deficits called into serious doubt whether the execution of mentally retarded offenders would measurably contribute to the principal penological goals that capital punishment is intended to serve — retribution and deterrence. Id., at 319-321. Mentally retarded offenders' impairments so diminish their personal moral culpability that it is highly unlikely that such offenders could ever deserve the ultimate punishment, even in cases of capital murder. Id., at 319. And these same impairments made it very improbable that the threat of the death penalty would deter mentally retarded persons from committing capital crimes. Id., at 319-320. Having concluded that capital punishment of the mentally retarded is inconsistent with the Eighth Amendment, the Court " 'le[ft] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.' " Id., at 317 (quoting Ford v. Wainwright, 477 U. S. 399, 416-417 (1986)).IIA Although the general principles that guide our Eighth Amendment jurisprudence afford some common ground, I part ways with the Court in applying them to the case before us. As a preliminary matter, I take issue with the Court's failure to reprove, or even to acknowledge, the Supreme Court of Missouri's unabashed refusal to follow our controlling decision in Stanford. The lower court concluded that, despite Stanford's clear holding and historical recency, our decision was no longer binding authority because it was premised on what the court deemed an obsolete assessment of contemporary values. Quite apart from the merits of the constitutional question, this was clear error. Because the Eighth Amendment "draw[s] its meaning from ... evolving standards of decency," Trop, 522 U. S. 3, 20 (1997) (emphasis added). That is so even where subsequent decisions or factual developments may appear to have "significantly undermined" the rationale for our earlier holding. United States v. Hatter, 532 U. S. 557, 567 (2001); see also State Oil Co., supra, at 20; Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). The Eighth Amendment provides no exception to this rule. On the contrary, clear, predictable, and uniform constitutional standards are especially desirable in this sphere. By affirming the lower court's judgment without so much as a slap on the hand, today's decision threatens to invite frequent and disruptive reassessments of our Eighth Amendment precedents.B In determining whether the juvenile death penalty comports with contemporary standards of decency, our inquiry begins with the "clearest and most reliable objective evidence of contemporary values"--the actions of the Nation's legislatures. Penry, supra, at 331. As the Court emphasizes, the overall number of jurisdictions that currently disallow the execution of under-18 offenders is the same as the number that forbade the execution of mentally retarded offenders when Atkins was decided. Ante, at 10. At present, 12 States and the District of Columbia do not have the death penalty, while an additional 18 States and the Federal Government authorize capital punishment but prohibit the execution of under-18 offenders. See ante, at 27-28 (Appendix A). And here, as in Atkins, only a very small fraction of the States that permit capital punishment of offenders within the relevant class has actually carried out such an execution in recent history: Six States have executed under-18 offenders in the 16 years since Stanford, while five States had executedmentally retarded offenders in the 13 years prior toAtkins. See Atkins, 536 U. S., at 316; V. Streib, TheJuvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-December 31, 2004, No. 76, pp. 15-23 (2005), availableat http://www.law.onu.edu/faculty/streib/documents/JuvDeathDec2004.pdf (last updated Jan. 31, 2005) (as visited Feb. 25, 2005, and available in the Clerk of the Court's case file) (hereinafter Streib). In these respects, the objective evidence in this case is, indeed, "similar, and in some respects parallel to" the evidence upon which we relied in Atkins. Ante, at 10. While the similarities between the two cases are undeniable, the objective evidence of national consensus is marginally weaker here. Most importantly, in Atkins there was significant evidence of opposition to the execution of the mentally retarded, but there was virtually no countervailing evidence of affirmative legislative support for this practice. Cf. Thompson, 487 U. S., at 849 (O'Connor, J., concurring in judgment) (attributing significance to the fact that "no legislature in this country has affirmatively and unequivocally endorsed" capital punishment of 15-year-old offenders). The States that permitted such executions did so only because they had not enacted any prohibitory legislation. Here, by contrast, at least eight States have current statutes that specifically set 16 or 17 as the minimum age at which commission of a capital crime can expose the offender to the death penalty. See ante, at 26 (Appendix A).** Five of these eight States presently have one or more juvenile offenders on death row (six if respondent is included in the count), see Streib 24-31, and four of them have executed at least one under-18 offender in the past 15 years, see id., at 15-23. In all, there are currently over 70 juvenile offenders on death row in 12 different States (13 including respondent). See id., at 11, 24-31. This evidence suggests some measure of continuing public support for the availability of the death penalty for 17-year-old capital murderers. Moreover, the Court in Atkins made clear that it was "not so much the number of [States forbidding execution of the mentally retarded] that [was] significant, but the consistency of the direction of change." 536 U. S., at 315. In contrast to the trend in Atkins, the States have not moved uniformly towards abolishing the juvenile death penalty. Instead, since our decision in Stanford, two States have expressly reaffirmed their support for this practice by enacting statutes setting 16 as the minimum age for capital punishment. See Mo. Rev. Stat. §565.020.2 (2000); Va. Code Ann. §18.2-10(a) (Lexis 2004). Furthermore, as the Court emphasized in Atkins itself, 536 U. S., at 315, n. 18, the pace of legislative action in this context has been considerably slower than it was with regard to capital punishment of the mentally retarded. In the 13 years between our decisions in Penry and Atkins, no fewer than 16 States banned the execution of mentally retarded offenders. See Atkins, supra, at 314-315. By comparison, since our decision 16 years ago in Stanford, only four States that previously permitted the execution of under-18 offenders, plus the Federal Government, have legistlatively reversed course, and one additional State's high court has construed the State's death penalty statute not to apply to under-18 offenders, see State v. Furman, 122 Wash. 2d 440, 458, 858 P. 2d 1092, 1103 (1993) (en banc). The slower pace of change is no doubt partially attributable, as the Court says, to the fact that 11 States had already imposed a minimum age of 18 when Stanford was decided. See ante, at 12-13. Nevertheless, the extraordinary wave of legislative action leading up to our decision in Atkins provided strong evidence that the country truly had set itself against capital punishment of the mentally retarded. Here, by contrast, the halting pace of change gives reason for pause. To the extent that the objective evidence supporting today's decision is similar to that in Atkins, this merely highlights the fact that such evidence is not dispositive in either of the two cases. After all, as the Court today confirms, ante, at 9, 20-21, the Constitution requires that " 'in the end our own judgment ... be brought to bear' " in deciding whether the Eighth Amendment forbids a particular punishment. Atkins, supra, at 312 (quoting Coker, 433 U. S., at 597 (plurality opinion)). This judgment is not merely a rubber stamp on the tally of legislative and jury actions. Rather, it is an integral part of the Eighth Amendment inquiry — and one that is entitled to independent weight in reaching our ultimate decision. Here, as in Atkins, the objective evidence of a national consensus is weaker than in most prior cases in which the Court has struck down a particular punishment under the Eighth Amendment. See Coker, supra, at 595-596 (plurality opinion) (striking down death penalty for rape of an adult woman, where only one jurisdiction authorized such punishment); Enmund, 458 U. S., at 792 (striking down death penalty for certain crimes of aiding and abetting felony-murder, where only eight jurisdictions authorized such punishment); Ford v. Wainwright, 477 U. S., at 408 (striking down capital punishment of the insane, where no jurisdiction permitted this practice). In my view, the objective evidence of national consensus, standing alone, was insufficient to dictate the Court's holding in Atkins. Rather, the compelling moral proportionality argument against capital punishment of mentally retarded offenders played a decisive role in persuading the Court that the practice was inconsistent with the Eighth Amendment. Indeed, the force of the proportionality argument in Atkins significantly bolstered the Court's confidence that the objective evidence in that case did, in fact, herald the emergence of a genuine national consensus. Here, by contrast, the proportionality argument against the juvenile death penalty is so flawed that it can be given little, if any, analytical weight — it proves too weak to resolve the lingering ambiguities in the objective evidence of legislative consensus or to justify the Court's categorical rule.C Seventeen-year-old murderers must be categorically exempted from capital punishment, the Court says, because they "cannot with reliability be classified among the worst offenders." Ante, at 15. That conclusion is premised on three perceived differences between "adults," who have already reached their 18th birthdays, and "juveniles," who have not. See ante, at 15-16. First, juveniles lack maturity and responsibility and are more reckless than adults. Second, juveniles are more vulnerable to outside influences because they have less control over their surroundings. And third, a juvenile's character is not as fully formed as that of an adult. Based on these characteristics, the Court determines that 17-year-old capital murderers are not as blameworthy as adults guilty of similar crimes; that 17-year-olds are less likely than adults to be deterred by the prospect of a death sentence; and that it is difficult to conclude that a 17-year-old who commits even the most heinous of crimes is "irretrievably depraved." Ante, at 16-18. The Court suggests that "a rare case might arise in which a juvenile offender has sufficient psychological maturity, and at the same time demonstrates sufficient depravity, to merit a sentence of death." Ante, at 18. However, the Court argues that a categorical age-based prohibition is justified as a prophylactic rule because "[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability." Ante, at 19. It is beyond cavil that juveniles as a class are generally less mature, less responsible, and less fully formed than adults, and that these differences bear on juveniles' comparative moral culpability. See, e.g., Johnson v. Texas, 509 U. S. 350, 367 (1993) ("There is no dispute that a defendant's youth is a relevant mitigating circumstance"); id., at 376 (O'Connor, J., dissenting) ("[T]he vicissitudes of youth bear directly on the young offender's culpability and responsibility for the crime"); Eddings, 455 U. S., at 115-116 ("Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults"). But even accepting this premise, the Court's proportionality argument fails to support its categorical rule. First, the Court adduces no evidence whatsoever in support of its sweeping conclusion, see ante, at 18, that it is only in "rare" cases, if ever, that 17-year-old murderers are sufficiently mature and act with sufficient depravity to warrant the death penalty. The fact that juveniles are generally less culpable for their misconduct than adults does not necessarily mean that a 17-year-old murderer cannot be sufficiently culpable to merit the death penalty. At most, the Court's argument suggests that the average 17-year-old murderer is not as culpable as the average adult murderer. But an especially depraved juvenile offender may nevertheless be just as culpable as many adult offenders considered bad enough to deserve the death penalty. Similarly, the fact that the availability of the death penalty may be less likely to deter a juvenile from committing a capital crime does not imply that this threat cannot effectively deter some 17-year-olds from such an act. Surely there is an age below which no offender, no matter what his crime, can be deemed to have the cognitive or emotional maturity necessary to warrant the death penalty. But at least at the margins between adolescence and adulthood — and especially for 17-year-olds such as respondent — the relevant differences between "adults" and "juveniles" appear to be a matter of degree, rather than of kind. It follows that a legislature may reasonably conclude that at least some 17-year-olds can act with sufficient moral culpability, and can be sufficiently deterred by the threat of execution, that capital punishment may be warranted in an appropriate case. Indeed, this appears to be just such a case. Christopher Simmons' murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could " 'get away with it' " because they were minors. Brief for Petitioners 3. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook's home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, "hog-tied" her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. Id., at 4. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death. Whatever can be said about the comparative moral culpability of 17-year-olds as a general matter, Simmons' actions unquestionably reflect " 'a consciousness materially more "depraved" than that of' ... the average murderer." See Atkins, 446 U. S. 420, 433 (1980)). And Simmons' prediction that he could murder with impunity because he had not yet turned 18 — though inaccurate — suggests that he did take into account the perceived risk of punishment in deciding whether to commit the crime. Based on this evidence, the sentencing jury certainly had reasonable grounds for concluding that, despite Simmons' youth, he "ha[d] sufficient psychological maturity" when he committed this horrific murder, and "at the same time demonstrate[d] sufficient depravity, to merit a sentence of death." See ante, at 18. The Court's proportionality argument suffers from a second and closely related defect: It fails to establish that the differences in maturity between 17-year-olds and young "adults" are both universal enough and significant enough to justify a bright-line prophylactic rule against capital punishment of the former. The Court's analysis is premised on differences in the aggregate between juveniles and adults, which frequently do not hold true when comparing individuals. Although it may be that many 17-year-old murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite mature. Chronological age is not an unfailing measure of psychological development, and common experience suggests that many 17-year-olds are more mature than the average young "adult." In short, the class of offenders exempted from capital punishment by today's decision is too broad and too diverse to warrant a categorical prohibition. Indeed, the age-based line drawn by the Court is indefensibly arbitrary — it quite likely will protect a number of offenders who are mature enough to deserve the death penalty and may well leave vulnerable many who are not. For purposes of proportionality analysis, 17-year-olds as a class are qualitatively and materially different from the mentally retarded. "Mentally retarded" offenders, as we understood that category in Atkins, are defined by precisely the characteristics which render death an excessive punishment. A mentally retarded person is, "by definition," one whose cognitive and behavioral capacities have been proven to fall below a certain minimum. See Atkins, 536 U. S., at 318; see also id., at 308, n. 3 (discussing characteristics of mental retardation); id., at 317, and n. 22 (leaving to the States the development of mechanisms to determine which offenders fall within the class exempt from capital punishment). Accordingly, for purposes of our decision in Atkins, the mentally retarded are not merely less blameworthy for their misconduct or less likely to be deterred by the death penalty than others. Rather, a mentally retarded offender is one whose demonstrated impairments make it so highly unlikely that he is culpable enough to deserve the death penalty or that he could have been deterred by the threat of death, that execution is not a defensible punishment. There is no such inherent or accurate fit between an offender's chronological age and the personal limitations which the Court believes make capital punishment excessive for 17-year-old murderers. Moreover, it defies common sense to suggest that 17-year-olds as a class are somehow equivalent to mentally retarded persons with regard to culpability or susceptibility to deterrence. Seventeen-year-olds may, on average, be less mature than adults, but that lesser maturity simply cannot be equated with the major, lifelong impairments suffered by the mentally retarded. The proportionality issues raised by the Court clearly implicate Eighth Amendment concerns. But these concerns may properly be addressed not by means of an arbitrary, categorical age-based rule, but rather through individualized sentencing in which juries are required to give appropriate mitigating weight to the defendant's immaturity, his susceptibility to outside pressures, his cognizance of the consequences of his actions, and so forth. In that way the constitutional response can be tailored to the specific problem it is meant to remedy. The Eighth Amendment guards against the execution of those who are "insufficiently culpable," see ante, at 19, in significant part, by requiring sentencing that "reflect[s] a reasoned moral response to the defendant's background, character, and crime." California v. Brown, 479 U. S. 538, 545 (1987) (O'Connor, J., concurring). Accordingly, the sentencer in a capital case must be permitted to give full effect to all constitutionally relevant mitigating evidence. See Tennard v. Dretke, 542 U. S. ___, ___ (2004) (slip op., at 9-10); Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion). A defendant's youth or immaturity is, of course, a paradigmatic example of such evidence. See Eddings, 455 U. S., at 115-116. Although the prosecutor's apparent attempt to use respondent's youth as an aggravating circumstance in this case is troubling, that conduct was never challenged with specificity in the lower courts and is not directly at issue here. As the Court itself suggests, such "overreaching" would best be addressed, if at all, through a more narrowly tailored remedy. See ante, at 19. The Court argues that sentencing juries cannot accurately evaluate a youthful offender's maturity or give appropriate weight to the mitigating characteristics related to youth. But, again, the Court presents no real evidence — and the record appears to contain none — supporting this claim. Perhaps more importantly, the Court fails to explain why this duty should be so different from, or so much more difficult than, that of assessing and giving proper effect to any other qualitative capital sentencing factor. I would not be so quick to conclude that the constitutional safeguards, the sentencing juries, and the trial judges upon which we place so much reliance in all capital cases are inadequate in this narrow context.D I turn, finally, to the Court's discussion of foreign and international law. Without question, there has been a global trend in recent years towards abolishing capital punishment for under-18 offenders. Very few, if any, countries other than the United States now permit this practice in law or in fact. See ante, at 22-23. While acknowledging that the actions and views of other countries do not dictate the outcome of our Eighth Amendment inquiry, the Court asserts that "the overwhelming weight of international opinion against the juvenile death penalty ... does provide respected and significant confirmation for [its] own conclusions." Ante, at 24. Because I do not believe that a genuine national consensus against the juvenile death penalty has yet developed, and because I do not believe the Court's moral proportionality argument justifies a categorical, age-based constitutional rule, I can assign no such confirmatory role to the international consensus described by the Court. In short, the evidence of an international consensus does not alter my determination that the Eighth Amendment does not, at this time, forbid capital punishment of 17-year-old murderers in all cases. Nevertheless, I disagree with Justice Scalia's contention, post, at 15-22 (dissenting opinion), that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. See Atkins, 536 U. S., at 317, n. 21; Thompson, 487 U. S., at 830-831, and n. 31 (plurality opinion); Enmund, 458 U. S., at 796-797, n. 22; Coker, 433 U. S., at 596, n. 10 (plurality opinion); Trop, 356 U. S., at 102-103 (plurality opinion). This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the maturing values of civilized society. Obviously, American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of its exposition so dictate. Cf. post, at 18-19 (Scalia, J., dissenting) (discussing distinctively American rules of law related to the Fourth Amendment and the Establishment Clause). But this Nation's evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement — expressed in international law or in the domestic laws of individual countries — that a particular form of punishment is inconsistent with fundamental human rights. At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus. The instant case presents no such domestic consensus, however, and the recent emergence of an otherwise global consensus does not alter that basic fact.*** In determining whether the Eighth Amendment permits capital punishment of a particular offense or class of offenders, we must look to whether such punishment is consistent with contemporary standards of decency. We are obligated to weigh both the objective evidence of societal values and our own judgment as to whether death is an excessive sanction in the context at hand. In the instant case, the objective evidence is inconclusive; standing alone, it does not demonstrate that our society has repudiated capital punishment of 17-year-old offenders in all cases. Rather, the actions of the Nation's legislatures suggest that, although a clear and durable national consensus against this practice may in time emerge, that day has yet to arrive. By acting so soon after our decision in Stanford, the Court both pre-empts the democratic debate through which genuine consensus might develop and simultaneously runs a considerable risk of inviting lower court reassessments of our Eighth Amendment precedents. To be sure, the objective evidence supporting today's decision is similar to (though marginally weaker than) the evidence before the Court in Atkins. But Atkins could not have been decided as it was based solely on such evidence. Rather, the compelling proportionality argument against capital punishment of the mentally retarded played a decisive role in the Court's Eighth Amendment ruling. Moreover, the constitutional rule adopted in Atkins was tailored to this proportionality argument: It exempted from capital punishment a defined group of offenders whose proven impairments rendered it highly unlikely, and perhaps impossible, that they could act with the degree of culpability necessary to deserve death. And Atkins left to the States the development of mechanisms to determine which individual offenders fell within this class. In the instant case, by contrast, the moral proportionality arguments against the juvenile death penalty fail to support the rule the Court adopts today. There is no question that "the chronological age of a minor is itself a relevant mitigating factor of great weight," Eddings, 455 U. S., at 116, and that sentencing juries must be given an opportunity carefully to consider a defendant's age and maturity in deciding whether to assess the death penalty. But the mitigating characteristics associated with youth do not justify an absolute age limit. A legislature can reasonably conclude, as many have, that some 17-year-old murderers are mature enough to deserve the death penalty in an appropriate case. And nothing in the record before us suggests that sentencing juries are so unable accurately to assess a 17-year-old defendant's maturity, or so incapable of giving proper weight to youth as a mitigating factor, that the Eighth Amendment requires the bright-line rule imposed today. In the end, the Court's flawed proportionality argument simply cannot bear the weight the Court would place upon it. Reasonable minds can differ as to the minimum age at which commission of a serious crime should expose the defendant to the death penalty, if at all. Many jurisdictions have abolished capital punishment altogether, while many others have determined that even the most heinous crime, if committed before the age of 18, should not be punishable by death. Indeed, were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18 in this context. But a significant number of States, including Missouri, have decided to make the death penalty potentially available for 17-year-old capital murderers such as respondent. Without a clearer showing that a genuine national consensus forbids the execution of such offenders, this Court should not substitute its own "inevitably subjective judgment" on how best to resolve this difficult moral question for the judgments of the Nation's democratically elected legislatures. See Thompson, supra, at 854 (O'Connor, J., concurring in judgment). I respectfully dissent.DONALD P. ROPER, SUPERINTENDENT, POTOSICORRECTIONAL CENTER, PETITIONER v.CHRISTOPHER SIMMONSon writ of certiorari to the supreme court ofmissouri[March 1, 2005] Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting. In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary ... ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years — not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency," ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: "[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation's moral standards — and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.I In determining that capital punishment of offenders who committed murder before age 18 is "cruel and unusual" under the Eighth Amendment, the Court first considers, in accordance with our modern (though in my view mistaken) jurisprudence, whether there is a "national consensus," ibid. (internal quotation marks omitted), that laws allowing such executions contravene our modern "standards of decency,"1 Trop v. Dulles, 356 U. S. 86, 101 (1958). We have held that this determination should be based on "objective indicia that reflect the public attitude toward a given sanction"--namely, "statutes passed by society's elected representatives." Stanford v. Kentucky, 492 U. S. 361, 370 (1989) (internal quotation marks omitted). As in Atkins v. Virginia, 536 U. S. 304, 312 (2002), the Court dutifully recites this test and claims halfheartedly that a national consensus has emerged since our decision in Stanford, because 18 States — or 47% of States that permit capital punishment — now have legislation prohibiting the execution of offenders under 18, and because all of four States have adopted such legislation since Stanford. See ante, at 11. Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus. See Atkins, supra, at 342-345 (Scalia, J., dissenting). Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time. In Coker v. Georgia, 433 U. S. 584, 595-596 (1977), a plurality concluded the Eighth Amendment prohibited capital punishment for rape of an adult woman where only one jurisdiction authorized such punishment. The plurality also observed that "[a]t no time in the last 50 years ha[d] a majority of States authorized death as a punishment for rape." Id., at 593. In Ford v. Wainwright, 477 U. S. 399, 408 (1986), we held execution of the insane unconstitutional, tracing the roots of this prohibition to the common law and noting that "no State in the union permits the execution of the insane." In Enmund v. Florida, 458 U. S. 782, 792 (1982), we invalidated capital punishment imposed for participation in a robbery in which an accomplice committed murder, because 78% of all death penalty States prohibited this punishment. Even there we expressed some hesitation, because the legislative judgment was "neither 'wholly unanimous among state legislatures,' ... nor as compelling as the legislative judgments considered in Coker." Id., at 793. By contrast, agreement among 42% of death penalty States in Stanford, which the Court appears to believe was correctly decided at the time, ante, at 20, was insufficient to show a national consensus. See Stanford, supra, at 372. In an attempt to keep afloat its implausible assertion of national consensus, the Court throws overboard a proposition well established in our Eighth Amendment jurisprudence. "It should be observed," the Court says, "that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty ...; a State's decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders, including juveniles." Ante, at 20. The insinuation that the Court's new method of counting contradicts only "the Stanford Court" is misleading. None of our cases dealing with an alleged constitutional limitation upon the death penalty has counted, as States supporting a consensus in favor of that limitation, States that have eliminated the death penalty entirely. See Ford, supra, at 408, n. 2; Enmund, supra, at 789; Coker, supra, at 594. And with good reason. Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing — absolutely nothing — about consensus that offenders under 18 deserve special immunity from such a penalty. In repealing the death penalty, those 12 States considered none of the factors that the Court puts forth as determinative of the issue before us today — lower culpability of the young, inherent recklessness, lack of capacity for considered judgment, etc. What might be relevant, perhaps, is how many of those States permit 16- and 17-year-old offenders to be treated as adults with respect to noncapital offenses. (They all do;2 indeed, some even require that juveniles as young as 14 be tried as adults if they are charged with murder.3) The attempt by the Court to turn its remarkable minority consensus into a faux majority by counting Amishmen is an act of nomological desperation. Recognizing that its national-consensus argument was weak compared with our earlier cases, the Atkins Court found additional support in the fact that 16 States had prohibited execution of mentally retarded individuals since Penry v. Lynaugh, 492 U. S. 302 (1989). Atkins, supra, at 314-316. Indeed, the Atkins Court distinguished Stanford on that very ground, explaining that "[a]lthough we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty." 536 U. S., at 315, n. 18 (emphasis added). Now, the Court says a legislative change in four States is "significant" enough to trigger a constitutional prohibition.4 Ante, at 11. It is amazing to think that this subtle shift in numbers can take the issue entirely off the table for legislative debate. I also doubt whether many of the legislators who voted to change the laws in those four States would have done so if they had known their decision would (by the pronouncement of this Court) be rendered irreversible. After all, legislative support for capital punishment, in any form, has surged and ebbed throughout our Nation's history. As Justice O'Connor has explained: "The history of the death penalty instructs that there is danger in inferring a settled societal consensus from statistics like those relied on in this case. In 1846, Michigan became the first State to abolish the death penalty ... . In succeeding decades, other American States continued the trend towards abolition ... . Later, and particularly after World War II, there ensued a steady and dramatic decline in executions ... . In the 1950's and 1960's, more States abolished or radically restricted capital punishment, and executions ceased completely for several years beginning in 1968... . "In 1972, when this Court heard arguments on the constitutionality of the death penalty, such statistics might have suggested that the practice had become a relic, implicitly rejected by a new societal consensus... . We now know that any inference of a societal consensus rejecting the death penalty would have been mistaken. But had this Court then declared the existence of such a consensus, and outlawed capital punishment, legislatures would very likely not have been able to revive it. The mistaken premise of the decision would have been frozen into constitutional law, making it difficult to refute and even more difficult to reject." Thompson v. Oklahoma, 487 U. S. 815, 854-855 (1988) (opinion concurring in judgment). Relying on such narrow margins is especially inappropriate in light of the fact that a number of legislatures and voters have expressly affirmed their support for capital punishment of 16- and 17-year-old offenders since Stanford. Though the Court is correct that no State has lowered its death penalty age, both the Missouri and Virginia Legislatures — which, at the time of Stanford, had no minimum age requirement — expressly established 16 as the minimum. Mo. Rev. Stat. §565.020.2 (2000); Va. Code Ann. §18.2-10(a) (Lexis 2004). The people of Arizona5 and Florida6 have done the same by ballot initiative. Thus, even States that have not executed an under-18 offender in recent years unquestionably favor the possibility of capital punishment in some circumstances. The Court's reliance on the infrequency of executions, for under-18 murderers, ante, at 10-11, 13, credits an argument that this Court considered and explicitly rejected in Stanford. That infrequency is explained, we accurately said, both by "the undisputed fact that a far smaller percentage of capital crimes are committed by persons under 18 than over 18," 455 U. S. 104, 115-116 (1982). Thus, "it is not only possible, but overwhelmingly probable, that the very considerations which induce [respondent] and [his] supporters to believe that death should never be imposed on offenders under 18 cause prosecutors and juries to believe that it should rarely be imposed." Stanford, supra, at 374. It is, furthermore, unclear that executions of the relevant age group have decreased since we decided Stanford. Between 1990 and 2003, 123 of 3,599 death sentences, or 3.4%, were given to individuals who committed crimes before reaching age 18. V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-September 30, 2004, No. 75, p. 9 (Table 3) (last updated Oct. 5, 2004), http://www.law.onu.edu/faculty/streib/documentsJuvDeathSept302004.pdf (all Internet materials as visited Jan. 12, 2005, and available in the Clerk of Court's case file) (hereinafter Juvenile Death Penalty Today). By contrast, only 2.1% of those sentenced to death between 1982 and 1988 committed the crimes when they were under 18. See Stanford, supra, at 373 (citing V. Streib, Imposition of Death Sentences for Juvenile Offenses, January 1, 1982, Through April 1, 1989, p. 2 (paper for Cleveland-Marshall College of Law, April 5, 1989)). As for actual executions of under-18 offenders, they constituted 2.4% of the total executions since 1973. Juvenile Death Penalty Today 4. In Stanford, we noted that only 2% of the executions between 1642 and 1986 were of under-18 offenders and found that that lower number did not demonstrate a national consensus against the penalty. 492 U. S., at 373-374 (citing V. Streib, Death Penalty for Juveniles 55, 57 (1987)). Thus, the numbers of under-18 offenders subjected to the death penalty, though low compared with adults, have either held steady or slightly increased since Stanford. These statistics in no way support the action the Court takes today.II Of course, the real force driving today's decision is not the actions of four state legislatures, but the Court's " ' "own judgment" ' " that murderers younger than 18 can never be as morally culpable as older counterparts. Ante, at 9 (quoting Atkins, 536 U. S., at 312 (in turn quoting Coker, 433 U. S., at 597 (plurality opinion))). The Court claims that this usurpation of the role of moral arbiter is simply a "retur[n] to the rul[e] established in decisions predating Stanford," ante, at 9. That supposed rule — which is reflected solely in dicta and never once in a holding that purports to supplant the consensus of the American people with the Justices' views7 — was repudiated in Stanford for the very good reason that it has no foundation in law or logic. If the Eighth Amendment set forth an ordinary rule of law, it would indeed be the role of this Court to say what the law is. But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of "the evolving standards of decency" of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation? 8 The reason for insistence on legislative primacy is obvious and fundamental: " '[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.' " Gregg v. Georgia, 428 U. S. 153, 175-176 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) (Burger, C. J., dissenting)). For a similar reason we have, in our determination of society's moral standards, consulted the practices of sentencing juries: Juries " 'maintain a link between contemporary community values and the penal system' " that this Court cannot claim for itself. Gregg, supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)). Today's opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here. To support its opinion that States should be prohibited from imposing the death penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding. As The Chief Justice has explained:"[M]ethodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results." Atkins, supra, at 326-327 (dissenting opinion) (citing R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984)).In other words, all the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends. Cf. Conroy v. Aniskoff, 507 U. S. 511, 519 (1993) (Scalia, J., concurring in judgment). We need not look far to find studies contradicting the Court's conclusions. As petitioner points out, the American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U. S. 417 (1990), the APA found a "rich body of research" showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement. Brief for APA as Amicus Curiae, O. T. 1989, No. 88-805 etc., p. 18. The APA brief, citing psychology treatises and studies too numerous to list here, asserted: "[B]y middle adolescence (age 14-15) young people develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems." Id., at 19-20 (citations omitted). Given the nuances of scientific methodology and conflicting views, courts — which can only consider the limited evidence on the record before them — are ill equipped to determine which view of science is the right one. Legislatures "are better qualified to weigh and 'evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.' " McCleskey v. Kemp, 481 U. S. 279, 319 (1987) (quoting Gregg, supra, at 186). Even putting aside questions of methodology, the studies cited by the Court offer scant support for a categorical prohibition of the death penalty for murderers under 18. At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions. Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes. Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are — at least sometimes — just as culpable as adults. Christopher Simmons, who was only seven months shy of his 18th birthday when he murdered Shirley Crook, described to his friends beforehand--"[i]n chilling, callous terms," as the Court puts it, ante, at 1 — the murder he planned to commit. He then broke into the home of an innocent woman, bound her with duct tape and electrical wire, and threw her off a bridge alive and conscious. Ante, at 2. In their amici brief, the States of Alabama, Delaware, Oklahoma, Texas, Utah, and Virginia offer additional examples of murders committed by individuals under 18 that involve truly monstrous acts. In Alabama, two 17-year-olds, one 16-year-old, and one 19-year-old picked up a female hitchhiker, threw bottles at her, and kicked and stomped her for approximately 30 minutes until she died. They then sexually assaulted her lifeless body and, when they were finished, threw her body off a cliff. They later returned to the crime scene to mutilate her corpse. See Brief for Alabama et al. as Amici Curiae 9-10; see also Loggins v. State, 771 So. 2d 1070, 1074-1075 (Ala. Crim. App. 1999); Duncan v. State, 827 So. 2d 838, 840-841 (Ala. Crim. App. 1999). Other examples in the brief are equally shocking. Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way — by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death. That "almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent," ante, at 15, is patently irrelevant — and is yet another resurrection of an argument that this Court gave a decent burial in Stanford. (What kind of Equal Justice under Law is it that — without so much as a "Sorry about that"--gives as the basis for sparing one person from execution arguments explicitly rejected in refusing to spare another?) As we explained in Stanford, 492 U. S., at 374, it is "absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one's conduct to that most minimal of all civilized standards." Serving on a jury or entering into marriage also involve decisions far more sophisticated than the simple decision not to take another's life. Moreover, the age statutes the Court lists "set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests." Ibid. The criminal justice system, by contrast, provides for individualized consideration of each defendant. In capital cases, this Court requires the sentencer to make an individualized determination, which includes weighing aggravating factors and mitigating factors, such as youth. See Eddings, 443 U. S. 622, 643-644 (1979) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74-75 (1976). It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood. The Court concludes, however, ante, at 18, that juries cannot be trusted with the delicate task of weighing a defendant's youth along with the other mitigating and aggravating factors of his crime. This startling conclusion undermines the very foundations of our capital sentencing system, which entrusts juries with "mak[ing] the difficult and uniquely human judgments that defy codification and that 'buil[d] discretion, equity, and flexibility into a legal system.' " McCleskey, supra, at 311 (quoting H. Kalven & H. Zeisel, The American Jury 498 (1966)). The Court says, ante, at 18, that juries will be unable to appreciate the significance of a defendant's youth when faced with details of a brutal crime. This assertion is based on no evidence; to the contrary, the Court itself acknowledges that the execution of under-18 offenders is "infrequent" even in the States "without a formal prohibition on executing juveniles," ante, at 10, suggesting that juries take seriously their responsibility to weigh youth as a mitigating factor. Nor does the Court suggest a stopping point for its reasoning. If juries cannot make appropriate determinations in cases involving murderers under 18, in what other kinds of cases will the Court find jurors deficient? We have already held that no jury may consider whether a mentally deficient defendant can receive the death penalty, irrespective of his crime. See Atkins, 536 U. S., at 321. Why not take other mitigating factors, such as considerations of childhood abuse or poverty, away from juries as well? Surely jurors "overpower[ed]" by "the brutality or cold-blooded nature" of a crime, ante, at 19, could not adequately weigh these mitigating factors either. The Court's contention that the goals of retribution and deterrence are not served by executing murderers under 18 is also transparently false. The argument that "[r]etribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished," ante, at 17, is simply an extension of the earlier, false generalization that youth always defeats culpability. The Court claims that "juveniles will be less susceptible to deterrence," ante, at 18, because " '[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent,' " ibid. (quoting Thompson, 487 U. S., at 837). The Court unsurprisingly finds no support for this astounding proposition, save its own case law. The facts of this very case show the proposition to be false. Before committing the crime, Simmons encouraged his friends to join him by assuring them that they could "get away with it" because they were minors. State ex rel. Simmons v. Roper, 112 S. W. 3d 397, 419 (Mo. 2003) (Price, J., dissenting). This fact may have influenced the jury's decision to impose capital punishment despite Simmons' age. Because the Court refuses to entertain the possibility that its own unsubstantiated generalization about juveniles could be wrong, it ignores this evidence entirely.III Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage. The Court begins by noting that "Article 37 of the United Nations Convention on the Rights of the Child, [1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470, entered into force Sept. 2, 1990], which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18." Ante, at 22 (emphasis added). The Court also discusses the International Covenant on Civil and Political Rights (ICCPR), December 19, 1966, 999 U. N. T. S. 175, ante, at 13, 22, which the Senate ratified only subject to a reservation that reads: "The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age." Senate Committee on Foreign Relations, International Covenant on Civil and Political Rights, S. Exec. Rep. No. 102-23, (1992).Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President — those actors our Constitution empowers to enter into treaties, see Art. II, §2 — have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today. It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court's reassurance that the death penalty is really not needed, since "the punishment of life imprisonment without the possibility of parole is itself a severe sanction," ante, at 18, gives little comfort. It is interesting that whereas the Court is not content to accept what the States of our Federal Union say, but insists on inquiring into what they do (specifically, whether they in fact apply the juvenile death penalty that their laws allow), the Court is quite willing to believe that every foreign nation — of whatever tyrannical political makeup and with however subservient or incompetent a court system — in fact adheres to a rule of no death penalty for offenders under 18. Nor does the Court inquire into how many of the countries that have the death penalty, but have forsworn (on paper at least) imposing that penalty on offenders under 18, have what no State of this country can constitutionally have: a mandatory death penalty for certain crimes, with no possibility of mitigation by the sentencing authority, for youth or any other reason. I suspect it is most of them. See, e.g., R. Simon & D. Blaskovich, A Comparative Analysis of Capital Punishment: Statutes, Policies, Frequencies, and Public Attitudes the World Over 25, 26, 29 (2002). To forbid the death penalty for juveniles under such a system may be a good idea, but it says nothing about our system, in which the sentencing authority, typically a jury, always can, and almost always does, withhold the death penalty from an under-18 offender except, after considering all the circumstances, in the rare cases where it is warranted. The foreign authorities, in other words, do not even speak to the issue before us here. More fundamentally, however, the basic premise of the Court's argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law — including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American. When we adopted that rule in Mapp v. Ohio, 367 U. S. 643, 655 (1961), it was "unique to American Jurisprudence." Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 415 (1971) (Burger, C. J., dissenting). Since then a categorical exclusionary rule has been "universally rejected" by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries "appears to have any alternative form of discipline for police that is effective in preventing search violations." Bradley, Mapp Goes Abroad, 52 Case W. Res. L. Rev. 375, 399-400 (2001). England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions. See C. Slobogin, Criminal Procedure: Regulation of Police Investigation 550 (3d ed. 2002). Canada rarely excludes evidence and will only do so if admission will "bring the administration of justice into disrepute." Id., at 550-551 (internal quotation marks omitted). The European Court of Human Rights has held that introduction of illegally seized evidence does not violate the "fair trial" requirement in Article 6, §1, of the European Convention on Human Rights. See Slobogin, supra, at 551; Bradley, supra, at 377-378. The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution's requirement that "Congress shall make no law respecting an establishment of religion... ." Amdt. 1. Most other countries — including those committed to religious neutrality — do not insist on the degree of separation between church and state that this Court requires. For example, whereas "we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 842 (1995) (citing cases), countries such as the Netherlands, Germany, and Australia allow direct government funding of religious schools on the ground that "the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision of so key a service as education, and makes it possible for people to exercise their right of religious expression within the context of public funding." S. Monsma & J. Soper, The Challenge of Pluralism: Church and State in Five Democracies 207 (1997); see also id., at 67, 103, 176. England permits the teaching of religion in state schools. Id., at 142. Even in France, which is considered "America's only rival in strictness of church-state separation," "[t]he practice of contracting for educational services provided by Catholic schools is very widespread." C. Glenn, The Ambiguous Embrace: Government and Faith-Based Schools and Social Agencies 110 (2000). And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. See Larsen, Importing Constitutional Norms from a "Wider Civilization": Lawrence and the Rehnquist Court's Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L. J. 1283, 1320 (2004); Center for Reproductive Rights, The World's Abortion Laws (June 2004), http://www.reproductiverights.org/pub_fac_abortion_laws.html. Though the Government and amici in cases following Roe v. Wade, 410 U. S. 113 (1973), urged the Court to follow the international community's lead, these arguments fell on deaf ears. See McCrudden, A Part of the Main? The Physician-Assisted Suicide Cases and Comparative Law Methodology in the United States Supreme Court, in Law at the End of Life: The Supreme Court and Assisted Suicide 125, 129-130 (C. Schneider ed. 2000). The Court's special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion. It is of course true that we share a common history with the United Kingdom, and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th-century English law and legal thought. If we applied that approach today, our task would be an easy one. As we explained in Harmelin v. Michigan, 501 U. S. 957, 973-974 (1991), the "Cruell and Unusuall Punishments" provision of the English Declaration of Rights was originally meant to describe those punishments " 'out of [the Judges'] Power' "--that is, those punishments that were not authorized by common law or statute, but that were nonetheless administered by the Crown or the Crown's judges. Under that reasoning, the death penalty for under-18 offenders would easily survive this challenge. The Court has, however — I think wrongly — long rejected a purely originalist approach to our Eighth Amendment, and that is certainly not the approach the Court takes today. Instead, the Court undertakes the majestic task of determining (and thereby prescribing) our Nation's current standards of decency. It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War — and with increasing speed since the United Kingdom's recent submission to the jurisprudence of European courts dominated by continental jurists — a legal, political, and social culture quite different from our own. If we took the Court's directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge's ruling that was legally incorrect. See Law Commission, Double Jeopardy and Prosecution Appeals, LAW COM No. 267, Cm 5048, p. 6, ¶1.19 (Mar. 2001); J. Spencer, The English System in European Criminal Procedures 142, 204, and n. 239 (M. Delmas-Marty & J. Spencer eds. 2002). We would also curtail our right to jury trial in criminal cases since, despite the jury system's deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury. See D. Feldman, England and Wales, in Criminal Procedure: A Worldwide Study 91, 114-115 (C. Bradley ed. 1999). The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.9 The Court responds that "[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom." Ante, at 24-25. To begin with, I do not believe that approval by "other nations and peoples" should buttress our commitment to American principles any more than (what should logically follow) disapproval by "other nations and peoples" should weaken that commitment. More importantly, however, the Court's statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our "fidelity" to the Constitution, our "pride in its origins," and "our own [American] heritage." To the contrary, they are cited to set aside the centuries-old American practice — a practice still engaged in by a large majority of the relevant States — of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources "affirm," rather than repudiate, is the Justices' own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court's parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. "Acknowledgment" of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court's judgment — which is surely what it parades as today.IV To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always held that "it is this Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U. S. 3, 20 (1997). That has been true even where " 'changes in judicial doctrine' ha[ve] significantly undermined" our prior holding, United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting Hatter v. United States, 64 F. 3d 647, 650 (CA Fed. 1995)), and even where our prior holding "appears to rest on reasons rejected in some other line of decisions," Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). Today, however, the Court silently approves a state-court decision that blatantly rejected controlling precedent. One must admit that the Missouri Supreme Court's action, and this Court's indulgent reaction, are, in a way, understandable. In a system based upon constitutional and statutory text democratically adopted, the concept of "law" ordinarily signifies that particular words have a fixed meaning. Such law does not change, and this Court's pronouncement of it therefore remains authoritative until (confessing our prior error) we overrule. The Court has purported to make of the Eighth Amendment, however, a mirror of the passing and changing sentiment of American society regarding penology. The lower courts can look into that mirror as well as we can; and what we saw 15 years ago bears no necessary relationship to what they see today. Since they are not looking at the same text, but at a different scene, why should our earlier decision control their judgment? However sound philosophically, this is no way to run a legal system. We must disregard the new reality that, to the extent our Eighth Amendment decisions constitute something more than a show of hands on the current Justices' current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years). We must treat these decisions just as though they represented real law, real prescriptions democratically adopted by the American people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court's decisions without any force — especially since the "evolution" of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, "updating" the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos.FOOTNOTESFootnote ** In 12 other States that have capital punishment, under-18 offenders can be subject to the death penalty as a result of transfer statutes that permit such offenders to be tried as adults for certain serious crimes. See ante, at 26 (Appendix A). As I observed in Thompson v. Oklahoma, 487 U. S. 815, 850-852 (1988) (opinion concurring in judgment): "There are many reasons, having nothing whatsoever to do with capital punishment, that might motivate a legislature to provide as a general matter for some [minors] to be channeled into the adult criminal justice process." Accordingly, while these 12 States clearly cannot be counted as opposing capital punishment of under-18 offenders, the fact that they permit such punishment through this indirect mechanism does not necessarily show affirmative and unequivocal legislative support for the practice. See ibid.FOOTNOTESFootnote 1 The Court ignores entirely the threshold inquiry in determining whether a particular punishment complies with the Eighth Amendment: whether it is one of the "modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted." Ford v. Wainwright, 477 U. S. 399, 405 (1986). As we have noted in prior cases, the evidence is unusually clear that the Eighth Amendment was not originally understood to prohibit capital punishment for 16- and 17-year-old offenders. See Stanford v. Kentucky, 492 U. S. 361, 368 (1989). At the time the Eighth Amendment was adopted, the death penalty could theoretically be imposed for the crime of a 7-year-old, though there was a rebuttable presumption of incapacity to commit a capital (or other) felony until the age of 14. See ibid. (citing 4 W. Blackstone, Commentaries *23-*24; 1 M. Hale, Pleas of the Crown 24-29 (1800)).Footnote 2 See Alaska Stat. §47.12.030 (Lexis 2002); Haw. Rev. Stat. §571-22 (1999); Iowa Code §232.45 (2003); Me. Rev. Stat. Ann., Tit. 15, §3101(4) (West 2003); Mass. Gen. Laws Ann., ch. 119, §74 (West 2003); Mich. Comp. Laws Ann. §764.27 (West 2000); Minn. Stat. §260B.125 (2002); N. D. Cent. Code §27-20-34 (Lexis Supp. 2003); R. I. Gen. Laws §14-1-7 (Lexis 2002); Vt. Stat. Ann., Tit. 33, §5516 (Lexis 2001); W. Va. Code §49-5-10 (Lexis 2004); Wis. Stat. §938.18 (2003-2004); see also National Center for Juvenile Justice, Trying and Sentencing Juveniles as Adults: An Analysis of State Transfer and Blended Sentencing Laws 1 (Oct. 2003). The District of Columbia is the only jurisdiction without a death penalty that specifically exempts under-18 offenders from its harshest sanction — life imprisonment without parole. See D. C. Code §22-2104 (West 2001).Footnote 3 See Mass. Gen. Laws Ann., ch. 119, §74 (West 2003); N. D. Cent. Code §27-20-34 (Lexis Supp. 2003); W. Va. Code §49-5-10 (Lexis 2004).Footnote 4 As the Court notes, Washington State's decision to prohibit executions of offenders under 18 was made by a judicial, not legislative, decision. State v. Furman, 122 Wash. 2d 440, 459, 858 P. 2d 1092, 1103 (1993), construed the State's death penalty statute — which did not set any age limit — to apply only to persons over 18. The opinion found that construction necessary to avoid what it considered constitutional difficulties, and did not purport to reflect popular sentiment. It is irrelevant to the question of changed national consensus.Footnote 5 In 1996, Arizona's Ballot Proposition 102 exposed under-18 murderers to the death penalty by automatically transferring them out of juvenile courts. The statute implementing the proposition required the county attorney to "bring a criminal prosecution against a juvenile in the same manner as an adult if the juvenile is fifteen, sixteen or seventeen years of age and is accused of ... first degree murder." Ariz. Rev. Stat. Ann. §13-501 (West 2001). The Arizona Supreme Court has added to this scheme a constitutional requirement that there be an individualized assessment of the juvenile's maturity at the time of the offense. See State v. Davolt, 207 Ariz. 191, 214-216, 84 P. 3d 456, 479-481 (2004).Footnote 6 Florida voters approved an amendment to the State Constitution, which changed the wording from "cruel or unusual" to "cruel and unusual," Fla. Const., Art. I, §17 (2003). See Commentary to 1998 Amendment, 25B Fla. Stat. Ann., p. 180 (West 2004). This was a response to a Florida Supreme Court ruling that "cruel or unusual" excluded the death penalty for a defendant who committed murder when he was younger than 17. See Brennan v. State, 754 So. 2d 1, 5 (Fla. 1999). By adopting the federal constitutional language, Florida voters effectively adopted our decision in Stanford v. Kentucky, 492 U. S. 361 (1989). See Weaver, Word May Allow Execution of 16-Year-Olds, Miami Herald, Nov. 7, 2002, p. 7B.Footnote 7 See, e.g., Enmund v. Florida, 458 U. S. 782, 801 (1982) ("[W]e have no reason to disagree with th[e] judgment [of the state legislatures] for purposes of construing and applying the Eighth Amendment"); Coker v. Georgia, 433 U. S. 584, 597 (1977) (plurality opinion) ("[T]he legislative rejection of capital punishment for rape strongly confirms our own judgment").Footnote 8 Justice O'Connor agrees with our analysis that no national consensus exists here, ante, at 8-12 (dissenting opinion). She is nonetheless prepared (like the majority) to override the judgment of America's legislatures if it contradicts her own assessment of "moral proportionality," ante, at 12. She dissents here only because it does not. The votes in today's case demonstrate that the offending of selected lawyers' moral sentiments is not a predictable basis for law — much less a democratic one.Footnote 9 Justice O'Connor asserts that the Eighth Amendment has a "special character," in that it "draws its meaning directly from the maturing values of civilized society." Ante, at 19. Nothing in the text reflects such a distinctive character — and we have certainly applied the "maturing values" rationale to give brave new meaning to other provisions of the Constitution, such as the Due Process Clause and the Equal Protection Clause. See, e.g., Lawrence v. Texas, 539 U. S. 558, 571-573 (2003); United States v. Virginia, 518 U. S. 515, 532-534 (1996); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 847-850 (1992). Justice O'Connor asserts that an international consensus can at least "serve to confirm the reasonableness of a consonant and genuine American consensus." Ante, at 19. Surely not unless it can also demonstrate the unreasonableness of such a consensus. Either America's principles are its own, or they follow the world; one cannot have it both ways. Finally, Justice O'Connor finds it unnecessary to consult foreign law in the present case because there is "no ... domestic consensus" to be confirmed. Ibid. But since she believes that the Justices can announce their own requirements of "moral proportionality" despite the absence of consensus, why would foreign law not be relevant to that judgment? If foreign law is powerful enough to supplant the judgment of the American people, surely it is powerful enough to change a personal assessment of moral proportionality.

Claiming to be disabled from performing her automobile assembly line job by carpal tunnel syndrome and related impairments, respondent sued petitioner, her former employer, for failing to provide her with a reasonable accommodation as required by the Americans with Disabilities Act of 1990 (ADA), 42 U. S. C. §12112(b)(5)(A). The District Court granted petitioner summary judgment, holding that respondent's impairment did not qualify as a "disability" under the ADA because it had not "substantially limit[ed]" any "major life activit[y]," §12102(2)(A), and that there was no evidence that respondent had had a record of a substantially limiting impairment or that petitioner had regarded her as having such an impairment. The Sixth Circuit reversed, finding that the impairments substantially limited respondent in the major life activity of performing manual tasks. In order to demonstrate that she was so limited, said the court, respondent had to show that her manual disability involved a "class" of manual activities affecting the ability to perform tasks at work. Respondent satisfied this test, according to the court, because her ailments prevented her from doing the tasks associated with certain types of manual jobs that require the gripping of tools and repetitive work with hands and arms extended at or above shoulder levels for extended periods of time. In reaching this conclusion, the court found that evidence that respondent could tend to her personal hygiene and carry out personal or household chores did not affect a determination that her impairments substantially limited her ability to perform the range of manual tasks associated with an assembly line job. The court granted respondent partial summary judgment on the issue whether she was disabled under the ADA. Held: The Sixth Circuit did not apply the proper standard in determining that respondent was disabled under the ADA because it analyzed only a limited class of manual tasks and failed to ask whether respondent's impairments prevented or restricted her from performing tasks that are of central importance to most people's daily lives. Pp. 7-18. (a) The Court's consideration of what an individual must prove to demonstrate a substantial limitation in the major life activity of performing manual tasks is guided by the ADA's disability definition. "Substantially" in the phrase "substantially limits" suggests "considerable" or "to a large degree," and thus clearly precludes impairments that interfere in only a minor way with performing manual tasks. Cf. Albertson's, Inc. v. Kirkingburg, 527 U. S. 555, 565. Moreover, because "major" means important, "major life activities" refers to those activities that are of central importance to daily life. In order for performing manual tasks to fit into this category, the tasks in question must be central to daily life. To be substantially limited in the specific major life activity of performing manual tasks, therefore, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long-term. See 29 CFR §§1630.2(j)(2)(ii-iii). It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires them to offer evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial. Id., at 567. That the Act defines "disability" "with respect to an individual," §12102(2), makes clear that Congress intended the existence of a disability to be determined in such a case-by-case manner. See, e.g., Sutton v. United Air Lines, Inc., 527 U. S. 471, 483. An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one such as carpal tunnel syndrome, in which symptoms vary widely from person to person. Pp. 11-14. (b) The Sixth Circuit erred in suggesting that, in order to prove a substantial limitation in the major life activity of performing manual tasks, a plaintiff must show that her manual disability involves a "class" of manual activities, and that those activities affect the ability to perform tasks at work. Nothing in the ADA's text, this Court's opinions, or the regulations suggests that a class-based framework should apply outside the context of the major life activity of working. While the Sixth Circuit addressed the different major life activity of performing manual tasks, its analysis erroneously circumvented Sutton, supra, at 491, by focusing on respondent's inability to perform manual tasks associated only with her job. Rather, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives. Also without support is the Sixth Circuit's assertion that the question whether an impairment constitutes a disability is to be answered only by analyzing the impairment's effect in the workplace. That the Act's "disability" definition applies not only to the portion of the ADA dealing with employment, but also to the other provisions dealing with public transportation and public accommodations, demonstrates that the definition is intended to cover individuals with disabling impairments regardless of whether they have any connection to a workplace. Moreover, because the manual tasks unique to any particular job are not necessarily important parts of most people's lives, occupation-specific tasks may have only limited relevance to the manual task inquiry. In this case, repetitive work with hands and arms extended at or above shoulder levels for extended periods, the manual task on which the Sixth Circuit relied, is not an important part of most people's daily lives. Household chores, bathing, and brushing one's teeth, in contrast, are among the types of manual tasks of central importance to people's daily lives, so the Sixth Circuit should not have disregarded respondent's ability to do these activities. Pp. 14-17.224 F. 3d 840, reversed and remanded. O'Connor, J., delivered the opinion for a unanimous Court.TOYOTA MOTOR MANUFACTURING, KENTUCKY,INC., PETITIONER v. ELLA WILLIAMSon writ of certiorari to the united states court ofappeals for the sixth circuit[January 8, 2002] Justice O'Connor delivered the opinion of the Court. Under the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 328, 42 U. S. C. §12101 et seq. (1994 ed. and Supp. V), a physical impairment that "substantially limits one or more ... major life activities" is a "disability." 42 U. S. C. §12102(2)(A) (1994 ed.). Respondent, claiming to be disabled because of her carpal tunnel syndrome and other related impairments, sued petitioner, her former employer, for failing to provide her with a reasonable accommodation as required by the ADA. See §12112(b)(5)(A). The District Court granted summary judgment to petitioner, finding that respondent's impairments did not substantially limit any of her major life activities. The Court of Appeals for the Sixth Circuit reversed, finding that the impairments substantially limited respondent in the major life activity of performing manual tasks, and therefore granting partial summary judgment to respondent on the issue of whether she was disabled under the ADA. We conclude that the Court of Appeals did not apply the proper standard in making this determination because it analyzed only a limited class of manual tasks and failed to ask whether respondent's impairments prevented or restricted her from performing tasks that are of central importance to most people's daily lives.I Respondent began working at petitioner's automobile manufacturing plant in Georgetown, Kentucky, in August 1990. She was soon placed on an engine fabrication assembly line, where her duties included work with pneumatic tools. Use of these tools eventually caused pain in respondent's hands, wrists, and arms. She sought treatment at petitioner's in-house medical service, where she was diagnosed with bilateral carpal tunnel syndrome and bilateral tendinitis. Respondent consulted a personal physician who placed her on permanent work restrictions that precluded her from lifting more than 20 pounds or from "frequently lifting or carrying of objects weighing up to 10 pounds," engaging in "constant repetitive ... flexion or extension of [her] wrists or elbows," performing "overhead work," or using "vibratory or pneumatic tools." Brief for Respondent 2; App. 45-46. In light of these restrictions, for the next two years petitioner assigned respondent to various modified duty jobs. Nonetheless, respondent missed some work for medical leave, and eventually filed a claim under the Kentucky Workers' Compensation Act. Ky. Rev. Stat. Ann. §342.0011 et seq. (1997 and Supp. 2000). The parties settled this claim, and respondent returned to work. She was unsatisfied by petitioner's efforts to accommodate her work restrictions, however, and responded by bringing an action in the United States District Court for the Eastern District of Kentucky alleging that petitioner had violated the ADA by refusing to accommodate her disability. That suit was also settled, and as part of the settlement, respondent returned to work in December 1993. Upon her return, petitioner placed respondent on a team in Quality Control Inspection Operations (QCIO). QCIO is responsible for four tasks: (1) "assembly paint"; (2) "paint second inspection"; (3) "shell body audit"; and (4) "ED surface repair." App. 19. Respondent was initially placed on a team that performed only the first two of these tasks, and for a couple of years, she rotated on a weekly basis between them. In assembly paint, respondent visually inspected painted cars moving slowly down a conveyor. She scanned for scratches, dents, chips, or any other flaws that may have occurred during the assembly or painting process, at a rate of one car every 54 seconds. When respondent began working in assembly paint, inspection team members were required to open and shut the doors, trunk, and/or hood of each passing car. Sometime during respondent's tenure, however, the position was modified to include only visual inspection with few or no manual tasks. Paint second inspection required team members to use their hands to wipe each painted car with a glove as it moved along a conveyor. Id., at 21-22. The parties agree that respondent was physically capable of performing both of these jobs and that her performance was satisfactory. During the fall of 1996, petitioner announced that it wanted QCIO employees to be able to rotate through all four of the QCIO processes. Respondent therefore received training for the shell body audit job, in which team members apply a highlight oil to the hood, fender, doors, rear quarter panel, and trunk of passing cars at a rate of approximately one car per minute. The highlight oil has the viscosity of salad oil, and employees spread it on cars with a sponge attached to a block of wood. After they wipe each car with the oil, the employees visually inspect it for flaws. Wiping the cars required respondent to hold her hands and arms up around shoulder height for several hours at a time. A short while after the shell body audit job was added to respondent's rotations, she began to experience pain in her neck and shoulders. Respondent again sought care at petitioner's in-house medical service, where she was diagnosed with myotendinitis bilateral periscapular, an inflammation of the muscles and tendons around both of her shoulder blades; myotendinitis and myositis bilateral forearms with nerve compression causing median nerve irritation; and thoracic outlet compression, a condition that causes pain in the nerves that lead to the upper extremities. Respondent requested that petitioner accommodate her medical conditions by allowing herto return to doing only her original two jobs in QCIO, which respondent claimed she could still perform without difficulty. The parties disagree about what happened next. According to respondent, petitioner refused her request and forced her to continue working in the shell body audit job, which caused her even greater physical injury. According to petitioner, respondent simply began missing work on a regular basis. Regardless, it is clear that on December 6, 1996, the last day respondent worked at petitioner's plant, she was placed under a no-work-of-any-kind restriction by her treating physicians. On January 27, 1997, respondent received a letter from petitioner that terminated her employment, citing her poor attendance record. Respondent filed a charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC). After receiving a right to sue letter, respondent filed suit against petitioner in the United States District Court for the Eastern District of Kentucky. Her complaint alleged that petitioner had violated the ADA and the Kentucky Civil Rights Act, Ky. Rev. Stat. Ann. §344.010 et seq. (1997 and Supp. 2000), by failing to reasonably accommodate her disability and by terminating her employment. Respondent later amended her complaint to also allege a violation of of the Family and Medical Leave Act of 1993 (FMLA), 107 Stat. 6, as amended, 29 U. S. C. §2601 et seq. (1994 ed. and Supp. V). Respondent based her claim that she was "disabled" under the ADA on the ground that her physical impairments substantially limited her in (1) manual tasks; (2) housework; (3) gardening; (4) playing with her children; (5) lifting; and (6) working, all of which, she argued, constituted major life activities under the Act. Respondent also argued, in the alternative, that she was disabled under the ADA because she had a record of a substantially limiting impairment and because she was regarded as having such an impairment. See 42 U. S. C. §§12102(2)(B-C) (1994 ed.). After petitioner filed a motion for summary judgment and respondent filed a motion for partial summary judgment on her disability claims, the District Court granted summary judgment to petitioner. Civ. A. No. 97-135 (Jan. 26, 1999), App. to Pet. for Cert. A-23. The court found that respondent had not been disabled, as defined by the ADA, at the time of petitioner's alleged refusal to accommodate her, and that she had therefore not been covered by the Act's protections or by the Kentucky Civil Rights Act, which is construed consistently with the ADA. Id., at A-29, A-34 to A-47. The District Court held that respondent had suffered from a physical impairment, but that the impairment did not qualify as a disability because it had not "substantially limit[ed]" any "major life activit[y]," 42 U. S. C. §12102(2)(A). App. to Pet. for Cert. A-34 to A-42. The court rejected respondent's arguments that gardening, doing housework, and playing with children are major life activities. Id., at A-35 to A-36. Although the court agreed that performing manual tasks, lifting, and working are major life activities, it found the evidence insufficient to demonstrate that respondent had been substantially limited in lifting or working. Id., at A-36 to A-42. The court found respondent's claim that she was substantially limited in performing manual tasks to be "irretrievably contradicted by [respondent's] continual insistence that she could perform the tasks in assembly [paint] and paint [second] inspection without difficulty." Id., at A-36. The court also found no evidence that respondent had had a record of a substantially limiting impairment, id., at A-43, or that petitioner had regarded her as having such an impairment, id., at A-46 to A-47. The District Court also rejected respondent's claim that her termination violated the ADA and the Kentucky Civil Rights Act. The court found that even if it assumed that respondent was disabled at the time of her termination, she was not a "qualified individual with a disability," 42 U. S. C. §12111(8) (1994 ed.), because, at that time, her physicians had restricted her from performing work of any kind, App. to Pet. for Cert. A-47 to A-50. Finally, the court found that respondent's FMLA claim failed, because she had not presented evidence that she had suffered any damages available under the FMLA. Id., at A-50 to A-54. Respondent appealed all but the gardening, housework, and playing-with-children rulings. The Court of Appeals for the Sixth Circuit reversed the District Court's ruling on whether respondent was disabled at the time she sought an accommodation, but affirmed the District Court's rulings on respondent's FMLA and wrongful termination claims. 224 F. 3d 840 (2000). The Court of Appeals held that in order for respondent to demonstrate that she was disabled due to a substantial limitation in the ability to perform manual tasks at the time of her accommodation request, she had to "show that her manual disability involve[d] a `class' of manual activities affecting the ability to perform tasks at work." Id., at 843. Respondent satisfied this test, according to the Court of Appeals, because her ailments "prevent[ed] her from doing the tasks associated with certain types of manual assembly line jobs, manual product handling jobs and manual building trade jobs (painting, plumbing, roofing, etc.) that require the gripping of tools and repetitive work with hands and arms extended at or above shoulder levels for extended periods of time." Ibid. In reaching this conclusion, the court disregarded evidence that respondent could "ten[d] to her personal hygiene [and] carr[y] out personal or household chores," finding that such evidence "does not affect a determination that her impairment substantially limit[ed] her ability to perform the range of manual tasks associated with an assembly line job," ibid. Because the Court of Appeals concluded that respondent had been substantially limited in performing manual tasks and, for that reason, was entitled to partial summary judgment on the issue of whether she was disabled under the Act, it found that it did not need to determine whether respondent had been substantially limited in the major life activities of lifting or working, ibid., or whether she had had a "record of" a disability or had been "regarded as" disabled, id., at 844. We granted certiorari, 532 U. S. 970 (2001), to consider the proper standard for assessing whether an individual is substantially limited in performing manual tasks. We now reverse the Court of Appeals' decision to grant partial summary judgment to respondent on the issue whether she was substantially limited in performing manual tasks at the time she sought an accommodation. We express no opinion on the working, lifting, or other arguments for disability status that were preserved below but which were not ruled upon by the Court of Appeals.II The ADA requires covered entities, including private employers, to provide "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship." 42 U. S. C. §12112(b)(5)(A) (1994 ed.); see also §12111(2) ("The term `covered entity' means an employer, employment agency, labor organization, or joint labor-management committee"). The Act defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." §12111(8). In turn, a "disability" is: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; "(B) a record of such an impairment; or "(C) being regarded as having such an impairment." §12102(2). There are two potential sources of guidance for interpreting the terms of this definition — the regulations interpreting the Rehabilitation Act of 1973, 87 Stat. 361, as amended, 29 U. S. C. §706(8)(B) (1988 ed.), and the EEOC regulations interpreting the ADA. Congress drew the ADA's definition of disability almost verbatim from the definition of "handicapped individual" in the Rehabilitation Act, §706(8)(B), and Congress' repetition of a well-established term generally implies that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations. Bragdon v. Abbott, 524 U. S. 624, 631 (1998); FDIC v. Philadelphia Gear Corp., 476 U. S. 426, 437-438 (1986); ICC v. Parker, 326 U. S. 60, 65 (1945). As we explained in Bragdon v. Abbott, supra, at 631, Congress did more in the ADA than suggest this construc-tion; it adopted a specific statutory provision directing as follows: "Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U. S. C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title." 42 U. S. C. §12201(a) (1994 ed.) The persuasive authority of the EEOC regulations is less clear. As we have previously noted, see Sutton v. United Air Lines, Inc., 527 U. S. 471, 479 (1999), no agency has been given authority to issue regulations interpreting the term "disability" in the ADA. Nonetheless, the EEOC has done so. See 29 CFR §§1630.2(g)-(j) (2001). Because both parties accept the EEOC regulations as reasonable, we assume without deciding that they are, and we have no occasion to decide what level of deference, if any, they are due. See Sutton v. United Air Lines, Inc., supra, at 480; Albertson's, Inc. v. Kirkingburg, 527 U. S. 555, 563, n. 10 (1999). To qualify as disabled under subsection (A) of the ADA's definition of disability, a claimant must initially prove that he or she has a physical or mental impairment. See 42 U. S. C. §12102(2)(A). The Rehabilitation Act regulations issued by the Department of Health, Education, and Welfare (HEW) in 1977, which appear without change in the current regulations issued by the Department of Health and Human Services, define "physical impairment," the type of impairment relevant to this case, to mean "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine." 45 CFR §84.3(j)(2)(i) (2001). The HEW regulations are of particular significance because at the time they were issued, HEW was the agency responsible for coordinating the implementation and enforcement of §504 of the Rehabilitation Act, 29 U. S. C. §794 (1994 ed. and Supp. V), which prohibits discrimination against individuals with disabilities by recipients of federal financial assistance. Bragdon v. Abbott, supra, at 632 (citing Consolidated Rail Corporation v. Darrone, 465 U. S. 624, 634 (1984)). Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity. See 42 U. S. C. §12102(2)(A) (1994 ed.). The HEW Rehabilitation Act regulations provide a list of examples of "major life activities," that includes "walking, seeing, hearing," and, as relevant here, "performing manual tasks." 45 CFR §84.3(j)(2)(ii) (2001). To qualify as disabled, a claimant must further show that the limitation on the major life activity is "substantia[l]." 42 U. S. C. §12102(2)(A). Unlike "physical impairment" and "major life activities," the HEW regulations do not define the term "substantially limits." See Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance, 42 Fed. Reg. 22676, 22685 (1977) (stating the Department of Health, Education, and Welfare's position that a definition of "substantially limits" was not possible at that time). The EEOC, therefore, has created its own definition for purposes of the ADA. According to the EEOC regulations, "substantially limit[ed]" means "[u]nable to perform a major life activity that the average person in the general population can perform"; or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 CFR §1630.2(j) (2001). In determining whether an individual is substantially limited in a major life activity, the regulations instruct that the following factors should be considered: "[t]he nature and severity of the impairment; [t]he duration or expected duration of the impairment; and [t]he permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment." §§1630.2(j)(2)(i)-(iii).III The question presented by this case is whether the Sixth Circuit properly determined that respondent was disabled under subsection (A) of the ADA's disability definition at the time that she sought an accommodation from petitioner. 42 U. S. C. §12102(2)(A). The parties do not dispute that respondent's medical conditions, which include carpal tunnel syndrome, myotendinitis, and thoracic outlet compression, amount to physical impairments. The relevant question, therefore, is whether the Sixth Circuit correctly analyzed whether these impairments substantially limited respondent in the major life activity of performing manual tasks. Answering this requires us to address an issue about which the EEOC regulations are silent: what a plaintiff must demonstrate to establish a substantial limitation in the specific major life activity of performing manual tasks. Our consideration of this issue is guided first and foremost by the words of the disability definition itself. "[S]ubstantially" in the phrase "substantially limits" suggests "considerable" or "to a large degree." See Webster's Third New International Dictionary 2280 (1976) (defining "substantially" as "in a substantial manner" and "substantial" as "considerable in amount, value, or worth" and "being that specified to a large degree or in the main"); see also 17 Oxford English Dictionary 66-67 (2d ed. 1989) ("substantial": "[r]elating to or proceeding from the essence of a thing; essential"; "[o]f ample or considerable amount, quantity, or dimensions"). The word "substantial" thus clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities. Cf. Albertson's, Inc. v. Kirkingburg, 527 U. S., at 565 (explaining that a "mere difference" does not amount to a "significant restric[tion]" and therefore does not satisfy the EEOC's interpretation of "substantially limits"). "Major" in the phrase "major life activities" means important. See Webster's, supra, at 1363 (defining "major" as "greater in dignity, rank, importance, or interest"). "Major life activities" thus refers to those activities that are of central importance to daily life. In order for performing manual tasks to fit into this category — a category that includes such basic abilities as walking, seeing, and hearing — the manual tasks in question must be central to daily life. If each of the tasks included in the major life activity of performing manual tasks does not independently qualify as a major life activity, then together they must do so. That these terms need to be interpreted strictly to create a demanding standard for qualifying as disabled is confirmed by the first section of the ADA, which lays out the legislative findings and purposes that motivate the Act. See 42 U. S. C. §12101. When it enacted the ADA in 1990, Congress found that "some 43,000,000 Americans have one or more physical or mental disabilities." §12101(a)(1). If Congress intended everyone with a physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task to qualify as disabled, the number of disabled Americans would surely have been much higher. Cf. Sutton v. United Air Lines, Inc., 527 U. S., at 487 (finding that because more than 100 million people need corrective lenses to see properly, "[h]ad Congress intended to include all persons with corrected physical limitations among those covered by the Act, it undoubtedly would have cited a much higher number [than 43 million disabled persons in the findings"). We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long-term. See 29 CFR §§1630.2(j)(2)(ii)-(iii) (2001). It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those "claiming the Act's protection ... to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience ... is substantial." Albertson's, Inc. v. Kirkingburg, supra, at 567 (holding that monocular vision is not invariably a disability, but must be analyzed on an individual basis, taking into account the individual's ability to compensate for the impairment). That the Act defines "disability" "with respect to an individual," 42 U. S. C. §12102(2), makes clear that Congress intended the existence of a disability to be determined in such a case-by-case manner. See Sutton v. United Air Lines, Inc., supra, at 483; Albertson's, Inc. v. Kirkingburg, supra, at 566; cf. Bragdon v. Abbott, 524 U. S., at 641-642 (relying on unchallenged testimony that the respondent's HIV infection controlled her decision not to have a child, and declining to consider whether HIV infection is a per se disability under the ADA); 29 CFR pt. 1630, App. §1630.2(j) (2001) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual"); ibid. ("The determination of whether an individual is substantially limited in a major life activity must be made on a case-by-case basis"). An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person. Carpal tunnel syndrome, one of respondent's impairments, is just such a condition. While cases of severe carpal tunnel syndrome are characterized by muscle atrophy and extreme sensory deficits, mild cases generally do not have either of these effects and create only intermittent symptoms of numbness and tingling. Carniero, Carpal Tunnel Syndrome: The Cause Dictates the Treatment 66 Cleveland Clinic J. Medicine 159, 161-162 (1999). Studies have further shown that, even without surgical treatment, one quarter of carpal tunnel cases resolve in one month, but that in 22 percent of cases, symptoms last for eight years or longer. See DeStefano, Nordstrom, & Uierkant, Long-term Symptom Outcomes of Carpal Tunnel Syndrome and its Treatment, 22A J. Hand Surgery 200, 204-205 (1997). When pregnancy is the cause of carpal tunnel syndrome, in contrast, the symptoms normally resolve within two weeks of delivery. See Ouellette, Nerve Compression Syndromes of the Upper Extremity in Women, 17 Journal of Musculoskeletal Medicine 536 (2000). Given these large potential differences in the severity and duration of the effects of carpal tunnel syndrome, an individual's carpal tunnel syndrome diagnosis, on its own, does not indicate whether the individual has a disability within the meaning of the ADA.IV The Court of Appeals' analysis of respondent's claimed disability suggested that in order to prove a substantial limitation in the major life activity of performing manual tasks, a "plaintiff must show that her manual disability involves a `class' of manual activities," and that those activities "affec[t] the ability to perform tasks at work." See 224 F. 3d, at 843. Both of these ideas lack support. The Court of Appeals relied on our opinion in Sutton v. United Air Lines, Inc., for the idea that a "class" of manual activities must be implicated for an impairment to substantially limit the major life activity of performing manual tasks. 224 F. 3d, at 843. But Sutton said only that "[w]hen the major life activity under consideration is that of working, the statutory phrase `substantially limits' requires ... that plaintiffs allege that they are unable to work in a broad class of jobs." 527 U. S., at 491 (emphasis added). Because of the conceptual difficulties inherent in the argument that working could be a major life activity, we have been hesitant to hold as much, and we need not decide this difficult question today. In Sutton, we noted that even assuming that working is a major life activity, a claimant would be required to show an inability to work in a "broad range of jobs," rather than a specific job. Id., at 492. But Sutton did not suggest that a class-based analysis should be applied to any major life activity other than working. Nor do the EEOC regulations. In defining "substantially limits," the EEOC regulations only mention the "class" concept in the context of the major life activity of working. 29 CFR §1630.2(j)(3) (2001) ("With respect to the major life activity of working[,] [t]he term substantially limits means 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"). Nothing in the text of the Act, our previous opinions, or the regulations suggests that a class-based framework should apply outside the context of the major life activity of working. While the Court of Appeals in this case addressed the different major life activity of performing manual tasks, its analysis circumvented Sutton by focusing on respondent's inability to perform manual tasks associated only with her job. This was error. When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job. Otherwise, Sutton's restriction on claims of disability based on a substantial limitation in working will be rendered meaningless because an inability to perform a specific job always can be recast as an inability to perform a "class" of tasks associated with that specific job. There is also no support in the Act, our previous opinions, or the regulations for the Court of Appeals' idea that the question of whether an impairment constitutes a disability is to be answered only by analyzing the effect of the impairment in the workplace. Indeed, the fact that the Act's definition of "disability" applies not only to Title I of the Act, 42 U. S. C. §§12111-12117 (1994 ed.), which deals with employment, but also to the other portions of the Act, which deal with subjects such as public transportation, §§12141-12150, 42 U. S. C. §§12161-12165 (1994 ed. and Supp. V), and privately provided public accommodations, §§12181-12189, demonstrates that the definition is intended to cover individuals with disabling impairments regardless of whether the individuals have any connection to a workplace. Even more critically, the manual tasks unique to any particular job are not necessarily important parts of most people's lives. As a result, occupation-specific tasks may have only limited relevance to the manual task inquiry. In this case, "repetitive work with hands and arms extended at or above shoulder levels for extended periods of time," 224 F. 3d, at 843, the manual task on which the Court of Appeals relied, is not an important part of most people's daily lives. The court, therefore, should not have considered respondent's inability to do such manual work in her specialized assembly line job as sufficient proof that she was substantially limited in performing manual tasks. At the same time, the Court of Appeals appears to have disregarded the very type of evidence that it should have focused upon. It treated as irrelevant "[t]he fact that [respondent] can ... ten[d] to her personal hygiene [and] carr[y] out personal or household chores." Ibid. Yet household chores, bathing, and brushing one's teeth are among the types of manual tasks of central importance to people's daily lives, and should have been part of the assessment of whether respondent was substantially limited in performing manual tasks. The District Court noted that at the time respondent sought an accommodation from petitioner, she admitted that she was able to do the manual tasks required by her original two jobs in QCIO. App. to Pet. for Cert. A-36. In addition, according to respondent's deposition testimony, even after her condition worsened, she could still brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry, and pick up around the house. App. 32-34. The record also indicates that her medical conditions caused her to avoid sweeping, to quit dancing, to occasionally seek help dressing, and to reduce how often she plays with her children, gardens, and drives long distances. Id., at 32, 38-39. But these changes in her life did not amount to such severe restrictions in the activities that are of central importance to most people's daily lives that they establish a manual-task disability as a matter of law. On this record, it was therefore inappropriate for the Court of Appeals to grant partial summary judgment to respondent on the issue whether she was substantially limited in performing manual tasks, and its decision to do so must be reversed. In its brief on the merits, petitioner asks us to reinstate the District Court's grant of summary judgment to petitioner on the manual task issue. In its petition for certiorari, however, petitioner did not seek summary judgment; it argued only that the Court of Appeals' reasons for granting partial summary judgment to respondent were unsound. This Court's Rule 14(1)(a) provides: "Only the questions set out in the petition, or fairly included therein, will be considered by the Court." The question whether petitioner was entitled to summary judgment on the manual task issue is therefore not properly before us. See Irvine v. California, 347 U. S. 128, 129-130 (1954). Accordingly, we reverse the Court of Appeals' judgment granting partial summary judgment to respondent and remand the case for further proceedings consistent with this opinion.So ordered.

Section 102 (2) (C) of the National Environmental Policy Act of 1969 (NEPA) requires environmental impact statements (EIS's) to be included in recommendations or reports of federal agencies on "proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." Contending that 102 (2) (C) requires federal agencies to prepare EIS's to accompany appropriation requests, respondents, three organizations with interests in the preservation of the environment, brought suit in Federal District Court against petitioners, the Secretary of the Interior and the Director of the Office of Management and Budget (OMB). Respondents alleged that proposed curtailments in the budget of the National Wildlife Refuge System would significantly affect the quality of the human environment, and hence should have been accompanied by an EIS prepared both by the Department of the Interior's Fish and Wildlife Service, which administers the Refuge System, and by OMB. The District Court granted summary judgment for respondents and ordered petitioners to prepare EIS's on annual proposals for financing the Refuge System. The District Court's holding was modified by the Court of Appeals, which concluded that while 102 (2) (C) has no application to a routine appropriation request for continuance of an ongoing program, an EIS is required when an appropriation request accompanies a proposal for taking new action that significantly changes the status quo, or when the request "ushers in a considered programmatic course following a programmatic review."Held: Section 102 (2) (C) does not require federal agencies to prepare EIS's to accompany appropriation requests. Pp. 355-365. (a) Appropriation requests, even those which are the result of an agency's "painstaking review" of an ongoing program, are not "proposals for legislation" within the meaning of 102 (2) (C). NEPA makes no distinction between "proposals for legislation" that are the result of "painstaking review," and those that are merely "routine"; and the interpretation of NEPA by the Council on Environmental Quality (CEQ) under its current mandatory regulations which specify that "legislation" does not include appropriation requests, is entitled to substantial deference even though the regulations reverse CEQ's interpretation under earlier advisory guidelines that were in effect at the time of the Court of Appeals' decision. Moreover, CEQ's current interpretation is consistent with the traditional distinction which Congress has drawn between "legislation" and "appropriation," the rules of both Houses prohibiting "legislation" from being added to an appropriation bill. Pp. 356-361. (b) Nor do appropriation requests constitute "proposals for ... major Federal actions" for purposes of 102 (2) (C). Appropriation requests do not "propose" federal actions at all, but instead fund actions already proposed. Thus, 102 (2) (C) is best interpreted as applying to those recommendations or reports that actually propose programmatic actions, rather than to those which merely suggest how such actions may be funded. Even if changes in agency programs occur because of budgetary decisions, an EIS at the appropriation stage would only be repetitive of the EIS that must accompany any proposed changes in the agency's programs that would significantly affect the quality of the human environment. Pp. 361-364. App. D.C. 117, 581 F.2d 895, reversed.BRENNAN, J., delivered the opinion for a unanimous Court.Assistant Attorney General Harmon argued the cause for petitioners. On the briefs were Acting Solicitor General Wallace, Acting Assistant Attorney General Sagalkin, Deputy Solicitor General Barnett, Peter R. Steenland, Jr., Raymond N. Zagone, and Dirk D. Snel.James Hillson Cohen argued the cause and filed briefs for respondents.* [Footnote *] Ronald A. Zumbrun, Robert K. Best, and Raymond M. Momboisse filed a brief for the Pacific Legal Foundation as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed by Roberts B. Owen and Charles H. Montange for the National Wildlife Federation et al.; and by Mitchell Rogovin and David R. Boyd for the Wilderness Society.MR. JUSTICE BRENNAN delivered the opinion of the Court.The question for decision is whether 102 (2) (C) of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 853, 42 U.S.C. 4332 (2) (C), requires federal agencies to prepare environmental impact statements (EIS's) to accompany appropriation requests. We hold that it does not.INEPA sets forth its purposes in bold strokes: "The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation ... ." 83 Stat. 852, 42 U.S.C. 4321.1 Congress recognized, however, that these desired goals could be incorporated into the everyday functioning of the Federal Government only with great difficulty. See S. Rep. No. 91-296, p. 19 (1969). NEPA therefore contains "action-forcing procedures which will help to insure that the policies [of the Act] are implemented." Ibid. See Kleppe v. Sierra Club, . Section 102 (2) (C) of the Act sets out one of these procedures: "The Congress authorizes and directs that, to the fullest extent possible ... (2) all agencies of the Federal Government shall - ... . . "(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on - "(i) the environmental impact of the proposed action, "(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, "(iii) alternatives to the proposed action, "(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and "(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." 83 Stat. 853, 42 U.S.C. 4332 (2) (C) (emphasis supplied). The thrust of 102 (2) (C) is thus that environmental concerns be integrated into the very process of agency decision-making. The "detailed statement" it requires is the outward sign that environmental values and consequences have been considered during the planning stage of agency actions.2 If environmental concerns are not interwoven into the fabric of agency planning, the "action-forcing" characteristics of 102 (2) (C) would be lost. "In the past, environmental factors have frequently been ignored and omitted from consideration in the early stages of planning ... . As a result, unless the results of planning are radically revised at the policy level - and this often means the Congress - environmental enhancement opportunities may be foregone and unnecessary degradation incurred." S. Rep. No. 91-296, supra, at 20. For this reason the regulations of the Council on Environmental Quality (CEQ) require federal agencies to "integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values ... ." 43 Fed. Reg. 55992 (1978) (to be codified at 40 CFR 1501.2).3 In 1974, respondents, three organizations with interests in the preservation of the environment,4 brought suit in the Federal District Court for the District of Columbia alleging that 102 (2) (C) requires federal agencies to prepare EIS's5 to accompany their appropriation requests. Respondents named as defendants the Secretary of the Interior and the Director of the Office of Management and Budget (OMB), and alleged that proposed curtailments in the budget of the National Wildlife Refuge System (NWRS), 80 Stat. 927, 16 U.S.C. 668dd, would "cut back significantly the operations, maintenance, and staffing of units within the System."6 Complaint § 17. The System is administered by the Fish and Wildlife Service of the Department of the Interior, and consists of more than 350 refuges encompassing more than 30 million acres in 49 States. The primary purpose of the NWRS is to provide a national program "for the restoration, preservation, development and management of wildlife and wildlands habitat; for the protection and preservation of endangered or threatened species and their habitat; and for the management of wildlife and wildlands to obtain the maximum benefits from these resources." 50 CFR 25.11 (b) (1978).7 Respondents alleged that the proposed budget curtailments would significantly affect the quality of the human environment,8 and hence should have been accompanied by an EIS prepared both by the Fish and Wildlife Service and by OMB.9 The District Court agreed with respondents' contentions. Relying on provisions of the then applicable CEQ guidelines,10 and on the Department of the Interior's Manual,11 the District Court held that "appropriation requests are `proposals for legislation' within the meaning of NEPA," and also that "annual proposals for financing the Refuge System are major Federal actions which clearly have a significant effect on the environment." Sierra Club v. Morton, 395 F. Supp. 1187, 1188, 1189 (1975). The District Court granted respondents' motion for summary judgment, and provided declaratory and injunctive relief. It stated that the Department of the Interior and OMB were required "to prepare, consider, and disseminate environmental impact statements on annual proposals for financing the National Wildlife Refuge System."12 App. to Pet. for Cert. 61a.The Court of Appeals for the District of Columbia Circuit modified the holding of the District Court. The Court of Appeals was apprehensive because "[a] rule requiring preparation of an EIS on the annual budget request for virtually every ongoing program would trivialize NEPA." App. D.C. 117, 125, 581 F.2d 895, 903 (1978). Therefore, the Court of Appeals concluded that 102 (2) (C) required the preparation of an EIS only when an appropriation request accompanies "a `proposal' for taking new action which significantly changes the status quo," or when "the request for budget approval and appropriations is one that ushers in a considered programmatic course following a programmatic review." App. D.C., at 125, 581 F.2d, at 903. Section 102 (2) (C) would thus have no application to "a routine request for budget approval and appropriations for continuance and management of an ongoing program." App. D.C., at 125, 581 F.2d, at 903. The Court of Appeals held, however, that there was no need for injunctive relief because the Fish and Wildlife Service had completed during the pendency of the appeal a "Programmatic EIS" that adequately evaluated the environmental consequences for the NWRS of various budgetary alternatives.13 Id., at 126, 581 F.2d, at 904. See United States Fish and Wildlife Service, Final Environmental Statement: Operation of the National Wildlife Refuge System (Nov. 1976).14 We granted certiorari, , and we now reverse.IINEPA requires EIS's to be included in recommendations or reports on both "proposals for legislation ... significantly affecting the quality of the human environment" and "proposals for ... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. 4332 (2) (C). See CEQ regulations, 43 Fed. Reg. 56001 (1978) (to be codified at 40 CFR 1506.8 (a)). Petitioners argue, however, that the requirements of 102 (2) (C) have no application to the budget process. The contrary holding of the Court of Appeals rests on two alternative interpretations of 102 (2) (C). The first is that appropriation requests which are the result of "an agency's painstaking review of an ongoing program," App. D.C., at 125, 581 F.2d, at 903, are "proposals for legislation" within the meaning of 102 (2) (C). The second is that appropriation requests which are the reflection of "new" agency initiatives constituting "major Federal actions" under NEPA, are themselves "proposals for ... major Federal actions" for purposes of 102 (2) (C). We hold that neither interpretation is correct.AWe note initially that NEPA makes no distinction between "proposals for legislation" that are the result of "painstaking review," and those that are merely "routine." When Congress has thus spoken "in the plainest of words," TVA v. Hill, , we will ordinarily decline to fracture the clear language of a statute, even for the purpose of fashioning from the resulting fragments a rule that "accords with `common sense and the public weal.'" Id., at 195. Therefore, either all appropriation requests constitute "proposals for legislation," or none does.There is no direct evidence in the legislative history of NEPA that enlightens whether Congress intended the phrase "proposals for legislation" to include requests for appropriations. At the time of the Court of Appeals' decision, however, CEQ guidelines provided that 102 (2) (C) applied to "[r]ecommendations or favorable reports relating to legislation including requests for appropriations." 40 CFR 1500.5 (a) (1) (1977).15 At that time CEQ's guidelines were advisory in nature, and were for the purpose of assisting federal agencies in complying with NEPA. 1500.1 (a).In 1977, however, President Carter, in order to create a single set of uniform, mandatory regulations, ordered CEQ, "after consultation with affected agencies," to "[i]ssue regulations to Federal agencies for the implementation of the procedural provisions" of NEPA. Exec. Order No. 11991, 3 CFR 124 (1978). The President ordered the heads of federal agencies to "comply with the regulations issued by the Council ... ." Ibid. CEQ has since issued these regulations, 43 Fed. Reg. 55978-56007 (1978),16 and they reverse CEQ's prior interpretation of 102 (2) (C). The regulations provide specifically that "`[l]egislation' includes a bill or legislative proposal to Congress ... but does not include requests for appropriations." 43 Fed. Reg. 56004 (1978) (to be codified at 40 CFR 1508.17). (Emphasis supplied.) CEQ explained this reversal by noting that, on the basis of "traditional concepts relating to appropriations and the budget cycle, considerations of timing and confidentiality, and other factors, ... the Council in its experience found that preparation of EISs is ill-suited to the budget preparation process."17 43 Fed. Reg., at 55989. CEQ's interpretation of NEPA is entitled to substantial deference. See Warm Springs Dam Task Force v. Gribble, (Douglas, J., in chambers). The Council was created by NEPA, and charged in that statute with the responsibility "to review and appraise the various programs and activities of the Federal Government in the light of the policy set forth in ... this Act ..., and to make recommendations to the President with respect thereto." 83 Stat. 855, 42 U.S.C. 4344 (3).It is true that in the past we have been somewhat less inclined to defer to "administrative guidelines" when they have "conflicted with earlier pronouncements of the agency." General Electric Co. v. Gilbert, . But CEQ's reversal of interpretation occurred during the detailed and comprehensive process, ordered by the President, of transforming advisory guidelines into mandatory regulations applicable to all federal agencies. See American Trucking Assns. v. Atchison, T. & S. F. R. Co., . A mandatory requirement that every federal agency submit EIS's with its appropriation requests raises wholly different and more serious issues "of fair and prudent administration," ibid., than does nonbinding advice. This is particularly true in light of the Court of Appeals' correct observation that "[a] rule requiring preparation of an EIS on the annual budget request for virtually every ongoing program would trivialize NEPA." App. D.C., at 125, 581 F.2d, at 903. The Court of Appeals accurately noted that such an interpretation of NEPA would be a "reductio ad absurdum ... . It would be absurd to require an EIS on every decision on the management of federal land, such as fluctuation in the number of forest fire spotters." Id., at 124, 581 F.2d, at 902. Even respondents do not now contend that NEPA should be construed so that all appropriation requests constitute "proposals for legislation." Brief for Respondents 13 n. 6, 55-61.CEQ's interpretation of the phrase "proposals for legislation" is consistent with the traditional distinction which Congress has drawn between "legislation" and "appropriation."18 The rules of both Houses "prohibit `legislation' from being added to an appropriation bill." L. Fisher, Budget Concepts and Terminology: The Appropriations Phase, in 1 Studies in Taxation, Public Finance and Related Subjects - A Compendium 437 (Fund for Public Policy Research 1977). See Standing Rules of the United States Senate, Rule 16 (4) ("No amendment which proposes general legislation shall be received to any general appropriation bill ..."); Rules of the House of Representatives, 96th Cong., 1st Sess., Rule XXI (2) (1979);19 7 C. Cannon, Precedents of the House of Representatives 1172, 1410, 1443, 1445, 1448, 1459, 1463, 1470, 1472 (1936). The distinction is maintained "to assure that program and financial matters are considered independently of one another. This division of labor is intended to enable the Appropriations Committees to concentrate on financial issues and to prevent them from trespassing on substantive legislation." House Budget Committee, Congressional Control of Expenditures 19 (Comm. Print 1977). House and Senate rules thus require a "previous choice of policy ... before any item of appropriations might be included in a general appropriations bill." United States ex rel. Chapman v. FPC, n. 5 (1953). Since appropriations therefore "have the limited and specific purpose of providing funds for authorized programs," TVA v. Hill, 437 U.S., at 190, and since the "action-forcing" provisions of NEPA are directed precisely at the processes of "planning and ... decisionmaking," 42 U.S.C. 4332 (2) (A), which are associated with underlying legislation, we conclude that the distinction made by CEQ's regulations is correct and that "proposals for legislation" do not include appropriation requests.BThe Court of Appeals' alternative interpretation of NEPA is that appropriation requests constitute "proposals for ... major Federal actions."20 But this interpretation distorts the language of the Act, since appropriation requests do not "propose" federal actions at all; they instead fund actions already proposed. Section 102 (2) (C) is thus best interpreted as applying to those recommendations or reports that actually propose programmatic actions, rather than to those which merely suggest how such actions may be funded. Any other result would create unnecessary redundancy. For example, if the mere funding of otherwise unaltered agency programs were construed to constitute major federal actions significantly affecting the quality of the human environment, the resulting EIS's would merely recapitulate the EIS's that should have accompanied the initial proposals of the programs. And if an agency program were to be expanded or revised in a manner that constituted major federal action significantly affecting the quality of the human environment,21 an EIS would have been required to accompany the underlying programmatic decision.22 An additional EIS at the appropriation stage would add nothing.Even if changes in agency programs occur because of budgetary decisions, an EIS at the appropriation stage would only be repetitive. For example, respondents allege in their complaint that OMB required the Fish and Wildlife Service to decrease its appropriation request for the NWRS, and that this decrease would alter the operation of the NWRS in a manner that would significantly affect the quality of the human environment. See n. 9, supra. But since the Fish and Wildlife Service could respond to OMB's budgetary curtailments in a variety of ways, see United States Fish and Wildlife Service, Final Environmental Statement: Operation of the National Wildlife Refuge System (Nov. 1976), it is impossible to predict whether or how any particular budget cut will in fact significantly affect the quality of the human environment. OMB's determination to cut the Service's budget is not a programmatic proposal, and therefore requiring OMB to include an EIS in its budgetary cuts would be premature. See Aberdeen & Rockfish R. Co. v. SCRAP, . And since an EIS must be prepared if any of the revisions the Fish and Wildlife Service proposes in its ongoing programs in response to OMB's budget cuts would significantly affect the quality of the human environment, requiring the Fish and Wildlife Service to include an EIS with its revised appropriation request would merely be redundant. Moreover, this redundancy would have the deleterious effect of circumventing and eliminating the careful distinction Congress has maintained between appropriation and legislation. It would flood House and Senate Appropriations Committees with EIS's focused on the policy issues raised by underlying authorization legislation,23 thereby dismantling the "division of labor" so deliberately created by congressional rules.CWe conclude therefore, for the reasons given above, that appropriation requests constitute neither "proposals for legislation" nor "proposals for ... major Federal actions," and that therefore the procedural requirements of 102 (2) (C) have no application to such requests.24 The judgment of the Court of Appeals is reversed. So ordered.

Petitioner's complaint alleged that respondent agents of the Federal Bureau of Narcotics, acting under color of federal authority, made a warrantless entry of his apartment, searched the apartment, and arrested him on narcotics charges. All of the acts were alleged to have been done without probable cause. Petitioner's suit to recover damages from the agents was dismissed by the District Court on the alternative grounds (1) that it failed to state a federal cause of action and (2) that respondents were immune from suit by virtue of their official position. The Court of Appeals affirmed on the first ground alone. Held: 1. Petitioner's complaint states a federal cause of action under the Fourth Amendment for which damages are recoverable upon proof of injuries resulting from the federal agents' violation of that Amendment. Pp. 390-397. 2. The Court does not reach the immunity question, which was not passed on by the Court of Appeals. Pp. 397-398. 409 F.2d 718, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. HARLAN, J., filed an opinion concurring in the judgment, post, p. 398. BURGER, C. J., post, p. 411, BLACK, J., post, p. 427, and BLACKMUN, J., post, p. 430, filed dissenting opinions.Stephen A. Grant argued the cause and filed a brief for petitioner.Jerome Feit argued the cause for respondents. On the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, and Robert V. Zener.Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal. MR. JUSTICE BRENNAN delivered the opinion of the Court.The Fourth Amendment provides that: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... ." In Bell v. Hood, , we reserved the question whether violation of that command by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.This case has its origin in an arrest and search carried out on the morning of November 26, 1965. Petitioner's complaint alleged that on that day respondents, agents of the Federal Bureau of Narcotics acting under claim of federal authority, entered his apartment and arrested him for alleged narcotics violations. The agents manacled petitioner in front of his wife and children, and threatened to arrest the entire family. They searched the apartment from stem to stern. Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.On July 7, 1967, petitioner brought suit in Federal District Court. In addition to the allegations above, his complaint asserted that the arrest and search were effected without a warrant, and that unreasonable force was employed in making the arrest; fairly read, it alleges as well that the arrest was made without probable cause.1 Petitioner claimed to have suffered great humiliation, embarrassment, and mental suffering as a result of the agents' unlawful conduct, and sought $15,000 damages from each of them. The District Court, on respondents' motion, dismissed the complaint on the ground, inter alia, that it failed to state a cause of action.2 276 F. Supp. 12 (EDNY 1967). The Court of Appeals, one judge concurring specially,3 affirmed on that basis. 409 F.2d 718 (CA2 1969). We granted certiorari. . We reverse.IRespondents do not argue that petitioner should be entirely without remedy for an unconstitutional invasion of his rights by federal agents. In respondents' view, however, the rights that petitioner asserts - primarily rights of privacy - are creations of state and not of federal law. Accordingly, they argue, petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts. In this scheme the Fourth Amendment would serve merely to limit the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment, such a defense would be lost to them and they would stand before the state law merely as private individuals. Candidly admitting that it is the policy of the Department of Justice to remove all such suits from the state to the federal courts for decision,4 respondents nevertheless urge that we uphold dismissal of petitioner's complaint in federal court, and remit him to filing an action in the state courts in order that the case may properly be removed to the federal court for decision on the basis of state law.We think that respondents' thesis rests upon an unduly restrictive view of the Fourth Amendment's protection against unreasonable searches and seizures by federal agents, a view that has consistently been rejected by this Court. Respondents seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting - albeit unconstitutionally - in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own. Cf. Amos v. United States, ; United States v. Classic, . Accordingly, as our cases make clear, the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Bell v. Hood, 327 U.S., at 684 (footnote omitted); see Bemis Bros. Bag Co. v. United States, (Cardozo, J.); The Western Maid, (Holmes, J.).First. Our cases have long since rejected the notion that the Fourth Amendment proscribes only such conduct as would, if engaged in by private persons, be condemned by state law. Thus in Gambino v. United States, , petitioners were convicted of conspiracy to violate the National Prohibition Act on the basis of evidence seized by state police officers incident to petitioners' arrest by those officers solely for the purpose of enforcing federal law. Id., at 314. Notwithstanding the lack of probable cause for the arrest, id., at 313, it would have been permissible under state law if effected by private individuals.5 It appears, moreover, that the officers were under direction from the Governor to aid in the enforcement of federal law. Id., at 315-317. Accordingly, if the Fourth Amendment reached only to conduct impermissible under the law of the State, the Amendment would have had no application to the case. Yet this Court held the Fourth Amendment applicable and reversed petitioners' convictions as having been based upon evidence obtained through an unconstitutional search and seizure. Similarly, in Byars v. United States, , the petitioner was convicted on the basis of evidence seized under a warrant issued, without probable cause under the Fourth Amendment, by a state court judge for a state law offense. At the invitation of state law enforcement officers, a federal prohibition agent participated in the search. This Court explicitly refused to inquire whether the warrant was "good under the state law ... since in no event could it constitute the basis for a federal search and seizure." Id., at 29 (emphasis added).6 And our recent decisions regarding electronic surveillance have made it clear beyond peradventure that the Fourth Amendment is not tied to the niceties of local trespass laws. Katz v. United States, ; Berger v. New York, ; Silverman v. United States, . In light of these cases, respondents' argument that the Fourth Amendment serves only as a limitation on federal defenses to a state law claim, and not as an independent limitation upon the exercise of federal power, must be rejected.Second. The interests protected by state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment's guarantee against unreasonable searches and seizures, may be inconsistent or even hostile. Thus, we may bar the door against an unwelcome private intruder, or call the police if he persists in seeking entrance. The availability of such alternative means for the protection of privacy may lead the State to restrict imposition of liability for any consequent trespass. A private citizen, asserting no authority other than his own, will not normally be liable in trespass if he demands, and is granted, admission to another's house. See W. Prosser, The Law of Torts 18, pp. 109-110 (3d ed. 1964); 1 F. Harper & F. James, The Law of Torts 1.11 (1956). But one who demands admission under a claim of federal authority stands in a far different position. Cf. Amos v. United States, . The mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist an unlawful entry or arrest by resort to the local police; and a claim of authority to enter is likely to unlock the door as well. See Weeks v. United States, ; Amos v. United States, supra.7 "In such cases there is no safety for the citizen, except in the protection of the judicial tribunals, for rights which have been invaded by the officers of the government, professing to act in its name. There remains to him but the alternative of resistance, which may amount to crime." United States v. Lee, .8 Nor is it adequate to answer that state law may take into account the different status of one clothed with the authority of the Federal Government. For just as state law may not authorize federal agents to violate the Fourth Amendment, Byars v. United States, supra; Weeks v. United States, supra; In re Ayers, , neither may state law undertake to limit the extent to which federal authority can be exercised. In re Neagle, . The inevitable consequence of this dual limitation on state power is that the federal question becomes not merely a possible defense to the state law action, but an independent claim both necessary and sufficient to make out the plaintiff's cause of action. Cf. Boilermakers v. Hardeman, .Third. That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. See Nixon v. Condon, ; Nixon v. Herndon, ; Swafford v. Templeton, ; Wiley v. Sinkler, ; J. Landynski, Search and Seizure and the Supreme Court 28 et seq. (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 1, 8-33 (1968); cf. West v. Cabell, ; Lammon v. Feusier, . Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But "it is ... well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood, 327 U.S., at 684 (footnote omitted). The present case involves no special factors counselling hesitation in the absence of affirmative action by Congress. We are not dealing with a question of "federal fiscal policy," as in United States v. Standard Oil Co., . In that case we refused to infer from the Government-soldier relationship that the United States could recover damages from one who negligently injured a soldier and thereby caused the Government to pay his medical expenses and lose his services during the course of his hospitalization. Noting that Congress was normally quite solicitous where the federal purse was involved, we pointed out that "the United States [was] the party plaintiff to the suit. And the United States has power at any time to create the liability." Id., at 316; see United States v. Gilman, . Nor are we asked in this case to impose liability upon a congressional employee for actions contrary to no constitutional prohibition, but merely said to be in excess of the authority delegated to him by the Congress. Wheeldin v. Wheeler, . Finally, we cannot accept respondents' formulation of the question as whether the availability of money damages is necessary to enforce the Fourth Amendment. For we have here no explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress. The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. Cf. J. I. Case Co. v. Borak, ; Jacobs v. United States, . "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 1 Cranch 137, 163 (1803). Having concluded that petitioner's complaint states a cause of action under the Fourth Amendment, supra, at 390-395, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment.IIIn addition to holding that petitioner's complaint had failed to state facts making out a cause of action, the District Court ruled that in any event respondents were immune from liability by virtue of their official position. 276 F. Supp., at 15. This question was not passed upon by the Court of Appeals, and accordingly we do not consider it here. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. So ordered.

In two cases set for argument in October, laws of Kansas and South Carolina providing for racial segregation in public schools were challenged as violative of the Fourteenth Amendment. In another case raising the same question with respect to laws of Virginia, appellants had filed a statement of jurisdiction and a motion requesting that all three cases be argued together. There was pending in the United States Court of Appeals for the District of Columbia Circuit a case in which segregation in public schools of the District of Columbia was challenged as violative of the Fifth Amendment, Held: 1. The Kansas and South Carolina cases are continued on the docket; probable jurisdiction is noted in the Virginia case; and arguments in all three will be heard in December. Pp. 2-3 2. Judicial notice is taken of the pendency of the District of Columbia case. The Court will entertain a petition for certiorari in that case, which, if presented and granted, will afford opportunity for argument of that case immediately following arguments in the other three cases. P. 3.[Footnote *] Together with No. 101, Briggs et al. v. Elliott et al., Members of Board of Trustees of School District #22, on appeal from the United States District Court for the Eastern District of South Carolina; and No. 191, Davis et al. v. County School Board of Prince Edward County et al., on appeal from the United States District Court for the Eastern District of Virginia. The following are citations to the reports of the decisions below: No. 8, the Kansas case, 98 F. Supp. 797; No. 101, the South Carolina case, 103 F. Supp. 920; No. 191, the Virginia case, 103 F. Supp. 337.Robert L. Carter, Thurgood Marshall, Spottswood W. Robinson, III, George E. C. Hayes, George M. Johnson, William R. Ming, Jr., James M. Nabrit, Jr. and Frank D. Reeves for appellants. Oliver W. Hill was also with them on the brief in No. 191.T. C. Callison, Attorney General of South Carolina, John W. Davis, Robert McC. Figg, Jr. and William R. Meagher for appellees in No. 101.J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Assistant Attorney General, for the State of Virginia, and T. Justin Moore, Archibald G. Robertson and John W. Riely for the Prince Edward County School Board et al., appellees in No. 191.PER CURIAM.In two appeals now pending, No. 8, Brown et al. v. Board of Education of Topeka et al., and No. 101, Briggs et al. v. Elliott et al., the appellants challenge, respectively, the constitutionally of a statute of Kansas, and a statute and the Constitution of South Carolina, which provide for segregation in the schools of these states. Appellants allege that segregation is, per se, a violation of the Fourteenth Amendment. Argument in these cases has heretofore been set for the week of October 13, 1952.In No. 191, Davis et al. v. County School Board of Prince Edward County et al., the appellants have filed a statement of jurisdiction raising the same issue in respect to a statute and the Constitution of Virginia. Appellees in the Davis case have called attention to the similarity between it and the Briggs and Brown cases; by motion they have asked the Court to take necessary action to have all three cases argued together.This Court takes judicial notice of a fourth case, which is pending in the United States Court of Appeals for the District of Columbia Circuit, Bolling et al. v. Sharpe et al., No. 11,018 on that court's docket. In that case, the appellants challenge the appellees' refusal to admit certain Negro appellants to a segregated white school in the District of Columbia; they allege that appellees have taken such action pursuant to certain Acts of Congress; they allege that such action is a violation of the Fifth Amendment of the Constitution.The Court is of the opinion that the nature of the issue posed in those appeals now before the Court involving the Fourteenth Amendment, and also the effect of any decision which it may render in those cases, are such that it would be well to consider, simultaneously, the constitutional issue posed in the case of Bolling et al. v. Sharpe et al.To the end that arguments may be heard together in all four of these cases, the Court will continue the Brown and Briggs cases on its docket. Probable jurisdiction is noted in Davis et al. v. County School Board of Prince Edward County et al. Arguments will be heard in these three cases at the first argument session in December.The Court will entertain a petition for certiorari in the case of Bolling et al. v. Sharpe et al., 28 U.S.C. 1254 (1), 2101 (e), which if presented and granted will afford opportunity for argument of the case immediately following the arguments in the three appeals now pending. It is so ordered.MR. JUSTICE DOUGLAS dissents from postponing argument and decision in the three cases presently here for Bolling et al. v. Sharpe et al., in the United States Court of Appeals for the District of Columbia Circuit.

By the Federal Tobacco Inspection Act, Congress provided for the establishment of uniform standards of classification and inspection of tobacco for the protection of interstate commerce and authorized the Secretary of Agriculture "to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined, which standards shall be the official standards of the United States." Pursuant thereto, the Secretary prescribed by regulation that, "Tobacco which has the same characteristics and corresponding qualities, colors, and lengths shall be treated as one type, regardless of any factors of historical or geographical nature which cannot be determined by an examination of the tobacco." The regulations define type 14 as "That type of flue-cured tobacco commonly known as Southern Flue-cured or New Belt of Georgia, Florida, and Alabama, produced principally in the southern section of Georgia and to some extent in Florida and Alabama." When the tobacco is offered for sale, the federal regulations require that it be identified by a blue tag which states the type and grade thereof. A Georgia law requires type 14 tobacco grown in Georgia to be identified by a white tag. Held: The federal law pre-empts the field and excludes state regulation, even though the latter does no more than supplement the former. Therefore, the Georgia statute requiring type 14 tobacco to be identified with a white tag when it is grown in Georgia is unconstitutional. Pp. 298-302. 189 F. Supp. 54, affirmed.G. Hughel Harrison, Assistant Attorney General of Georgia, and Denmark Groover, Jr. argued the cause for appellants. With them on the briefs were Eugene Cook, Attorney General, Gordon Knox, Frank S. Twitty and Chris B. Conyers, Deputy Assistant Attorneys General.Homer S. Durden, Jr. argued the cause for appellees. With him on the brief were Darius N. Brown and William J. Neville. Sherman L. Cohn, by special leave of the Court, argued the cause for the United States, as amicus curiae, urging affirmance. With him on the brief were Solicitor General Cox, Assistant Attorney General Orrick and Alan S. Rosenthal.MR. JUSTICE DOUGLAS delivered the opinion of the Court.This is a suit brought by owners and operators of tobacco warehouses in Georgia to enjoin officials of Georgia from enforcing certain provisions of the Georgia Tobacco Identification Act. Ga. Laws 1960, No. 557, p. 214. A three-judge court was convened, 28 U.S.C. 2281, 2284, and it granted the relief. 189 F. Supp. 54. The case is here by direct appeal.1 28 U.S.C. 1253.The provisions of the Georgia Act that are challenged concern type 14 flue-cured leaf tobacco. It is defined in 1 of the Act as "that flue-cured leaf tobacco grown in the traditional loose-leaf area which consists of the State[s] of Georgia, Florida, and Alabama." By 13 (A) of the Act type 14 tobacco received in a warehouse for sale2 shall be marked with a "white sheet ticket."Sales at these warehouses are sales within the competence of Congress to regulate. As stated in Mulford v. Smith, : "In Georgia nearly one hundred per cent. of the tobacco so sold is purchased by extra-state purchasers. In markets where tobacco is sold to both interstate and intrastate purchasers it is not known, when the grower places his tobacco on the warehouse floor for sale, whether it is destined for interstate or intrastate commerce. Regulation to be effective, must, and therefore may constitutionally, apply to all sales."Congress in 1935 enacted the Tobacco Inspection Act, 49 Stat. 731, 7 U.S.C. 511, and in its declaration of purpose, 2, 7 U.S.C. 511a, stated: "... the classification of tobacco according to type, grade, and other characteristics affects the prices received therefor by producers; without uniform standards of classification and inspection the evaluation of tobacco is susceptible to speculation, manipulation, and control, and unreasonable fluctuations in prices and quality determinations occur which are detrimental to producers and persons handling tobacco in commerce; such fluctuations constitute a burden upon commerce and make the use of uniform standards of classification and inspection imperative for the protection of producers and others engaged in commerce and the public interest therein." (Italics added.) By 511b the Secretary of Agriculture is authorized "to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined, which standards shall be the official standards of the United States ... ." (Italics added.)Detailed standards have been prescribed by the Secretary. As to the "type" of tobacco, the regulations state: "... Tobacco which has the same characteristics and corresponding qualities, colors, and lengths shall be treated as one type, regardless of any factors of historical or geographical nature which cannot be determined by an examination of the tobacco." 7 CFR, 1961 Cum. Supp., 29.1096. (Italics added.)Type 14 is defined as "That type of flue-cured tobacco commonly known as Southern Flue-cured or New Belt of Georgia, Florida, and Alabama, produced principally in the southern section of Georgia and to some extent in Florida and Alabama." 7 CFR, 1961 Cum. Supp., 29.1100. (Italics added.)The regulations also provide that the classification of the tobacco by type be placed on a federal inspection certificate and announced at the time the lot is offered in the auction (7 CFR 29.80, 7 CFR, 1961 Cum. Supp., 29.1144) - an identification made by a blue ticket.The question is whether the federal scheme of regulation has left room for Georgia to identify type 14 tobacco with a white tag when it is grown in Georgia, Florida, or Alabama.It is earnestly argued that there is no conflict between Georgia's regulation and the federal law, as all that Georgia requires is that type 14 tobacco, grown in Georgia, be labeled as such. In that connection it is pointed out that type 14 tobacco as defined by the federal regulations includes tobacco "produced principally" in Georgia, Florida, and Alabama and that labeling it by its geographical origin merely supplements the federal regulation and does not conflict with it.We do not have here the question whether Georgia's law conflicts with the federal law. Rather we have the question of pre-emption. Under the federal law there can be but one "official" standard - one that is "uniform" and that eliminates all confusion3 by classifying tobacco not by geographical origin but by its characteristics. In other words, our view is that Congress, in legislating concerning the types of tobacco sold at auction, pre-empted the field and left no room for any supplementary state regulation concerning those same types. As we have seen, the Federal Tobacco Inspection Act in 2, 7 U.S.C. 511a, says that "uniform standards of classification and inspection" are "imperative for the protection of producers and others engaged in commerce and the public interest therein." The House Report No. 1102, 74th Cong., 1st Sess., reviewed at length the harm to growers that resulted from the absence of regulations governing the "grades" of tobacco sold on the auction market. "There are between 60 and 100 grades in a single type of tobacco, and it is not practical for a farmer to familiarize himself with the technical factors on which these grades are based ... ." Id., p. 2. The need for "a definite standard" of grading, id., p. 2, or of "standard grades," id., p. 4, was repeated over and again. The importance of a "standard grade" was emphasized in the debates on the floor of the House. Congressman Hancock stated that this legislation provided that tobacco on the auction market "would be inspected by competent judges of tobacco in Government employ and graded according to United States standards of quality ... ." 79 Cong. Rec. 11870. Congressman Mitchell added that "Standard grades would serve as a guide to farmers in classifying their tobacco for market." Id., 11878. The Senate Report No. 1211, 74th Cong., 1st Sess., based its approval of the bill on a report made by the Department of Agriculture. After stating that the purpose of the bill was to provide "uniform standards" for the protection of farmers, the report added: "The bill would authorize the Secretary of Agriculture to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined, and the standards so established would be the official standards of the United States for such purpose." Id., p. 1.The Act, as we have seen, adopts that view by making the "type, grade, size, condition" given inspected tobacco "the official standards of the United States." 3, 7 U.S.C. 511b. The regulations are precise and unequivocal in saying what those "official standards" are. Among other things they say, as already noted, that tobacco "which has the same characteristics and corresponding qualities, colors, and lengths shall be treated as one type, regardless of any factors of historical or geographical nature which cannot be determined by an examination of the tobacco." 7 CFR, 1961 Cum. Supp., 29.1096. Tobacco is includable in type 14, regardless of where it may have been grown, provided it meets the specifications of that type.We have then a case where the federal law excludes local regulation, even though the latter does no more than supplement the former. Under the definition of types or grades of tobacco and the labeling which the Federal Government has adopted, complementary state regulation is as fatal as state regulations which conflict with the federal scheme. Missouri Pacific R. Co. v. Porter, ; Rice v. Santa Fe Elevator Corp., ; Hood & Sons v. Du Mond, . Affirmed.MR. JUSTICE WHITTAKER concurs in the result.

Petitioner Sereboffs are beneficiaries under a health insurance plan administered by respondent Mid Atlantic and covered by the Employee Retirement Income Security Act of 1974 (ERISA). The plan provides for payment of covered medical expenses and has an "Acts of Third Parties" provision. This provision requires a beneficiary who is injured as a result of an act or omission of a third party to reimburse Mid Atlantic for benefits it pays on account of those injuries, if the beneficiary recovers for those injuries from the third party. The Sereboffs were involved in an automobile accident and suffered injuries. The plan paid the couple's medical expenses. The Sereboffs sought compensatory damages for the accident from third parties in state court. After the Sereboffs settled their tort suit, Mid Atlantic filed suit in District Court under §502(a)(3) of ERISA, seeking to collect from the Sereboffs' tort recovery the medical expenses it had paid on the Sereboffs' behalf. The Sereboffs agreed to set aside from their tort recovery a sum equal to the amount Mid Atlantic claimed, and preserve this sum in an investment account pending the outcome of the suit. The court found in Mid Atlantic's favor and ordered the Sereboffs to turn over the amount set aside. The Fourth Circuit affirmed in relevant part, and observed that the Courts of Appeals are divided on the question whether §502(a)(3) authorizes recovery in these circumstances. This Court granted review to resolve this disagreement. Held: Mid Atlantic's action properly sought "equitable relief" under §502(a)(3). Pp. 3-11. (a) A fiduciary may bring a civil action under §502(a)(3)(B) "to obtain ... appropriate equitable relief ... to enforce ... the terms of the plan." The only question here is whether the relief requested was "equitable." In Mertens v. Hewitt Associates, 508 U. S. 248, this Court construed §502(a)(3)(B) to authorize only "those categories of relief that were typically available in equity," and thus rejected a claim that this Court found sought "nothing other than compensatory damages." Id., at 207-208. This Court elaborated on this construction of §502(a)(3) in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, which involved a provision in an ERISA plan similar to the "Acts of Third Parties" provision in the Sereboffs' plan. Relying on such a provision, Great-West sought equitable restitution of benefits it had paid when Knudson recovered in tort from a third party. In considering whether §502(a)(3)(b) authorized such relief, this Court asked whether the restitutionary remedy Great-West sought would have been equitable in "the days of the divided bench," id., at 212. This Court found that it would not have been equitable, because the funds Great-West sought were not in Knudson's possession but had been placed in a trust under California law. That impediment is not present here. Mid Atlantic sought identifiable funds within the Sereboffs' possession and control — that part of the tort settlement due Mid Atlantic under the ERISA plan and set aside in the investment account. Pp. 3-5. (b) This Court's case law from the days of the divided bench confirms that Mid Atlantic's claim is equitable. In Barnes v. Alexander, 232 U. S. 117, attorney Barnes promised two other attorneys "one-third of the contingent fee" he expected in a case, id., at 119. Based on "the familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing," id., at 121, the Court found that Barnes' undertaking "create[d] a lien" upon the portion of the recovery due him from the client, ibid., which the other attorneys could "follow ... into [Barnes'] hands" "as soon as [the fund] was identified," id., at 123. The "Acts of Third Parties" provision in the Sereboffs' plan, like Barnes' promise, specifically identified a particular fund distinct from the Sereboffs' general assets, and a particular share of that fund to which Mid Atlantic was entitled. Thus, Mid Atlantic could rely on a "familiar rul[e] of equity" to collect for the medical bills it had paid by following a portion of the recovery "into the [Sereboffs'] hands" "as soon as [the settlement fund] was identified," and imposing on that portion a constructive trust or equitable lien. Ibid. The Sereboffs object that Mid Atlantic's suit would not have satisfied the strict tracing rules that they say accompanied equitable restitution at common law. But Barnes confirms that no such tracing requirement applies to equitable liens imposed by agreement or assignment, like that in Barnes itself. And Knudson did not endorse application of all restitutionary conditions, like the tracing rules the Sereboffs identify, to every action for an equitable lien under §502(a)(3). Knudson simply held that equitable restitution was unavailable because the funds Great-West sought were not in Knudson's possession. The Sereboffs also argue that equitable relief is inappropriate, even under Barnes, because at the time they agreed to the plan terms, no fund existed in which they could grant Mid Atlantic an equitable interest. But Barnes explicitly disapproved of a rule requiring identification at the time a contract is made of the fund to which a lien specified in the contract attached. The Sereboffs also claim that the rule announced in Barnes applies only to equitable liens claimed under an attorney's contingency fee arrangement. But Barnes did not attach any particular significance to the identify of the parties seeking recovery, and other cases of this Court, not involving attorneys' contingency fees, have applied the same "familiar rul[e] of equity" that Barnes did. See, e.g., Walker v. Brown, 165 U. S. 654. Pp. 5-10. (c) The Sereboffs' contention that the lower courts erred in allowing enforcement of the "Acts of Third Parties" provision, without imposing limitations that would apply to an equitable subrogation action, is rejected. Mid Atlantic's claim is not considered equitable because it is a subrogation claim. Rather, it is considered equitable because it is indistinguishable from an action to enforce an equitable lien established by agreement, of the sort epitomized by Barnes. Pp. 10-11. 407 F. 3d 212, affirmed in relevant part. Roberts, C. J., delivered the opinion for a unanimous Court.JOEL SEREBOFF, et ux., PETITIONERS v. MIDATLANTIC MEDICAL SERVICES, INC.on writ of certiorari to the united states court of appeals for the fourth circuit[May 15, 2006] Chief Justice Roberts delivered the opinion of the Court. In this case we consider again the circumstances in which a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) may sue a beneficiary for reimbursement of medical expenses paid by the ERISA plan, when the beneficiary has recovered for its injuries from a third party.I Marlene Sereboff 's employer sponsors a health insurance plan administered by respondent Mid Atlantic Medical Services, Inc., and covered by ERISA, 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq. (2000 ed. and Supp. III). Marlene Sereboff and her husband Joel are beneficiaries under the plan. The plan provides for payment of certain covered medical expenses and contains an "Acts of Third Parties" provision. This provision "applies when [a beneficiary is] sick or injured as a result of the act or omission of another person or party," and requires a beneficiary who "receives benefits" under the plan for such injuries to "reimburse [Mid Atlantic]" for those benefits from "[a]ll recoveries from a third party (whether by lawsuit, settlement, or otherwise)." App. to Pet. for Cert. 38a. The provision states that "[Mid Atlantic's] share of the recovery will not be reduced because [the beneficiary] has not received the full damages claimed, unless [Mid Atlantic] agrees in writing to a reduction." Ibid. The Sereboffs were involved in an automobile accident in California and suffered injuries. Pursuant to the plan's coverage provisions, the plan paid the couple's medical expenses. The Sereboffs filed a tort action in state court against several third parties, seeking compensatory damages for injuries suffered as a result of the accident. Soon after the suit was commenced, Mid Atlantic sent the Sereboffs' attorney a letter asserting a lien on the anticipated proceeds from the suit, for the medical expenses Mid Atlantic paid on the Sereboffs' behalf. App. 87-90. On several occasions over the next 2 years, Mid Atlantic sent similar correspondence to the attorney and to the Sereboffs, repeating its claim to a lien on a portion of the Sereboffs' recovery, and detailing the medical expenses as they accrued and were paid by the plan. The Sereboffs' tort suit eventually settled for $750,000. Neither the Sereboffs nor their attorney sent any money to Mid Atlantic in satisfaction of its claimed lien which, after Mid Atlantic completed its payments on the Sereboffs' behalf, totaled $74,869.37. Mid Atlantic filed suit in District Court under §502(a)(3) of ERISA, 29 U. S. C. §1132(a)(3), seeking to collect from the Sereboffs the medical expenses it had paid on their behalf. Since the Sereboffs' attorney had already distributed the settlement proceeds to them, Mid Atlantic sought a temporary restraining order and preliminary injunction requiring the couple to retain and set aside at least $74,869.37 from the proceeds. The District Court approved a stipulation by the parties, under which the Sereboffs agreed to "preserve $74,869.37 of the settlement funds" in an investment account, "until the [District] Court rules on the merits of this case and all appeals, if any, are exhausted." App. 69. On the merits, the District Court found in Mid Atlantic's favor and ordered the Sereboffs to pay Mid Atlantic the $74,869.37, plus interest, with a deduction for Mid Atlantic's share of the attorney's fees and court costs the Sereboffs had incurred in state court. See 303 F. Supp. 2d 691, 316 F. Supp. 2d 265 (Md. 2004). The Sereboffs appealed and the Fourth Circuit affirmed in relevant part. 407 F. 3d 212 (2005). The Fourth Circuit observed that the Courts of Appeal are divided on the question whether §502(a)(3) authorizes recovery in these circumstances. See id., at 219-220, n. 7.1 We granted certiorari to resolve the disagreement. 546 U. S. ___ (2005).IIA A fiduciary may bring a civil action under §502(a)(3) of ERISA "(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan." 29 U. S. C. §1132(a)(3). There is no dispute that Mid Atlantic is a fiduciary under ERISA and that its suit in District Court was to "enforce ... the terms of " the "Acts of Third Parties" provision in the Sereboffs' plan. The only question is whether the relief Mid Atlantic requested from the District Court was "equitable" under §502(a)(3)(B). This is not the first time we have had occasion to clarify the scope of the remedial power conferred on district courts by §502(a)(3)(B). In Mertens v. Hewitt Associates, 508 U. S. 248 (1993), we construed the provision to authorize only "those categories of relief that were typically available in equity," and thus rejected a claim that we found sought "nothing other than compensatory damages." Id., at 255-256. We elaborated on this construction of §502(a)(3)(B) in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 (2002), which involved facts similar to those in this case. Much like the "Acts of Third Parties" provision in the Sereboffs' plan, the plan in Knudson reserved " 'a first lien upon any recovery, whether by settlement, judgment or otherwise,' that the beneficiary receives from [a] third party." Id., at 207. After Knudson was involved in a car accident, Great-West paid medical bills on her behalf and, when she recovered in tort from a third party for her injuries, Great-West sought to collect from her for the medical bills it had paid. Id., at 207-209. In response to the argument that Great-West's claim in Knudson was for "restitution" and thus equitable under §502(a)(3)(B) and Mertens, we noted that "not all relief falling under the rubric of restitution [was] available in equity." 534 U. S., at 212. To decide whether the restitutionary relief sought by Great-West was equitable or legal, we examined cases and secondary legal materials to determine if the relief would have been equitable "[i]n the days of the divided bench." Ibid. We explained that one feature of equitable restitution was that it sought to impose a constructive trust or equitable lien on "particular funds or property in the defendant's possession." Id., at 213. That requirement was not met in Knudson, because "the funds to which petitioners claim[ed] an entitlement" were not in Knudson's possession, but had instead been placed in a "Special Needs Trust" under California law. Id., at 207, 214. The kind of relief Great-West sought, therefore, was "not equitable — the imposition of a constructive trust or equitable lien on particular property — but legal — the imposition of personal liability for the benefits that [Great-West] conferred upon [Knudson]." Id., at 214. We accordingly determined that the suit could not proceed under §502(a)(3). Ibid. That impediment to characterizing the relief in Knudson as equitable is not present here. As the Fourth Circuit explained below, in this case Mid Atlantic sought "specifically identifiable" funds that were "within the possession and control of the Sereboffs"--that portion of the tort settlement due Mid Atlantic under the terms of the ERISA plan, set aside and "preserved [in the Sereboffs'] investment accounts." 407 F. 3d, at 218. Unlike Great-West, Mid Atlantic did not simply seek "to impose personal liability ... for a contractual obligation to pay money." Knudson, 534 U. S., at 210. It alleged breach of contract and sought money, to be sure, but it sought its recovery through a constructive trust or equitable lien on a specifically identified fund, not from the Sereboffs' assets generally, as would be the case with a contract action at law. ERISA provides for equitable remedies to enforce plan terms, so the fact that the action involves a breach of contract can hardly be enough to prove relief is not equitable; that would make §502(a)(3)(B)(ii) an empty promise. This Court in Knudson did not reject Great-West's suit out of hand because it alleged a breach of contract and sought money, but because Great-West did not seek to recover a particular fund from the defendant. Mid Atlantic does.B While Mid Atlantic's case for characterizing its relief as equitable thus does not falter because of the nature of the recovery it seeks, Mid Atlantic must still establish that the basis for its claim is equitable. See id., at 213 (whether remedy "is legal or equitable depends on 'the basis for [the plaintiff 's] claim' and the nature of the underlying remedies sought"). Our case law from the days of the divided bench confirms that Mid Atlantic's claim is equitable. In Barnes v. Alexander, 232 U. S. 117 (1914), for instance, attorneys Street and Alexander performed work for Barnes, another attorney, who promised them "one-third of the contingent fee" he expected in the case. Id., at 119. In upholding their equitable claim to this portion of the fee, Justice Holmes recited "the familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing." Id., at 121. On the basis of this rule, he concluded that Barnes' undertaking "create[d] a lien" upon the portion of the monetary recovery due Barnes from the client, ibid., which Street and Alexander could "follow ... into the hands of ... Barnes," "as soon as [the fund] was identified," id., at 123. Much like Barnes' promise to Street and Alexander, the "Acts of Third Parties" provision in the Sereboffs' plan specifically identified a particular fund, distinct from the Sereboffs' general assets--"[a]ll recoveries from a third party (whether by lawsuit, settlement, or otherwise)"--and a particular share of that fund to which Mid Atlantic was entitled--"that portion of the total recovery which is due [Mid Atlantic] for benefits paid." App. to Pet. for Cert. 38a. Like Street and Alexander in Barnes, therefore, Mid Atlantic could rely on a "familiar rul[e] of equity" to collect for the medical bills it had paid on the Sereboffs' behalf. Barnes, supra, at 121. This rule allowed them to "follow" a portion of the recovery "into the [Sereboffs'] hands" "as soon as [the settlement fund] was identified," and impose on that portion a constructive trust or equitable lien. 232 U. S., at 123. The Sereboffs object that Mid Atlantic's suit would not have satisfied the conditions for "equitable restitution" at common law, particularly the "strict tracing rules" that allegedly accompanied this form of relief. Reply Brief for Petitioners 8. When an equitable lien was imposed as restitutionary relief, it was often the case that an asset belonging to the plaintiff had been improperly acquired by the defendant and exchanged by him for other property. A central requirement of equitable relief in these circumstances, the Sereboffs argue, was the plaintiff 's ability to " 'trac[e]' the asset into its products or substitutes," or "trace his money or property to some particular funds or assets." 1 D. Dobbs, Law of Remedies §4.3(2), pp. 591, n. 10, 592 (2d ed. 1993). But as the Sereboffs themselves recognize, an equitable lien sought as a matter of restitution, and an equitable lien "by agreement," of the sort at issue in Barnes, were different species of relief. See Brief for Petitioners 24-25; Reply Brief for Petitioners 11; see also 1 Dobbs, supra, §4.3(3), at 601; 1 G. Palmer, Law of Restitution §1.5, p. 20 (1978). Barnes confirms that no tracing requirement of the sort asserted by the Sereboffs applies to equitable liens by agreement or assignment: The plaintiffs in Barnes could not identify an asset they originally possessed, which was improperly acquired and converted into property the defendant held, yet that did not preclude them from securing an equitable lien. To the extent Mid Atlantic's action is proper under Barnes, therefore, its asserted inability to satisfy the "strict tracing rules" for "equit-able restitution" is of no consequence. Reply Brief for Petitioners 8. The Sereboffs concede as much, stating that they "do not contend — and have never suggested — that any tracing was historically required when an equitable lien was imposed by agreement." Id., at 11. Their argument is that such tracing was required when an equitable lien was "predicated on a theory of equitable restitution." Ibid. The Sereboffs appear to assume that Knudson endorsed application of all the restitutionary conditions — including restitutionary tracing rules — to every action for an equitable lien under §502(a)(3). This assumption is inaccurate. Knudson simply described in general terms the conditions under which a fiduciary might recover when it was seeking equitable restitution under a provision like that at issue in this case. There was no need in Knudson to catalog all the circumstances in which equitable liens were available in equity; Great-West claimed a right to recover in restitution, and the Court concluded only that equitable restitution was unavailable because the funds sought were not in Knudson's possession. 534 U. S., at 214. The Sereboffs argue that, even under Barnes, equitable relief would not have been available to fiduciaries relying on plan provisions like the one at issue here, because when the beneficiary agrees to such a provision "no third-party recovery" exists which the beneficiary can "place ... beyond his control and grant [the fiduciary] a complete and present right therein." Brief for Petitioners 25-26 (internal quotation marks omitted). It may be true that, in contract cases, equity originally required identification at the time the contract was made of the fund to which a lien specified in the contract attached. See, e.g., Trist v. Child, 21 Wall. 441, 447 (1875) ("[A] mere agreement to pay out of such fund is not sufficient. Something more is necessary. There must be an appropriation of the fund pro tanto"). But Barnes explicitly disapproved of this rule, observing that Trist addressed the issue only in dicta (since the contract containing the lien provision in Trist was illegal), and treating the "question as at large," even in light of earlier opinions that had dealt with it head on. Barnes, supra, at 120 (citing Trist, supra; Christmas v. Russell, 14 Wall. 69 (1872); Wright v. Ellison, 1 Wall. 16 (1864)). Apart from those cases, which Barnes discredited, the Sereboffs offer little to undermine the plain indication in Barnes that the fund over which a lien is asserted need not be in existence when the contract containing the lien provision is executed. See 4 S. Symons, Pomeroy's Equity Jurisprudence §1236, pp. 699-700 (5th ed. 1941) ("[A]n agreement to charge, or to assign ... property not yet in existence," although "creat[ing] no legal estate or interest in the things when they afterwards come into existence ... does constitute an equitable lien upon the property" just as would "a lien upon specific things existing and owned by the contracting party at the date of the contract"); Peugh v. Porter, 112 U. S. 737, 742 (1885) ("[I]n contemplation of equity, [it] is not material" that the "very fund now in dispute" was "not ... in existence" when an equitable lien over that fund was created). Indeed, the most they can muster in this regard are several state cases predating Barnes and a single decision that rests, contrary to the Sereboffs' characterization, on the simple conclusion that a contractual provision purporting to secure an equitable lien did not properly do so. See Brief for Petitioners 26; Reply Brief for Petitioners 12; Taylor v. Wharton, 43 App. D. C. 104 (1915). The Sereboffs finally fall back on the argument that Barnes announced a special rule for attorneys claiming an equitable lien over funds promised under a contingency fee arrangement. Outside of this context, they say, the "typical rules regarding equitable liens by assignment" persisted and would have prevented recovery here. Reply Brief for Petitioners 13. But Barnes did not attach any particular significance to the identity of the parties seeking recovery. See 165 U. S. 654 (1897), for instance, the Court approved an equitable lien over municipal bonds transferred to a company to facilitate its business. When a supplier of the company suspended shipments because of delinquent debts, the individual who had transferred the bonds assured the supplier that " 'any indebtedness that they may be owing you at any time, shall be paid before the return to me of these bonds ... and that these bonds ... are at the risk of the business of [the company], so far as any claim you may have against [it].' " Id., at 663. The Court found that this undertaking created an equitable lien on the bonds, which the supplier could enforce against the individual after the bonds had been returned to him when the company became insolvent. Id., at 666. As in Barnes, the Court resolved the case by applying general equitable principles, stating that "[t]o dedicate property to a particular purpose, to provide that a specified creditor and that creditor alone shall be authorized to seek payment of his debt from the property or its value, is unmistakably to create an equitable lien." 165 U. S., at 666.C Shifting gears, the Sereboffs contend that the lower courts erred in allowing enforcement of the "Acts of Third Parties" provision, without imposing various limitations that they say would apply to "truly equitable relief grounded in principles of subrogation." Reply Brief for Petitioners 5. According to the Sereboffs, they would in an equitable subrogation action be able to assert certain equitable defenses, such as the defense that subrogation may be pursued only after a victim had been made whole for his injuries. Id., at 5-6. Such defenses should be available against Mid Atlantic's action, the Sereboffs claim, despite the plan provision that "[Mid Atlantic's] share of the recovery will not be reduced because [the beneficiary] has not received the full damages claimed, unless [Mid Atlantic] agrees in writing to a reduction." App. to Pet. for Cert. 38a. But Mid Atlantic's claim is not considered equitable because it is a subrogation claim. As explained, Mid Atlantic's action to enforce the "Acts of Third Parties" provision qualifies as an equitable remedy because it is indistinguishable from an action to enforce an equitable lien established by agreement, of the sort epitomized by our decision in Barnes. See 4 Palmer, Law of Restitution §23.18(d), at 470 (A subrogation lien "is not an express lien based on agreement, but instead is an equitable lien impressed on moneys on the ground that they ought to go to the insurer"). Mid Atlantic need not characterize its claim as a freestanding action for equitable subrogation. Accordingly, the parcel of equitable defenses the Sereboffs claim accompany any such action are beside the point.2* * * Under the teaching of Barnes and similar cases, Mid Atlantic's action in the District Court properly sought "equitable relief " under §502(a)(3); the judgment of the Fourth Circuit is affirmed in relevant part.It is so ordered.FOOTNOTESFootnote 1 Compare Administrative Comm. of Wal-Mart Assoc. Health & Welfare Plan v. Willard, 393 F. 3d 1119 (CA10 2004), Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F. 3d 348 (CA5 2003), and Administrative Comm. of Wal-Mart Stores, Inc. v. Varco, 338 F. 3d 680 (CA7 2003), with Qualchoice, Inc. v. Rowland, 367 F. 3d 638 (CA6 2004), and Westaff (USA) Inc. v. Arce, 298 F. 3d 1164 (CA9 2002).Footnote 2 The Sereboffs argue that, even if the relief Mid Atlantic sought was "equitable" under §502(a)(3), it was not "appropriate" under that provision in that it contravened principles like the make-whole doctrine. Neither the District Court nor the Court of Appeals considered the argument that Mid Atlantic's claim was not "appropriate" apart from the contention that it was not "equitable," and from our examination of the record it does not appear that the Sereboffs raised this distinct assertion below. We decline to consider it for the first time here. See National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999).

Appeal from the District Court of the United States for the Western District of New York. Mr. Philip B. Perlman, Sol. Gen., of Washington, D.C., for appellant. [ United States v. South Buffalo Ry. Co. ], 772] Mr. Bruce Bromley, of New York City, for appellees. Mr. Justice JACKSON delivered the opinion of the Court. The Government, by direct appeal from the District Court,1 invites us to reconsider and overrule the interpretation of the commodities clause of the Interstate Commerce Act2 promulgated in United States v. Elgin, J. & E. R. Co., . That holding, in substance, is that the prohibition3 against a railroad company transporting any commodity which it owns or in which it has an interest, except for its own use, does not prevent it from transporting commodities of a corporation whose stock is wholly owned by a holding company which also owns all of the stock of the railway, unless the control of the railway is so exercised as to make it the alter ego of the holding company. The present challenge to that doctrine is predicated on the following facts: Bethlehem Steel Corporation (the , 773] holding company) owns substantially all of the stocks of South Buffalo Railway Company (South Buffalo) and of Bethlehem Steel Corporation (the Steel Company). At its Lackawanna plant, near Buffalo, N.Y., the Steel Company produces steel and from it fabricates various products. These commodities are transported by the South Buffalo from the plant to the rails of trunk-line carriers. In fact, South Buffalo provides the sole terminal connection between this industry and the trunk-line railroads. It operates about 6 miles of main-line track and 81 miles of spur track, 58 miles of its trackage being on leased right-of-way within the steel plant where it connects with other trackage owned by the Steel Company itself. While about 70% of South Buffalo revenues have been derived from the Steel Company traffic, it also renders terminal switching for 27 unrelated industries, some of considerable size. It enables all of them to ship, by direct connection, over five trunk-line systems and through interchange over seven more. South Buffalo performs no transportation service and owns no facilities outside of the State of New York, where it operates only within the Buffalo switching district. It is classified by the Interstate Commerce Commission as an 'S-1' carrier, which is defined as one engaged in 'performing switching services only.' It files tariffs covering switching service, both with the Interstate Commerce Commission and with the New York Public Service Commission. It does not appear to participate with any line-haul railroad in a through interstate route or to receive a division of any joint or through rate. In 1936 this Court decided United States v. Elgin, J. & E.R. Co., , and held that the production and transportation set-up of the United States Steel Corporation, one of Bethlehem's competitors, did not violate the commodities clause. Thereupon, Beth- , 774] lehem made a study of the relations between itself, South Buffalo and the Steel Company in the light of this decision. It revised its intercorporate relationship in the next few years to comply, as it was advised, with the conditions under which this Court had found the statute inapplicable to United States Steel. It does not seem necessary to recite the complex details of intercorporate dealings before the reorganization about 1940 as this action for injunction was not begun until 1943 and and crucial question is whether there was a contemporaneous violation or a threat of violation against which the writ of the Court should be directed. Voluntarily abandoned courses of conduct are not grounds for injunction, though they may sometimes be relevant evidence of intent or similar issues. At all times crucial to the Government's case, Bethlehem controlled the stock of both the shipper and the carrier corporations. It unquestionably had power to favor its shipping subsidiary at the expense of its carrying subsidiary, or vice versa. The first question is whether we will now hold that were possession of the power, regardless of whether it is exercised or remains dormant, makes out a violation of the statute. This Court said in the Elgin Case that it does not. It is the Government's contentin that the Elgin decision misconstrued the Act, misunderstood its legislative history and misapplied the Court's own prior decisions. It is not necessary in the view we take of the case to decide to what extent, if any, these contentions are correct. It is enough to say that if the Elgin case were before us as a case of first impression, its doctrine might not now be approved. But we do not write on a clean slate. What the Court has written before is but one of a series of events, which convinces us that its overruling or modification should be left to Congress. As the Court held on our last decision day, when the questions are , 775] of statutory construction, not of constitutional import, Congress can rectify our mistake, if such it was, or change its policy at any time, and in these circumstances reversal is not readily to be made. Massachusetts v. United States, . Moreover, in this case unlike the cited one, Congress has considered the alleged mistake and decided not to change it. The Interstate Commerce Commission, after repeatedly calling the attention of Congress to the Elgin Case during its pendency, in 1936 reported its defeat in the litigation. Referring to commodities clause cases it said, 'We recommend that Congress, in the light of facts already made available in our reports and in reports of investigations conducted by congressional committees, shall determine the appropriate limit of our jurisdiction in such cases and whether further legislation to extend that jurisdiction is necessary.'4 Congress took no action. But its inaction has not been from inadvertence or failure to appreciate the effect of the Court's interpretation. A Bill was introduced in the Senate containing language relating to affiliates and subsidiaries calculated in effect to set aside the Elgin decision. 5 Section 12 of the Act as introduced read as follows:'It shall be unlawful for any carrier by railroad and, on and after January 1, 1941, it shall be unlawful for any carrier, other than a carrier by air, to transport, in commerce subject to this Act, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined, or produced by or under the authority of such carrier or any subsidiary, affiliate, or controlling person of such carrier, or any such article or commodity in , 776] which such carrier, subsidiary, affiliate, or controlling person has any interest, direct or indirect, legal or equitable, except such articles or commodities as may be necessary or intended for use in the conduct of the carrier business of such carrier.' The italicized portions indicate the proposed additions which would have extended the clause to cover (1) carriers other than railroads, and ( 2) subsidiaries, affiliates and controlling persons. At the beginning of hearings thereon by the Senate Committee on Interstate Commerce its chairman said that, with respect to the commodities clause, the purpose of the Bill was 'To make effective the intent of Congress in prohibiting railroads, or other carriers after January 1, 1941, from transporting products not utilized in the conduct of their transportation business but in which they have an interest, direct or indirect.'6 A week later, in the course of the hearings when evidence began to be offered showing the effect the proposed clause might have on various industries, the chairman made this statement:'Let me say this to you with reference to the commodities clause, so that there will not be a lot of time wasted on it. I am speaking for myself and not for the committee. I think the commodities clause will have to be changed; and if we are going to make such drastic changes in the commodity clause as this bill would suggest, I think i ought not to be incorporated in this particular piece of legislation, but should come up as a separate piece of legislation so that we can devote considerable time and thought to that particular subject. This would so change the economic structure of a lot of industries that I , 777] think it is something that would have to have particular consideration in a separate piece of legislation.'7 In a further discussion the Chairman added: 'I might say, also, that if the commodities clause should stay in as it is at the present time it would disrupt a great many industries, and I would seriously question whether or not I wanted to attempt anything of that kind at this time, particularly in this specific piece of legislation.'8 When the bill was reported to the Senate, the proposed change had been eliminated and the original language of the Act retained. The Committee, in reporting the bill, said, 'The rewritten commodities clause was considered far too drastic and the subcommittee early decided against any change therein.' 9 The Government argues that the characterization of the rejected revised commodities clause as 'too drastic' was based on the proposed extension of its terms to all common carriers and not on the proposal to include a 'subsidiary, affiliate, or controlling person' of a carrier. We believe, however, that a fair reading of the legislative history leads to the conclusion that the 'drastic readjustment' feared by the Committee was that expected from the application sought here by the Government, at least as much as that feared from extension of the clause to cover carriers other than railroads. If the Committee objected only to extending the clause to other carriers, it would have been a simple matter to delete the short series of words which would have accomplished that change, and still leave undisturbed the more complicated provision concerning subsidiaries and affiliates, since the text of each provision is wholly disconnected from the other. , 778] In view of the foregoing, it seems clear that when, in discussing whether or not this revised clause would have 'prevented the steel company, or somebody in that position, from operating their own railroad,' the Committee Chairman said 'I did not intend such a result,' he expressed the view which prevailed in the Committee and in the Congress. The Government now asks us to apply the unchanged language as if Congress had adopted the proposal which it rejected as 'far too drastic.' The considerations which led to the suggestion that the problem presented by the Government's position would require separate legislation and particular consideration seems to us to require that the problem be left to legislation rather than to the judicial process. And the pertinent portions of the legislative history which are set out at length in the margin10 indi- , 779] cate clearly we think, that this Senate Committee responsible for S. 2009, which became the Transportation Act of 1940, 49 U.S.C.A. 1 et seq., deliberately refused to recommend and the Con- , 780] gress refused to legislate into the law the change we are now asked to make by judicial decision. We could, of course, refuse to follow the Elgin precedent, and apply a different and more drastic rule to Bethlehem than applies to its competitor. Congress, , 781] however, in making a rule for the future, can make one of impartial application to all like situations. Limitations that are traditional upon our powers do seem not to permit us to do so. , 782] Whatever may be said of the Elgin decision, when the Committee of Congress faced the readjustments its overruling would force, and with special reference to the steel , 783] industry,11 it concluded the decision should be allowed, at least for the present, to stand. We cannot ignore the considerations they found to be so persuasive, and which are equally involved in the request that we do what Congress considered and abandoned. The relief asked of us as a court of equity is so drastic in nature as to afford an example of an 'upset' in an industry owning a short line of railroad of the type referred to by the Chairman of the Interstate Commerce Committee of the Senate, who said 'it is questionable whether we would want to make such a radical departure from the present system.' The demand is for an injunction perpetually to enjoin and restrain South Buffalo from transporting commodities in which the Steel Company or the holding company owns an interest. There is no other rail route by which inbound raw materials or outbound products of this huge industry can reach trunk-line railroads. And the traffic that we are asked thus to prohibit yields 70% of the railroad's revenues, and if taken away would doubtless substantially increase the cost of service to the unaffiliated industries that would remain to be served. Of course, what is literally asked is probably not what is ultimately desired. To forbid the physical operation as now conducted would be needlessly damaging to both shipper and carrier. What is aimed at, we suppose, is to force such a change of financial structure as will divorce shipper interest from all transportation interest. It seems clear, however, in the light of the legislative his- , 784] tory, that this is the kind of operation that Congress did not want to prohibit because the prohibition was thought too drastic. If an independent ownership could be found for South Buffalo, it might be desirable. But independent ownership of a dependent facility wedged in between shippers, one of whom controls 70% of its revenues, and the trunk- line railroads, is not shown to be likely. Under the Government's theory, no other shipper or group of shippers any more than Bethlehem could own the road. Nor is it clear that any evils exist or are threatened which would be eliminated if this operation were transferred to control of one of the trunk-line railroads or to a pool of them. This road, despite its shipper ownership, is bound by both federal and state law to serve all shippers without discriminations or unreasonable charges. The Commission has power to exact cm pliance with these duties. The argument, however, is that a situation exists which presents opportunity and temptation for abuse and for concealed evasions of duty. But to forestall possible abuses we are asked to apply a remedy which there is indication failed of congressional approval because its application to many situations would be too drastic and would do greater injury to shipper and transportation interests than could result from its withholding. In the light of the history of this clause since the Elgin decision and the equitable considerations involved in this case, we decline to overrule the interpretation Congress has not seen fit to set aside. The argument is made that even accepting the Elgin decision the evidence here establishes that Bethlehem has so exercised its power over South Buffalo as to reduce the railroad to a mere department of Bethlehem. The trial court found against the Government and considered that on this subject this case contains much less proof to sustain an injunction than did the Elgin Case. Without reciting the voluminous evidence in detail, we agree. , 785] Bethlehem, as a stockholder, of course controlled South Buffalo. It did not, however, disregard in either the legal or economic sense, the separate entity of its subsidiary or treat it as its own alter ego. On the contrary, it rather ostentatiously maintained the formalities of separate existence, choosing as directors several Buffalo citizens who were not interested in Bethlehem. We are not naive enough to believe that Bethlehem chose men for the posts whose interests or records left any fair probability that they would act adversely to Bethlehem in representing its interest as chief stockholder of the railroad. Nor has any instance been cited in which the best interests of the railroad would require them to do so. So long as Congress considers it inadvisable to extend the prohibition of the commodities clause to subsidiaries and affiliates, we see nothing that Bethlehem has done to incur liability for its violation. Of course, it could not expect the Commission or the courts to respect a corporate entity which Bethlehem itself disregarded; but that it has not done. The subsidiary would not have to establish its separate identity by a course of hostility to its sole stockholder or its chief customer. Its identity has been preserved in form and in substance-the substance of separate corporate existence being itself largely a matter of form. Under the Elgin Case and until Congress shall otherwise decide, this is sufficient. Judgment affirmed. Mr. Justice RUTLEDGE, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice MURPHY join, dissenting. This is another case where the Court saddles Congress with the load of correcting its own emasculation of a statute, by drawing from Congress' failure explicitly to overrule it, the unjustified inference that Congress ap- , 786] proves the mistake. I think that United States v. Elgin, J. & E.R. Co., , was decided in the teeth of the commodities clause, 49 U.S.C. 1(8), 49 U.S.C.A. 1(8), that it should now be overruled, and that this conclusion is dictated by the legislative history which the Court misreads, in my opinion, as giving basis for the opposite one. The commodities clause forbids 'any railroad company to transport * * * any article or commodity * * * in which it may have any interest, direct or indirect * * *.' The Elgin decision made the clause 'in which it may have any interest, direct or indirect' to read, in effect, 'in which it may have any interest, direct or indirect, unless the interest is indirectly held through 100 per cent stock ownership of another corporation and hence 100 per cent interest in that company's profits, or through some other corporate arrangement having like effects.' The simple question for decision under the statute is whether the South Buffalo Railway has an interest, 'direct or indirect,' in the commodities which it hauls fr the affiliated Bethlehem Steel Company. Any attempt to answer by a factual inquiry into the degree of control which the Holding Company or the Steel Company has actually exercised over the railroad can only complicate a simple problem. 1 Only by the most sophisticated, or unsophisticated, process of reasoning can it be concluded that any one of the many subsidiary members of this integrated steel producing empire2 has no interest in the , 787] operations of every other member. Particularly, the railroad has an interest in the production of the Steel Company, 'for all of the profits realized from the operations of the two must find their way ultimately into (the Holding Company) treasury-any discriminating practice which would harm the general shipper3 would profit the Holding Company.' United States v. Reading Co., , 433. Here a railroad and one of its customers are both wholly owned subsidiaries of the same holding company. It is clear to me, and the Court does not deny, that the railroad in fact is occupying the inconsistent positions of carrier and shipper which the commodities clause was designed to prevent. United States v. Reading Co., supra. 4 The Court does not dispute that it would so hold if the clause had not been construed differently in the Elgin case. But even on the assumption that the statute was then misconstrued, the Court is unwilling to correct its own error because it concludes that Congress has subsequently indicated approval of the Elgin decision. This , 788] conclusion is based on a distorted view of the legislative history of the Transportation Act of 1940, particularly of 12 of S. 2009, which would have amended the commodities clause if adopted. Since the proposed 12 would have overruled the Elgin case, and since it was rejected in committee as 'far too drastic,'5 it is inferred that Congress has expressed approval of that case. The conclusion does not follow because the premise is wrong. The argument overlooks the crucial inquiry, namely, the reason for which Congress considered the proposed 12 'far too drastic.' If this reason had been an objection to applying the commodities clause to the wholly owned subsidiary relationships presn t in this and the Elgin cases, the argument might have some pertinence. But that was not the reason. On the contrary, the two Senators who were most active in sponsoring the bill and in the conduct of the hearings on it felt that no legislation would be necessary if no more were intended than a reversal of the Elgin case. 6 That was only one of several , 789] broad purposes of the bill, others being much more sweeping. The new commodities clause, instead of applying only to railroads, would have applied to all types of carriers except air carriers. It is perfectly clear from a reading of the hearings that this proposed application to carriers of all types was what was considered 'far too drastic' a change to be included in the Transportation Act of 1940. , 790] The crucial importance of this extension is abundantly shown from the vigorous objections on behalf of parties that would have been affected by extending the commodities clause to water carriers,7 to pipe lines,8 and to motor carriers. 9 It was argued repeatedly that it was proper for shippers to control interestsi n these carriers for reasons not applicable to carriers by rail. These arguments cannot be read without concluding that the change, whether desirable or not, would have been drastic indeed and would have gone far beyond the intended coverage of the Transportation Act of 1940.10 Rather than jeopardize the entire legislative program comprehended by the Act, 11 the committee naturally decided that sound strategy required separate consideration of this narrower, but still broad and highly controversial problem. , 791] Statements of the committee chairman show that this was the real basis for the conclusion that the amendment would have been 'far too drastic.'12 Indeed they show, together with other statements before the committee that the Elgin decision was regarded as unfortunate and likely to be overruled when another case should arise. 13 Even the opposition by the short-line railroads was not based on the argument that an overruling of the Elgin case would have been too drastic, but rather on the fact that the amended 12, in conjunction with other proposed legislation, would have prohibited the transportation of commodities for anyone who owned, even as an investment, as much as ten per cent of the stock of the railroad. 14 And other groups argued that the amendment was too drastic because it was not limited to common carriers. 15 In sum, the proposed amendment was indeed , 792] drastic, but not because it would have accomplished what the committee members assumed this Court would and should do without legislative aid. 16 It is therefore most unreasonable to conclude that the considerations which prompted the Senate Committee to reject a proposed extension of the commodities clause to all types of carrier compel this Court to deny a request to overrule an interpretation of the impact of the clause on railroads which the most active sponsors regarded as erroneous. The host of reasons which may have induced the various members of the committee to forego the extremely controversial and drastic extensions forbids any inference that the committee action was the equivalent of approval of the Elgin case by the entire Congress. In fact, the difficulty of interpreting the views of even one legislator without taking account of all he has had to say, as exemplified by the discussion in note 6, should serve as a warning that the will of Congress seldom is to be determined from its wholly negative actions subsequent to the enactment of the statute construed. In this case the rejection of the proposed amendment is not more, indeed I think it is less, indicative of congressional acquiescence than complete inactivity would have been. Even if there may be cases where the 'silence of Congress' may have some weight, that ambiguous doctrine does not require or support the result which the Court reaches today. Girouard v. United States ; cf. Cleveland v. United States, , concurring opinion at page 21, concurring opinion at page 16. Nor is that result justified by the 'equitable' considerations which the Court's opinion somewhat obliquely advances. It is suggested that a refusal to follow the Elgin precedent would be to apply a different and more drastic rule to Bethlehem than applies to its competitor, , 793] the United States Steel Corporation. But, aside from the specious character of an argument that permits X to violate the law on the ground that Y also violates it, there is no explanation offered for the assumption that the overruling of the Elgin case would have no effect on United States Steel. The policy of res judicata would not apply, cf. Commissioner v. Sunnen, , and United States Steel, instead of being prejudiced by the course of decision, actually has been benefited by more than a decade of ownership of the Elgin road, contrary to the statute's plain terms and policy. The Court also feels that the relief requested is too drastic because Bethlehem would be compelled to sell its short-line railroads, the Government has not shown that independent ownership of these railroads is likely, nor has it shown that evils exist which would be remedied by this relief. These are considerations which undoubtedly influenced the majority in the Elgin case, somewhat differently it would seem from the majority in this one, but which the dissenting justices felt had been foreclosed by the legislative determination of policy. Reliance on such arguments today seems inconsistent with the statement 'that if the Elgin case were before us as a case of first impression, its doctrine might not now be approved.' Moreover, it does not follow that this Court in the exercise of its equity jurisdiction could not adapt the relief afforded so as to give time and opportunity for making the adjustments necessary to secure conformity with the statute in an orderly and inoppressive manner. Indeed it would be the Court's duty to do this. The arguments on this level are most effectively answered by the dissenting opinion of Mr. Justice Stone, who was joined by Mr. Justice Brandeis and Mr. Justice Cardozo, in the Elgin case: 'The language of the commodities clause, read in the light of its legislative history, , 794] can leave no doubt that its purpose was to withhold from every interstate rail carrier the inducement and facility for favoritism and abuse of its powers as a common carrier, which experience had shown are likely to occur when as ingle business interest occupies the inconsistent position of carrier and shipper. See United States v. Reading Co., , 61, (433). Before the enactment of the commodities clause, Congress, by sweeping prohibitions, had made unlawful every form of rebate to shippers and every form of discrimination in carrier rates, service, and facilities, injurious to shippers or the public. By the Sherman Anti-Trust Act, 15 U.S.C.A. 1-7, 15 note, it had forbidden combinations in restraint of interstate commerce. But it did not stop there. The commodities clause was aimed, not at the practices of railroads already penalized, but at the suppression of the power and the favorable opportunity, inseparable from actual control of both shipper and carrier by the same interest, to engage in practices already forbidden and others inimical to the performance of carrier duties to the public. See Delaware, L. & W.R. Co. v. United States, , 66; United States v. Reading Co., supra.' at page 504, 56 S. Ct. at page 844.17 In my opinion this expresses the intent of the letter and the policy of the commodities clause, and we should now return to it on our own responsibility. Congress should not again be required to reenact what it has once provided for, only to have its mandate nullified in part by this Court's misconstruction.

After officers stopped a car to check its registration without reason to believe it was being operated unlawfully, one of them recognized petitioner Brendlin, a passenger in the car. Upon verifying that Brendlin was a parole violator, the officers formally arrested him and searched him, the driver, and the car, finding, among other things, methamphetamine paraphernalia. Charged with possession and manufacture of that substance, Brendlin moved to suppress the evidence obtained in searching his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to make the traffic stop, which was an unconstitutional seizure of his person. The trial court denied the motion, but the California Court of Appeal reversed, holding that Brendlin was seized by the traffic stop, which was unlawful. Reversing, the State Supreme Court held that suppression was unwarranted because a passenger is not seized as a constitutional matter absent additional circumstances that would indicate to a reasonable person that he was the subject of the officer's investigation or show of authority.Held: When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop's constitutionality. Pp. 4-13. (a) A person is seized and thus entitled to challenge the government's action when officers, by physical force or a show of authority, terminate or restrain the person's freedom of movement through means intentionally applied. Florida v. Bostick, 501 U. S. 429, 434; Brower v. County of Inyo, 489 U. S. 593, 597. There is no seizure without that person's actual submission. See, e.g., California v. Hodari D., 499 U. S. 621, 626, n. 2. When police actions do not show an unambiguous intent to restrain or when an individual's submission takes the form of passive acquiescence, the test for telling when a seizure occurs is whether, in light of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. E.g., United States v. Mendenhall, 446 U. S. 544, 554 (principal opinion). But when a person "has no desire to leave" for reasons unrelated to the police presence, the "coercive effect of the encounter" can be measured better by asking whether "a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." Bostick, supra, at 435-436. Pp. 4-6. (b) Brendlin was seized because no reasonable person in his position when the car was stopped would have believed himself free to "terminate the encounter" between the police and himself. Bostick, supra, at 436. Any reasonable passenger would have understood the officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails a passenger's travel just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on "privacy and personal security" does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U. S. 543, 554. An officer who orders a particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect the officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. It is also reasonable for passengers to expect that an officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. See, e.g., Maryland v. Wilson, 519 U. S. 408, 414-415. The Court's conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question. Pp. 6-9. (c) The State Supreme Court's contrary conclusion reflects three premises with which this Court respectfully disagrees. First, the view that the police only intended to investigate the car's driver and did not direct a show of authority toward Brendlin impermissibly shifts the issue from the intent of the police as objectively manifested to the motive of the police for taking the intentional action to stop the car. Applying the objective Mendenhall test resolves any ambiguity by showing that a reasonable passenger would understand that he was subject to the police display of authority. Second, the state court's assumption that Brendlin, as the passenger, had no ability to submit to the police show of authority because only the driver was in control of the moving car is unavailing. Brendlin had no effective way to signal submission while the car was moving, but once it came to a stop he could, and apparently did, submit by staying inside. Third, there is no basis for the state court's fear that adopting the rule this Court applies would encompass even those motorists whose movement has been impeded due to the traffic stop of another car. An occupant of a car who knows he is stuck in traffic because another car has been pulled over by police would not perceive the show of authority as directed at him or his car. Pp. 9-13. (d) The state courts are left to consider in the first instance whether suppression turns on any other issue. P. 13.38 Cal. 4th 1107, 136 P. 3d 845, vacated and remanded. Souter, J., delivered the opinion for a unanimous Court.BRUCE EDWARD BRENDLIN, PETITIONER v.CALIFORNIAon writ of certiorari to the supreme court of california[June 18, 2007] Justice Souter delivered the opinion of the Court. When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop.I Early in the morning of November 27, 2001, Deputy Sheriff Robert Brokenbrough and his partner saw a parked Buick with expired registration tags. In his ensuing conversation with the police dispatcher, Brokenbrough learned that an application for renewal of registration was being processed. The officers saw the car again on the road, and this time Brokenbrough noticed its display of a temporary operating permit with the number "11," indicating it was legal to drive the car through November. App. 115. The officers decided to pull the Buick over to verify that the permit matched the vehicle, even though, as Brokenbrough admitted later, there was nothing unusual about the permit or the way it was affixed. Brokenbrough asked the driver, Karen Simeroth, for her license and saw a passenger in the front seat, petitioner Bruce Brendlin, whom he recognized as "one of the Brendlin brothers." Id., at 65. He recalled that either Scott or Bruce Brendlin had dropped out of parole supervision and asked Brendlin to identify himself.1 Brokenbrough returned to his cruiser, called for backup, and verified that Brendlin was a parole violator with an outstanding no-bail warrant for his arrest. While he was in the patrol car, Brokenbrough saw Brendlin briefly open and then close the passenger door of the Buick. Once reinforcements arrived, Brokenbrough went to the passenger side of the Buick, ordered him out of the car at gunpoint, and declared him under arrest. When the police searched Brendlin incident to arrest, they found an orange syringe cap on his person. A patdown search of Simeroth revealed syringes and a plastic bag of a green leafy substance, and she was also formally arrested. Officers then searched the car and found tubing, a scale, and other things used to produce methamphetamine. Brendlin was charged with possession and manufacture of methamphetamine, and he moved to suppress the evidence obtained in the searches of his person and the car as fruits of an unconstitutional seizure, arguing that the officers lacked probable cause or reasonable suspicion to make the traffic stop. He did not assert that his Fourth Amendment rights were violated by the search of Simeroth's vehicle, cf. Rakas v. Illinois, 439 U. S. 128 (1978), but claimed only that the traffic stop was an unlawful seizure of his person. The trial court denied the suppression motion after finding that the stop was lawful and Brendlin was not seized until Brokenbrough ordered him out of the car and formally arrested him. Brendlin pleaded guilty, subject to appeal on the suppression issue, and was sentenced to four years in prison. The California Court of Appeal reversed the denial of the suppression motion, holding that Brendlin was seized by the traffic stop, which they held unlawful. 8 Cal. Rptr. 3d 882 (2004) (officially depublished). By a narrow majority, the Supreme Court of California reversed. The State Supreme Court noted California's concession that the officers had no reasonable basis to suspect unlawful operation of the car, 38 Cal. 4th 1107, 1114, 136 P. 3d 845, 848 (2006),2 but still held suppression unwarranted because a passenger "is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer's investigation or show of authority," id., at 1111, 136 P. 3d, at 846. The court reasoned that Brendlin was not seized by the traffic stop because Simeroth was its exclusive target, id., at 1118, 136 P. 3d, at 851, that a passenger cannot submit to an officer's show of authority while the driver controls the car, id., at 1118-1119, 135 P. 3d, at 851-852, and that once a car has been pulled off the road, a passenger "would feel free to depart or otherwise to conduct his or her affairs as though the police were not present," id., at 1119, 136 P. 3d, at 852. In dissent, Justice Corrigan said that a traffic stop entails the seizure of a passenger even when the driver is the sole target of police investigation because a passenger is detained for the purpose of ensuring an officer's safety and would not feel free to leave the car without the officer's permission. Id., at 1125, 136 P. 3d, at 856. We granted certiorari to decide whether a traffic stop subjects a passenger, as well as the driver, to Fourth Amendment seizure, 549 U. S. __ (2007). We now vacate.IIA A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, " 'by means of physical force or show of authority,' " terminates or restrains his freedom of movement, Florida v. Bostick, 501 U. S. 429, 434 (1991) (quoting Terry v. Ohio, 392 U. S. 1, 19, n. 16 (1968)), "through means intentionally applied," Brower v. County of Inyo, 489 U. S. 593, 597 (1989) (emphasis in original). Thus, an "unintended person ... [may be] the object of the detention," so long as the detention is "willful" and not merely the consequence of "an unknowing act." Id., at 596; cf. County of Sacramento v. Lewis, 523 U. S. 833, 844 (1998) (no seizure where a police officer accidentally struck and killed a motorcycle passenger during a high-speed pursuit). A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned. See California v. Hodari D., 499 U. S. 621, 626, n. 2 (1991); Lewis, supra, at 844, 845, n. 7. When the actions of the police do not show an unambiguous intent to restrain or when an individual's submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not. The test was devised by Justice Stewart in United States v. Mendenhall, 446 U. S. 544 (1980), who wrote that a seizure occurs if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave," id., at 554 (principal opinion). Later on, the Court adopted Justice Stewart's touchstone, see, e.g., Hodari D., supra, at 627; Michigan v. Chesternut, 486 U. S. 567, 573 (1988); INS v. Delgado, 466 U. S. 210, 215 (1984), but added that when a person "has no desire to leave" for reasons unrelated to the police presence, the "coercive effect of the encounter" can be measured better by asking whether "a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter," Bostick, supra, at 435-436; see also United States v. Drayton, 536 U. S. 194, 202 (2002). The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U. S. 648, 653 (1979); see also Whren v. United States, 517 U. S. 806, 809-810 (1996). And although we have not, until today, squarely answered the question whether a passenger is also seized, we have said over and over in dicta that during a traffic stop an officer seizes everyone in the vehicle, not just the driver. See, e.g., Prouse, supra, at 653 ("[S]topping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth and Fourteenth] Amendments"); Colorado v. Bannister, 449 U. S. 1, 4, n. 3 (1980) (per curiam) ("There can be no question that the stopping of a vehicle and the detention of its occupants constitute a 'seizure' within the meaning of the Fourth Amendment"); Berkemer v. McCarty, 468 U. S. 420, 436-437 (1984) ("[W]e have long acknowledged that stopping an automobile and detaining its occupants constitute a seizure" (internal quotation marks omitted)); United States v. Hensley, 469 U. S. 221, 226 (1985) ("[S]topping a car and detaining its occupants constitute a seizure"); Whren, supra, at 809-810 ("Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of [the Fourth Amendment]"). We have come closest to the question here in two cases dealing with unlawful seizure of a passenger, and neither time did we indicate any distinction between driver and passenger that would affect the Fourth Amendment analysis. Delaware v. Prouse considered grounds for stopping a car on the road and held that Prouse's suppression motion was properly granted. We spoke of the arresting officer's testimony that Prouse was in the back seat when the car was pulled over, see 440 U. S., at 650, n. 1, described Prouse as an occupant, not as the driver, and referred to the car's "occupants" as being seized, id., at 653. Justification for stopping a car was the issue again in Whren v. United States, where we passed upon a Fourth Amendment challenge by two petitioners who moved to suppress drug evidence found during the course of a traffic stop. See 517 U. S., at 809. Both driver and passenger claimed to have been seized illegally when the police stopped the car; we agreed and held suppression unwarranted only because the stop rested on probable cause. Id., at 809-810, 819.B The State concedes that the police had no adequate justification to pull the car over, see n. 2, supra, but argues that the passenger was not seized and thus cannot claim that the evidence was tainted by an unconstitutional stop. We resolve this question by asking whether a reasonable person in Brendlin's position when the car stopped would have believed himself free to "terminate the encounter" between the police and himself. Bostick, supra, at 436. We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on "privacy and personal security" does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U. S. 543, 554 (1976). An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. Cf. Drayton, supra, at 197-199, 203-204 (finding no seizure when police officers boarded a stationary bus and asked passengers for permission to search for drugs).3 It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson, 519 U. S. 408 (1997), we held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. Id., at 414-415; cf. Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam) (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that " '[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.' " Wilson, supra, at 414 (quoting Michigan v. Summers, 452 U. S. 692, 702-703 (1981)). What we have said in these opinions probably reflects a societal expectation of " 'unquestioned [police] command' " at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission. Wilson, supra, at 414.4 Our conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question. See United States v. Kimball, 25 F. 3d 1, 5 (CA1 1994); United States v. Mosley, 454 F. 3d 249, 253 (CA3 2006); United States v. Rusher, 966 F. 2d 868, 874, n. 4 (CA4 1992); United States v. Grant, 349 F. 3d 192, 196 (CA5 2003); United States v. Perez, 440 F. 3d 363, 369 (CA6 2006); United States v. Powell, 929 F. 2d 1190, 1195 (CA7 1991); United States v. Ameling, 328 F. 3d 443, 446-447, n. 3 (CA8 2003); United States v. Twilley, 222 F. 3d 1092, 1095 (CA9 2000); United States v. Eylicio-Montoya, 70 F. 3d 1158, 1163-1164 (CA10 1995); State v. Bowers, 334 Ark. 447, 451-452, 976 S. W. 2d 379, 381-382 (1998); State v. Haworth, 106 Idaho 405, 405-406, 679 P. 2d 1123, 1123-1124 (1984); People v. Bunch, 207 Ill. 2d 7, 13, 796 N. E. 2d 1024, 1029 (2003); State v. Eis, 348 N. W. 2d 224, 226 (Iowa 1984); State v. Hodges, 252 Kan. 989, 1002-1005, 851 P. 2d 352, 361-362 (1993); State v. Carter, 69 Ohio St. 3d 57, 63, 630 N. E. 2d 355, 360 (1994) (per curiam); State v. Harris, 206 Wis. 2d 243, 253-258, 557 N. W. 2d 245, 249-251 (1996). And the treatise writers share this prevailing judicial view that a passenger may bring a Fourth Amendment challenge to the legality of a traffic stop. See, e.g., 6 W. LaFave, Search and Seizure §11.3(e), pp. 194, 195, and n. 277 (4th ed. 2004 and Supp. 2007) ("If either the stopping of the car, the length of the passenger's detention thereafter, or the passenger's removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations and to have suppressed any evidence found in the car which is their fruit" (footnote omitted)); 1 W. Ringel, Searches & Seizures, Arrests and Confessions §11:20, p. 11-98 (2d ed. 2007) ("[A] law enforcement officer's stop of an automobile results in a seizure of both the driver and the passenger").5C The contrary conclusion drawn by the Supreme Court of California, that seizure came only with formal arrest, reflects three premises as to which we respectfully disagree. First, the State Supreme Court reasoned that Brendlin was not seized by the stop because Deputy Sheriff Brokenbrough only intended to investigate Simeroth and did not direct a show of authority toward Brendlin. The court saw Brokenbrough's "flashing lights [as] directed at the driver," and pointed to the lack of record evidence that Brokenbrough "was even aware [Brendlin] was in the car prior to the vehicle stop." 38 Cal. 4th, at 1118, 136 P. 3d, at 851. But that view of the facts ignores the objective Mendenhall test of what a reasonable passenger would understand. To the extent that there is anything ambiguous in the show of force (was it fairly seen as directed only at the driver or at the car and its occupants?), the test resolves the ambiguity, and here it leads to the intuitive conclusion that all the occupants were subject to like control by the successful display of authority. The State Supreme Court's approach, on the contrary, shifts the issue from the intent of the police as objectively manifested to the motive of the police for taking the intentional action to stop the car, and we have repeatedly rejected attempts to introduce this kind of subjectivity into Fourth Amendment analysis. See, e.g., Whren, 517 U. S., at 813 ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis"); Chesternut, 486 U. S., at 575, n. 7 ("[T]he subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted"); Mendenhall, 446 U. S., at 554, n. 6 (principal opinion) (disregarding a Government agent's subjective intent to detain Mendenhall); cf. Rakas, 439 U. S., at 132-135 (rejecting the "target theory" of Fourth Amendment standing, which would have allowed "any criminal defendant at whom a search was directed" to challenge the legality of the search (internal quotation marks omitted)). California defends the State Supreme Court's ruling on this point by citing our cases holding that seizure requires a purposeful, deliberate act of detention. See Brief for Respondent 9-14. But Chesternut, supra, answers that argument. The intent that counts under the Fourth Amendment is the "intent [that] has been conveyed to the person confronted," id., at 575, n. 7, and the criterion of willful restriction on freedom of movement is no invitation to look to subjective intent when determining who is seized. Our most recent cases are in accord on this point. In Lewis, 523 U. S. 833, we considered whether a seizure occurred when an officer accidentally ran over a passenger who had fallen off a motorcycle during a high-speed chase, and in holding that no seizure took place, we stressed that the officer stopped Lewis's movement by accidentally crashing into him, not "through means intentionally applied." Id., at 844 (emphasis deleted). We did not even consider, let alone emphasize, the possibility that the officer had meant to detain the driver only and not the passenger. Nor is Brower, 489 U. S. 593, to the contrary, where it was dispositive that "Brower was meant to be stopped by the physical obstacle of the roadblock — and that he was so stopped." Id., at 599. California reads this language to suggest that for a specific occupant of the car to be seized he must be the motivating target of an officer's show of authority, see Brief for Respondent 12, as if the thrust of our observation were that Brower, and not someone else, was "meant to be stopped." But our point was not that Brower alone was the target but that officers detained him "through means intentionally applied"; if the car had had another occupant, it would have made sense to hold that he too had been seized when the car collided with the roadblock. Neither case, then, is at odds with our holding that the issue is whether a reasonable passenger would have perceived that the show of authority was at least partly directed at him, and that he was thus not free to ignore the police presence and go about his business. Second, the Supreme Court of California assumed that Brendlin, "as the passenger, had no ability to submit to the deputy's show of authority" because only the driver was in control of the moving vehicle. 38 Cal. 4th, at 1118, 1119, 136 P. 3d, at 852. But what may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away. Here, Brendlin had no effective way to signal submission while the car was still moving on the roadway, but once it came to a stop he could, and apparently did, submit by staying inside. Third, the State Supreme Court shied away from the rule we apply today for fear that it "would encompass even those motorists following the vehicle subject to the traffic stop who, by virtue of the original detention, are forced to slow down and perhaps even come to a halt in order to accommodate that vehicle's submission to police authority." Id., at 1120, 136 P. 3d, at 853. But an occupant of a car who knows that he is stuck in traffic because another car has been pulled over (like the motorist who can't even make out why the road is suddenly clogged) would not perceive a show of authority as directed at him or his car. Such incidental restrictions on freedom of movement would not tend to affect an individual's "sense of security and privacy in traveling in an automobile." Prouse, 440 U. S., at 662. Nor would the consequential blockage call for a precautionary rule to avoid the kind of "arbitrary and oppressive interference by [law] enforcement officials with the privacy and personal security of individuals" that the Fourth Amendment was intended to limit. Martinez-Fuerte, 428 U. S., at 554.6 Indeed, the consequence to worry about would not flow from our conclusion, but from the rule that almost all courts have rejected. Holding that the passenger in a private car is not (without more) seized in a traffic stop would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal.7 The fact that evidence uncovered as a result of an arbitrary traffic stop would still be admissible against any passengers would be a powerful incentive to run the kind of "roving patrols" that would still violate the driver's Fourth Amendment right. See, e.g., Almeida-Sanchez v. United States, 413 U. S. 266, 273 (1973) (stop and search by Border Patrol agents without a warrant or probable cause violated the Fourth Amendment); Prouse, supra, at 663 (police spot check of driver's license and registration without reasonable suspicion violated the Fourth Amendment).* * * Brendlin was seized from the moment Simeroth's car came to a halt on the side of the road, and it was error to deny his suppression motion on the ground that seizure occurred only at the formal arrest. It will be for the state courts to consider in the first instance whether suppression turns on any other issue. The judgment of the Supreme Court of California is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.FOOTNOTESFootnote 1 The parties dispute the accuracy of the transcript of the suppression hearing and disagree as to whether Brendlin gave his name or the false name "Bruce Brown." App. 115.Footnote 2 California conceded that the police officers lacked reasonable suspicion to justify the traffic stop because a " 'vehicle with an application for renewal of expired registration would be expected to have a temporary operating permit.' " 38 Cal. 4th, at 1114, 136 P. 3d, at 848 (quoting Brief for Respondent California in No. S123133 (Sup. Ct. Cal.), p. 24).Footnote 3 Of course, police may also stop a car solely to investigate a passenger's conduct. See, e.g., United States v. Rodriguez-Diaz, 161 F. Supp. 2d 627, 629, n. 1 (Md. 2001) (passenger's violation of local seatbelt law); People v. Roth, 85 P. 3d 571, 573 (Colo. App. 2003) (passenger's violation of littering ordinance). Accordingly, a passenger cannot assume, merely from the fact of a traffic stop, that the driver's conduct is the cause of the stop.Footnote 4 Although the State Supreme Court inferred from Brendlin's decision to open and close the passenger door during the traffic stop that he was "awar[e] of the available options," 38 Cal. 4th 1107, 1120, 136 P. 3d 845, 852 (2006), this conduct could equally be taken to indicate that Brendlin felt compelled to remain inside the car. In any event, the test is not what Brendlin felt but what a reasonable passenger would have understood. Footnote 5 Only two State Supreme Courts, other than California's, have stood against this tide of authority. See People v. Jackson, 39 P. 3d 1174, 1184-1186 (Colo. 2002) (en banc); State v. Mendez, 137 Wash. 2d 208, 222-223, 970 P. 2d 722, 729 (1999) (en banc).Footnote 6 California claims that, under today's rule, "all taxi cab and bus passengers would be 'seized' under the Fourth Amendment when the cab or bus driver is pulled over by the police for running a red light." Brief for Respondent 23. But the relationship between driver and passenger is not the same in a common carrier as it is in a private vehicle, and the expectations of police officers and passengers differ accordingly. In those cases, as here, the crucial question would be whether a reasonable person in the passenger's position would feel free to take steps to terminate the encounter.Footnote 7 Compare Delaware v. Prouse, 440 U. S. 648, 663 (1979) (requiring "at least articulable and reasonable suspicion" to support random, investigative traffic stops), and United States v. Brignoni-Ponce, 422 U. S. 873, 880-884 (1975) (same), with Whren v. United States, 517 U. S. 806, 810 (1996) ("[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred"), and Atwater v. Lago Vista, 532 U. S. 318, 354 (2001) ("If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender").

Petitioners, qualified Negro voters of a Texas County, sued to determine the legality of their being excluded, solely because of their race and color, from voting in elections held by an Association consisting of all qualified white voters in the County. The Association held an election in each election year to select candidates for county offices to run for nomination in the official Democratic primary. The Association's elections were not governed by state laws and did not utilize state elective machinery or funds. Candidates elected by the Association were not certified by the Association as its candidates in the Democratic primary, but filed their own names as candidates. However, for more than 60 years, the Association's county-wide candidates had invariably been nominated in the Democratic primaries and elected to office. The District Court found that the Association was a political organization or party and that its chief object had always been to deny Negroes any voice or part in the election of county officials. Held: 1. The combined election machinery of the Association and the Democratic Party deprives petitioners of their right to vote on account of their race and color, contrary to the Fifteenth Amendment. P. 470. 2. The case is remanded to the District Court to enter such orders and decrees as are necessary and proper under the jurisdiction it has retained under 28 U.S.C. 2202. P. 470. 3. In exercising this jurisdiction, the District Court is left free to hold hearings to consider and determine what provisions are essential to afford Negro citizens of the County full protection from such future discriminatory election practices which deprive citizens of voting rights because of their color. P. 470. 193 F.2d 600, reversed.For opinion of MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS and MR. JUSTICE BURTON, see post, p. 462.For opinion of MR. JUSTICE FRANKFURTER, see post, p. 470. For concurring opinion of MR. JUSTICE CLARK, joined by THE CHIEF JUSTICE, MR. JUSTICE REED and MR. JUSTICE JACKSON, see post, p. 477.For dissenting opinion of MR. JUSTICE MINTON, see post, p. 484. The District Court issued a declaratory judgment holding invalid racial discriminations in a pre-primary election in a Texas County, declined to issue an injunction, but retained jurisdiction to grant further appropriate relief. 90 F. Supp. 595. The Court of Appeals reversed. 193 F.2d 600. This Court granted certiorari. . Judgment of the Court of Appeals reversed and cause remanded to the District Court for further proceedings, p. 470.J. Edwin Smith and James M. Nabrit argued the cause for petitioners. With Mr. Smith on the brief was Ira J. Allen.Edgar E. Townes, Jr. and Clarence I. McFarlane argued the cause for respondents. With them on the brief was E. E. Townes.MR. JUSTICE BLACK announced the judgment of the Court and an opinion in which MR. JUSTICE DOUGLAS and MR. JUSTICE BURTON join.In Smith v. Allwright, , we held that rules of the Democratic Party of Texas excluding Negroes from voting in the party's primaries violated the Fifteenth Amendment. While no state law directed such exclusion, our decision pointed out that many party activities were subject to considerable statutory control. This case raises questions concerning the constitutional power of a Texas county political organization called the Jaybird Democratic Association or Jaybird Party to exclude Negroes from its primaries on racial grounds. The Jaybirds deny that their racial exclusions violate the Fifteenth Amendment. They contend that the Amendment applies only to elections or primaries held under state regulation, that their association is not regulated by the state at all, and that it is not a political party but a self-governing voluntary club. The District Court held the Jaybird racial discriminations invalid and entered judgment accordingly. 90 F. Supp. 595. The Court of Appeals reversed, holding that there was no constitutional or congressional bar to the admitted discriminatory exclusion of Negroes because Jaybird's primaries were not to any extent state controlled. 193 F.2d 600. We granted certiorari. .There was evidence that:The Jaybird Association or Party was organized in 1889. Its membership was then and always has been limited to white people; they are automatically members if their names appear on the official list of county voters. It has been run like other political parties with an executive committee named from the county's voting precincts. Expenses of the party are paid by the assessment of candidates for office in its primaries. Candidates for county offices submit their names to the Jaybird Committee in accordance with the normal practice followed by regular political parties all over the country. Advertisements and posters proclaim that these candidates are running subject to the action of the Jaybird primary. While there is no legal compulsion on successful Jaybird candidates to enter Democratic primaries, they have nearly always done so and with few exceptions since 1889 have run and won without opposition in the Democratic primaries and the general elections that followed. Thus the party has been the dominant political group in the county since organization, having endorsed every county-wide official elected since 1889.It is apparent that Jaybird activities follow a plan purposefully designed to exclude Negroes from voting and at the same time to escape the Fifteenth Amendment's command that the right of citizens to vote shall neither be denied nor abridged on account of race. These were the admitted party purposes according to the following testimony of the Jaybird's president: Q... . Now Mr. Adams, will you tell me specifically what is the specific purpose of holding these elections and carrying on this organization like you do? A. Good government. Q. Now I will ask you to state whether or not it is the opinion and policy of the Association that to carry on good government they must exclude negro citizens? A. Well, when we started it was and it is still that way, I think. Q. And then one of the purposes of your organization is for the specific purpose of excluding negroes from voting, isn't it? A. Yes. Q. And that is your policy? A. Yes. Q. I will ask you, that is the reason you hold your election in May rather than in June or July, isn't it? A. Yes. Q. Because if you held it in July you would have to abide by the statutes and the law by letting them vote? A. They do vote in July. Q. And if you held yours at that time they would have to vote too, wouldn't they? A. Why sure. Q. And you hold it in May so they won't have to? A. Well, they don't vote in ours but they can vote on anybody in the July election they want to. Q. But you are not answering my question. My question is that you hold yours in May so you won't have to let them vote, don't you? A. Yes. Q. And that is your purpose? A. Yes. Q. And your intention? A. Yes. Q. And to have a vote of the white population at a time when the negroes can't vote, isn't that right? A. That's right. Q. That is the whole policy of your Association? A. Yes. Q. And that is its purpose? A. Yes. The District Court found that the Jaybird Association was a political organization or party; that the majority of white voters generally abide by the results of its primaries and support in the Democratic primaries the persons endorsed by the Jaybird primaries; and that the chief object of the Association has always been to deny Negroes any voice or part in the election of Fort Bend County officials.The facts and findings bring this case squarely within the reasoning and holding of the Court of Appeals for the Fourth Circuit in its two recent decisions about excluding Negroes from Democratic primaries in South Carolina. Rice v. Elmore, 165 F.2d 387, and Baskin v. Brown, 174 F.2d 391.1 South Carolina had repealed every trace of statutory or constitutional control of the Democratic primaries. It did this in the hope that thereafter the Democratic Party or Democratic "Clubs" of South Carolina would be free to continue discriminatory practices against Negroes as voters. The contention there was that the Democratic "Clubs" were mere private groups; the contention here is that the Jaybird Association is a mere private group. The Court of Appeals in invalidating the South Carolina practices answered these formalistic arguments by holding that no election machinery could be sustained if its purpose or effect was to deny Negroes on account of their race an effective voice in the governmental affairs of their country, state, or community. In doing so the Court relied on the principle announced in Smith v. Allwright, supra, at 664, that the constitutional right to be free from racial discrimination in voting "... is not to be nullified by a State through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election."The South Carolina cases are in accord with the commands of the Fifteenth Amendment and the laws passed pursuant to it. That Amendment provides as follows:"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." The Amendment bans racial discrimination in voting by both state and nation. It thus establishes a national policy, obviously applicable to the right of Negroes not to be discriminated against as voters in elections to determine public governmental policies or to select public officials, national, state, or local. Shortly after its adoption Mr. Chief Justice Waite speaking for this Court said:"It follows that the amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude." United States v. Reese, . Other cases have reemphasized the Fifteenth Amendment's specific grant of this new constitutional right.2 Not content to rest congressional power to protect this new constitutional right on the necessary and proper clause of the Constitution, the Fifteenth Amendment's framers added 2, reading:"The Congress shall have power to enforce this article by appropriate legislation." And Mr. Justice Miller speaking for this Court declared that the Amendment's granted right to be free from racial discrimination "... should be kept free and pure by congressional enactments whenever that is necessary." Ex parte Yarbrough, . See also United States v. Reese, supra, at 218. And see Mr. Justice Bradley's opinion on circuit in United States v. Cruikshank, 1 Woods 308, 314-316, 320-323. Acting pursuant to the power granted by the second section of the Fifteenth Amendment, Congress in 1870 provided as follows:"All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding." 8 U.S.C. 31. The Amendment, the congressional enactment and the cases make explicit the rule against racial discrimination in the conduct of elections. Together they show the meaning of "elections." Clearly the Amendment includes any election in which public issues are decided or public officials selected.3 Just as clearly the Amendment excludes social or business clubs. And the statute shows the congressional mandate against discrimination whether the voting on public issues and officials is conducted in community, state or nation. Size is not a standard.It is significant that precisely the same qualifications as those prescribed by Texas entitling electors to vote at county-operated primaries are adopted as the sole qualifications entitling electors to vote at the county-wide Jaybird primaries with a single proviso - Negroes are excluded. Everyone concedes that such a proviso in the county-operated primaries would be unconstitutional. The Jaybird Party thus brings into being and holds precisely the kind of election that the Fifteenth Amendment seeks to prevent. When it produces the equivalent of the prohibited election, the damage has been done.For a state to permit such a duplication of its election processes is to permit a flagrant abuse of those processes to defeat the purposes of the Fifteenth Amendment. The use of the county-operated primary to ratify the result of the prohibited election merely compounds the offense. It violates the Fifteenth Amendment for a state, by such circumvention, to permit within its borders the use of any device that produces an equivalent of the prohibited election.The only election that has counted in this Texas county for more than fifty years has been that held by the Jaybirds from which Negroes were excluded. The Democratic primary and the general election have become no more than the perfunctory ratifiers of the choice that has already been made in Jaybird elections from which Negroes have been excluded. It is immaterial that the state does not control that part of this elective process which it leaves for the Jaybirds to manage. The Jaybird primary has become an integral part, indeed the only effective part, of the elective process that determines who shall rule and govern in the county. The effect of the whole procedure, Jaybird primary plus Democratic primary plus general election, is to do precisely that which the Fifteenth Amendment forbids - strip Negroes of every vestige of influence in selecting the officials who control the local county matters that intimately touch the daily lives of citizens.We reverse the Court of Appeals' judgment reversing that of the District Court. We affirm the District Court's holding that the combined Jaybird-Democratic-general election machinery has deprived these petitioners of their right to vote on account of their race and color. The case is remanded to the District Court to enter such orders and decrees as are necessary and proper under the jurisdiction it has retained under 28 U.S.C. 2202. In exercising this jurisdiction, the Court is left free to hold hearings to consider and determine what provisions are essential to afford Negro citizens of Fort Bend County full protection from future discriminatory Jaybird-Democratic-general election practices which deprive citizens of voting rights because of their color. Reversed and remanded.

In a Washington State Court, petitioner was tried on a charge of robbery, convicted and sentenced to imprisonment. Over his timely objection, there was admitted in evidence a written confession obtained after he had been held incommunicado for 16 hours and had been told that he could not call his wife until he had signed it. In accordance with local practice, the question as to the voluntariness of the confession was left for determination by the jury, and it brought in a general verdict of guilty. Held: On the record in this case, the confession was not voluntary, and its admission in evidence violated the Due Process Clause of the Fourteenth Amendment. Pp. 504-520. (a) A review of the entire record reveals that petitioner's account of the circumstances in which his written confession was obtained and signed was uncontradicted in its essential elements. Pp. 507-513. (b) The uncontroverted portions of the record disclose that petitioner's written confession was obtained in, and was the result of, an atmosphere of substantial coercion and inducement created by statements and actions of state authorities, which made its admission in evidence violative of due process. Pp. 513-515. (c) This Court cannot be precluded by the verdict of a jury from determining whether the circumstances under which a confession was obtained were such that its admission in evidence amounts to a denial of due process. Pp. 515-518. 58 Wash. 2d 716, 364 P.2d 935, judgment vacated and cause remanded.Lawrence Speiser argued the cause for petitioner. With him on the briefs were Francis Hoague and William W. Ross.George A. Kain argued the cause for respondent. With him on the briefs were Joseph J. Rekofke and John J. Lally. MR. JUSTICE GOLDBERG delivered the opinion of the Court.The petitioner, Raymond L. Haynes, was tried in a Superior Court of the State of Washington on a charge of robbery, found guilty by a jury, and sentenced to imprisonment "for a term of not more than 20 years." The Washington Supreme Court affirmed the conviction, with four of nine judges dissenting. 58 Wash. 2d 716, 364 P.2d 935. Certiorari was granted, , to consider whether the admission of the petitioner's written and signed confession into evidence against him at trial constituted a denial of due process of law.Haynes contends that the confession was involuntary, and thus constitutionally inadmissible, because induced by police threats and promises. He testified at trial that during the approximately 16-hour period between the time of his arrest and the making and signing of the written confession, he several times asked police to allow him to call an attorney and to call his wife. He said that such requests were uniformly refused and that he was repeatedly told that he would not be allowed to call unless and until he "cooperated" with police and gave them a written and signed confession admitting participation in the robbery. He was not permitted to phone his wife, or for that matter anyone, either on the night of his arrest or the next day. The police persisted in their refusals to allow him contact with the outside world, he said, even after he signed one written confession and after a preliminary hearing before a magistrate, late on the day following his arrest. According to the petitioner, he was, in fact, held incommunicado by the police until some five or seven days after his arrest.1 The State asserts that the petitioner's version of events is contradicted, that the confession was freely given, and that, in any event, the question of voluntariness was conclusively resolved against the petitioner by the verdict of the jury at trial. We consider each of these contentions in turn.I.The petitioner was charged with robbing a gasoline service station in the City of Spokane, Washington, at about 9 p. m. on Thursday, December 19, 1957. He was arrested by Spokane police in the vicinity of the station within approximately one-half hour after the crime.2 Though he orally admitted the robbery to officers while en route to the police station, he was, on arrival there, not charged with the crime, but instead booked for "investigation," or, as it is locally called, placed on the "small book." Concededly, prisoners held on the "small book" are permitted by police neither to make phone calls nor to have any visitors.3 Shortly after arriving at the station at about 10 p. m., the petitioner was questioned for about one-half hour by Lieutenant Wakeley of the Spokane police, during which period he again orally admitted the crime. He was then placed in a line-up and identified by witnesses as one of the robbers. Apparently, nothing else was done that night.On the following morning, beginning at approximately 9:30 a. m., the petitioner was again questioned for about an hour and a half, this time by Detectives Peck and Cockburn. He once more orally admitted the robbery, and a written confession was transcribed. Shortly thereafter, he was taken to the office of the deputy prosecutor, where still another statement was taken and transcribed. Though Haynes refused to sign this second confession, he then did sign the earlier statement given to Detectives Peck and Cockburn.4 Later that same afternoon he was taken before a magistrate for a preliminary hearing; this was at about 4 p. m. on December 20, the day after his arrest.At the conclusion of the hearing, Haynes was transferred to the county jail and on either the following Tuesday or Thursday was returned to the deputy prosecutor's office. He was again asked to sign the second statement which he had given there some four to six days earlier, but again refused to do so.The written confession taken from Haynes by Detectives Peck and Cockburn on the morning after his arrest and signed by Haynes on the same day in the deputy prosecutor's office was introduced into evidence against the petitioner over proper and timely objection by his counsel that such use would violate due process of law. Under the Washington procedure then in effect,5 voluntariness of the confession was treated as a question of fact for ultimate determination by the jury. In overruling the petitioner's objection to use of the confession, the trial judge, however, made an apparently preliminary determination that it was voluntary and "conditionally" admissible. See 58 Wash. 2d, at 719-720, 364 P.2d, at 937. The evidence going to voluntariness was heard before the jury and the issue submitted to it. The jury returned a general verdict of guilty and was not required to, and did not, indicate its view with respect to the voluntariness of the confession.II.The State first contends that the petitioner's version of the circumstances surrounding the making and signing of his written confession is evidentially contradicted and thus should be rejected by this Court. We have carefully reviewed the entire record, however, and find that Haynes' account is uncontradicted in its essential elements.Haynes testified that on the evening of his arrest he made several specific requests of the police that he be permitted to call an attorney and to call his wife. Each such request, he said, was refused. He stated, however, that he was told he might make a call if he confessed:"They kept wanting me to own up to robbing a Richfield Service Station and I asked Mr. [Detective] Pike several times if I could call a lawyer and he said if I cooperated and gave him a statement ... that I would be allowed to call, to make a phone call ... ." On cross-examination, Lieutenant Wakeley, the officer who interrogated the petitioner on the night of his arrest, first said that Haynes did not ask him for permission to call his wife, but merely inquired whether his wife would be notified of his arrest. Lieutenant Wakeley said that he told the petitioner that his wife would be notified.6 Defense counsel, however, pursued the point and, only a moment later, Wakeley testified that Haynes "may have" asked permission to call his wife himself; Wakeley said he didn't "remember exactly whether he asked or whether we wouldn't notify his wife." Wakeley then testified that he simply didn't "remember" whether Haynes asked to call his wife so that she might secure a lawyer for him; in addition, the lieutenant admitted that the petitioner might have asked to call his wife after the interrogation was completed. Detective Pike, also testifying at trial, said simply that he had not talked to Haynes on the evening of the arrest.If this were the only evidence of police coercion and inducement in the record, we would face the problem of determining whether, in view of the testimony of Lieutenant Wakeley and Detective Pike, the petitioner's own testimony would be sufficient, on review by this Court, to establish the existence of impermissible police conduct barring use of the written confession ultimately obtained. We need not pursue such an inquiry, however, since the record contains other probative, convincing, and uncontradicted evidence.The written confession introduced at trial was dictated and transcribed while Haynes was being questioned by Detectives Peck and Cockburn on the morning of December 20, the day after the robbery. Haynes testified: "Q... . [S]tate whether or not the officers at that time asked you to give them a statement. A. Yes. "Q. And what was your answer to that? A. I wanted to call my wife. "Q. And were you allowed to call your wife? A. No. "Q... . This was on Friday? A. Friday. "Q. December 20th? A. Yes. "Q. And was anything else said with respect to making a telephone call? A. Mr. Pike [sic] and the other officer both told me that when I had made a statement and cooperated with them that they would see to it that as soon as I got booked I could call my wife. "Q. Well, that was the night before you were told that, wasn't it? A. I was told that the next day too, several times. "Q. Who were the officers that were with you? A. Oh, not Mr. Pike. Mr. Cockburn and Mr. Peck, I believe. "Q. In any event, Mr. Haynes, did you soon after that give them a statement? A. Well, not readily. "Q. Did you give them a statement? A. Yes." The transcribed statement itself discloses that early in the interrogation Haynes asked whether he might at least talk to the prosecutor before proceeding further. He was told: "We just want to get this down for our records, and then we will go to the prosecutor's office and he will ask the same questions that I am."Whatever contradiction of Haynes' account of his interrogation on the night of his arrest might be found in the testimony of Lieutenant Wakeley and Detective Pike, his explicit description of the circumstances surrounding his questioning and the taking by Detectives Peck and Cockburn of the challenged confession on the following day remains testimonially undisputed. Though he took the stand at trial, Detective Cockburn did not deny that he or Detective Peck had told the petitioner that he might call his wife only if he "cooperated" and gave the police a statement. Cockburn said merely that he could not "remember" whether Haynes had asked to call his wife. He conceded that the petitioner "could have" made such a request. No legal alchemy can transmute such wholly equivocal testimony into a denial or refutation of the petitioner's specific recitation of events. Detective Peck did not testify and no other evidence was presented to contradict the petitioner's testimony, either as part of the prosecution's case in chief or, even more importantly, by way of rebuttal subsequent to the petitioner's testimony. We cannot but attribute significance to the failure of the State, after listening to the petitioner's direct and explicit testimony, to attempt to contradict that crucial evidence; this testimonial void is the more meaningful in light of the availability and willing cooperation of the policemen who, if honestly able to do so, could have readily denied the defendant's claims. Similarly, no evidence was offered to contradict in any way the petitioner's testimony that when first taken to the deputy prosecutor's office to sign the statement he had given to Detectives Peck and Cockburn he again requested permission to call his wife and was again refused.7 Though the police were in possession of evidence more than adequate to justify his being charged without delay, it is uncontroverted that Haynes was not taken before a magistrate and granted a preliminary hearing until he had acceded to demands that he give and sign the written statement. Nor is there any indication in the record that prior to signing the written confession, or even thereafter, Haynes was advised by authorities of his right to remain silent, warned that his answers might be used against him, or told of his rights respecting consultation with an attorney.In addition, there is no contradiction of Haynes' testimony that even after he submitted and supplied the written confession used at trial, the police nonetheless continued the incommunicado detention while persisting in efforts to secure still another signature on another statement.8 Upon being returned to the deputy prosecutor's office during the week following his arrest and while still being held incommunicado, the petitioner was again asked to sign the second statement which he had given there several days earlier. He refused to do so, he said, because, as he then told the deputy prosecutor, "all the promises of all the officers I had talked to had not been fulfilled and I had not been able to call my wife and I would sign nothing under any conditions until I was allowed to call my wife to see about legal counsel." The State offered no evidence to rebut this testimony.9 Similarly uncontradicted is Haynes' testimony that it was not until during or after this second interview with the prosecutor on the Tuesday or Thursday - Haynes could not be quite certain - but, in any event, some five or seven days after his arrest, that he was first allowed to call his wife.The contested written confession itself contains the following exchange: "Q. Have we made you any threats or promises? A. No. "Q. Has [sic] any police officers made you any promises or threats? A. No - except that the Lieutenant promised me that as soon as I was booked that I could call my wife. "Q. You are being held for investigation - you haven't been booked yet. When you are, you will be able to phone your wife." The State argues that the quoted answers to the first two of these questions conclusively negative existence of coercion or inducement on the part of the police. The statement bears no such reading, however. The questions on their face disclose that the petitioner was told that "booking" was a prerequisite to calling his wife, and "booking" must mean booking on a charge of robbery. Since the police already had enough evidence to warrant charging the petitioner with the robbery - they had the petitioner's prior oral admissions, the circumstances surrounding his arrest, and his identification by witnesses - the only fair inference to be drawn under all the circumstances is that he would not be booked on the robbery charge until the police had secured the additional evidence they desired, the signed statement for which they were pressing. The quoted portions of the signed confession thus support the petitioner's version of events; under any view, they offer no viable or reliable contradiction.Even were it otherwise, there would be substantial doubt as to the probative effect to be accorded recitations in the challenged confession that it was not involuntarily induced. Cf. Haley v. Ohio, (opinion of MR. JUSTICE DOUGLAS). It would be anomalous, indeed, if such a statement, contained within the very document asserted to have been obtained by use of impermissible coercive pressures, was itself enough to create an evidentiary conflict precluding this Court's effective review of the constitutional issue. Common sense dictates the conclusion that if the authorities were successful in compelling the totally incriminating confession of guilt, the very issue for determination, they would have little, if any, trouble securing the self-contained concession of voluntariness. Certainly, we cannot accord any conclusive import to such an admission, particularly when, as here, it is immediately followed by recitations supporting the petitioner's version of events.III.The uncontroverted portions of the record thus disclose that the petitioner's written confession was obtained in an atmosphere of substantial coercion and inducement created by statements and actions of state authorities. We have only recently held again that a confession obtained by police through the use of threats is violative of due process and that "the question in each case is whether the defendant's will was overborne at the time he confessed," Lynumn v. Illinois, . "In short, the true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort." Wilson v. United States, . See also Bram v. United States, . And, of course, whether the confession was obtained by coercion or improper inducement can be determined only by an examination of all of the attendant circumstances. See, e. g., Leyra v. Denno, .10 Haynes' undisputed testimony as to the making and signing of the challenged confession used against him at trial permits no doubt that it was obtained under a totality of circumstances evidencing an involuntary written admission of guilt.Here, as in Lynumn, supra, the petitioner was alone in the hands of the police, with no one to advise or aid him, and he had "no reason not to believe that the police had ample power to carry out their threats," 372 U.S., at 534, to continue, for a much longer period if need be, the incommunicado detention - as in fact was actually done. Neither the petitioner's prior contacts with the authorities nor the fact that he previously had made incriminating oral admissions negatives the existence and effectiveness of the coercive tactics used in securing the written confession introduced at trial. The petitioner at first resisted making a written statement and gave in only after consistent denials of his requests to call his wife, and the conditioning of such outside contact upon his accession to police demands. Confronted with the express threat of continued incommunicado detention and induced by the promise of communication with and access to family, Haynes understandably chose to make and sign the damning written statement; given the unfair and inherently coercive context in which made, that choice cannot be said to be the voluntary product of a free and unconstrained will, as required by the Fourteenth Amendment.We cannot blind ourselves to what experience unmistakably teaches: that even apart from the express threat, the basic techniques present here - the secret and incommunicado detention and interrogation - are devices adapted and used to extort confessions from suspects. Of course, detection and solution of crime is, at best, a difficult and arduous task requiring determination and persistence on the part of all responsible officers charged with the duty of law enforcement. And, certainly, we do not mean to suggest that all interrogation of witnesses and suspects is impermissible. Such questioning is undoubtedly an essential tool in effective law enforcement. The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases such as this where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused. But we cannot escape the demands of judging or of making the difficult appraisals inherent in determining whether constitutional rights have been violated. We are here impelled to the conclusion, from all of the facts presented, that the bounds of due process have been exceeded.IV.Our conclusion is in no way foreclosed, as the State contends, by the fact that the state trial judge or the jury may have reached a different result on this issue.It is well settled that the duty of constitutional adjudication resting upon this Court requires that the question whether the Due Process Clause of the Fourteenth Amendment has been violated by admission into evidence of a coerced confession be the subject of an independent determination here, see, e. g., Ashcraft v. Tennessee, ; "we cannot escape the responsibility of making our own examination of the record," Spano v. New York, . While, for purposes of review in this Court, the determination of the trial judge or of the jury will ordinarily be taken to resolve evidentiary conflicts and may be entitled to some weight even with respect to the ultimate conclusion on the crucial issue of voluntariness, we cannot avoid our responsibilities by permitting ourselves to be "completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding." Stein v. New York, . As state courts are, in instances such as this, charged with the primary responsibility of protecting basic and essential rights, we accord an appropriate and substantial effect to their resolutions of conflicts in evidence as to the occurrence or nonoccurrence of factual events and happenings. This is particularly apposite because the trial judge and jury are closest to the trial scene and thus afforded the best opportunity to evaluate contradictory testimony. But, as declared in Ward v. Texas, , "when, as in this case, the question is properly raised as to whether a defendant has been denied the due process of law ... we cannot be precluded by the verdict of a jury from determining whether the circumstances under which the confession was made were such that its admission in evidence amounts to a denial of due process." To the same effect, see, e. g., Spano v. New York, ; Thomas v. Arizona, ; Payne v. Arkansas, , 568; Ashcraft v. Tennessee, ; Lisenba v. California, ; Chambers v. Florida, .Beyond even the compelling nature of our precedents, however, there is here still another reason for refusing to consider the present inquiry foreclosed by the verdict of the jury to which the issue of voluntariness of the confession was submitted. The jury was instructed, in effect, not to consider as relevant on the issue of voluntariness of the confession the fact that a defendant is not reminded that he is under arrest, that he is not cautioned that he may remain silent, that he is not warned that his answers may be used against him, or that he is not advised that he is entitled to counsel.11 Whatever independent consequence these factors may otherwise have, they are unquestionably attendant circumstances which the accused is entitled to have appropriately considered in determining voluntariness and admissibility of his confession.12 In addition, the trial court instructed in terms of a Washington statute which permits consideration of a corroborated confession "made under inducement" and excepts only confessions "made under the influence of fear produced by threats."13 It seems reasonably clear from this portion of the instructions that the jury may well have been misled as to the requisite constitutional standard, notwithstanding the apparent propriety of other portions of the instructions. Given the fact that the jury did no more than return a general verdict of guilty, we obviously have no way of knowing whether it found the confession to be voluntary and admissible or not. Because there was sufficient other evidence to sustain the verdict, the jury may have found the defendant guilty even though it rejected the confession as involuntary; alternatively, the jury may have based its finding of guilt on the confession, reasoning, under the questionable instructions and the Washington statute, that the confession was admissible as voluntary, even though improperly induced, because it was corroborated by the other evidence. Although, for the reasons indicated, the Washington statute and the quoted instructions raise a serious and substantial question whether a proper constitutional standard was applied by the jury, we need not rely on the imperfections in the instructions as a separate ground of reversal. We think it clear, however, that these imperfections are entirely sufficient to preclude any dependence we might otherwise place on the jury verdict as settling the issue of voluntariness here.V.In reaching the conclusion which we do, we are not unmindful of substantial independent evidence tending to demonstrate the guilt of the petitioner. As was said in Rogers v. Richmond, :"Indeed, in many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions involving the use of confessions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed. Despite such verification, confessions were found to be the product of constitutionally impermissible methods in their inducement." Of course, we neither express nor suggest a view with regard to the ultimate guilt or innocence of the petitioner here; that is for a jury to decide on a new trial free of constitutional infirmity, which the State is at liberty to order.This case illustrates a particular facet of police utilization of improper methods. While history amply shows that confessions have often been extorted to save law enforcement officials the trouble and effort of obtaining valid and independent evidence, the coercive devices used here were designed to obtain admissions which would incontrovertibly complete a case in which there had already been obtained, by proper investigative efforts, competent evidence sufficient to sustain a conviction. The procedures here are no less constitutionally impermissible, and perhaps more unwarranted because so unnecessary. There is no reasonable or rational basis for claiming that the oppressive and unfair methods utilized were in any way essential to the detection or solution of the crime or to the protection of the public. The claim, so often made in the context of coerced confession cases, that the devices employed by the authorities were requisite to solution of the crime and successful prosecution of the guilty party cannot here be made.Official overzealousness of the type which vitiates the petitioner's conviction below has only deleterious effects. Here it has put the State to the substantial additional expense of prosecuting the case through the appellate courts and, now, will require even a greater expenditure in the event of retrial, as is likely. But it is the deprivation of the protected rights themselves which is fundamental and the most regrettable, not only because of the effect on the individual defendant, but because of the effect on our system of law and justice. Whether there is involved the brutal "third degree," or the more subtle, but no less offensive, methods here obtaining, official misconduct cannot but breed disrespect for law, as well as for those charged with its enforcement. The judgment below is vacated and the case is remanded to the Supreme Court of Washington for further proceedings not inconsistent herewith. It is so ordered.

After several applications by respondent Dumschat, a life inmate in a Connecticut state prison, for commutation of his life sentence had been rejected by the Connecticut Board of Pardons without explanation, he sued the Board in Federal District Court under 42 U.S.C. 1983, seeking a declaratory judgment that the Board's failure to provide him with a written statement of reasons for denying commutation violated his rights under the Due Process Clause of the Fourteenth Amendment. Relying chiefly on the fact that the Board had granted approximately three-fourths of all applications for commutation of life sentences, the District Court, after allowing other inmates (also respondents) to intervene and certifying the suit as a class action, held that all prisoners serving life sentences in Connecticut state prisons have a constitutionally protected "entitlement" to a statement of reasons why commutation is not granted. The Court of Appeals affirmed, and then, after its judgment had been vacated by this Court and the case had been remanded for reconsideration in light of Greenholtz v. Nebraska Penal Inmates, , held that the overwhelming likelihood that Connecticut life inmates will be pardoned and released before they complete their minimum terms gave them a constitutionally protected liberty interest in pardon proceedings, and that under Greenholtz a statement of reasons for denying commutation was constitutionally necessary under the Due Process Clause.Held: The power vested in the Connecticut Board of Pardons to commute sentences conferred no rights on respondents beyond the right to seek commutation. Pp. 463-467. (a) Far from supporting an "entitlement," Greenholtz, which rejected the claim that a constitutional entitlement to release from a valid prison sentence exists independently of a right explicitly conferred by the State, compels the conclusion that an inmate has "no constitutional or inherent right" to commutation of his life sentence. In terms of the Due Process Clause, a Connecticut felon's expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope. A constitutional entitlement cannot "be created - as if by estoppel - merely because a wholly and expressly discretionary state privilege has been granted generally in the past." Leis v. Flynt, , n. 5. No matter how frequently a particular form of clemency has been granted, the statistical probabilities generate no constitutional protections. Pp. 463-465. (b) In contrast to the unique Nebraska parole statute which was applied in Greenholtz and which created a right to parole unless certain findings were made, the mere existence of a power to commute under the Connecticut commutation statute - which imposes no limit on what procedure is to be followed, what evidence may be considered, or what criteria are to be applied by the Board of Pardons - and the granting of commutation to many inmates, create no right or "entitlement." Pp. 466-467. 618 F.2d 216, reversed.BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., post, p. 467, and WHITE, J., post, p. 467, filed concurring opinions. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 468.Stephen J. O'Neill, Assistant Attorney General of Connecticut, argued the cause for petitioners. With him on the brief was Carl R. Ajello, Attorney General.Stephen Wizner argued the cause for respondents. With him on the brief were Dennis E. Curtis and John L. Pottenger, Jr.CHIEF JUSTICE BURGER delivered the opinion of the Court.The question presented is whether the fact that the Connecticut Board of Pardons has granted approximately three-fourths of the applications for commutation of life sentences creates a constitutional "liberty interest" or "entitlement" in life-term inmates so as to require that Board to explain its reasons for denial of an application for commutation. IIn 1964, respondent Dumschat was sentenced to life imprisonment for murder. Under state law, he was not eligible for parole until December 1983.1 The Connecticut Board of Pardons is empowered to commute the sentences of life inmates by reducing the minimum prison term,2 and such a commutation accelerates eligibility for parole.3 The authority of the Board of Pardons derives from Conn. Gen. Stat. 18-26 (1981), which provides in pertinent part: "(a) Jurisdiction over the granting of, and the authority to grant, commutations of punishment or releases, conditioned or absolute, in the case of any person convicted of any offense against the state and commutations from the penalty of death shall be vested in the board of pardons. "(b) Said board shall have authority to grant pardons, conditioned or absolute, for any offense against the state at any time after the imposition and before or after the service of any sentence." On several occasions prior to the filing of this suit in February 1976, Dumschat applied for a commutation of his sentence. The Board rejected each application without explanation. Dumschat then sued the Board under 42 U.S.C. 1983, seeking a declaratory judgment that the Board's failure to provide him with a written statement of reasons for denying commutation violated his rights guaranteed by the Due Process Clause of the Fourteenth Amendment.After hearing testimony from officials of the Board of Pardons and the Board of Parole, the District Court concluded (a) that Dumschat had a constitutionally protected liberty entitlement in the pardon process, and (b) that his due process rights had been violated when the Board of Pardons failed to give "a written statement of reasons and facts relied on" in denying commutation. 432 F. Supp. 1310, 1315 (1977). The court relied chiefly on a showing that "at least 75 percent of all lifers received some favorable action from the pardon board prior to completing their minimum sentences" and that virtually all of the pardoned inmates were promptly paroled.4 Id., at 1314. In response to postjudgment motions, the District Court allowed other life inmates to intervene, certified the suit as a class action, and heard additional evidence.5 The court held that all prisoners serving life sentences in Connecticut state prisons have a constitutionally protected expectancy of commutation and therefore that they have a right to a statement of reasons when commutation is not granted. The Court of Appeals affirmed. 593 F.2d 165 (CA2 1979). A petition for a writ of certiorari was filed, and we vacated and remanded for reconsideration in light of Greenholtz v. Nebraska Penal Inmates, . .On remand, the Court of Appeals reaffirmed its original decision, 618 F.2d 216 (CA2 1980), stating: "In marked contrast [to the Nebraska statute considered in Greenholtz], Connecticut's pardons statute contains neither a presumption in favor of pardon nor a list of factors to be considered by the Board of Pardons. Instead, the statute grants the board unfettered discretion in the exercise of its power. The statute offers only the `mere hope' of pardon; it does not create a legitimate expectation of freedom and therefore does not implicate due process." Id., at 219 (citation omitted). The Court of Appeals also noted that the District Court's holding that the mere possibility of a pardon creates a constitutionally cognizable liberty interest or entitlement was "no longer tenable" in light of Greenholtz. 618 F.2d, at 221; see 442 U.S., at 8-11. However, the Court of Appeals then proceeded to conclude that "[t]he overwhelming likelihood that Connecticut life inmates will be pardoned and released before they complete their minimum terms gives them a constitutionally protected liberty interest in pardon proceedings." 618 F.2d, at 220. The Court of Appeals also understood our opinion in Greenholtz to hold that under the Due Process Clause, a brief statement of reasons is "not only constitutionally sufficient but also constitutionally necessary."6 618 F.2d, at 222. On that reading of Greenholtz, the case was remanded to the District Court for a determination of "how many years life inmates must serve before the probability of pardon becomes so significant as to give rise to a protected liberty interest."7 IIAA state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right. See Meachum v. Fano, ; Wolff v. McDonnell, . Plainly, however, the underlying right must have come into existence before it can trigger due process protection. See, e. g., Leis v. Flynt, .In Greenholtz, far from spelling out any judicially divined "entitlement," we did no more than apply the unique Nebraska statute. We rejected the claim that a constitutional entitlement to release from a valid prison sentence exists independently of a right explicitly conferred by the State. Our language in Greenholtz leaves no room for doubt: "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: `[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.'" 442 U.S., at 7 (emphasis supplied; citation omitted). Greenholtz pointedly distinguished parole revocation and probation revocation cases,8 noting that there is a "critical" difference between denial of a prisoner's request for initial release on parole and revocation of a parolee's conditional liberty. Id., at 9-11, quoting, inter alia, Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1296 (1975). Unlike probation, pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.9 Cf. Meachum v. Fano, supra, at 225.A decision whether to commute a long-term sentence generally depends not simply on objective factfinding, but also on purely subjective evaluations and on predictions of future behavior by those entrusted with the decision. A commutation decision therefore shares some of the characteristics of a decision whether to grant parole. See Greenholtz, 442 U.S., at 9-10. Far from supporting an "entitlement," Greenholtz therefore compels the conclusion that an inmate has "no constitutional or inherent right" to commutation of his sentence. Respondents nevertheless contend that the Board's consistent practice of granting commutations to most life inmates is sufficient to create a protectible liberty interest. They argue: "[T]he State Board has created an unwritten common law of sentence commutation and parole acceleration for Connecticut life inmates... . In effect, there is an unspoken understanding between the State Board and inmates. The terms are simple: If the inmate cooperates with the State, the State will exercise its parole power on the inmate's behalf. Both the State and the inmate recognize those terms. Each expects the other to abide by them." Brief for Respondents 17-18. This case does not involve parole, and respondents' argument wholly misconceives the nature of a decision by a state to commute the sentence of a convicted felon. The petition in each case is nothing more than an appeal for clemency. See Schick v. Reed, . In terms of the Due Process Clause, a Connecticut felon's expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison;10 it is simply a unilateral hope. Greenholtz, supra, at 11; see Leis v. Flynt, 439 U.S., at 443-444. A constitutional entitlement cannot "be created - as if by estoppel - merely because a wholly and expressly discretionary state privilege has been granted generously in the past." Id., at 444, n. 5. No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency. BThe Court of Appeals correctly recognized that Connecticut has conferred "unfettered discretion" on its Board of Pardons, but - paradoxically - then proceeded to fetter the Board with a halter of constitutional "entitlement." The statute imposes no limit on what procedure is to be followed, what evidence may be considered, or what criteria are to be applied by the Board. Respondents challenge the Board's procedure precisely because of "the absence of any apparent standards." Brief for Respondents 28. We agree that there are no explicit standards by way of statute, regulation, or otherwise.This contrasts dramatically with the Nebraska statutory procedures in Greenholtz, which expressly mandated that the Nebraska Board of Parole "shall" order the inmate's release "unless" it decided that one of four specified reasons for denial was applicable. 442 U.S., at 11. The Connecticut commutation statute, having no definitions, no criteria, and no mandated "shalls," creates no analogous duty or constitutional entitlement.It is clear that the requirement for articulating reasons for denial of parole in Greenholtz derived from unique mandates of the Nebraska statutes. Thus, although we noted that under the terms of the Nebraska statute, the inmates' expectancy of parole release "is entitled to some measure of constitutional protection," we emphasized that"this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis." Id., at 12. Moreover, from the standpoint of a reasons requirement, there is a vast difference between a denial of parole - particularly on the facts of Greenholtz - and a state's refusal to commute a lawful sentence. When Nebraska statutes directed that inmates who are eligible for parole "shall" be released "unless" a certain finding has been made, the statutes created a right. By contrast, the mere existence of a power to commute a lawfully imposed sentence, and the granting of commutations to many petitioners, create no right or "entitlement." A state cannot be required to explain its reasons for a decision when it is not required to act on prescribed grounds.We hold that the power vested in the Connecticut Board of Pardons to commute sentences conferred no rights on respondents beyond the right to seek commutation. Reversed.

A voluntary plan of reorganization submitted to the Securities and Exchange Commission under 11 (e) of the Public Utility Holding Company Act of 1935, which would enable a registered holding company to comply with 11 (b) of the Act by converting itself into an investment company, was approved by the Commission. The Commission expressly provided in its order of approval that certain provisions of the plan would not be operative "until an appropriate United States District Court shall, upon application thereto, enter an order enforcing said provisions"; but the Commission had not yet applied to the District Court for enforcement under 11 (e). Held: On a petition for review under 24 (a) of the Act, the Court of Appeals was without jurisdiction over those provisions of the plan which the Commission had made operative on enforcement by the District Court, but had jurisdiction of the controversy so far as it related to other provisions of the plan. Pp. 522-536. App. D.C. 172, 203 F.2d 611, affirmed in part and reversed in part. The Securities and Exchange Commission approved a reorganization plan under 11 (e) of the Public Utility Holding Company Act of 1935. Holding Company Act Releases Nos. 10614, 10643. On review in the Court of Appeals, the petitioner here was allowed to intervene, and the Court of Appeals affirmed the Commission's order. App. D.C. 172, 203 F.2d 611. This Court granted certiorari limited to the question of jurisdiction. . Affirmed in part and reversed in part, p. 536. John Mulford argued the cause for petitioner. With him on the brief were Henry S. Drinker, Thomas Reath and M. Quinn Shaughnessy.William H. Timbers argued the cause for the Securities and Exchange Commission, respondent. With him on the brief were Acting Solicitor General Stern and Alexander Cohen.Richard Joyce Smith argued the cause and filed a brief for the United Corporation, respondent.Randolph Phillips, respondent, argued the cause pro se. Joseph B. Hyman was with him on the brief for Downing et al., respondents.MR. JUSTICE DOUGLAS delivered the opinion of the Court.The United Corporation is a holding company registered under the Public Utility Holding Company Act of 1935, 49 Stat. 803, 15 U.S.C. 79 et seq. Section 11 (b) of that Act requires each holding company, with exceptions not material here, to limit the operations of the holding-company system of which it is a part to a single integrated public-utility system and to businesses reasonably incidental or economically necessary or appropriate to that system. Section 11 (e) allows a registered holding company to submit a plan to the Commission which will enable it to comply with 11 (b).United controlled, directly or indirectly, various gas and electric utility companies in the East. It submitted a plan to the Commission which, it claimed, would complete its compliance with 11 (b). The Commission rejected United's plan. 13 S. E. C. 854, 898-899. The Commission, however, withheld issuance of a dissolution order so as to afford United an opportunity to comply with the Act by divesting itself of control over its subsidiaries and by transforming itself into an investment company. Id., p. 899. The Commission accordingly directed that United cease to be a holding company and limit its corporate structure to a single class of stock, namely, common stock.1 No review of that order was sought. Thereafter United retired its preference stock by exchanging it for underlying portfolio securities and for cash. Other portfolio securities were disposed of through market sales and dividend distributions.As of December 31, 1950, United had outstanding 14,529,491.5 shares of common stock, and option warrants entitling the holders to purchase 3,732,059 shares of common stock at any time at a price of $27.50 per share. As of December 31, 1950, United's assets consisted approximately of $57,000,000 of securities and $2,000,000 in cash and government bonds, which was equivalent to $4.12 per share of common stock. The securities, which consisted of common stocks of utility operating and holding companies, included 11.9 percent of the voting stock of Niagara Mohawk Power Corp., 28.3 percent of South Jersey Gas Co., 5.8 percent of the United Gas Improvement Co., 5.5 percent of the Columbia Gas System, Inc., and voting stocks of other companies in amounts less than 5 percent of the total outstanding.United submitted a further plan which provided in essential part as follows:First. The sale by United of all of its South Jersey common stock and of sufficient amounts of its stock-holdings in the other utility companies so that within one year its resultant holdings would not exceed 4.9 percent of the voting stock of any of those companies. Second. An offer to United's stockholders who wanted to withdraw from the company. Holders of 100 or more shares of United's common stock were offered common stock of Niagara Mohawk that United had in its portfolio; holders of smaller blocks of United's common stock were offered cash. These offers were on a voluntary basis.Third. Cancellation of the option warrants without any compensation to the holders.Fourth. Amendments to the charter and bylaws of United (without a vote of stockholders) to provide for cumulative voting in the election of directors and a 50 percent quorum at stockholders meetings.The Commission approved the plan with modifications not material to the issues presented in this case. Holding Company Act Releases Nos. 10614, 10643.First. The method of transforming United from a holding company into an investment company was approved.Second. Offers to those stockholders who wanted to withdraw from the enterprise were held to be fair both to them and to those who chose to remain as investors in United.Third. The holders of the option warrants were denied any participation in the reorganization on the ground that there was no reasonable expectation that the market price of the common stock would increase to the extent needed to give the warrants a recognizable value and that continuance of the warrants would be inherently deceptive to investors and perpetuate useless and unnecessary complexities in the corporate structure.Fourth. The changes as respects cumulative voting and quorum requirements were approved.The Commission in its order of approval stated that the provisions of the plan relating to the cancellation of the warrants and the amendment of the charter and bylaws would not be operative "until an appropriate United States District Court shall, upon application thereto, enter an order enforcing said provisions." Holding Company Act Release No. 10643, p. 3. No such provision was made as respects the other provisions of the plan.Some of the common stockholders thereupon filed a petition for review in the Court of Appeals for the District of Columbia under 24 (a) of the Act.2 They challenged the First and Second provisions of the plan, which we have described above. They also asked that the Third and Fourth provisions, the ones which were made subject to approval by the District Court, be approved by the Court of Appeals. The petitioner in this Court is a protective committee representing holders of the option warrants. It moved to intervene in the review proceedings in the Court of Appeals, claiming that forfeiture of the warrants was not justified. The Commission and United opposed the intervention on the ground that by reason of the Commission's order and 11 (e) of the Act3 only the District Court had jurisdiction to review the provisions of the plan respecting the elimination of the warrants and the amendments to the charter and bylaws.The Court of Appeals allowed petitioner to intervene. It held that so long as the Commission had not applied to a District Court under 11 (e) to enforce a plan, the Court of Appeals had exclusive jurisdiction on petition of an aggrieved person under 24 (a) to review the entire plan, including those provisions which the Commission made enforceable by the District Court. The Court of Appeals further held that if it affirmed or modified an order of the Commission approving a plan and the Commission thereafter applied to the District Court to obtain enforcement, the District Court would have no function except to enforce, since the ruling by the Court of Appeals on the fairness of the plan would be binding on the District Court. Accordingly the Court of Appeals reviewed the entire plan, found it fair and equitable in all respects, and affirmed the Commission's order. App. D.C. 172, 203 F.2d 611. The case is here on certiorari limited to the question of jurisdiction. .The question is not whether there is judicial review of orders of the Commission. The question is which orders are reviewable in the District Court, which in the Court of Appeals. The first reading of the Act may leave the impression that there is conflict between 24 (a) and 11 (e). Section 24 (a) gives review in the Court of Appeals of "an order" of the Commission and grants the Court of Appeals "exclusive jurisdiction to affirm, modify, or set aside such order, in whole or in part." This is clearly broad enough to include an order of the Commission under 11 respecting a plan of a holding company seeking compliance with 11 (b). Section 11 (e), however, provides in some instances for review of such plans on application by the Commission to the District Court. Moreover, the Commission by virtue of 18 (f)4 may apply to the District Court for enforcement of any of its orders where it appears that someone is about to commit a violation.We are tendered several alternatives:1. That the Court of Appeals having first acquired jurisdiction can and should review the entire plan.2. That the District Court can and should review all phases of the plan in an enforcement proceeding and, pending application for enforcement, no review of any phase of the plan should be entertained by the Court of Appeals.3. That a so-called split review is permissible where as here the Commission has reserved for enforcement proceedings in the District Court only certain provisions of the plan, the Court of Appeals being restricted under 24 (a) to those not so reserved.We have concluded that the so-called split review is permissible under the circumstances here present and that the Court of Appeals had jurisdiction under 24 (a) to review all questions tendered it, except those pertaining to the elimination of the option warrants and the amendments to the charter and bylaws. In result we affirm in part and reverse in part the Court of Appeals on the jurisdictional question to which we restricted the grant of the petition for certiorari.It should be noted to begin with that the Act marks out two paths to compliance by a registered holding company with the requirements of the Act. One is the procedure under 11 (b) whereby the Commission by order may require that designated steps be taken by the holding company. Failing that, the Commission may apply to a District Court for enforcement of its orders under 11 (d). See Commonwealth & Southern Corp. v. Securities & Exchange Commission, 134 F.2d 747. We are not concerned here with that method of bringing holding companies into compliance with the Act. We deal here with the second method of compliance - the voluntary reorganization which the company itself submits under the broad discretion Congress left to management to determine how to bring their systems into compliance with the Act. Our problem starts under 11 (e) with the provision that a holding company "may ... submit a plan to the Commission for the divestment of control, securities, or other assets, or for other action ... enabling such company ... to comply with the provisions of subsection (b)."We turn then to problems involved in the efforts of registered holding companies voluntarily to meet the requirements of the Act. The Congress contemplated that under this Act some holding companies might satisfy the requirements of 11 by divesting themselves of control and converting themselves into investment companies. See S. Rep. No. 621, 74th Cong., 1st Sess., p. 13. If in anticipation of that step a holding company desired to give its security holders an opportunity to withdraw from the enterprise and with the approval of the Commission made them an offer to exchange their securities for securities in its portfolio, there would be no doubt that the fairness of that offer would be reviewable by the Court of Appeals under 24 (a) on petition of a security holder. Two cases drawn from United's program of compliance with the Act are illustrative.After the Commission ordered United to simplify its capital structure and cease to be a holding company, United proposed a plan for eliminating its preference stock by making an offer to exchange on a voluntary basis securities of subsidiaries and cash for the preference stock. The Commission approved; and review of that plan was had in the Court of Appeals under the procedure of 24 (a) of the Act. Phillips v. Securities & Exchange Commission, 153 F.2d 27. Later United proposed the pro rata distribution of shares of a subsidiary to holders of its common stock. The Commission approved; and review of that plan was had under 24 (a) in the Court of Appeals. Phillips v. Securities & Exchange CommissionApp. D.C. 380, 185 F.2d 746.If, therefore, United had offered its common stockholders cash or portfolio securities for their common stock and had put the offer in a separate plan, not making it physically a part of a more comprehensive plan, and the Commission had approved the exchange, there can be no doubt that that plan could have been reviewed by the Court of Appeals under 24 (a). We are unable to see why the mere fact that the offer is not in isolation but one of several proposals joined together for presentation to the Commission and approved by the Commission at the time it approves the other proposals should make a difference for purposes of judicial review.Mr. Justice Rutledge writing for the Court in Securities & Exchange Commission v. Central-Illinois Corp., , pointed out that the difference between 11 (e) and 24 (a) is not essentially in the scope of judicial review. Rather, it is in the function which the two systems of review perform. As he said, 11 (e) serves "to mobilize the judicial authority in carrying out the policies of the Act." Id., p. 125. The full import of that statement can be understood only if 11 (e) and the functions it performs are appreciated. Section 11 (e) applies to a plan which a holding company submits to the Commission for purposes of complying with the Act. In other words, it applies to what traditionally has been known in the field of business and finance as voluntary reorganizations, that is to say, reorganizations designed by the management, not those imposed on a company from without. The holding company proposes the voluntary reorganization; the Commission, after hearing, approves, if it finds the plan "necessary to effectuate the provisions of subsection (b) and fair and equitable to the persons affected by such plan." If 11 (e) ended there, it would be plain that judicial review would be had either under 24 (a) on a petition by an "aggrieved" person or under 18 (f) if and when the Commission brought an action to enforce compliance with its order approving a plan. Section 11 (e), however, has its own enforcement procedure, somewhat peculiarly worded. It gives a registered holding company the standing to ask that the enforcement machinery of the Act be placed behind its voluntary plan of reorganization.5 Section 11 (e) provides, "The Commission, at the request of the company, may apply to a court, in accordance with the provisions of subsection (f) of section 18, to enforce and carry out the terms and provisions of such plan." (Italics added.)The Commission may or may not accede to the company's suggestion. Section 11 (e) does not make it mandatory for the Commission to do so. It only says that the Commission "may" do so. That implies the exercise of discretion. The company might request, as here, that only some of the terms and provisions of a plan be submitted to the enforcement proceedings of the Act; or it might ask that each and every proposal be so treated. The Commission might refuse the request or it might grant it in whole or in part. The considerations governing the exercise of the Commission's discretion would embrace a variety of factors.It may be necessary to eliminate one class of stock; an exchange on a voluntary basis may not be possible because some security holders object. Therefore a compulsory retirement of the stock may be necessary. One step in United's program of compliance involved that procedure, as is shown by In re United Corp., 82 F. Supp. 196. United proposed a plan for the compulsory retirement of preference stock; the Commission approved and applied to the District Court for enforcement.An enforcement decree on one phase of a voluntary plan of reorganization may be an appropriate and convenient means (if not a necessary one) to modify a certificate of incorporation. Thus in Delaware the corporation statute directs the Secretary of State to accept a decree of a federal court enforcing a provision of a plan which modifies, alters, or repeals the bylaws of a Delaware corporation or amends its certificate of incorporation. 8 Del. Code Ann., 1953, 245.Illustrations could be multiplied. But those we have given indicate that a holding company may not be able to carry through without some degree of compulsion all phases of the voluntary plan it submits, that it may need the force of a judicial decree behind the Commission's order in order to put through its reorganization.On the other hand, the holding company might conclude that market conditions were so favorable, its own financial situation so strong, the terms of the voluntary reorganization so attractive that it would need no help from any source to effectuate the plan, once the Commission approved. That is the reason Congress left the choice - the right to ask for enforcement help - to the holding company.Conceivably the Commission might refuse to give the help requested unless other phases of the plan were also put through enforcement proceedings. That conclusion might be reached where the several aspects of the plan were so closely and intimately related one to the other that the fairness of one turned on the fairness of the other. No such issue arises here, for the question whether the common stockholders who want to withdraw from United have been offered enough Niagara Mohawk stock or enough cash has nothing to do either with the elimination of the option warrants or the changes in the charter and bylaws to govern stockholders who do not withdraw from the enterprise.We have said enough to indicate some of the considerations confronting the Commission when it decides, in connection with a voluntary reorganization plan under 11 (e), whether it will "mobilize the judicial authority in carrying out the policies of the Act," to use the words of Mr. Justice Rutledge in the Central-Illinois Corp. case, supra. The Commission may send only one provision of a plan of voluntary reorganization into enforcement proceedings and let all others go the route of 24 (a) should an aggrieved person desire to take them there. Here as in other fields (Phelps Dodge Corp. v. Labor Board, ) the relation of remedy to policy is peculiarly for the administrative agency. See American Power Co. v. Securities & Exchange Commission, . We cannot say that the Commission abused its discretion in the present case, for, as we have already observed, the amendments of the charter and bylaws and the fairness of the elimination of the option warrants have no apparent relevancy to the manner in which the common stockholders, who sought review in the Circuit Court under 24 (a), say they have been treated.It may be, as some argue, that it would be a better scheme to have all or none of a plan go into enforcement proceedings under 11 (e). If the entire plan were presented in the enforcement proceedings, all parties would be notified and heard at one time. But Congress in its wisdom has provided differently. The problem relates, as we have said, only to voluntary reorganizations, that is to plans submitted by the companies themselves to bring their operations into compliance with the Act. The history of voluntary recapitalizations, readjustments, and reorganizations may well have suggested that the litigious issues would not be numerous, that overall judicial review of the total plan need not be made mandatory, that only select phases and aspects of voluntary reorganization need be put through enforcement proceedings. Certainly one who has an isolated point of objection, whose protest relates only to a single phase of a plan has an advantage in the review accorded him by 24 (a). He can bring suit in the Court of Appeals in the circuit where he resides or has his principal place of business, or in the District of Columbia. He can sue at once in his own bailiwick and not have to await institution of an enforcement proceeding perhaps in some faraway place. He can have a hearing on his own personal grievance without running the risk that his case may be lost in the large shuffle of an enforcement proceeding where many parties and many interests are involved.There is nothing strange or irrational in routing the common stockholders in this case to the Court of Appeals and the option warrant holders to the District Court. Each will have his day in court. Nothing that one court does will impinge on the other. Each court will be performing a different function. Whether a better procedure could be devised is not for us to determine. It is sufficient that the procedure indicated is permissible under the Act, and that the Commission in selecting certain phases of a plan for submission to enforcement proceedings did not, to borrow a phrase from the Court of Appeals for the Third Circuit, lose "sight of the law."6 We accordingly affirm the Court of Appeals in taking jurisdiction over the controversy insofar as it related (1) to the sale by United of its holdings and (2) to the offers it made to its stockholders who wanted to withdraw. We reverse the Court of Appeals in taking jurisdiction over the provisions of the voluntary plan of reorganization which the Commission in its order made operative on enforcement by the District Court. So ordered.

Appeal from the Court of Errors and Appeals of the State of New jersey. [ Independent Warehouses v. Scheele ], 71] Mr. Duane E. Minard, of Newark, N.J., for appellants. Messrs. Harry Lane, of Jersey City, N.J., and Ralph W. Chandless, of Hackensack, N.J., for appellees. Mr. Justice RUTLEDGE delivered the opinion of the Court. An ordinance of Saddle River Township, New Jersey, forbids carrying on the business of storing goods for hire , 72] except upon the payment of an annual license tax. 1 Independent Warehouses, Inc., and Thompson, an agent of that company, have been convicted and fined for conducting such a business without procuring the license or paying the tax. The convictions have been sustained by New Jersey's highest court. 2 The appeal here seeks to have that judgment reversed on the basis that the business done was exclusively interstate and consequently the application made of the ordinance contravenes the commerce clause of the Federal Constitution, Art. I, 8. Fourteenth Amendment objections also are raised. 3 The main thrust of the argument has been toward the commerce clause phase of the case. In this the controversy is of the familiar 'interruption' or 'cessation' type. The issue accordingly requires only a determination of the proper application to be made of well-established legal principles to the particular circumstances. It is whether the cessation taking place in the movement of goods interstate, as shown by the record, is of a nature which permits the state or a municipality to tax the goods or services, here the business of storing them, rendered in connection with their handling. 4 The governing principles were stated in State of Minnesota v. Blasius, , 10, 36, as follows:'* * * the states may not tax property in transit in interstate commerce. But, by reason of a break in the , 73] transit, the property may come to a rest within a state and become subject to the power of the state to impose a non-discriminatory property tax. 5 Such an exertion of state power belongs to that class of cases in which, by virtue of the nature and importance of local concerns, the state may act until Congress, if it has paramount authority over the subject, substitutes its own regulations. The 'crucial question,' in determining whether the state's taxing power may thus be exerted, is that of 'continuity of transit.' Carson Petroleum Co. v. Vial, , 293.'If the interstate movement has not begun, the mere fact that such a movement is contemplated does not withdraw the property from the state's power to tax it. * * * If the interstate movement has begun, it may be regarded as continuing, so as to maintain the immunity of the property from state taxation, despite temporary interruptions due to the necessities of the journey or for the purpose of safety and convenience in the course of the movement. * * * Formalities, such as the forms of billing, and mere changes in the method of transportation, do not affect the continuity of the transit. The question is always one of substance, and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied . * * *'Where property has come to rest within a state, being held there at the pleasure of the owner, for disposal or use, so that he may dispose of it either within the state, or for shipment elsewhere, as his interest dictates, it is deemed to be a part of the general mass of property within the state and is thus subject to its taxing power.' , 74] Since the circumstances characterizing the interruption are of controlling importance, we turn to the details of the movement and of the stoppage shown by the record. I. The suit is the culmination of a controversy extending back to 1939, with earlier litigious chapters in the state and federal courts. It grows out of the operation of facilities for storing and handling coal under various arrangements between the Erie Railroad Company and other corporations affiliated for this and other enterprises by stock ownership or by contract. The Pennsylvania Coal Company is a wholly owned subsidiary of Erie. It owns and operates coal mines in Pennsylvania. In 1901 it acquired 67.25 acres of land in Saddle River Township, New Jersey. This acreage and its faciliti s, known as Coalberg, are located on the New York, Susquehanna and Western Railroad and perform functions connected with that road's operations not material to this cause. Coalberg also is connected directly with the Bergen County Railroad, a freight cutoff of Erie. Its chief purpose, and the only one relevant to this controversy, is to provide storage for coal shipped in from the Coal Company's Pennsylvania mines and later shipped out to various destinations. Prior to 1939, Coalberg was operated by the Coal Company or its lessees as a private business, not as a public utility. During this time the Township levied personal property taxes upon the coal in storage, assessing and collecting them from its owners. 6 These were, as they are now, chiefly coal distributors using Coalberg's storage facilities, principally because of their accessibility to distributing centers, especially in the vicinity of New York , 75] City, and to shipping facilities both by rail and by water. 7 In 1939, however, by arrangements to be set forth involving Erie, the Coal Company and Independent Warehouses, Coalberg was converted into a public utility to serve shippers of coal on Erie lines. Under New Jersey law, goods stored in warehouses conducted for hire are exempted from personal property taxes. Rev.Stat.N.J. 54:4-3.20, N.J.S.A. The Township, despite the change in Coalberg's mode of operation, continued to levy such taxes on the stored coal until the 1940 assessment was invalidated in the state courts. Pattison & Bowns, Inc., v. Saddle River Township, 129 N.J.L. 135, 28 A.2d 485; Id., 130 N.J.L. 177, 32 A.2d 363. The municipality's resulting loss in revenue amounted to about eight per cent of the total collected for local, county and state purposes. To make up for this, as its brief here candidly admits, the Township enacted the ordinance now in question, acting under other provisions of state law. N.J.Stat.Ann. 40:52-1, 40:52-2. The effect was to shift the direct incidence of the tax from the owners of the coal i.e., the shipper- distributors, to the operator of the storage business and to change its character from a direct property tax to that of a license or franchise tax for the privilege of conducting that business in the state. The amount of revenue thus produced, though in dispute, substantially will repair the loss suffered from invalidation of the property tax. This suit is the outgrowth of the Township's effort to enforce the new taxing provisions. It is necessary to state in some detail the arrangements made in 1939 by which the change was brought about in , 76] the mode of operating Coalberg. An agreement then made between the Coal Company and Erie provides that the former shall operate Coalberg 'as a public service facility for shippers of prepared anthracite coal on Erie lines desiring storage space in accordance with and under the rates named in a certain Tariff on file with the Interstate Commerce Commission and the Public Utilities Commission of the State of New Jersey. * * *' The agreement recites that it is made in view of the considerations that the Coal Company has no need for Coalberg's storage facilities and that they are of use to Erie in affording 'facilities for the storage of prepared anthracite coal for shippers on Erie lines whereon said Coalberg Storage Yard is located so that shipments of coal may not be diverted to other and competing lines on which facilities for coal storage are available. * * *' Erie pays the net monthly loss, i any, of operating the yard and the Coal Company remits to Erie the net monthly surplus, if any. Erie also undertakes to maintain an agent at Coalberg duly authorized on its behalf to issue warehouse receipts for coal placed in storage by shippers. The Coal Company has discharged the operating function under its agreement with Erie by an arrangement also made in 1939 with Independent Warehouses, which is a New York corporation engaged in the warehousing business. The Coal Company leased Coalberg to Independent Warehouses for $ 1.00 a year and the latter undertook to operate the plant for a consideration which now amounts to approximately $500 a year. The agreement between the Coal Company and Erie governs the manner of Coalberg's operation by Independent Warehouses. Under these arrangements purchasers from the Coal Company who ship coal from the mines designate the destination on the shipping papers. If they designate Coalberg, the coal is sent there on railroad cars. It is unloaded to the storage pile where it is kept until ordered out , 77] by the owner. It is then reloaded into railroad cars, and when it is reshipped there is a new billing to the new destination. Most of the coal, after it has been stored, goes to states other than New Jersey. Some, however, is marketed in New Jersey. It is disputed whether there is any local distribution in the Township, but if so the amount is comparatively insignificant. The financial arrangements under the governing tariff are as follows. On arrival of the shipments at Coalberg the transportation charges on the movement from the mine to Coalberg are paid to the Erie freight agent at Coalberg. When the coal is moved again after storage, the remainder of the through tariff rate from the point of original shipment at the mine in Pennsylvania is paid. This arrangement is known as the transit privilege. 'The privilege of transit enables grain (here coal) to be shipped from point A to point B, there to be stored, marketed, or processed, and later reshipped to point C at a rate less than the combination of the separate rates from A to B and B to C.' Board of Trade of Kansas City, Mo., v. United States, , 537, 538, 368, and authorities cited. The storage facilities given to shippers are free for a period of two years, 8 although a charge is made by Erie for unloading the cars into the stock pile and for reloading the cars for reshipment. A charge is also made by Independent Warehouses upon such coal owners as obtain warehouse receipts from it. , 78] The licensing ordinance applied in this case was adopted in 1943, following upon the New Jersey decision in Pattison & Bowns, Inc., v. Saddle River Township, supra. The ordinance provides:'No person, firm or corporation shall conduct or carry on the business of the storage of personal property in a warehouse engaged in storing goods for hire or work in, occupy, or, directly, or indirectly in any manner whatsoever, utilize and place or premises in which is conducted or carried on the storage of personal property in a warehouse engaged in the business of storing goods for hire, unless and until there shall be granted by the Township Committee of the Township of Saddle River in accordance with the terms of this ordinance, and shall be in force and effect, a license to conduct said business for the place and premises in or at which said business shall be conduc ed and carried on.' The ordinance specifies that for the license there shall be charged and collected in advance an annual fee of three-quarters of a cent for each square foot of ground in the Township where the business is carried on. There is also a penalty clause,9 in addition to other provisions not now pertinent. , 79] Independent Warehouses did not apply for the license or pay the tax for 1943. Consequently that company and Thompson were convicted in the Magistrate's Court before appellee Scheele, the Recorder of the Township, for having violated the ordinance by conducting the storage operations at Coalberg without complying with its requirements. Each was fined $200.10 The Coal Company and Erie were allowed to intervene when the case went before the New Jersey Supreme Court, because of their obvious interest in the outcome of the litigation. That court held the ordinance unconstitutional as an undue burden on interstate commerce and reversed the convictions. 132 N.J.L. 390, 40 A.2d 796. In turn the New Jersey Court of Errors and Appeals reversed the Supreme Court's determination. 134 N.J. L. 133, 45 A.2d 703. It held that the ordinance was valid under the provisions of state law, and that neither the commerce clause nor the Fourteenth Amendment guaranties relied upon had been infringed. The case comes hereon appeal, pursuant to 237(a) of the Judicial Code, 28 U.S.C.A. 344(a). See King Mfg. Co. v. City Council of Augusta, ; Jamison v. State of Texas, . That the storage of the coal is part of a transit privilege does not in itself sustain appellants' claim that the interstate movement had not stopped sufficiently for the state's taxing power to attach when the coal reached and was stored in Coalberg. Cf. State of Minnesota v. Blasius, supra; Bacon v. Peopel of State of Illinois, . It has long been recognized that transit privileges rest 'upon the fiction that the incoming and the outgoing transportation services, which are in fact distinct, constitute a continuous shipment of the identical article from point of origin to final destina- , 80] tion.' Central Railroad Co. of New Jersey v. United States, , 82. See also Atchison, Topeka, & Santa Fe R. Co. v. United States, , 780, 498. Of course this fiction, which may be desirable for ratemaking or other purposes, cannot control the power of a state or municipality to tax activities properly subject to exercise of that power apart from the fiction's application to them. Indeed, the facts of this case demonstrate that here at least the fiction is complete. They show that the journey of the coal from the Pennsylvania mines to Coalberg and the subsequent journeys upon leaving Coalberg were not parts of a 'continuity of transit' in the sense held by this Court's previous decisions to preclude a valid exercise of the states' taxing or regulatory powers. See, e.g., Pittsburg & Southern Coal Co. v. Bates, ; General Oil Co. v. Crain, ; Bacon v. People of State of Illinois, supra; Susquehanna Coal Co. v. City of South Amboy, . A characteristic feature of those cases in which the state has been allowed to tax property which has come to rest after an interstate journey is that at the time the tax is laid it cannot be determined what the ultimate destination or use of the property may be. Thus in General Oil Co. v. Crain, supra, the oil was shipped to Memphis and held there until required to supply orders from out-of-state customers. In Brown v. Houston, , coal sent from Pennsylvania to New Orleans was held taxable in Louisiana because, although some of it was subsequently exported, it 'was being held for sale to any one who might wish to buy.' Champlain Realty Co. v. City of Brattleboro, , 25 A.L.R. 1195. In Bacon v. People of State of Illinois, supra, the grain sent to Bacon's elevator was at his complete disposal. 'He might sell the grain in Illinois or forward it, as he saw fit.' Although his intention was to forward it after inspection, grading, etc., this purpose was held irrelevant. at page 516, 33 S.Ct. at page 303. And in Susquehanna Coal Co. v. City of South Amboy, supra, although there was an anticipation of or- , 81] ders for the coal unloaded at South Amboy, yet there were no actual orders from customers. See also Nashville, C. & St. L.R. Co. v. Wallace, A.L.R. 1191; Edelman v. Boeing Air Transport, . Those cases are indistinguishable from this one as to the facts and the effect of the stoppage. Once the coal has reached Coalberg, no one can determine, without receiving an order from the owner, to what point or person it finally will be sent or to what use it will be put. Indeed, at the actual time of storage, even the owner may not know where the coal will go next, for the very purpose of the storage is in part to meet seasonal demand. 11 And while , 82] the form of billing is not conclusive, State of Minnesota v. Blasius, supra, the fact that the coal is billed to Coalberg and is not rebilled until the owner asks that it be released from storage further shows that the final destination is not known by the owner or by others. Moreover, in all these cases the duration of the cessation of transit is indefinite and in this case may extend as long as two years without loss of transit privilege. Indeed, except for that loss it may extend indefinitely, since under the controlling tariff Erie does not require, but only reserves the right to require, removal at the end of two years. 12 It is also significant that invariably the goods are fungibles, a fact pointing up the fictional basis of the intransit privilege. The goods which are sent initially into the interstate commerce stream are not the identical goods which finally arrive at the place of consumption. In view of all these considerations, the case falls more appropriately in the category allowing the state's taxing power to apply, than in the one denying its applicability. The interruption hardly can be held to be 'due to the necessities of the journey of for the purpose of safety and convenience in the course of the movement,' State of Minnesota v. Blasiusat pages 9, 10, 54 S.Ct. at page 37, broad as may be the latitude given for such incidents of transit. More is involved here than stopping to take advantage of such latitudes. The case therefore is one, again in the language of the Blasius case, 'where property has come to rest within a state, being held there at the pleasure of the owner, for disposal or use, so that he may dispose of it either within the state, , 83] or for shipment elsewhere, as his interest dictates * * *.' at page 10, 54 S.Ct. at page 37. The facts bring the case exactly within this description, although the record shows that most of the coal after storage goes to other states and little, if any, is distributed locally at Coalberg. Not what ultimately happens to the goods or where they finally go, but the occasion and purpose of the interruption are controlling. 'The question is always one of substance, and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied.' State of Minnesota v. Blasiusat page 10, 54 S.Ct. at page 37. Here the cessation takes place not simply for the carrier's transit reasons relating to the necessities or convenience of the journey, but for reasons primarily concerned with the owner's business interests, As in the Bacon and Susquehanna Coal cases, supra, he is entirely free to keep or market the goods in New Jersey or to send them elsewhere. Marketing considerations primarily, and it may be exclusively, determine this choice and many or all of the controlling factors may not arise until after the coal has reached Coalberg or indeed many months later. The situation in this respect is not materially different from those involved in the Susquehanna Coal, Bacon, and other cases cited, or indeed from one in which a coal distributor might place his storage facilities at some distance from his place of market, as at a near-by way station, in order to reduce the cost of his storage operations. That reasons of economy and convenience or even of necessity arising from the absence or prohibitive cost of storage space at the immediate point of distribution might lead him thus to locate his storage operations, and thereby incur the necessity and expense of hauling the goods from storage to market, hardly could be held to make the inter- , 84] ruption an incident of transit rather than one of his own business policy and interest. That he may secure the same advantages by using the storage facilities of others for like purposes, rather than his own, does not change the result. In neither case does the arrangement defeat the state's power to tax his property so located or his business thus conducted. Moreover, as has been noted, some of the coal remains in New Jersey, being shipped out from Coalberg as the shipper directs. As to this all interstate transportation has ended. The fact that the owner elects to take advantage of Coalberg's storage facilities for conducting his storage operations rather than his own located at the point or points of final distribution in New Jersey, whether near to Coalberg or at some distance, does not make the final wholly intrastate movement between those points a leg of the initial interstate movement begun at the mine. As for the coal moving out of Coalberg interstate, the fact that this movement crosses a state line makes it of course an interstate movement. But this does not make it part of a continuous journey beginning at the mine and ending in the second state of destination. Indeed, not until after the storage has taken place is it determined or can it be known whether this coal will move out of Coalberg interstate or intrastate. And this is because it cannot be known before that time whether the owner's interest, disconnected from the ordinary and usual incidents of transportation, will dictate one market or use rather than another. Interruptions thus governed cannot be classified as interruptions merely incident to transit or dictated by its necessities or convenience. The 1939 change in Coalberg's mode of operation did not alter in any substantial way the character, duration or purpose of the stoppage. Since then as before, the primary reasons dictating the shippers' action in taking , 85] advantage of it are their business reasons rather than transit reasons as such. Accordingly the state's power to tax the goods stored could not be affected by that change. That the state has chosen to discontinue exercising it as a matter of state taxing policy can make no difference in this respect. Nor can this fact, or the change in method of operation, defeat the state's power to tax the business of furnishing the facilities for storage, since that business also becomes local or interstate depending upon the purposes of the stoppage, whether for transit reasons or chiefly for nontransit ones. The authorities above cited, it is true, generally involved property taxes levied upon the stored coal. But their controlling principal applies equally to franchise or other taxes upon the business of furnishing the storage facilities. Cf. General Oil Co. v. Crain, ; American Steel & Wire Co. v. Speed, S. Ct. 365. It would be an impermissible anomaly to hold that the goods stored may be taxed, because the interruption of transit is for nontransit purposes, but that the business of furnishing the facilities for storing them is not affected or governed legally by the same purposes, for applying the state's powers of taxation. Accordingly, the case is governed by the prior decisions allowing states and municipalities to tax in situations of this sort. It follows that the tax is not forbidden because it is part of a licensing measure. Even where it is undisputed that the commerce is exclusively interstate in nature, 'not the mere fact or form of licensing, but what the license stands for by way of regulation is important.' Robertson v. People of State of California, , 1170. See also Union Brokerage Co. v. Jensen, , 152 A.L.R. 1072; Federal Compress & Warehouse Co. v. McLean, . Nor does anything in the Interstate Commerce Act, 49 U.S.C.A. 1 et seq. forbid local taxation where it is otherwise permissible. The tax therefore is valid under the commerce clause. , 86] III. Whether the tax and the licensing meas re as applied may stand under the Fourteenth Amendment also must be considered. Appellants say that the ordinance is discriminatory and unreasonable. Discrimination is claimed because the ordinance is applicable only to commercial warehouses and not to private warehouses and because there are no other commercial warehousing facilities in the Township subject to the tax. This contention is grounded on the provisions of New Jersey law, noted above, exempting property stored in commercial warehouses from taxation. It also is closely related to the further claim that the tax is prohibitory and unreasonable, and the two claims may be considered together.'It is inherent in the exercise of the power to tax that a state be free to select the subjects of taxation and to grant exemptions. Neither due process nor equal protection imposes upon a state any rigid rule of equality of taxation. * * * This Court has repeatedly held that inequalities which result from a singling out of one particular class for taxation or exemption, infringe no constitutional limitation.' Carmichael v. Southern Coal & Coke Co., , 872, 109 A.L.R. 1327. We need not consider in this connection the ultimate power of the state to tax,13 for we are of opinion that neither the selection made here nor the amount of the tax is barred by the Fourteenth Amendment. The New Jersey Court of Errors and Appeals has held that the present tax is not an illegal evasion of the state laws exempting personal property in commercial warehouses from property taxes, and that the municipality , 87] was empowered by state law to levy this tax. Those rulings are conclusive upon us. Nor is it material to any question we have to decide that the practical result of the valid taxing power given the municipality enabled it to make up the loss in revenue suffered when Coalberg was transformed to a public facility. Constitutionally speaking, the tax is not invalid as being unreasonably large for the privilege conferred. 14 It is not shown that the exaction is unrelated to the value of the privilege conferred and the Court of Errors and Appeals found to the contrary. 15 Private contractual arrangements, such as have been made here,16 cannot be effective to defeat the state's power to impose such a tax, with the practical effect of relieving the real beneficiaries of the privilege from all taxation by virtue of their success in shunting its burden contractually to the nominal operator. 17 And the suggestion that the tax under the ordinance is prohibitive can carry no weight in view of the fact , 88] that substantially equal personal property taxes were paid prior to 1939. 18 Appellants' other arguments may be given shorter disposition. The contention that Thompson's conviction is 'unlawful' is answered by the decision of the New Jersey Court of Errors and Appeals which held that the municipality possesses the power which it exercised to convict persons working in unlicensed warehousing premises as well as to prohibit corporations and others from carrying on the business of warehousing without obtaining a license. Thompson was convicted not for his employer's act but for his own. It is suggested also that the ordinance gives to the municipality an uncontrolled discretion to revoke the license and is therefore invalid for uncertainty, since it permits of Township Committee to 'revoke any such license for sufficient cause after notice and hearing.' Appellants have made no attempt to secure a license and therefore are not in position to attack the revocation provisions of the ordinance. Cf. Bourjois, Inc., v. Chapman, , 694, and authorities cited. Finally the ordinance is said to be invalid because of the provision for cumulative penalties. 19 The penal provisions however have not been imposed cumulatively in this case. Moreover the New Jersey Court has held them separable,20 if illegal. In such circumstances, the objec- , 89] tion that the mere unapplied provision for cumulation violates the Fourteenth Amendment is without substance. Louisville & N.R. Co. v. Garrett, , 53, and authorities cited. The judgment is affirmed. Affirmed. Mr. Justice FRANKFURTER, concuring. The dissenting views lead me to add a few words to the Court's opinion, in which I join. Nearly thirty-five years ago Mr. Justice Holmes observed that 'one in my place sees how often a local policy prevails with those who are not trained to national views and how often action is taken that embodies what the Commerce Clause was meant to end.' (Holmes, Speeches, Law and the Court, 98, 102). His concern has not lost force with time, and it is important to be duly mindful of it whenever a State claims the power to tax in a situation like that now before us. Equally relevant are other observations by Mr. Justice Holmes regarding this problem. 'It being once admitted, as of course it must be, that not every law that affects commerce among the states is a regulation of it in a constitutional sense, nice distinctions are to be expected. Regulation and commerce among the states both are practical rather than technical conceptions, and, naturally, their limits must be fixed by practical lines.' Galveston, Harrisburg, etc. R. Co. v. State of Texas, , 639. And so, this Court has sustained a tax upon the mining of ore although substantially all the ore left the State and was put upon cars for that purpose by the same act by which it was produced. Oliver Iron Mining Co. v. Lord, . Mr. Justice Holmes joined in that opinion although 'There could not be a case of a State's product more certainly destined to interstate commerce.' Holmes J., dissenting in Commonwealth of Pennsylvania v. State of West Virginia, 90] 553, 600, 601, 666, 32 A.L.R. 300. Again, the Court has held that a State may impose a non-discriminatory tax on goods which, although connected 'as a general course of business' with 'a flow of interstate commerce,' 'has come to rest and has acquired a situs within the state' at 'a depot * * * for another interstate journey.' State of Minnesota v. Blasius, , 11, 36, 37. For the practical purposes which determine the constitutional issue there can be no difference between taxing such goods as property and taxing the business of being a depot for such goods. In striking the constitutional balance between State and national powers, figures of speech are treacherous. The ore which Minnesota was allowed to tax in the Lord case, and the cattle which Minnesota was allowed to tax in the Blasius case, were in no practical sense less in the 'flow of commerce' than the coal the storage of which was the business subjected to a non-discriminatory license tax by New Jersey. Nor can it make a difference that this storage business was conducted by a concern controlled by the coal-carrying road. If a wholly independent storage concern would have had to pay a license tax, the controlling constitutional principles require no different result because the storage facility is a subsidiary of a railroad. Presumably there are good business reasons for the use of such a subsidiary corporation. Compare Edwards v. Chile Copper Co., , 346. Those reasons are equally valid for the State's taxing purposes. It cannot be said that New Jersey has given no opportunities, has afforded no protection, and has conferred no benefits upon Independent Warehouses, Inc ., merely because in an ultimate sense there is a financial identification between Independent Warehouses and the Erie Railroad. Compare State of Wisconsin v. J. C. Penney Co., , 249, 130 A.L.R. 1229. If what was here involved were merely an occasional and transient storage , 91] of coal moving from Pennsylvania to New York, New Jersey could not levy a property tax on the coal nor a license tax for the storing of it. The controlling consideration here is that there was storage of the coal precisely like the holding of the cattle in the Blasius case. In both cases there was a sufficiently distinct and permanent break in the process of transportation between the States so as to give rise to interests in the State of storage to justify the exertion of its non-discriminatory taxing power. For me this case is controlled by Susquehanna Coal Co. v. City of South Amboy, . Here, as in that case, there was something more 'than an incidental interruption of the continuity' of the coal's 'journey through the state.' There was 'a business purpose and advantage in the delay which was availed of, and while it was availed of, the products secured the protection of the state.' at pages 668 and 669, 33 S.Ct. at page 714. Thereby the State's power to tax arose. The fact that for railroad-rate purposes this storage was treated as part of a transit privilege does not affect the relation of the storage to the taxing powers of the State. Assuming that such a storage may properly be treated as a stop-over privilege under the Interstate Commerce Act, it does not follow that the break in the process of interstate transportation is not of such significance in its relation to a State as to allow that State to tax the protection given to the property during the break as well as the opportunity afforded in conducting the business for such separable and enduring storage in the State. Mr. Justice JACKSON, with whom Mr. Chief Justice VINSON joins, dissenting. The Erie Railroad Company is a common carrier engaged in interstate commerce. By a specific tariff filed with the Interstate Commerce Commission pursuant to the Interstate Commerce Act it and severa other rail , 92] carriers have long published a joint and proportional through-tariff on anthracite coal from coal mining stations in Pennsylvania to points in New York and New Jersey. The tariff provides for storage-in-transit services at Coalberg, New Jersey, with reshipment to destination under original agreements. Independent Warehouses, Inc., as contract agent for the Erie, operates these storage-in-transit facilities, has custody of the coal in storage under Erie tariffs as a public warehouseman, and issues warehouse receipts for coal received under railroad waybills. Title to Coalberg is in the Pennsylvania Coal Co., a wholly-owned subsidiary of Erie, and it receives from Independent Warehouses one dollar per year for its lease. The Erie ultimately bears all losses and gets all gains. It is apparent that Coalberg is a facility for storage in transit of coal operated as part of the Erie's interstate transportation service. The function of the storage in transit is vital. During the summer season, consumption of anthracite coal is light and neither dealers nor consumers in the City of New York and elsewhere are able to store adequate winter reserves. At critical times there would be grave danger of inadequate fuel supplies from interruptions of transportation or of mining operations if stock piles were not accumulated near consuming centers, such as New York, to be drawn upon in periods of peak demand. Therefore, the railroad accepts coal shipments which it mingles in stock piles at Coalberg, near New York, with the privilege to the shipper of ordering the same grade and quantity sent on to destination as needed. When orders for reshipment come, they are drawn from stock piles and delivered. Storage-in- transit is a device to equalize the demands on coal transportation facilities and to provide a reserve supply of coal for periods when consumption exceeds production, to enable movement away from the mines during the , 93] period when production exceeds consumption, and to finance future purchases by warehouse receipts issued against coal in transit. It is an essential part of dependable and lowcost transportation of anthracite coal from the mines to the great metropolitan consuming area. For the privilege of operating this storage-in-transit facility at Coalberg in New Jersey, the municipality demands an annual license fee, in advance, which it is alleged would amount to $20,475. This is merely for the privilege of doing the business. The property used in the operation is also subject to the usual property tax on a valuation of $133,875, which is not in question. The issue is whether this local privilege tax unconstitutionally burdens interstate commerce. The burden and its substantiality are undeniable, but the Court concludes that these local assessments upon interstate traffic are within the power of the state and, of course, the amount, be it $20,000 per year or $20,000,000 per year, is wholly for the local authorities to determine if their power to tax is upheld. I cannot agree that the commerce clause of the Federal Constitution has left interstate traffic vulnerable to such local permissions and burdens. Because the immediate impact of the tax is on a railroad, we should not delude ourselves as to its real effect. It is a tax on traffic- on the movement of goods-and its weight is shifted from the carrier to the consumer. There is, of course, a 'local incident,' a stoppage in transit, a reloading. 'Local incidents' of some sort can be identified in all interstate transportation. But in this case local sales or deliveries are insubstantial in amount. The whole operation is incidental to interstate transportation and not to any local business. It is integrated in operation, ownership and management with transportation. It is under the federal commerce power and under Interstate Commerce Commis- , 94] sion regulation. The stoppage may be longer than many other stoppages in transit incident to railroading. But the storage of perpetually renewed and continuously drawn-upon stock piles is no longer than necessary to adapt transportation facilities to the needs of an economy, one end of which must engage in continuous production and the other in only seasonal consumption. That a single municipality or state can fasten local tax burdens upon such an incident makes interstate commerce vulnerable to the very barriers and obstructions the commerce clause of the Constitution was designed to end. The unedifying story of Colonial rivalry in preying upon commerce, which more than any one thing made our Federal Constitution a necessity, is too often told by historians to justify repetition. This tax is reminiscent, however, of some phases of that commercial warfare. In 1787 New York was being supplied with firewood from Connecticut and much farm produce from New Jersey. It seized upon 'local incidents' to lay a tax. Every sloop which came down through Hell Gate, every cart of firewood entering the city, and every market boat rowed across the Hudson River had to pay heavy entrance duties. Then came retaliatory measures. See Fiske, The Critical Period of American History, Chap. IV. These chronic quarrels were destroying the trade of all the rivals, and it was sought by the Constitution to free trade from local burdens and controls. This New Jersey tax on transportation of New York's coal supply is more dangerous in the end than the old New York tax on its own firewood. In that case the consumers who ultimately would pay the tax also controlled the government which shortsightedly laid the tax. It was a tariff, and the tariff-ridden people could remove it. But here the ultimate burden of the tax falls on consumers of New York and elsewhere who have no repre- , 95] sentation in the government which lays the tax and fixes its amount. The authorities who fix the tax will never have to answer to those who pay it. That is the evil of 'taxation without representation.' Here is a tax that falls immediately upon a single taxpayer for it does not appear that any other is similarly affected. It is a tax that falls ultimately on non- residents of the taxing authority. If it is valid, I know of no reason why the community should bear any of its own tax burdens. This is the great vice of these local burdens on interstate movement of goods. It this is not the sort of burden and barrier to a nation's free trade that our commerce clause was designed to end, I should think one would be hard put to find an example. This decision represents a trend that seems to me quite out of the spirit of our history and quite as detrimental to our commercial welfare and unity. See my concurring opinion, Duckworth v. State of Arkansas, , 314, 138 A.L.R. 1144. I am not unaware of the needs of this locality, as of all others, for revenue. But it seems to me that the activities at Coalberg are as fully in the current of interstate commerce as those we held immune from state taxation in Freeman v. Hewit, , and Joseph v. Carter & Weekes Stevedoring Co., . The storage-in-transit service is as essential to maintaining and as much a part of the flow of coal as loading and unloading of goods shipped in interstate commerce is of that commerce. The Constitution laid restraints upon each locality lest their local advantages be pursued at the cost of the commerce on which the prosperity of all depends. I would reverse the judgment.

An individual taxpayer received a salary from a closely held corporation and reported it in full in his income tax return for the year in which it was received. In a subsequent year, it was determined that the salary was excessive and the taxpayer was required as transferee to make payments on tax deficiencies of the corporation for prior years. Held: The taxpayer's income tax for the year in which he received the excessive salary may not be recomputed so as to exclude from his income for that year that part of his salary held to be excessive and which resulted in his transferee liability. Pp. 279-285. (a) Having received the salary under a "claim of right," the taxpayer was required to report it as income and to pay a tax thereon. Pp. 281-282. (b) Funds are held under a "claim of right" within the meaning of North American Oil v. Burnet, , when received and treated by a taxpayer as belonging to him, even though the claim may subsequently be found invalid. P. 282. (c) That the receipt of the excessive portion of the salary resulted in transferee liability as a "constructive trustee" does not prevent application of the "claim of right" doctrine. Pp. 282-283. (d) Nor can the salary be treated as money received subject to a "restriction on its use" within the scope of the "claim of right" doctrine, even though the facts which ultimately gave rise to the transferee liability were in existence at the end of the taxable year. Pp. 283-284. (e) A different result is not required by the fact that, in this particular case, an inequity might result from requiring the taxpayer to treat as income an amount which eventually turned out not to be income. Pp. 284-285. 194 F.2d 662, affirmed. 194 F.2d 536, reversed.[Footnote *] Together with No. 138, Commissioner of Internal Revenue v. Smith, on certiorari to the United States Court of Appeals for the Sixth Circuit. No. 76. The Tax Court held that the petitioners' income for a prior year should be recomputed to their advantage. 16 T. C. 200. The Court of Appeals reversed. 194 F.2d 662. This Court granted certiorari. . Affirmed, p. 285. No. 138. The Tax Court held that respondent's income for a prior year should be recomputed to his advantage. 11 T. C. 174. The Court of Appeals affirmed. 194 F.2d 536. This Court granted certiorari. . Reversed, p. 285.James H. Heffern argued the cause and filed a brief for petitioners in No. 76.Assistant Attorney General Lyon argued the cause for petitioner in No. 138 and respondent in No. 76. With him on the briefs were Ellis N. Slack, Lee A. Jackson and Melva M. Graney. Solicitor General Cummings was also on the brief in No. 76. Robert L. Stern, then Acting Solicitor General, and Philip Elman were also on the brief in No. 138.Sol Goodman argued the cause and filed a brief for respondent in No. 138.MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.The income tax liability of three individual taxpayers for a given year is here before the Court. Only a single question, common to all the cases, is involved. The Tax Court held a view favorable to the taxpayers.1 The Commissioner of Internal Revenue sought review before the appropriate Courts of Appeals. As to two of the taxpayers, the Court of Appeals for the Second Circuit reversed,2 while the Court of Appeals for the Sixth Circuit took a contrary view of the law.3 We granted certiorari to resolve the conflict.4 All controlling facts in the three situations are similar. Each taxpayer reports his income on the cash receipts and disbursements method. Each, in the respective years involved, received a salary from a closely held corporation in which he was both an officer and a stockholder. The full amount of salary so received was reported as income for the year received. Subsequently, after audit of the corporate returns, the Commissioner disallowed the deduction by the corporations of parts of the salaries as exceeding reasonable compensation. As a result, deficiencies in income taxes were determined against the corporations. The Commissioner also determined that the officers were liable as transferees under 311 of the Internal Revenue Code for the corporate deficiencies. The receipt of excessive salary was the transfer upon which the transferee liability was predicated. As a result of either litigation5 or negotiation, various amounts became established as deficiencies of the corporations and as transferee liabilities of each of the three officers. In each case, the entire process of determining these amounts - from the start of the audit by agents of the Commissioner to the final establishment of the liabilities - occurred after the end of the year in which the salary was received and reported.The question before the Court is whether part of the salary should be excluded from taxable income in the year of receipt since part was excessive salary and led to transferee liability for the unpaid taxes of the corporations. The taxpayers contend that an adjustment should be made in the year of original receipt of the salary; the Government that an adjustment should be made in the year of payment of the transferee liability.One of the basic aspects of the federal income tax is that there be an annual accounting of income.6 Each item of income must be reported in the year in which it is properly reportable and in no other. For a cash basis taxpayer, as these three are, the correct year is the year in which received.7 Not infrequently, an adverse claimant will contest the right of the recipient to retain money or property, either in the year of receipt or subsequently. In North American Oil v. Burnet, , we considered whether such uncertainty would result in an amount otherwise includible in income being deferred as reportable income beyond the annual period in which received. That decision established the claim of right doctrine "now deeply rooted in the federal tax system."8 The usual statement of the rule is that by Mr. Justice Brandeis in the North American Oil opinion: "If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent." 286 U.S., at 424. The phrase "claim of right" is a term known of old to lawyers. Its typical use has been in real property law in dealing with title by adverse possession, where the rule has been that title can be acquired by adverse possession only if the occupant claims that he has a right to be in possession as owner.9 The use of the term in the field of income taxation is analogous. There is a claim of right when funds are received and treated by a taxpayer as belonging to him. The fact that subsequently the claim is found to be invalid by a court does not change the fact that the claim did exist. A mistaken claim is nonetheless a claim, United States v. Lewis, .However, we are told that the salaries were not received as belonging to the taxpayers, but rather they were received by the taxpayers as "constructive trustees" for the benefit of the creditors of the corporation. Admittedly, receipts by a trustee expressly for the benefit of another are not income to the trustee in his individual capacity, for he "has received nothing ... for his separate use and benefit," Eisner v. Macomber, .We do not believe that these taxpayers were trustees in the sense that the salaries were not received for their separate use and benefit. Under the equitable doctrine that the funds of a corporation are a trust fund for the benefit of creditors, a stockholder receiving funds without adequate consideration from an insolvent corporation may be held, in some jurisdictions, to hold the funds as a constructive trustee.10 So it was that these taxpayers were declared constructive trustees and were liable as transferees in equity. A constructive trust is a fiction imposed as an equitable device for achieving justice.11 It lacks the attributes of a true trust, and is not based on any intention of the parties. Even though it has a retroactive existence in legal fiction, fiction cannot change the "readily realizable economic value"12 and practical "use and benefit"13 which these taxpayers enjoyed during a prior annual accounting period, antecedent to the declaration of the constructive trust.We think it clear that the salaries were received under a claim of individual right - not under a claim of right as a trustee. Indeed one of the parties concedes, as is manifestly so, that the reporting of the salary on the income tax returns indicated that the income was held under a claim of individual right. The taxpayers argue that the salary was subject to a restriction on its use.14 Since all the facts which ultimately gave rise to the transferee liability were in existence at the end of the taxable year, we are told those facts were a legal restriction on the use of the salary. Actually it could not have been said at the end of each of the years involved that the transferee liability would materialize. The Commissioner might not have audited one or all of these particular returns; the Commissioner might not have gone through the correct procedure or have produced enough admissible evidence to meet his burden of proving transferee liability;15 or, through subsequent profitable operations, the corporations might have been able to have paid their taxes obviating the necessity of resort to the transferees.16 There is no need to attempt to list hypothetical situations not before us which put such restrictions on use as to prevent the receipt under claim of right from giving rise to taxable income. But a potential or dormant restriction, such as here involved, which depends upon the future application of rules of law to present facts, is not a "restriction on use" within the meaning of North American Oil v. Burnet, supra.The inequities of treating an amount as income which eventually turns out not to be income are urged upon us. The Government concedes that each of these taxpayers is entitled to a deduction for a loss in the year of repayment of the amount earlier included in income.17 In some cases, this treatment will benefit the taxpayer; in others it will not. Factors such as the tax rates in the years involved and the brackets in which the income of the taxpayer falls will be controlling. A rule which required that the adjustment be made in the earlier year of receipt instead of the later year of repayment would generally be unfavorable to taxpayers, for the statute of limitations would frequently bar any adjustment of the tax liability for the earlier year.18 Congress has enacted an annual accounting system under which income is counted up at the end of each year. It would be disruptive of an orderly collection of the revenue to rule that the accounting must be done over again to reflect events occurring after the year for which the accounting is made, and would violate the spirit of the annual accounting system. This basic principle cannot be changed simply because it is of advantage to a taxpayer or to the Government in a particular case that a different rule be followed.The judgment of the Court of Appeals for the Second Circuit in No. 76, being consistent with this opinion, is affirmed, while the contrary judgment of the Court of Appeals for the Sixth Circuit in No. 138 is reversed. It is so ordered.MR. JUSTICE DOUGLAS dissents.

Appeal from the District Court of the United States for the Southern District of California. Mr. David Reich, of Washington, D.C., for appellant. Mr. David Ginsburg, of Washington, D.C., for appellee. Mr. Justice RUTLEDGE delivered the opinion of the Court. Section 8 of the Immigration Act of 1917 provides:'That any person * * * who shall bring into or land in the United States (or shall attempt to do so) [ U S v. Evans ], 484] or shall conceal or harbor or attempt to conceal or harbor, or assist or abet another to conceal or harbor, in any place * * * any alien not duly admitted by an immigrant inspector or not lawfully entitled to enter or to reside within the United States, under the terms of this Act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding $2,000 and by imprisonment for a term not exceeding five years for each and every alien so landed or brought in or attempted to be landed or brought in.' (Emphasis added.) 39 Stat. 880, 8 U. S.C. 144, 8 U.S.C.A. 144. Appellee and another were indicted for concealing and harboring five named aliens in alleged violation of 8. Before trial appellee moved that the indictment be dismissed on the ground that it did not charge a punishable offense. He argued that although the statute provided for two different crimes, one landing or bringing in unauthorized aliens, and the other concealing or harboring such aliens, punishment was prescribed in terms only for the former crime. The District Court accepted this argument and granted the motion to dismiss. The Government appealed directly to this Court pursuant to the Criminal Appeals Act, 28 U.S.C. 345, 28 U.S.C. A. 345, and we noted probable jurisdiction. . The case presents an unusual and a difficult problem in statutory construction. It concerns not so much Congress' intention to make concealing or harboring criminal as it does the penalty to be applied to those offenses including attempts. The choice, as might appear on glancing at the statute, is not simply between no penalty, at the one extreme, and, at the other, fine plus imprisonment up to the specified maxima for each alien concealed or harbored. The problem is rather one of multiple choice, presenting at least three, and perhaps four, possible yet , 485] inconsistent answers on the statute's wording. Furthermore, as will appear, the legislative history is neither clear nor greatly helpful in ascertaining which of the possibilities calling for punishment was the one Congress contemplated. Before discussing specifically the alternatives, we note that the Government rests primarily on the clarity with which 8 indicates Congress' purpose to make concealing or harboring criminal, rather than upon any like indication of legislative intent concerning the penalty. 1 Because the purpose to proscribe the conduct is clear, it is said, we should not allow that purpose to fail becauseo f ambiguity concerning the penalty. Rather we are asked to make it effective by applying that one of the possibilities which seems most nearly to accord with the criminal proscription and the terms of the penalizing provision. On the other hand, appellee does not really dispute that Congress meant, by inserting the amendment prohibiting concealing or harboring,2 to make those acts criminal. But he denies that it is possible, either from the section's wording or from the legislative history, to ascertain with any fair degree of assurance which one of the possible penal consequences Congress may have had in mind. From this he falls back upon the conclusion indicated by the premise, namely, that the task of resolving the difficulty goes beyond dispelling ambiguity in the usual sense , 486] of judicially construing statutes3 and, if attempted, would require this Court to invade the legislative function and, in effect, fix the penalty. The argument is therefore not merely that a rule of strict construction should be applied in petitioner's favor. It is rather that the choice the Government asks us to make is so broad and so deep, resting among such equally tenable though inconsistent possibilities, that we have no business to make it at all. Even in criminal matters a strong case would be required to bring about the result appellee seeks. For, where Congress has exhibited clearly the purpose to proscribe conduct within its power to make criminal and has not altogether omitted provision for penalty, every reasonable presumption attaches to the proscription to require the courts to make it effective in accord with the evident purpose. This is as true of penalty provisions as it is of others. United States v. Brown, . But strong as the presumption of validity may be, there are limits beyond which we cannot go in finding what Congress has not put into so many words or in making certain what it has left undefined or too vague for reasonable assurance of its meaning. In our system, so far at least as concerns the federal powers, defining crimes and fixing penalties are legislative, not judicial, functions. 4 But given some legislative edict, the margin between the necessary and proper judicial function of construing stat- , 487] utes and that of filling gaps so large that doing so becomes essentially legislative, is necessarily one of degree. We turn then to consider whether the Government is asking that we do too much when it puts forward a preferred reading of the penal provision, perhaps suggests another as a permissible alternative, and is prepared to accept a third, though disavowing its complete consistency with Congress' intent, if neither f the others is adopted. The Government's preferred reading would impose the same penalty for concealing or harboring as for bringing in or landing, notwithstanding the 'for each and every alien' clause is limited expressly to aliens 'so landed or brought in or attempted to be landed or brought in.' Under this interpretation the effect of that clause would be to provide additional punishment, as stated in the brief, 'where the crime of landing or bringing in aliens or the crime of concealing or harboring aliens involves more than one alien brought into the country illegally.' (Emphasis added.) This construction is admittedly ungrammatical and the failure to integrate the wording of the 'each and every alien' clause with the language of the 1917 amendment adding the concealing and harboring offenses is conceded to have been possibly due to oversight. If only imperfect grammar stood in the way the construction might be accepted. But we agree with appellee that more is involved. The Government in effect concedes that in terms the section prescribes no penalty for concealing or harboring. But it argues that inclusion of them as offenses becomes meaningless unless the penalty provision, in spite of its wording, is construed to apply to them as well as to bringing in or landing. In other words, because Congress intended to authorize punishment, but failed to do so, probably as a result of oversight, we should plug the hole in the statute. , 488] To do this would be to go very far indeed, upon the sheer wording of the section. For it would mean in effect that we would add to the concluding clause the words which the Government's reading inserts, 'and for each and every alien so concealed or harbored.' It is possible that Congress may have intended this. But for more than one reason we cannot be sure of that fact. In the first place, the section as originally enacted was limited to acts of smuggling. And there is some evidence in the legislative history that the addition of concealing or harboring was meant to be limited to those acts only when closely connected with bringing in or landing, so as to make a chain of offenses consisting of successive stages in the smuggling process. 5 But that evidence is not conclusive. 6 And the section's wording is susceptible to much broader constructions. On the language it is possible not only to treat concealing or harboring as offenses distinct and disconnected from smuggling operations; it is also possible to regard them as separate and distinct from each other. And on the broadest possible interpretation, giving independent effect to the words 'or not lawfully entitled * * * to reside within the United States,'7 the section could be taken , 489] to apply to concealing or harboring of aliens lawfully admitted but unlawfully remaining within the country. In that event an innkeeper furnishing lodging to an alien lawfully coming in but unlawfully overstaying his visa would be guilty of harboring, if he knew of the illegal remaining. And, with him, one harboring an alien known to have entered illegally at some earlier, even remote, time would incur the penalties provided for smuggling, if the Government's position giving implied extension of the penalty provision were accepted. We do not mention these possibilities to intimate opinion concerning the reach of the statute with reference to covering them, for no such question is squarely before us. But we point them out because they are relevant to the problem of assurance or reasonable certainty in asserting that Congress by necessary implication intended to extend the penalties originally and still clearly provided for smuggling to all offenses covered by the language defining the crimes. The very real doubt and ambiguity concerning the scope of the acts forbidden, if any, beyond those clearly and proximately connected with smuggling raise equal or greater doubt that Congress meant to encompass all those acts within the penal provisions for smuggling. If acts disconnected from that process are forbidden, the separate offenses of concealing and more particularly of har- , 490] boring, if the two are distinct, might require, in any sound legislative judgment, very different penalties from those designed to prevent or discourage smuggling in its various phases. That is essentially the sort of judgment legislatures rather than courts should make. The position the Government asks us to take involves therefore a major task in two respects, not merely one. The first is to expand the penal language beyond the explicit limitation 'for each and every alien so landed or brought in,' so as to apply the penalties designed for smuggling to all offenses covered by the section. The second is to do this blindly in reference to the scope and quality of the forbidden acts to which the extension is to be made, that is, without resolving beforehand the questions we have noted as arising on the face of the section in relation to its reach in defining the offenses of concealing or harboring. The Government does not ask us to undertake now to say how far the section may or may not go in these numerous aspects of defining coverage. 8 We are not willing to undertake extension of the penalty provision blindfold, without knowing in advance to what acts the penalties may be applied. Nor are we any more willing to decide wholesale among the various possibilities of coverage. That problem, squarely presented in concrete instances, might be resolved step by step, were there no difficulty over the penalty. But to resolve it broadside now for all cases the section may cover, on this indirect presentation, would be to proceed in an essentially legis- , 491] lative manner for the definition and specification of the criminal acts, in order to make a judicial determination of the scope and character of the penalty. Beyond the difficulties arising on the section's wording, the legislative history is sufficient in one respect, when added to th other obstacles, to make them insuperable for accepting the Government's preferred reading. It discloses that both before9 and after10 and 1917 amendment the immigration authorities and particularly the Commissioner General repeatedly sought from Congress the specific penal wording the Government now asks us , 492] to insert. These efforts were made as conflicting judicial decisions demonstrated that the courts were very much at sea11 and their floundering was brought to congressional attention. 12 In each instance nevertheless the effort was unsuccessful. It may well be, as the Government infers, that this only increases the mystery of Congress' failure to include explicit penalties when it added the new offenses. It is possible that Conge may have thought none were needed. But that view hardly explains satisfactorily the subsequent repeated failures to clarify the matter, after experience had shown that need. We cannot take them as importing clear direction to the courts to do what Congress itself either refused or failed on notice to do upon so many occasions and importunities. We are not entirely sure that the Government intends to put forward as an alternative suggestion the reading, , 493] already discussed, which would extend the smuggling penalties to the section's broadest possible construction in relation to definition and coverage of criminal acts, i.e., to concealing or harboring of aliens lawfully admitted but unlawfully remaining. But appellee regards this as a tendered possibility and specified statements in the Government's brief appear to sustain his view. 13 Whether appellee is correct in taking the statements as suggesting an independent alternative or, on the other hand, they were made, though not accurately phrased for the purpose, in support of the Government's preferred position, is not greatly material. For, in any event, what has been said about extending the penalty to include the narrower range of forbidden acts applies to the broader one with even greater force as calling for the extension's rejection. There is, finally, the third possible interpretation which the Government concedes not wholly consistent with the statutory purpose, but says nevertheless is clearly authorized 'if a strictly grammatical construction of Section 8 is employed.' This would read the 'for each and every alien' clause out of the section insofar as offenses of concealing or harboring are concerned, while leaving it effective for bringing in or landing. In other words, the reading would differentiate the two classes of offenses for applying the penalty provision. The prescribed maximum penalties would be made effective for concealing or harboring, but without augmenting them according to the number of aliens concealed or harbored, even though previously landed or brought in, at the same time. That , 494] increase however would continue in force for bringing in or landing. 14 The wording of 8 can be made to support this interpretation only by treating the 'for each and every alien' clause as ambivalently separable in relation to the two classes of offenses. Nothing on the face of the section suggests such a reading. The comma preceding the final clause is not equal to the burden of supporting the construction. The clause was part of the section before the concealing and harboring offenses were added. Previously there could have been no possible intent or purpose to apply the clause to some of the offenses but not to others. The clause's function was solely to augment the penalty when more than one alien was involved. That function was o t changed when the new offenses were added. 15 Neither the amendment's wording nor its history evinces any purpose to increase punishment, propor- , 495] tionately to the number of aliens involved, for one class of offenders but not for the other. The construction, like the preferred one, is a construction of necessity, to be justified if at all only by the fact that without it the statute becomes unenforceable for the offenses of concealing or harboring. If there were less inconsistency among the tentative possibilities put forward or greater consistency with the section's wording implicit in one, resolution of the difficulty by judicial action would involve a less wide departure from the common function of judicial interpretation of statutes than is actually required by this case. But here the task is too large. With both of the parties we agree that Congress meant to make criminal and to punish acts of concealing or harboring. But we do not know, we can only guess with too large a degree of uncertainty, which one of the several possible constructions Congress thought to apply. The uncertainty extends not only to the inconsistent penalties said to satisfy the section, either grammatically or substantively if not grammatically. It also includes within varying ranges at least possible, and we think substantial, doubt over the section's reach to bring in very different acts which conceivably might be held to be concealing or harboring. The latter ambiguity affects the former and their sum makes a task for us which at best could be only guesswork. This is a task outside the bounds of judicial interpretation. It is better for Congress, and more in accord with its function, to revise the statute than for us to guess at the revision it would make. That task it can do with precision. We could do no more than make speculation law. The judgment is affirmed. Affirmed.

California filed a complaint against a nurse charging him with murdering 12 patients by administering massive doses of the heart drug lidocaine. The Magistrate granted the defendant's motion to exclude the public from the preliminary hearing on the complaint under a California statute that requires such proceedings to be open unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial." At the conclusion of the 41-day preliminary hearing, the Magistrate refused petitioner's request that the transcript of the proceedings be released. Thereafter, the State, supported by petitioner and opposed by the defendant, moved unsuccessfully in the California Superior Court to have the transcript released. Petitioner then filed a peremptory writ of mandate with the California Court of Appeal. Meanwhile, the defendant waived his right to a jury trial, and the Superior Court released the transcript. After holding that the controversy was not moot, the Court of Appeal denied the writ. The California Supreme Court also denied the writ, holding that there is no general First Amendment right of access to preliminary hearings, and that under the California statute if the defendant establishes a "reasonable likelihood of substantial prejudice," the burden shifts to the prosecution or the media to show by a preponderance of the evidence that there is no such reasonable probability of prejudice. Held: 1. Even though the Superior Court ultimately released the transcript in question, the case is not moot because the controversy is "capable of repetition, yet evading review." Globe Newspaper Co. v. Superior Court, ; Gannett Co. v. DePasquale, . Thus, this Court has jurisdiction. P. 6. 2. The qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as conducted in California. First, there has been a tradition of public accessibility to preliminary hearings of the type conducted in California. As opposed to grand jury proceedings, preliminary hearings conducted before neutral and detached magistrates have been open to the public. Second, public access to such preliminary hearings is essential to the proper functioning of the criminal justice system. This proper functioning is not made any less essential by the fact that a preliminary hearing cannot result in a conviction and the adjudication is before a magistrate without a jury. The absence of a jury makes the importance of public access even more significant. Pp. 6-13. 3. Since a qualified First Amendment right of access attaches to preliminary hearings as conducted in California, the proceedings cannot be closed unless specific, on the record findings are made demonstrating that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Court, . If the interest asserted is the defendant's right to a fair trial, the preliminary hearing shall not be closed unless there is a "substantial probability" that that right will be prejudiced by publicity that closure would prevent and that reasonable alternatives to closure cannot adequately protect the right. Here, the "reasonable likelihood" test applied by the California Supreme Court placed a lesser burden on the defendant than the "substantial probability" test required by the First Amendment. Moreover, the court failed to consider whether alternatives short of closure would have protected the defendant's interests. Pp. 13-15. 37 Cal. 3d 773, 691 P.2d 1026, reversed.BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in Part II of which REHNQUIST, J., joined, post, p. 15.James D. Ward argued the cause for petitioner. With him on the briefs was Sharon J. Waters. Joyce Ellen Manulis Reikes argued the cause for respondent. With her on the brief were Gerald J. Geerlings and Glenn Robert Salter. Ephriam Margolin filed a brief for Diaz, real party in interest.* [Footnote *] Briefs of amici curiae urging reversal were filed for the State of California by John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin and Steve White, Chief Assistant Attorneys General, and Marian M. Johnston, Deputy Attorney General; for the American Civil Liberties Union et al. by Robert S. Warren, Rex S. Heinke, and Charles S. Sims; for the American Newspaper Publishers Association et al. by Bruce W. Sanford, Lee Levine, W. Terry Maguire, Richard M. Schmidt, Jr., George A. Vradenburg III, Lawrence Gunnels, Mark L. Tuft, Robert D. Sack, Alice Neff Lucan, E. Susan Garsh, Harvey L. Lipton, Norton L. Armour, Robert J. Brinkmann, Lois J. Schiffer, Samuel E. Klein, Nancy H. Hendry, Jane E. Kirtley, Alexander Wellford, P. Cameron De Vore, and Carol D. Melamed; and for Copley Press, Inc., et al. by Harold W. Fuson, Jr., Judith R. Epstein, Edward J. McIntyre, William A. Niese, Donald L. Zachary, Mark L. Tuft, Lawrence Gunnels, Robert N. Landes, Kenneth M. Vittor, and Jonathan Kotler. Grover C. Trask II, pro se, filed a brief for the District Attorney, County of Riverside, as amicus curiae.CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether petitioner has a First Amendment right of access to the transcript of a preliminary hearing growing out of a criminal prosecution.IOn December 23, 1981, the State of California filed a complaint in the Riverside County Municipal Court, charging Robert Diaz with 12 counts of murder and seeking the death penalty. The complaint alleged that Diaz, a nurse, murdered 12 patients by administering massive doses of the heart drug lidocaine. The preliminary hearing on the complaint commenced on July 6, 1982. Diaz moved to exclude the public from the proceedings under Cal. Penal Code Ann. 868 (West 1985), which requires such proceedings to be open unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial."1 The Magistrate granted the unopposed motion, finding that closure was necessary because the case had attracted national publicity and "only one side may get reported in the media." App. 22a.The preliminary hearing continued for 41 days. Most of the testimony and the evidence presented by the State was medical and scientific; the remainder consisted of testimony by personnel who worked with Diaz on the shifts when the 12 patients died. Diaz did not introduce any evidence, but his counsel subjected most of the witnesses to vigorous cross-examination. Diaz was held to answer on all charges. At the conclusion of the hearing, petitioner Press-Enterprise Company asked that the transcript of the proceedings be released. The Magistrate refused and sealed the record.On January 21, 1983, the State moved in Superior Court to have the transcript of the preliminary hearing released to the public; petitioner later joined in support of the motion. Diaz opposed the motion, contending that release of the transcript would result in prejudicial pretrial publicity. The Superior Court found that the information in the transcript was "as factual as it could be," and that the facts were neither "inflammatory" nor "exciting," but that there was, nonetheless, "a reasonable likelihood that release of all or any part of the transcripts might prejudice defendant's right to a fair and impartial trial." Id., at 60a, 61a.Petitioner then filed a peremptory writ of mandate with the Court of Appeal. That court originally denied the writ but, after being so ordered by the California Supreme Court, set the matter for a hearing. Meanwhile, Diaz waived his right to a jury trial and the Superior Court released the transcript. After holding that the controversy was not moot, the Court of Appeal denied the writ of mandate.The California Supreme Court thereafter denied petitioner's peremptory writ of mandate, holding that there is no general First Amendment right of access to preliminary hearings. 37 Cal. 3d 772, 691 P.2d 1026 (1984). The court reasoned that the right of access to criminal proceedings recognized in Press-Enterprise Co. v. Superior Court, (Press-Enterprise I), and Globe Newspaper Co. v. Superior Court, , extended only to actual criminal trials. 37 Cal. 3d, at 776, 691 P.2d, at 1028. Furthermore, the reasons that had been asserted for closing the proceedings in Press-Enterprise I and Globe - the interests of witnesses and other third parties - were not the same as the right asserted in this case - the defendant's right to a fair and impartial trial by a jury uninfluenced by news accounts.Having found no general First Amendment right of access, the court then considered the circumstances in which the closure would be proper under the California access statute, Cal. Penal Code Ann. 868 (West 1985). Under the statute, the court reasoned, if the defendant establishes a "reasonable likelihood of substantial prejudice" the burden shifts to the prosecution or the media to show by a preponderance of the evidence that there is no such reasonable probability of prejudice. 37 Cal. 3d, at 782, 691 P.2d, at 1032.We granted certiorari. . We reverse.IIWe must first consider whether we have jurisdiction under Article III, 2, of the Constitution. In this Court, petitioner challenges the Superior Court's original refusal to release the transcript of the preliminary hearing. As noted above, the specific relief petitioner seeks has already been granted - the transcript of the preliminary hearing was released after Diaz waived his right to a jury trial. However, as in Globe Newspaper, supra, at 603, and Gannett Co. v. DePasquale, , this controversy is "`capable of repetition, yet evading review.'" It can reasonably be assumed that petitioner will be subjected to a similar closure order and, because criminal proceedings are typically of short duration, such an order will likely evade review. Globe and Gannett, therefore, require the conclusion that this case is not moot. Accordingly, we turn to the merits.IIIIt is important to identify precisely what the California Supreme Court decided:"[W]e conclude that the magistrate shall close the preliminary hearing upon finding a reasonable likelihood of substantial prejudice which would impinge upon the right to a fair trial. Penal code section 868 makes clear that the primary right is the right to a fair trial and that the public's right of access must give way when there is conflict." 37 Cal. 3d, at 781, 691 P.2d, at 1032. It is difficult to disagree in the abstract with that court's analysis balancing the defendant's right to a fair trial against the public right of access. It is also important to remember that these interests are not necessarily inconsistent. Plainly, the defendant has a right to a fair trial but, as we have repeatedly recognized, one of the important means of assuring a fair trial is that the process be open to neutral observers.The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness. Only recently, in Waller v. Georgia, , for example, we considered whether the defendant's Sixth Amendment right to an open trial prevented the closure of a suppression hearing over the defendant's objection. We noted that the First Amendment right of access would in most instances attach to such proceedings and that "the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." Id., at 46. When the defendant objects to the closure of a suppression hearing, therefore, the hearing must be open unless the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced. Id., at 47.Here, unlike Waller, the right asserted is not the defendant's Sixth Amendment right to a public trial since the defendant requested a closed preliminary hearing. Instead, the right asserted here is that of the public under the First Amendment. See Gannett, supra, at 397 (POWELL, J., concurring). The California Supreme Court concluded that the First Amendment was not implicated because the proceeding was not a criminal trial, but a preliminary hearing. However, the First Amendment question cannot be resolved solely on the label we give the event, i. e., "trial" or otherwise, particularly where the preliminary hearing functions much like a full-scale trial. In cases dealing with the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations. First, because a "`tradition of accessibility implies the favorable judgment of experience,'" Globe Newspaper, 457 U.S., at 605 (quoting Richmond Newspapers, Inc. v. Virginia, (BRENNAN, J., concurring in judgment)), we have considered whether the place and process have historically been open to the press and general public.In Press-Enterprise I, for example, we observed that "since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown." 464 U.S., at 505. In Richmond Newspapers, we reviewed some of the early history of England's open trials from the day when a trial was much like a "town meeting." In the days before the Norman Conquest, criminal cases were brought before "moots," a collection of the freemen in the community. The public trial, "one of the essential qualities of a court of justice" in England, was recognized early on in the Colonies. There were risks, of course, inherent in such a "town meeting" trial - the risk that it might become a gathering moved by emotions or passions growing from the nature of a crime; a "lynch mob" ambience is hardly conducive to calm, reasoned decision-making based on evidence. Plainly the modern trial with jurors open to interrogation for possible bias is a far cry from the "town meeting trial" of ancient English practice. Yet even our modern procedural protections have their origin in the ancient common-law principle which provided, not for closed proceedings, but rather for rules of conduct for those who attend trials. Richmond Newspapers, supra, at 567.Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question. Globe Newspaper, supra, at 606. Although many governmental processes operate best under public scrutiny, it takes little imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted openly. A classic example is that "the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Douglas Oil Co. v. Petrol Stops North-west, . Other proceedings plainly require public access. In Press-Enterprise I, we summarized the holdings of prior cases, noting that openness in criminal trials, including the selection of jurors, "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." 464 U.S., at 501.These considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes. If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches. But even when a right of access attaches, it is not absolute. Globe Newspaper Co. v. Superior Court, supra, at 606. While open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity.2 In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access. In Press-Enterprise I we stated:"[T]he presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." 464 U.S., at 510.IVAThe considerations that led the Court to apply the First Amendment right of access to criminal trials in Richmond Newspapers and Globe and the selection of jurors in Press-Enterprise I lead us to conclude that the right of access applies to preliminary hearings as conducted in California.First, there has been a tradition of accessibility to preliminary hearings of the type conducted in California. Although grand jury proceedings have traditionally been closed to the public and the accused, preliminary hearings conducted before neutral and detached magistrates have been open to the public. Long ago in the celebrated trial of Aaron Burr for treason, for example, with Chief Justice Marshall sitting as trial judge, the probable-cause hearing was held in the Hall of the House of Delegates in Virginia, the courtroom being too small to accommodate the crush of interested citizens. United States v. Burr, 25 F. Cas. 1 (No. 14,692) (CC Va. 1807). From Burr until the present day, the near uniform practice of state and federal courts has been to conduct preliminary hearings in open court.3 As we noted in Gannett, several States following the original New York Field Code of Criminal Procedure published in 1850 have allowed preliminary hearings to be closed on the motion of the accused. 443 U.S., at 390-391. But even in these States the proceedings are presumptively open to the public and are closed only for cause shown.4 Open preliminary hearings, therefore, have been accorded "`the favorable judgment of experience.'" Globe, 457 U.S., at 605.The second question is whether public access to preliminary hearings as they are conducted in California plays a particularly significant positive role in the actual functioning of the process. We have already determined in Richmond Newspapers, Globe, and Press-Enterprise I that public access to criminal trials and the selection of jurors is essential to the proper functioning of the criminal justice system. California preliminary hearings are sufficiently like a trial to justify the same conclusion.In California, to bring a felon to trial, the prosecutor has a choice of securing a grand jury indictment or a finding of probable cause following a preliminary hearing. Even when the accused has been indicted by a grand jury, however, he has an absolute right to an elaborate preliminary hearing before a neutral magistrate. Hawkins v. Superior Court, 22 Cal. 3d 584, 586 P.2d 918 (1978). The accused has the right to personally appear at the hearing, to be represented by counsel, to cross-examine hostile witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence. Cal. Penal Code Ann. 859-866 (West 1985), 1538.5 (West Supp. 1986). If the magistrate determines that probable cause exists, the accused is bound over for trial; such a finding leads to a guilty plea in the majority of cases.It is true that unlike a criminal trial, the California preliminary hearing cannot result in the conviction of the accused and the adjudication is before a magistrate or other judicial officer without a jury. But these features, standing alone, do not make public access any less essential to the proper functioning of the proceedings in the overall criminal justice process. Because of its extensive scope, the preliminary hearing is often the final and most important step in the criminal proceeding. See Waller v. Georgia, 467 U.S., at 46-47. As the California Supreme Court stated in San Jose Mercury-News v. Municipal Court, 30 Cal. 3d 498, 511, 638 P.2d 655, 663 (1982), the preliminary hearing in many cases provides "the sole occasion for public observation of the criminal justice system." See also Richmond Newspapers, 448 U.S., at 572.Similarly, the absence of a jury, long recognized as "an inestimable safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge," Duncan v. Louisiana, , makes the importance of public access to a preliminary hearing even more significant. "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." Richmond Newspapers, 448 U.S., at 572.Denying the transcript of a 41-day preliminary hearing would frustrate what we have characterized as the "community therapeutic value" of openness. Id., at 570. Criminal acts, especially certain violent crimes, provoke public concern, outrage, and hostility. "When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions." Press-Enterprise I, 464 U.S., at 509. See also H. Weihofen, The Urge to Punish 130-131 (1956); T. Reik, The Compulsion to Confess (1959). In sum:"The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." Press-Enterprise I, supra, at 508 (emphasis in original). We therefore conclude that the qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as they are conducted in California.BSince a qualified First Amendment right of access attaches to preliminary hearings in California under Cal. Penal Code Ann. 858 et seq. (West 1985), the proceedings cannot be closed unless specific, on the record findings are made demonstrating that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise I, supra, at 510. See also Globe Newspaper, 457 U.S., at 606-607. If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. See Press-Enterprise I, supra; Richmond Newspapers, supra, at 581.The California Supreme Court, interpreting its access statute, concluded that "the magistrate shall close the preliminary hearing upon finding a reasonable likelihood of substantial prejudice." 37 Cal. 3d, at 781, 691 P.2d, at 1032. As the court itself acknowledged, the "reasonable likelihood" test places a lesser burden on the defendant than the "substantial probability" test which we hold is called for by the First Amendment. See ibid.; see also id., at 783, 691 P.2d, at 1033 (Lucas, J., concurring and dissenting). Moreover, that court failed to consider whether alternatives short of complete closure would have protected the interests of the accused.In Gannett we observed:"Publicity concerning pretrial suppression hearings such as the one involved in the present case poses special risks of unfairness. The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Cf. Jackson v. Denno, . Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial." 443 U.S., at 378. But this risk of prejudice does not automatically justify refusing public access to hearings on every motion to suppress. Through voir dire, cumbersome as it is in some circumstances, a court can identify those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict. And even if closure were justified for the hearings on a motion to suppress, closure of an entire 41-day proceeding would rarely be warranted. The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of that right. And any limitation must be "narrowly tailored to serve that interest." Press-Enterprise I, supra, at 510.The standard applied by the California Supreme Court failed to consider the First Amendment right of access to criminal proceedings. Accordingly, the judgment of the California Supreme Court is reversed. It is so ordered.

Under the facts of this case, a defendant in a state criminal contempt proceeding who vilified the judge during the course of the defendant's trial in the state court and was sentenced by that judge to 11 to 22 years for the contempt, was entitled under the Due Process Clause of the Fourteenth Amendment to a public trial before another judge. Pp. 462-466. 434 Pa. 478, 255 A. 2d 131, vacated and remanded.DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BURGER, C. J., post, P. 466 and HARLAN, J., post, p. 469, filed concurring opinions. BLACK, J., filed a separate statement, post, p. 466.Curtis R. Reitz, by appointment of the Court, , argued the cause and filed a brief for petitioner.Carol Mary Los argued the cause for respondent, pro hac vice. With her on the brief was Robert W. Duggan.MR. JUSTICE DOUGLAS delivered the opinion of the Court.Petitioner and two codefendants were tried in a state court for prison breach and holding hostages in a penal institution. While they had appointed counsel as advisers, they represented themselves. The trial ended with a jury verdict of guilty of both charges on the 21st day, which was a Friday. The defendants were brought in for sentencing on the following Monday. Before imposing sentence on the verdicts the judge pronounced them guilty of criminal contempt. He found that petitioner had committed one or more contempts on 11 of the 21 days of trial and sentenced him to not less than one nor more than two years for each of the 11 contempts or a total of 11 to 22 years. The Supreme Court of Pennsylvania affirmed by a divided vote. 434 Pa. 478, 255 A. 2d 131. The case is here on a petition for writ of certiorari. .Petitioner's conduct at the trial comes as a shock to those raised in the Western tradition that considers a courtroom a hallowed place of quiet dignity as far removed as possible from the emotions of the street.(1) On the first day of the trial petitioner came to the side bar to make suggestions and obtain rulings on trial procedures. Petitioner said: "It seems like the court has the intentions of railroading us" and moved to disqualify the judge. The motion was denied. Petitioner's other motions, including his request that the deputy sheriffs in the courtroom be dressed as civilians, were also denied. Then came the following colloquy: "Mr. Mayberry: I would like to have a fair trial of this case and like to be granted a fair trial under the Sixth Amendment. "The Court: You will get a fair trial. "Mr. Mayberry: It doesn't appear that I am going to get one the way you are overruling all our motions and that, and being like a hatchet man for the State. "The Court: This side bar is over. "Mr. Mayberry: Wait a minute, Your Honor. "The Court: It is over. "Mr. Mayberry: You dirty sonofabitch." (2) The second episode took place on the eighth day of the trial. A codefendant was cross-examining a prison guard and the court sustained objections to certain questions: "Mr. Codispoti: Are you trying to protect the prison authorities, Your Honor? Is that your reason? "The Court: You are out of order, Mr. Codispoti. I don't want any outbursts like that again. This is a court of justice. You don't know how to ask questions. "Mr. Mayberry: Possibly Your Honor doesn't know how to rule on them. "The Court: You keep quiet. "Mr. Mayberry: You ought to be Gilbert and Sullivan the way you sustain the district attorney every time he objects to the questions. "The Court: Are you through? When your time comes you can ask questions and not make speeches." (3) The next charge stemmed from the examination of an inmate about a riot in prison in which petitioner apparently was implicated. There were many questions asked and many objections sustained. At one point the following outburst occurred: "Mr. Mayberry: Now, I'm going to produce my defense in this case and not be railroaded into any life sentence by any dirty, tyrannical old dog like yourself. "The Court: You may proceed with your questioning, Mr. Mayberry." (4) The fourth charge grew out of an examination of another defense witness: "By Mr. Mayberry: "Q. I ask you, Mr. Nardi, is that area, the handball court, is it open to any prisoner who wants to play handball, who cares to go to that area to play handball? "A. Yes. "Q. Did you understand the prior question when I asked you if it was freely open and accessible area? "The Court: He answered your question. Let's go on. "Mr. Mayberry: I am asking him now if he understands - "The Court: He answered it. Now, let's go on. "Mr. Mayberry: I ask Your Honor to keep your mouth shut while I'm questioning my own witness. Will you do that for me? "The Court: I wish you would do the same. Proceed with your questioning." (5) The fifth charge relates to a protest which the defendants made that at the end of each trial day they were denied access to their legal documents - a condition which the trial judge shortly remedied. The following ensued: "Mr. Mayberry: You're a judge first. What are you working for? The prison authorities, you bum? "Mr. Livingston: I have a motion pending before Your Honor. "The Court: I would suggest - "Mr. Mayberry: Go to hell. I don't give a good God damn what you suggest, you stumbling dog." Meanwhile one defendant told the judge if he did not get access to his papers at night he'd "blow your head off." Another defendant said he would not sit still and be "kowtowed and be railroaded into a life imprisonment." Then the following transpired: "Mr. Mayberry: You started all this bullshit in the beginning. "The Court: You keep quiet. "Mr. Mayberry: Wait a minute. "The Court: You keep quiet. "Mr. Mayberry: I am my own counsel. "The Court: You keep quiet. "Mr. Mayberry. Are you going to gag me? "The Court: Take these prisoners out of here. We will take a ten minute recess, members of the jury." (6) The sixth episode happened when two of the defendants wanted to have some time to talk to a witness whom they had called. The two of them had had a heated exchange with the judge when the following happened: "Mr. Mayberry: Just one moment, Your Honor. "The Court: This is not your witness, Mr. Mayberry. Keep quiet. "Mr. Mayberry: Oh, yes, he is my witness, too. He is my witness, also. Now, we are at the penitentiary and in seclusion. We can't talk to any of our witnesses prior to putting them on the stand like the District Attorney obviously has the opportunity, and as he obviously made use of the opportunity to talk to his witnesses. Now - "The Court: Now, I have ruled, Mr. Mayberry. "Mr. Mayberry: I don't care what you ruled. That is unimportant. The fact is - "The Court: You will remain quiet, sir, and finish the examination of this witness. "Mr. Mayberry: No, I won't be quiet while you try to deny me the right to a fair trial. The only way I will be quiet is if you have me gagged. Now, if you want to do that, that is up to you; but in the meantime I am going to say what I have to say. Now, we have the right to speak to our witnesses prior to putting them on the stand. This is an accepted fact of law. It is nothing new or unusual. Now, you are going to try to force us to have our witness testify to facts that he has only a hazy recollection of that happened back in 1965. Now, I believe we have the right to confer with our witness prior to putting him on the stand. "The Court: Are you finished? "Mr. Mayberry: I am finished. "The Court: Proceed with your examination." (7) The seventh charge grew out of an examination of a codefendant by petitioner. The following outburst took place: "By Mr. Mayberry: "Q. No. Don't state a conclusion because Gilbert is going to object and Sullivan will sustain. Give me facts. What leads you to say that?" Later petitioner said: "Mr. Mayberry: My witness isn't being in an inquisition, you know. This isn't the Spanish Inquisition." Following other exchanges with the court, petitioner said: "Mr. Mayberry: Now, just what do you call proper? I have asked questions, numerous questions and everyone you said is improper. I have asked questions that my adviser has given me, and I have repeated these questions verbatim as they came out of my adviser's mouth, and you said they are improper. Now just what do you consider proper? "The Court: I am not here to educate you, Mr. Mayberry. "Mr. Mayberry: No. I know you are not. But You're not here to railroad me into no life bit, either. "Mr. Codispoti: To protect the record - "The Court: Do you have any other questions to ask this witness? "Mr. Mayberry: You need to have some kind of psychiatric treatment, I think. You're some kind of a nut. I know you're trying to do a good job for that Warden Maroney back there, but let's keep it looking decent anyway, you know. Don't make it so obvious, Your Honor." (8) A codefendant was removed from the courtroom and when he returned petitioner asked for a severance. "Mr. Mayberry: I have to ask for a severance. "The Court: I have heard that before. It is denied again. Let's go on." (Exception noted.) "Mr. Mayberry: This is the craziest trial I have ever seen. "The Court: You may call your next witness, Mr. Mayberry." Petitioner wanted to call witnesses from the penitentiary whose names had not been submitted earlier and for whom no subpoenas were issued. The court restricted the witnesses to the list of those subpoenaed: "Mr. Mayberry: Before I get to that I wish to have a ruling, and I don't care if it is contempt or whatever you want to call it, but I want a ruling for the record that I am being denied these witnesses that I asked for months before this trial ever began." (9) The ninth charge arose out of a ruling by the court on a question concerning the availability of tools to prisoners in their cells. "The Court: I have ruled on that, Mr. Mayberry. Now proceed with your questioning, and don't argue. "Mr. Mayberry: You're arguing. I'm not arguing, not arguing with fools." (10) The court near the end of the trial had petitioner ejected from the courtroom several times. The contempt charge was phrased as follows by the court: "On December 7, 1966, you have created a despicable scene in refusing to continue calling your witnesses and in creating such consternation and uproar as to cause a termination of the trial." (11) As the court prepared to charge the jury, petitioner said: "Before Your Honor begins the charge to the jury defendant Mayberry wishes to place his objection on the record to the charge and to the whole proceedings from now on, and he wishes to make it known to the Court now that he has no intention of remaining silent while the Court charges the jury, and that he is going to continually object to the charge of the Court to the jury throughout the entire charge, and he is not going to remain silent. He is going to disrupt the proceedings verbally throughout the entire charge of the Court, and also he is going to be objecting to being forced to terminate his defense before he was finished." The court thereupon had petitioner removed from the courtroom and later returned gagged. But petitioner caused such a commotion under gag that the court had him removed to an adjacent room where a loudspeaker system made the courtroom proceedings audible. The court phrased this contempt charge as follows: "On December 9, 1966, you have constantly, boisterously, and insolently interrupted the Court during its attempts to charge the jury, thereby creating an atmosphere of utter confusion and chaos." These brazen efforts to denounce, insult, and slander the court and to paralyze the trial are at war with the concept of justice under law. Laymen, foolishly trying to defend themselves, may understandably create awkward and embarrassing scenes. Yet that is not the character of the record revealed here. We have here downright insults of a trial judge, and tactics taken from street brawls and transported to the courtroom. This is conduct not "befitting an American courtroom," as we said in Illinois v. Allen,* ; and criminal contempt is one appropriate remedy. Id., at 344-345.As these separate acts or outbursts took place, the arsenal of authority described in Allen was available to the trial judge to keep order in the courtroom. He could, with propriety, have instantly acted, holding petitioner in contempt, or excluding him from the courtroom, or otherwise insulating his vulgarity from the courtroom. The Court noted in Sacher v. United States, , that, while instant action may be taken against a lawyer who is guilty of contempt, to pronounce him guilty of contempt is "not unlikely to prejudice his client." Those considerations are not pertinent here where petitioner undertook to represent himself. In Sacher the trial judge waited until the end of the trial to impose punishment for contempt, the Court saying:"If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to pronounce, while smarting under the irritation of the contemptuous act, what should be a well-considered judgment. We think it less likely that unfair condemnation of counsel will occur if the more deliberate course be permitted." Id., at 11. Generalizations are difficult. Instant treatment of contempt where lawyers are involved may greatly prejudice their clients but it may be the only wise course where others are involved. Moreover, we do not say that the more vicious the attack on the judge the less qualified he is to act. A judge cannot be driven out of a case. Where, however, he does not act the instant the contempt is committed, but waits until the end of the trial, on balance, it is generally wise where the marks of the unseemly conduct have left personal stings to ask a fellow judge to take his place. What Chief Justice Taft said in Cooke v. United States, , is relevant here:"The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place." We conclude that that course should have been followed here, as marked personal feelings were present on both sides. Whether the trial be federal or state, the concern of due process is with the fair administration of justice. At times a judge has not been the image of "the impersonal authority of law" (Offutt v. United States, ) but has become so "personally embroiled" with a lawyer in the trial as to make the judge unfit to sit in judgment on the contempt charge."The vital point is that in sitting in judgment on such a misbehaving lawyer the judge should not himself give vent to personal spleen or respond to a personal grievance. These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice." Id., at 14. Offutt does not fit this case, for the state judge in the instant controversy was not an activist seeking combat. Rather, he was the target of petitioner's insolence. Yet a judge, vilified as was this Pennsylvania judge, necessarily becomes embroiled in a running, bitter controversy. No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication. In re Murchison, , was a case where a judge acted under state law as a one-man grand jury and later tried witnesses for contempt who refused to answer questions propounded by the "judge-grand jury." We held that since the judge who sat as a one-man grand jury was part of the accusatory process he "cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused." Id., at 137. "Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer." Ibid.It is, of course, not every attack on a judge that disqualifies him from sitting. In Ungar v. Sarafite, , we ruled that a lawyer's challenge, though "disruptive, recalcitrant and disagreeable commentary," was still not "an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification." Id., at 584. Many of the words leveled at the judge in the instant case were highly personal aspersions, even "fighting words" - "dirty sonofabitch," "dirty tyrannical old dog," "stumbling dog," and "fool." He was charged with running a Spanish Inquisition and told to "Go to hell" and "Keep your mouth shut." Insults of that kind are apt to strike "at the most vulnerable and human qualities of a judge's temperament." Bloom v. Illinois, .Our conclusion is that by reason of the Due Process Clause of the Fourteenth Amendment a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor. See In re Oliver, . In the present case that requirement can be satisfied only if the judgment of contempt is vacated so that on remand another judge, not bearing the sting of these slanderous remarks and having the impersonal authority of the law, sits in judgment on the conduct of petitioner as shown by the record. Vacated and remanded.MR. JUSTICE BLACK concurs in the judgment and with all the opinion except that part which indicates that the judge without a jury could have convicted Mayberry of contempt instantaneously with the outburst.[Footnote *] Petitioner was sentenced for contempt December 12, 1966. The Pennsylvania Supreme Court affirmed on April 23, 1969. We decided Illinois v. Allen on March 31, 1970.MR. CHIEF JUSTICE BURGER, concurring.I concur in the Court's opinion and add these additional observations chiefly for emphasis. Certain aspects of the problem of maintaining in courtrooms the indispensable atmosphere of quiet orderliness are crucial. Without order and quiet, the adversary process must fail. Three factors should be noted: (1) as MR. JUSTICE DOUGLAS has said, the trial was conducted without the guidance afforded by MR. JUSTICE BLACK's opinion for the Court in Illinois v. Allen, ; (2) although the accused was afforded counsel at his trial he asserted a right to act as his own counsel and the court permitted him to do so; (3) we are not informed whether Pennsylvania has a statute covering obstruction of justice that would reach the conduct of the accused shown by this record.(1)As the Court's opinion suggests, the standards of Illinois v. Allen, supra, would have enabled the trial judge to remove the accused from the courtroom after his first outrageous actions and words, and to summarily punish him for contempt. The contempt power, however, is of limited utility in dealing with an incorrigible, a cunning psychopath, or an accused bent on frustrating the particular trial or undermining the processes of justice. For such as these, summary removal from the courtroom is the really effective remedy. Indeed it is one, as this case shows, where removal could well be a benefit to the accused in the sense that one episode of contemptuous conduct would be less likely to turn a jury against him than 11 episodes. As noted by MR. JUSTICE BLACK in Illinois v. Allen, and MR. JUSTICE DOUGLAS here, a fixed rule to fit every situation is not feasible; plainly summary removal is the most salutary remedy in cases such as this.(2)Here the accused was acting as his own counsel but had a court-appointed lawyer as well. This suggests the wisdom of the trial judge in having counsel remain in the case even in the limited role of a consultant. When a defendant refuses counsel, as he did here, or seeks to discharge him, a trial judge is well advised - as so many do - to have such "standby counsel" to perform all the services a trained advocate would perform ordinarily by examination and cross-examination of witnesses, objecting to evidence and making closing argument. No circumstance that comes to mind allows an accused to interfere with the absolute right of a trial judge to have such "standby counsel" to protect the rights of accused persons "foolishly trying to defend themselves," as MR. JUSTICE DOUGLAS so aptly described it. In every trial there is more at stake than just the interests of the accused; the integrity of the process warrants a trial judge's exercising his discretion to have counsel participate in the defense even when rejected. A criminal trial is not a private matter; the public interest is so great that the presence and participation of counsel, even when opposed by the accused, is warranted in order to vindicate the process itself. The value of the precaution of having independent counsel, even if unwanted, is underscored by situations where the accused is removed from the courtroom under Illinois v. Allen. The presence of counsel familiar with the case would at the very least blunt Sixth Amendment claims, assuming they would have merit, when the accused has refused legal assistance and then brought about his own removal from the proceedings.(3)There are other means to cope with grave misconduct in the courtroom, whether that of the accused, his counsel, spectators, or others. Statutes defining obstruction of justice have long been in force in many States, with penalties measured in years of confinement. Such statutes, where available, are an obvious response to those who seek to frustrate a particular trial or undermine the processes of justice generally.A review of this record warrants a closing comment on the exemplary patience of the trial judge under provocation few human beings could accept with equanimity. Our holding that contempt cases with penalties of the magnitude imposed here should be heard by another judge does not reflect on his performance; it relates rather to a question of procedure.MR. JUSTICE HARLAN, concurring.I concur in the judgment of reversal solely on the ground that these contempt convictions must be regarded as infected by the fact that the unprecedented long sentence of 22 years which they carried was imposed by a judge who himself had been the victim of petitioner's shockingly abusive conduct. That circumstance seems to me to deprive the contempt proceeding of the appearance of evenhanded justice which is at the core of due process. For this reason I think the contempt convictions must be set aside, leaving the State free to try the contempt specifications before another judge or to proceed otherwise against this petitioner.It is unfortunate that this Court's decision in Illinois v. Allen, , was not on the books at the time the criminal case against this petitioner was on trial. The courses which that decision lays open to trial judges for coping with outrageous courtroom tactics of the sort engaged in by this petitioner would doubtless have enabled Judge Fiok to deal with the petitioner in a manner that would have obviated the regrettable necessity for setting aside this contempt conviction.

Per Curiam. The writ of certiorari is dismissed as improvidently granted.NIKE, INC., et al., PETITIONERS v. MARC KASKYon writ of certiorari to the supreme court of california[June 26, 2003] Justice Stevens, with whom Justice Ginsburg joins, and with whom Justice Souter joins as to Part III,concurring. Beginning in 1996, Nike was besieged with a series of allegations that it was mistreating and underpaying workers at foreign facilities. See App. to Pet. for Cert. 3a. Nike responded to these charges in numerous ways, such as by sending out press releases, writing letters to the editors of various newspapers around the country, and mailing letters to university presidents and athletic directors. See id., at 3a-4a. In addition, in 1997, Nike commissioned a report by former Ambassador to the United Nations Andrew Young on the labor conditions at Nike production facilities. See id., at 67a. After visiting 12 factories, "Young issued a report that commented favorably on working conditions in the factories and found no evidence of widespread abuse or mistreatment of workers." Ibid. In April 1998, respondent Marc Kasky, a California resident, sued Nike for unfair and deceptive practices under California's Unfair Competition Law, Cal. Bus. & Prof. Code Ann. §17200 et seq. (West 1997), and False Advertising Law, §17500 et seq. Respondent asserted that "in order to maintain and/or increase its sales," Nike made a number of "false statements and/or material omissions of fact" concerning the working conditions under which Nike products are manufactured. Lodging of Petitioners 2 (&para ;1). Respondent alleged "no harm or damages whatsoever regarding himself individually," id., at 4-5 (&para ;8), but rather brought the suit "on behalf of the General Public of the State of California and on information and belief," id., at 3 (&para ;3). Nike filed a demurrer to the complaint, contending that respondent's suit was absolutely barred by the First Amendment. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal. App. to Pet. for Cert. 80a-81a. Respondent appealed, and the California Court of Appeal affirmed, holding that Nike's statements "form[ed] part of a public dialogue on a matter of public concern within the core area of expression protected by the First Amendment." Id., at 79a. The California Court of Appeal also rejected respondent's argument that it was error for the trial court to deny him leave to amend, reasoning that there was "no reasonable possibility" that the complaint could be amended to allege facts that would justify any restrictions on what was — in the court's view — Nike's "noncommercial speech." Ibid. On appeal, the California Supreme Court reversed and remanded for further proceedings. The court held that "[b]ecause the messages in question were directed by a commercial speaker to a commercial audience, and because they made representations of fact about the speaker's own business operations for the purpose of promoting sales of its products, ... [the] messages are commercial speech." 27 Cal. 4th 939, 946, 45 P. 3d 243, 247 (2002). However, the court emphasized that the suit "is still at a preliminary stage, and that whether any false representations were made is a disputed issue that has yet to be resolved." Ibid. We granted certiorari to decide two questions: (1) whether a corporation participating in a public debate may "be subjected to liability for factual inaccuracies on the theory that its statements are 'commercial speech' because they might affect consumers' opinions about the business as a good corporate citizen and thereby affect their purchasing decisions"; and (2) even assuming the California Supreme Court properly characterized such statements as commercial speech, whether the "First Amendment, as applied to the states through the Fourteenth Amendment, permit[s] subjecting speakers to the legal regime approved by that court in the decision below." Pet. for Cert. i. Today, however, the Court dismisses the writ of certiorari as improvidently granted. In my judgment, the Court's decision to dismiss the writ of certiorari is supported by three independently sufficient reasons: (1) the judgment entered by the California Supreme Court was not final within the meaning of 28 U. S. C. §1257; (2) neither party has standing to invoke the jurisdiction of a federal court; and (3) the reasons for avoiding the premature adjudication of novel constitutional questions apply with special force to this case.I The first jurisdictional problem in this case revolves around the fact that the California Supreme Court never entered a final judgment. Congress has granted this Court appellate jurisdiction with respect to state litigation only after the highest state court in which judgment could be had has rendered a final judgment or decree. See ibid. A literal interpretation of the statute would preclude our review whenever further proceedings remain to be determined in a state court, "no matter how disassociated from the only federal issue" in the case. Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 124 (1945). We have, however, abjured such a "mechanical" construction of the statute, and accepted jurisdiction in certain exceptional "situations in which the highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come." Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 477 (1975).1 Nike argues that this case fits within the fourth category of such cases identified in Cox, which covers those cases in which "the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review" might prevail on nonfederal grounds, "reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action," and "refusal immediately to review the state-court decision might seriously erode federal policy." Id., at 482-483. In each of the three cases that the Court placed in the fourth category in Cox, the federal issue had not only been finally decided by the state court, but also would have been finally resolved by this Court whether the Court agreed or disagreed with the state court's disposition of the issue. Thus, in Construction Laborers v. Curry, 371 U. S. 542 (1963), the federal issue was whether the National Labor Relations Board had exclusive jurisdiction over the controversy; in Mercantile Nat. Bank at Dallas v. Langdeau, 371 U. S. 555 (1963), the federal issue was whether a special federal venue statute applied to immunize the defendants in a state court action; and in Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), the federal issue was whether a Florida statute requiring a newspaper to carry a candidate's reply to an editorial was constitutional. In Cox itself, the federal question was whether the State could prohibit the news media from publishing the name of a rape victim. In none of those cases would the resolution of the federal issue have been affected by further proceedings. In Nike's view, this case fits within the fourth Cox category because if this Court holds that Nike's speech was noncommercial, then "reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action." 420 U. S., at 482-483; see also Reply Brief for Petitioners 4; Reply to Brief in Opposition 4-5. Notably, Nike's argument assumes that all of the speech at issue in this case is either commercial or noncommercial and that the speech therefore can be neatly classified as either absolutely privileged or not. Theoretically, Nike is correct that we could hold that all of Nike's allegedly false statements are absolutely privileged even if made with the sort of "malice" defined in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), thereby precluding any further proceedings or amendments that might overcome Nike's First Amendment defense. However, given the interlocutory posture of the case before us today, the Court could also take a number of other paths that would neither preclude further proceedings in the state courts, nor finally resolve the First Amendment questions in this case. For example, if we were to affirm, Nike would almost certainly continue to maintain that some, if not all, of its challenged statements were protected by the First Amendment and that the First Amendment constrains the remedy that may be imposed. Or, if we were to reverse, we might hold that the speech at issue in this case is subject to suit only if made with actual malice, thereby inviting respondent to amend his complaint to allege such malice. See Tr. of Oral Arg. 42-43. Or we might conclude that some of Nike's speech is commercial and some is noncommercial, thereby requiring further proceedings in the state courts over the legal standards that govern the commercial speech, including whether actual malice must be proved. In short, because an opinion on the merits in this case could take any one of a number of different paths, it is not clear whether reversal of the California Supreme Court would "be preclusive of any further litigation on the relevant cause of action [in] the state proceedings still to come." Cox, 451 U. S. 619, 621 (1981) (per curiam) (noting that in most, if not all, of the cases falling within the four Cox exceptions, there was "no probability of piecemeal review with respect to federal issues"). Accordingly, in my view, the judgment of the California Supreme Court does not fall within the fourth Cox exception and cannot be regarded as final.II The second reason why, in my view, this Court lacks jurisdiction to hear Nike's claims is that neither party has standing to invoke the jurisdiction of the federal courts. See Whitmore v. Arkansas, 495 U. S. 149, 154-155 (1990) ("Article III, of course, gives the federal courts jurisdiction over only 'cases and controversies,' and the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process"). Without alleging that he has any personal stake in the outcome of this case, respondent is proceeding as a private attorney general seeking to enforce two California statutes on behalf of the general public of the State of California. He has not asserted any federal claim; even if he had attempted to do so, he could not invoke the jurisdiction of a federal court because he failed to allege any injury to himself that is "distinct and palpable." Warth v. Seldin, 422 U. S. 490, 501 (1975). Thus, respondent does not have Article III standing. For that reason, were the federal rules of justiciability to apply in state courts, this suit would have been "dismissed at the outset." ASARCO Inc. v. Kadish, 490 U. S. 605, 617 (1989).2 Even though respondent would not have had standing to commence suit in federal court based on the allegations in the complaint, Nike — relying on ASARCO — contends that it has standing to bring the case to this Court. See Reply Brief for Petitioners 5. In ASARCO, a group of taxpayers brought a suit in state court seeking a declaration that the State's law on mineral leases on state lands was invalid. After the Arizona Supreme Court "granted plaintiffs a declaratory judgment that the state law governing mineral leases is invalid," 490 U. S., at 611,3 the defendants sought to invoke the jurisdiction of this Court. In holding that the defendants had standing to invoke the jurisdiction of the federal courts, we noted that the state proceedings had "resulted in a final judgment altering tangible legal rights," id., at 619, and we adopted the following rationale:"When a state court has issued a judgment in a case where plaintiffs in the original action had no standing to sue under the principles governing the federal courts, we may exercise our jurisdiction on certiorari if the judgment of the state court causes direct, specific, and concrete injury to the parties who petition for our review, where the requisites of a case or controversy are also met." Id., at 623-624. The rationale supporting our jurisdictional holding in ASARCO, however, does not extend to this quite different case. Unlike ASARCO, in which the state court proceedings ended in a declaratory judgment invalidating a state law, no "final judgment altering tangible legal rights" has been entered in the instant case. Id., at 619. Rather, the California Supreme Court merely held that respondent's complaint was sufficient to survive Nike's demurrer and to allow the case to go forward. To apply ASARCO to this case would effect a drastic expansion of ASARCO's reasoning, extending it to cover an interlocutory ruling that merely allows a trial to proceed.4 Because I do not believe such a significant expansion of ASARCO is warranted, my view is that Nike lacks the requisite Article III standing to invoke this Court's jurisdiction.III The third reason why I believe this Court has appropriately decided to dismiss the writ as improvidently granted centers around the importance of the difficult First Amendment questions raised in this case. As Justice Brandeis famously observed, the Court has developed, "for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Ashwander v. TVA, 297 U. S. 288, 346 (1936) (concurring opinion). The second of those rules is that the Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. Id., at 346-347. The novelty and importance of the constitutional questions presented in this case provide good reason for adhering to that rule. This case presents novel First Amendment questions because the speech at issue represents a blending of commercial speech, noncommercial speech and debate on an issue of public importance.5 See post, at 12-13. On the one hand, if the allegations of the complaint are true, direct communications with customers and potential customers that were intended to generate sales — and possibly to maintain or enhance the market value of Nike's stock — contained significant factual misstatements. The regulatory interest in protecting market participants from being misled by such misstatements is of the highest order. That is why we have broadly (perhaps overbroadly) stated that "there is no constitutional value in false statements of fact." Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974). On the other hand, the communications were part of an ongoing discussion and debate about important public issues that was concerned not only with Nike's labor practices, but with similar practices used by other multinational corporations. See Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 2. Knowledgeable persons should be free to participate in such debate without fear of unfair reprisal. The interest in protecting such participants from the chilling effect of the prospect of expensive litigation is therefore also a matter of great importance. See, e.g., Brief for ExxonMobil et al. as Amici Curiae 2; Brief for Pfizer, Inc., as Amicus Curiae 11-12. That is why we have provided such broad protection for misstatements about public figures that are not animated by malice. See New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Whether similar protection should extend to cover corporate misstatements made about the corporation itself, or whether we should presume that such a corporate speaker knows where the truth lies, are questions that may have to be decided in this litigation. The correct answer to such questions, however, is more likely to result from the study of a full factual record than from a review of mere unproven allegations in a pleading. Indeed, the development of such a record may actually contribute in a positive way to the public debate. In all events, I am firmly convinced that the Court has wisely decided not to address the constitutional questions presented by the certiorari petition at this stage of the litigation. Accordingly, I concur in the decision to dismiss the writ as improvidently granted.NIKE, INC., et al., PETITIONERS v. MARC KASKYon writ of certiorari to the supreme court of california[June 26, 2003] Justice Kennedy, dissenting. I dissent from the order dismissing the writ of certiorari as improvidently granted.NIKE, INC., et al., PETITIONERS v. MARC KASKYon writ of certiorari to the supreme court of california[June 26, 2003] Justice Breyer, with whom Justice O'Connor joins, dissenting. During the 1990's, human rights and labor groups, newspaper editorial writers, and others severely criticized the Nike corporation for its alleged involvement in disreputable labor practices abroad. See Lodging of Petitioners 7-8, 96-118, 127-162, 232-235, 272-273. This case focuses upon whether, and to what extent, the First Amendment protects certain efforts by Nike to respond — efforts that took the form of written communications in which Nike explained or denied many of the charges made. The case arises under provisions of California law that authorize a private individual, acting as a "private attorney general," effectively to prosecute a business for unfair competition or false advertising. Cal. Bus. & Prof. Code Ann. §§17200, 17204, 17500, 17535 (West 1997). The respondent, Marc Kasky, has claimed that Nike made false or misleading commercial statements. And he bases this claim upon statements that Nike made in nine specific documents, including press releases and letters to the editor of a newspaper, to institutional customers, and to representatives of nongovernmental organizations. Brief for Respondent 5. The California Court of Appeal affirmed dismissal of Kasky's complaint without leave to amend on the ground that "the record discloses noncommercial speech, addressed to a topic of public interest and responding to public criticism of Nike's labor practices." App. to Pet. for Cert. 78a. The Court of Appeal added that it saw "no merit to [Kasky's] scattershot argument that he might still be able to state a cause of action on some theory allowing content-related abridgement of noncommercial speech." Id., at 79a. Kasky appealed to the California Supreme Court. He focused on the commercial nature of the communications at issue, while pointing to language in this Court's cases stating that the First Amendment, while offering protection to truthful commercial speech, does not protect false or misleading commercial speech, see Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 563 (1980). Kasky did not challenge the lower courts' denial of leave to amend his complaint. He also conceded that, if Nike's statements fell outside the category of "commercial speech," the First Amendment protected them and "the ultimate issue is resolved in Nike's favor." Appellant's Brief on the Merits in No. S087859 (Cal.), p. 1; accord, Appellant's Reply Brief in No. S087859 (Cal.), pp. 1-2. The California Supreme Court held that the speech at issue falls within the category of "commercial speech." Consequently, the California Supreme Court concluded, the First Amendment does not protect Nike's statements insofar as they were false or misleading — regardless of whatever role they played in a public debate. 27 Cal. 4th 939, 946, 969, 45 P. 3d 243, 247, 262 (2002). Hence, according to the California Supreme Court, the First Amendment does not bar Kasky's lawsuit — a lawsuit that alleges false advertising and related unfair competition (which, for ease of exposition, I shall henceforth use the words "false advertising" to describe). The basic issue presented here is whether the California Supreme Court's ultimate holding is legally correct. Does the First Amendment permit Kasky's false advertising "prosecution" to go forward? After receiving 34 briefs on the merits (including 31 amicus briefs) and hearing oral argument, the Court dismisses the writ of certiorari, thereby refusing to decide the questions presented, at least for now. In my view, however, the questions presented directly concern the freedom of Americans to speak about public matters in public debate, no jurisdictional rule prevents us from deciding those questions now, and delay itself may inhibit the exercise of constitutionally protected rights of free speech without making the issue significantly easier to decide later on. Under similar circumstances, the Court has found that failure to review an interlocutory order entails "an inexcusable delay of the benefits [of appeal] Congress intended to grant." Mills v. Alabama, 384 U. S. 214, 217 (1966). I believe delay would be similarly wrong here. I would decide the questions presented, as we initially intended.I Article III's "case or controversy" requirement does not bar us from hearing this case. Article III requires a litigant to have "standing"--i.e., to show that he has suffered "injury in fact," that the injury is "fairly traceable" to actions of the opposing party, and that a favorable decision will likely redress the harm. Bennett v. Spear, 520 U. S. 154, 162 (1997) (internal quotation marks omitted). Kasky, the state-court plaintiff in this case, might indeed have had trouble meeting those requirements, for Kasky's complaint specifically states that Nike's statements did not harm Kasky personally. Lodging of Petitioners 4-5 (&para ;8). But Nike, the state-court defendant — not Kasky, the plaintiff — has brought the case to this Court. And Nike has standing to complain here of Kasky's actions. These actions threaten Nike with "injury in fact." As a "private attorney general," Kasky is in effect enforcing a state law that threatens to discourage Nike's speech. See Cal. Bus. & Prof. Code Ann. §§17204, 17535 (West 1997). This Court has often found that the enforcement of such a law works constitutional injury even if enforcement proceedings are not complete — indeed, even if enforcement is no more than a future threat. See, e.g., Houston v. Hill, 482 U. S. 451, 459, n. 7 (1987) (standing where there is " 'a genuine threat of enforcement' " against future speech); Steffel v. Thompson, 415 U. S. 452, 459 (1974) (same). Cf. First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 785, n. 21 (1978) (The "burden and expense of litigating [an] issue" itself can "unduly impinge on the exercise of the constitutional right"); Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 52-53 (1971) (plurality opinion) ("The very possibility of having to engage in litigation, an expensive and protracted process, is threat enough"). And a threat of a civil action, like the threat of a criminal action, can chill speech. See New York Times Co. v. Sullivan, 376 U. S. 254, 278 (1964) ("Plainly the Alabama law of civil libel is 'a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law' "). Here, of course, an action to enforce California's laws — laws that discourage certain kinds of speech — amounts to more than just a genuine, future threat. It is a present reality — one that discourages Nike from engaging in speech. It thereby creates "injury in fact." Supra, at 3. Further, that injury is directly "traceable" to Kasky's pursuit of this lawsuit. And this Court's decision, if favorable to Nike, can "redress" that injury. Ibid. Since Nike, not Kasky, now seeks to bring this case to federal court, why should Kasky's standing problems make a critical difference? In ASARCO Inc. v. Kadish, 490 U. S. 605, 618 (1989), this Court specified that a defendant with standing may complain of an adverse state-court judgment, even if the other party — the party who brought the suit in state court and obtained that judgment — would have lacked standing to bring a case in federal court. See also Virginia v. Hicks, ante, at __ (slip op., at 6-7). In ASARCO, state taxpayers (who ordinarily lack federal "standing") sued a state agency in state court, seeking a judgment declaring that the State's mineral leasing procedures violated federal law. See 490 U. S., at 610. ASARCO and other mineral leaseholders intervened as defendants. Ibid. The plaintiff taxpayers obtained a state-court judgment declaring that the State's mineral leasing procedures violated federal law. The defendant mineral leaseholders asked this Court to review the judgment. And this Court held that the leaseholders had standing to seek reversal of that judgment here. The Court wrote:"When a state court has issued a judgment in a case where plaintiffs in the original action had no standing to sue under the principles governing the federal courts, we may exercise our jurisdiction on certiorari [1] if the judgment of the state court causes direct, specific, and concrete injury to the parties who petition for our review, where [2] the requisites of a case or controversy are also met." Id., at 623-624 (bracketed numbers added).No one denies that "requisites of a case or controversy" other than standing are met here. But is there "direct, specific, and concrete injury"? In ASARCO itself, such "injury" consisted of the threat, arising out of the state court's determination, that the defendants' leases might later be canceled (if, say, a third party challenged those leases in later proceedings and showed they were not "made for 'true value' "). Id., at 611-612, 618. Here that "injury" consists of the threat, arising out of the state court's determination, that defendant Nike's speech on public matters might be "chilled" immediately and legally restrained in the future. See supra, at 4. Where is the meaningful difference? I concede that the state-court determination in ASARCO was more "final" in the sense that it unambiguously ordered a declaratory judgment, see 490 U. S., at 611-612 (finding that two exceptions to normal finality requirements applied), while the state-court determination here, where such declaratory relief was not sought, takes the form of a more intrinsically interlocutory holding, see ante, at 8, and n. 4 (Stevens, J., concurring). But with respect to "standing," what possible difference could that circumstance make? The state court in ASARCO finally resolved federal questions related to state leasehold procedures; the state court here finally resolved the basic free speech issue — deciding that Nike's statements constituted "commercial speech" which, when "false or misleading," the government "may entirely prohibit," 27 Cal. 4th, at 946, 45 P. 3d, at 247. After answering the basic threshold question, the state court in ASARCO left other, more specific questions for resolution in further potential or pending proceedings, 490 U. S., at 611-612. The state court here did the same. In ASARCO, the relevant further proceedings might have taken place in a new lawsuit; here they would have taken place in the same lawsuit. But that difference has little bearing on the likelihood of injury. Indeed, given the nature of the speech-chilling injury here and the fact that it is likely to occur immediately, I should think that constitutional standing in this case would flow from standing in ASARCO a fortiori.II No federal statute prevents us from hearing this case. The relevant statute limits our jurisdiction to "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." C. 1257(a) (emphasis added). But the California Supreme Court determination before us, while technically an interim decision, is a "final judgment or decree" for purposes of this statute. That is because this Court has interpreted the statute's phrase "final judgment" to refer, in certain circumstances, to a state court's final determination of a federal issue, even if the determination of that issue occurs in the midst of ongoing litigation. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 477 (1975). In doing so, the Court has said that it thereby takes a "pragmatic approach," not a "mechanical" approach, to "determining finality." Id., at 477, 486 (emphasis added). And it has set forth several criteria that determine when an interim state-court judgment is "final" for purposes of the statute, thereby permitting our consideration of the federal matter at issue. The four criteria relevant here are those determining whether a decision falls within what is known as Cox's "fourth category" or "fourth exception." They consist of the following:(1) "the federal issue has been finally decided in the state courts";(2) in further pending proceedings, "the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court";(3) "reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come"; and(4) "a refusal immediately to review the state-court decision might seriously erode federal policy." Id., at 482-483.Each of these four conditions is satisfied in this case.A Viewed from Cox's "pragmatic" perspective, "the federal issue has been finally decided in the state courts." Id., at 482, 486. The California Supreme Court considered nine specific instances of Nike's communications — those upon which Kasky says he based his legal claims. Brief for Respondent 5. These include (1) a letter from Nike's Director of Sports Marketing to university presidents and athletic directors presenting "facts" about Nike's labor practices; (2) a 30-page illustrated pamphlet about those practices; (3) a press release (posted on Nike's web site) commenting on those practices; (4) a posting on Nike's web site about its "code of conduct"; (5) a document on Nike's letterhead sharing its "perspective" on the labor controversy; (6) a press release responding to "[s]weatshop [a]llegations"; (7) a letter from Nike's Director of Labor Practices to the Chief Executive Officer of YWCA of America, discussing criticisms of its labor practices; (8) a letter from Nike's European public relations manager to a representative of International Restructuring Education Network Europe, discussing Nike's practices; and (9) a letter to the editor of The New York Times taking issue with a columnist's criticisms of Nike's practices. Ibid.; see also Lodging of Petitioners 121-125, 182-191, 198-230, 270, 285, 322-324. The California Supreme Court then held that all this speech was "commercial speech" and consequently the "governmen[t] may entirely prohibit" that speech if it is "false or misleading." 27 Cal. 4th, at 946, 45 P. 3d, at 247. The California Supreme Court thus "finally decided" the federal issue — whether the First Amendment protects the speech in question from legal attack on the ground that it is "false or misleading." According to the California Supreme Court, nothing at all remains to be decided with respect to that federal question. If we permit the California Supreme Court's decision to stand, in all likelihood this litigation will now simply seek to determine whether Nike's statements were false or misleading, and perhaps whether Nike was negligent in making those statements — matters involving questions of California law. I concede that some other, possibly related federal constitutional issue might arise upon remand for trial. But some such likelihood is always present in ongoing litigation, particularly where, as in past First Amendment cases, this Court reviews interim state-court decisions regarding, for example, requests for a temporary injunction or a stay pending appeal, or (as here) denial of a motion to dismiss a complaint. E.g., National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam) (denial of a stay pending appeal); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971) (temporary injunction); Mills v. Alabama, 384 U. S. 214 (1966) (motion to dismiss). Some such likelihood was present in Cox itself. The Cox plaintiff, the father of a rape victim, sued a newspaper in state court, asserting a right to damages under state law, which forbade publication of a rape victim's name. The trial court, believing that the statute imposed strict liability on the newspaper, granted summary judgment in favor of the victim. See Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 64, 200 S. E. 2d 127, 131 (1973), rev'd, 420 U. S. 469 (1975). The State Supreme Court affirmed in part and reversed in part. That court agreed with the plaintiff that state law provided a cause of action and that the cause of action was consistent with the First Amendment. 231 Ga., at 64, 200 S. E. 2d, at 131. However, the State Supreme Court disagreed about the standard of liability. Rather than strict liability, the standard, it suggested, was one of "wilful or negligent disregard for the fact that reasonable men would find the invasion highly offensive." Ibid. And it remanded the case for trial. The likelihood that further proceedings would address federal constitutional issues — concerning the relation between, for instance, the nature of the privacy invasion, the defendants' state of mind, and the First Amendment — would seem to have been far higher there than in any further proceedings here. Despite that likelihood, and because the State Supreme Court held in effect that the First Amendment did not protect the speech at issue, this Court held that its determination of that constitutional question was "plainly final." Cox, 420 U. S., at 485. California's Supreme Court has made a similar holding, and its determination of the federal issue is similarly "final."B The second condition specifies that, in further proceedings, the "party seeking review here"-- i.e., Nike--"might prevail on the merits on nonfederal grounds." Id., at 482. If Nike shows at trial that its statements are neither false nor misleading, nor otherwise "unfair" under California law, Cal. Bus. & Prof. Code Ann. §§17200, 17500 (West 1997), it will show that those statements did not constitute unfair competition or false advertising under California law — a nonfederal ground. And it will "prevail on the merits on nonfederal grounds," Cox, 420 U. S., at 482. The second condition is satisfied.C The third condition requires that "reversal of the state court on the federal issue ... be preclusive of any further litigation on the relevant cause of action." Id., at 482-483. Taken literally, this condition is satisfied. An outright reversal of the California Supreme Court would reinstate the judgment of the California intermediate court, which affirmed dismissal of the complaint without leave to amend. Supra, at 1-2. It would forbid Kasky to proceed insofar as Kasky's state-law claims focus on the nine documents previously discussed. And Kasky has conceded that his claims rest on statements made in those documents. Brief for Respondent 5. I concede that this Court might not reverse the California Supreme Court outright. It might take some middle ground, neither affirming nor fully reversing, that permits this litigation to continue. See ante, at 5-6 (Stevens, J., concurring). But why is that possibility relevant? The third condition specifies that "reversal"--not some other disposition — will preclude "further litigation." The significance of this point is made clear by our prior cases. In Cox, this Court found jurisdiction despite the fact that it might have chosen a middle First Amendment ground — perhaps, for example, precluding liability (for publication of a rape victim's name) where based on negligence, but not where based on malice. And such an intermediate ground, while producing a judgment that the State Supreme Court decision was erroneous, would have permitted the litigation to go forward. Cf. Brief for Appellants in Cox Broadcasting Corp. v. Cohn, O. T. 1973, No. 73-938, p. 68, n. 127 (arguing that " 'summary judgment, rather than trial on the merits, is a proper vehicle for affording constitutional protection' "). Similarly in Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), the Court might have held that the Constitution permits a State to require a newspaper to carry a candidate's reply to an editorial — but only in certain circumstances — thereby potentially leaving a factual issue whether those circumstances applied. Cf. Brief for Appellant in Miami Herald Publishing Co. v. Tornillo, O. T. 1973, No. 73-797, pp. 26-27, and n. 60 (noting that the State Supreme Court based its decision in part on a conclusion, unsupported by record evidence, that control of mass media had become substantially concentrated). One can imagine similar intermediate possibilities in virtually every case in which the Court has found this condition satisfied, including those involving technical questions of statutory jurisdiction and venue, cf. ante, at 4 (Stevens, J., concurring). Conceivably, one might argue that the third condition is not satisfied here despite literal compliance, see supra, at 10-11, on the ground that, from a pragmatic perspective, outright reversal is not a very realistic possibility. But that proposition simply is not so. In my view, the probabilities are precisely the contrary, and a true reversal is a highly realistic possibility. To understand how I reach this conclusion, the reader must recall the nature of the holding under review. The California Supreme Court held that certain specific communications, exemplified by the nine documents upon which Kasky rests his case, fall within that aspect of the Court's commercial speech doctrine that says the First Amendment protects only truthful commercial speech; hence, to the extent commercial speech is false or misleading, it is unprotected. See supra, at 2. The Court, however, has added, in commercial speech cases, that the First Amendment " 'embraces at the least the liberty to discuss publicly and truthfully all matters of public concern.' " Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U. S. 530, 534 (1980); accord, Central Hudson, 418 U. S. 323, 340 (1974); Time, Inc. v. Hill, 385 U. S. 374, 388-389 (1967). This case requires us to reconcile these potentially conflicting principles. In my view, a proper resolution here favors application of the last mentioned public-speech principle, rather than the first mentioned commercial-speech principle. Consequently, I would apply a form of heightened scrutiny to the speech regulations in question, and I believe that those regulations cannot survive that scrutiny. First, the communications at issue are not purely commercial in nature. They are better characterized as involving a mixture of commercial and noncommercial (public-issue-oriented) elements. The document least likely to warrant protection — a letter written by Nike to university presidents and athletic directors — has several commercial characteristics. See Appendix, infra (reproducing pages 190 and 191 of Lodging of Petitioners). As the California Supreme Court implicitly found, 27 Cal. 4th, at 946, 45 P. 3d, at 247, it was written by a "commercial speaker" (Nike), it is addressed to a "commercial audience" (potential institutional buyers or contractees), and it makes "representations of fact about the speaker's own business operations" (labor conditions). Ibid. See, e.g., Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 66-67 (1983). But that letter also has other critically important and, I believe, predominant noncommercial characteristics with which the commercial characteristics are "inextricably intertwined." Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 796 (1988). For one thing, the letter appears outside a traditional advertising format, such as a brief television or newspaper advertisement. It does not propose the presentation or sale of a product or any other commercial transaction, United States v. United Foods, Inc., 533 U. S. 405, 409 (2001) (describing this as the "usua[l]" definition for commercial speech). Rather, the letter suggests that its contents might provide "information useful in discussions" with concerned faculty and students. Lodging of Petitioners 190. On its face, it seeks to convey information to "a diverse audience," including individuals who have "a general curiosity about, or genuine interest in," the public controversy surrounding Nike, Bigelow v. Virginia, 421 U. S. 809, 822 (1975). For another thing, the letter's content makes clear that, in context, it concerns a matter that is of significant public interest and active controversy, and it describes factual matters related to that subject in detail. In particular, the letter describes Nike's labor practices and responds to criticism of those practices, and it does so because those practices themselves play an important role in an existing public debate. This debate was one in which participants advocated, or opposed, public collective action. See, e.g., Lodging of Petitioners 143 (article on student protests), 232-236 (fact sheet with "Boycott Nike" heading). See generally Roth v. United States, 354 U. S. 476, 484 (1957) (The First Amendment's protections of speech and press were "fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes"). That the letter is factual in content does not argue against First Amendment protection, for facts, sometimes facts alone, will sway our views on issues of public policy. These circumstances of form and content distinguish the speech at issue here from the more purely "commercial speech" described in prior cases. See, e.g., United Foods, supra, at 409 (commercial speech "usually defined as speech that does no more than propose a commercial transaction" (emphasis added)); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 473-474 (1989) (describing this as "the test"); Central Hudson, 447 U. S., at 561 (commercial speech defined as "expression related solely to the economic interests of the speaker and its audience" (emphasis added)). The speech here is unlike speech — say, the words "dolphin-safe tuna"--that commonly appears in more traditional advertising or labeling contexts. And it is unlike instances of speech where a communication's contribution to public debate is peripheral, not central, cf. id., at 562-563, n. 5. At the same time, the regulatory regime at issue here differs from traditional speech regulation in its use of private attorneys general authorized to impose "false advertising" liability even though they themselves have suffered no harm. See Cal. Bus. & Prof. Code Ann. §§17204, 17535 (West 1997). In this respect, the regulatory context is unlike most traditional false advertising regulation. And the "false advertising" context differs from other regulatory contexts — say, securities regulation — where a different balance of concerns calls for different applications of First Amendment principles. Cf. Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456-457 (1978). These three sets of circumstances taken together — circumstances of format, content, and regulatory context-- warrant treating the regulations of speech at issue differently from regulations of purer forms of commercial speech, such as simple product advertisements, that we have reviewed in the past. And, where all three are present, I believe the First Amendment demands heightened scrutiny. Second, I doubt that this particular instance of regulation (through use of private attorneys general) can survive heightened scrutiny, for there is no reasonable "fit" between the burden it imposes upon speech and the important governmental "interest served," Fox, supra, at 480. Rather, the burden imposed is disproportionate. I do not deny that California's system of false advertising regulation — including its provision for private causes of action — furthers legitimate, traditional, and important public objectives. It helps to maintain an honest commercial marketplace. It thereby helps that marketplace better allocate private goods and services. See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 765 (1976). It also helps citizens form "intelligent opinions as to how [the marketplace] ought to be regulated or altered." Ibid. But a private "false advertising" action brought on behalf of the State, by one who has suffered no injury, threatens to impose a serious burden upon speech — at least if extended to encompass the type of speech at issue under the standards of liability that California law provides, see Cal. Bus. & Prof. Code Ann. §§17200, 17500 (West 1997) (establishing regimes of strict liability, as well as liability for negligence); Cortez v. Purolator Air Filtration Products Co., 23 Cal. 4th 163, 181, 999 P. 2d 706, 717 (2000) (stating that California's unfair competition law imposes strict liability). The delegation of state authority to private individuals authorizes a purely ideological plaintiff, convinced that his opponent is not telling the truth, to bring into the courtroom the kind of political battle better waged in other forums. Where that political battle is hard fought, such plaintiffs potentially constitute a large and hostile crowd freely able to bring prosecutions designed to vindicate their beliefs, and to do so unencumbered by the legal and practical checks that tend to keep the energies of public enforcement agencies focused upon more purely economic harm. Cf. Forsyth County v. Nationalist Movement, 505 U. S. 123, 134-135 (1992); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 67-71 (1963). That threat means a commercial speaker must take particular care — considerably more care than the speaker's noncommercial opponents — when speaking on public matters. A large organization's unqualified claim about the adequacy of working conditions, for example, could lead to liability, should a court conclude after hearing the evidence that enough exceptions exist to warrant qualification — even if those exceptions were unknown (but perhaps should have been known) to the speaker. Uncertainty about how a court will view these, or other, statements, can easily chill a speaker's efforts to engage in public debate — particularly where a "false advertising" law, like California's law, imposes liability based upon negligence or without fault. See Gertz, 515 U. S. 819, 828 (1995). At the same time, it is difficult to see why California needs to permit such actions by private attorneys general — at least with respect to speech that is not "core" commercial speech but is entwined with, and directed toward, a more general public debate. The Federal Government regulates unfair competition and false advertising in the absence of such suits. 15 U. S. C. §41 et seq. As far as I can tell, California's delegation of the government's enforcement authority to private individuals is not traditional, and may be unique, Tr. of Oral Arg. 42. I do not see how "false advertising" regulation could suffer serious impediment if the Constitution limited the scope of private attorney general actions to circumstances where more purely commercial and less public-debate-oriented elements predominate. As the historical treatment of speech in the labor context shows, substantial government regulation can coexist with First Amendment protections designed to provide room for public debate. Compare, e.g., NLRB v. Gissel Packing Co., 395 U. S. 575, 616-620 (1969) (upholding prohibition of employer comments on unionism containing threats or promises), with Thomas v. Collins, 323 U. S. 516, 531-532 (1945); Thornhill v. Alabama, 310 U. S. 88, 102 (1940). These reasons convince me that it is likely, if not highly probable, that, if this Court were to reach the merits, it would hold that heightened scrutiny applies; that, under the circumstances here, California's delegation of enforcement authority to private attorneys general disproportionately burdens speech; and that the First Amendment consequently forbids it. Returning to the procedural point at issue, I believe this discussion of the merits shows that not only will "reversal" of the California Supreme Court "on the federal issue" prove "preclusive of any further litigation on the relevant cause of action," Cox, 420 U. S., at 482-483, but also such "reversal" is a serious possibility. Whether we take the words of the third condition literally or consider the circumstances pragmatically, that condition is satisfied.D The fourth condition is that "a refusal immediately to review the state-court decision might seriously erode federal policy." Id., at 483. This condition is met because refusal immediately to review the state-court decision before us will "seriously erode" the federal constitutional policy in favor of free speech. If permitted to stand, the state court's decision may well "chill" the exercise of free speech rights. See id., at 486; Fort Wayne Books, Inc. v. Indiana, 489 U. S. 46, 56 (1989). Continuation of this lawsuit itself means increased expense, and, if Nike loses, the results may include monetary liability (for "restitution") and injunctive relief (including possible corrective "counterspeech"). See, e.g., Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163, 179, 973 P. 2d 527, 539 (1999); Consumers Union of U. S., Inc. v. Alta-Dena Certified Dairy, 4 Cal. App. 4th 963, 971-972, 6 Cal. Rptr. 2d 193, 197-198 (1992). The range of communications subject to such liability is broad; in this case, it includes a letter to the editor of The New York Times. The upshot is that commercial speakers doing business in California may hesitate to issue significant communications relevant to public debate because they fear potential lawsuits and legal liability. Cf. Gertz, supra, at 340 (warning that overly stringent liability for false or misleading speech can "lead to intolerable self-censorship"); Time, supra, at 389 ("Fear of large verdicts in damage suits for innocent or merely negligent misstatement, even fear of the expense involved in their defense, must inevitably cause publishers to 'steer ... wider of the unlawful zone' "). This concern is not purely theoretical. Nike says without contradiction that because of this lawsuit it has decided "to restrict severely all of its communications on social issues that could reach California consumers, including speech in national and international media." Brief for Petitioners 39. It adds that it has not released its annual Corporate Responsibility Report, has decided not to pursue a listing in the Dow Jones Sustainability Index, and has refused "dozens of invitations ... to speak on corporate responsibility issues." Ibid. Numerous amici — including some who do not believe that Nike has fully and accurately explained its labor practices — argue that California's decision will "chill" speech and thereby limit the supply of relevant information available to those, such as journalists, who seek to keep the public informed about important public issues. Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 2-3; Brief for Chamber of Commerce of the United States as Amicus Curiae 10-12; Brief for ABC Inc. et al. as Amici Curiae 6-13; Brief for Pfizer Inc. as Amicus Curiae 10-14. In sum, all four conditions are satisfied here. See supra, at 7-8. Hence, the California Supreme Court's judgment falls within the scope of the term "final" as it appears in 28 U. S. C. §1257(a), and no statute prevents us from deciding this case.III There is no strong prudential argument against deciding the questions presented. Compare ante, at 9 (Stevens, J., concurring), with Ashwander v. TVA, 297 U. S. 288, 346- 348 (1936) (Brandeis, J., concurring). These constitutional questions are not easy ones, for they implicate both free speech and important forms of public regulation. But they arrive at the threshold of this case, asking whether the Constitution permits this private attorney general's lawsuit to go forward on the basis of the pleadings at hand. This threshold issue was vigorously contested and decided, adverse to Nike, below. Cf. Yee v. Escondido, 503 U. S. 519, 534-535 (1992). And further development of the record seems unlikely to make the questions presented any easier to decide later. At the same time waiting extracts a heavy First Amendment price. If this suit goes forward, both Nike and other potential speakers, out of reasonable caution or even an excess of caution, may censor their own expression well beyond what the law may constitutionally demand. See Time, 385 U. S., at 389; Gertz, 418 U. S., at 340. That is what a "chilling effect" means. It is present here.IV In sum, I can find no good reason for postponing a decision in this case. And given the importance of the First Amendment concerns at stake, there are strong reasons not to do so. The position of at least one amicus — opposed to Nike on the merits of its labor practice claims but supporting Nike on its free speech claim — echoes a famous sentiment reflected in the writings of Voltaire: 'I do not agree with what you say, but I will fight to the end so that you may say it.' See Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 3. A case that implicates that principle is a case that we should decide. I would not dismiss as improvidently granted the writ issued in this case. I respectfully dissent from the Court's contrary determination.APPENDIX TO OPINION OF BREYER, J. What follows is a copy of the letter to university presidents and athletic directors at issue in this case, Lodging of Petitioners 190-191:[Graphics omitted; see printed opinion.]FOOTNOTESFootnote 1 Notably, we recognized in Cox that in most, if not all, of these exceptional situations, the "additional proceedings anticipated in the lower state courts ... would not require the decision of other federal questions that might also require review by the Court at a later date." 420 U. S., at 477.Footnote 2 Because the constraints of Article III do not apply in state courts, see ASARCO, 490 U. S., at 617, the California courts are free to adjudicate this case.Footnote 3 The Arizona Supreme Court also remanded the case for the trial court to determine what further relief might be appropriate. See id., at 611. Thus, while leaving open the question of remedy on remand, the state-court judgment in ASARCO finally decided the federal issue. See id., at 612 (holding that the federal issues had been adjudicated by the state court and that the remaining issues would not give rise to any further federal question).Footnote 4 Justice Breyer would extend ASARCO — which provides an exception to our normal standing requirement — to encompass not merely a defendant's challenge to an adverse state-court judgment but also a defendant's motion to dismiss a state-court complaint alleging that semicommercial speech was false and misleading. See post, at 6 (dissenting opinion). Regardless of whether the "speech-chilling injury" associated with the defense of such a case may or may not outweigh the benefit of having a public forum in which the defendant may establish the truth of the contested statements, such an unprecedented expansion would surely change the character of our standing doctrine, greatly extending ASARCO's reach.Footnote 5 Further complicating the novel First Amendment issues in this case is the fact that in this Court Nike seeks to challenge the constitutionality of the private attorney general provisions of California's Unfair Competition Law and False Advertising Law. It apparently did not raise this specific challenge below. Whether the scope of protection afforded to Nike's speech should differ depending on whether the speech is challenged in a public or a private enforcement action, see post, at 14-15, is a difficult and important question that I believe would benefit from further development below.

An alien who had been ordered deported was convicted of violating 20 (c) of the Immigration Act of 1917, as amended, by "willfully" (1) failing to depart from the United States, and (2) failing to make timely application for travel or other documents necessary to his departure, within six months from the date of the final order of deportation. Held: On the record in this case, the evidence was insufficient to support the verdict, and the conviction is reversed. Pp. 274-280. 1. There being no evidence that any country was willing to receive him, it cannot be said that there was any evidence to support a finding that he "willfully" failed to depart. P. 276. 2. In view of statements made to him by an Immigration Inspector indicating that the Immigration and Naturalization Service would take steps to obtain travel documents for him, and in view of a letter to him from the Officer in Charge stating that arrangements were being made to effect his deportation and that he would be notified when and where to present himself for deportation, it cannot be said that there was sufficient evidence to support a finding that he acted "willfully" in failing to make timely application for the documents necessary to his departure. Pp. 276-280. 240 F.2d 94, reversed.David Rein argued the cause for petitioner. With him on the brief were Joseph Forer and M. Michael Essin.J. F. Bishop argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg. MR. JUSTICE WHITTAKER delivered the opinion of the Court.This case involves the legality of convictions of petitioner, an alien previously ordered deported, for (1) willful failure to depart from the United States, and (2) willful failure to make timely application in good faith for travel or other documents necessary to his departure, within six months from the date of the final order of deportation.Section 20 (c) of the Immigration Act of 1917, 39 Stat. 890, as amended, 57 Stat. 553, 64 Stat. 1012, 8 U.S.C. (1946 ed., Supp. IV) 156 (c), provided, in pertinent part, that "[a]ny alien against whom an order of deportation is outstanding ... who shall willfully fail or refuse to depart from the United States within a period of six months from the date of such order of deportation, or from the date of the enactment of the Subversive Activities Control Act of 1950, whichever is the later, or shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure, ... shall upon conviction be guilty of a felony, and shall be imprisoned not more than ten years ... ." It is the above-quoted provisions of 20 (c) that are involved here.Petitioner, a native of Finland, went to Canada in 1910 and later acquired Canadian citizenship. He entered the United States in 1916 and, except for several foreign trips, has since resided her. A final order of deportation was entered against him on April 9, 1952, under the Act of October 16, 1918, 40 Stat. 1012, as amended, 41 Stat. 1008, 54 Stat. 673, 64 Stat. 1006, 1008, 8 U.S.C. (1946 ed., Supp. IV) 137,1 by reason of his membership in the Communist Party of the United States from 1923 to 1930.2 On November 10, 1953, petitioner was indicted, in two counts, in the United States District Court for the Western District of Wisconsin. The first count charged him with willful failure to depart from the United States within six months from the date of the deportation order. The second count charged him with willful failure to make timely application in good faith for travel or other documents necessary to his departure from the United States within six months from the date of the deportation order. Upon a trial before a jury he was convicted on both counts. He was sentenced to imprisonment for a term of five years on Count 1, and imposition of sentence on Count 2 was suspended until completion of service of the sentence on Count 1. The Court of Appeals affirmed. 240 F.2d 94. We granted certiorari. . Petitioner challenges the judgments of conviction on a number of grounds, but in the view we take of the case it is necessary to consider only the first ground, namely, that the evidence is insufficient to support the verdict on either count.This is a criminal case. It is therefore necessary that the prosecution adduce evidence sufficient to support a finding of guilt beyond a reasonable doubt. This is no less true when the defendant is an alien. Harisiades v. Shaughnessy, . The crucial element of the crime charged in the first count is that petitioner "did willfully fail to depart from the United States" within six months from the deportation order of April 9, 1952. (Emphasis supplied.) A thorough review of the record discloses no evidence that any country was willing, in that period, to receive petitioner.3 There can be no willful failure to depart until "the country willing to receive the alien is identified." United States v. Spector, . It therefore cannot be said that there was any evidence to support the jury's finding that petitioner "did willfully fail to depart from the United States" within six months from the deportation order. The evidence on Count 1 is thus insufficient to support the verdict, and the judgment of conviction thereon must fall.The Government argues that petitioner willfully failed to make timely application to Finland, or to some other country, to receive him, and that if he had done so he might have been able to identify, within the time prescribed, a country to which he could go. While this argument has some relation to Count 1, it mainly involves. and therefore brings us to a consideration of, the adequacy of the evidence to support the verdict on Count 2. On April 18, 1952, nine days after entry of the order of deportation, the officer in charge of the Immigration and Naturalization Service at Duluth, Minnesota, at the request of the District Director of Immigration at Chicago, sent Inspector Maki to interview petitioner and obtain "personal data, usually called passport data." Maki admitted at the trial that, in that interview, he "told [petitioner] that [he] had been instructed to get this personal history; that [he] was going to prepare this on the Passport Data form, and that it would [be sent to Chicago where it] would be considered by [the] Service down there with a view towards [the] Service obtaining some travel document or other in [petitioner's] case," and that this was common procedure in such cases. Petitioner furnished the information requested, and it was forwarded by Maki, on April 21, 1952, to the District Director at Chicago. On April 30, 1952, petitioner received a letter from the officer in charge of the Immigration and Naturalization Office in Duluth, which, after reciting that an order directing petitioner's deportation from the United States had been entered on April 25, 1952,4 said: "Arrangements to effect your deportation pursuant to such order are being made and when completed you will be notified when and where to present yourself for deportation." The letter continued, summarizing pertinent provisions of 20 (c) of the Immigration Act of 1917, as amended,5 and concluded: "Therefore, you will recognize the importance of making every effort in good faith to obtain passport or other travel documents so that you may effect your departure pursuant to the said order of deportation within the time prescribed by the quotation above from the [Immigration Act of 1917, as amended]."On February 12, 1953, an investigator of the Service interviewed and took a written and signed statement from petitioner, which was put in evidence by the Government at the trial. In that statement petitioner corroborated Maki's statement to him of April 9, 1952, acknowledged receipt of the letter of April 30, 1952, and stated, in substance, that he had not applied for travel documents because, relying on Maki's statement and the letter mentioned, he had "been waiting for instructions from the immigration authorities" or "from Mr. Maki as to when [he] should start to make application for a passport, in case the Service had failed to get a visa or a passport." Petitioner's statement further recited that he had never received any request from the Service "to execute any passport application" and that he had not willfully refused to depart from the United States nor to apply in good faith for travel documents, but wanted "to cooperate [with the Attorney General to get] a passport to Finland ... ."Is this evidence sufficient to support the jury's finding that petitioner "did willfully fail to make timely application in good faith for travel or other documents necessary to his departure from the United States"? We believe that it is not. There can be no willful failure by a deportee, in the sense of 20 (c), to apply to, and identify, a country willing to receive him in the absence of evidence, or an inference permissible under the statute, of a "bad purpose" or "[non-]justifiable excuse," or the like. Cf. United States v. Murdock, ; Spies v. United States, , 498. Inspector Maki had informed petitioner that his purpose, in procuring the "passport data" on April 9, 1952, was to send it to the District Director at Chicago, where it "would be considered ... with a view towards ... obtaining some travel document or other in his case." Moreover, the letter of April 30, 1952, from the officer in charge of the Duluth office, told petitioner, in the plainest language, that the Service was making the arrangements to effect his deportation and, when completed, he would be notified when and where to present himself for deportation. Surely petitioner was justified in relying upon the plain meaning of those simple words, and it cannot be said that he acted "willfully" - i. e., with a "bad purpose" or without "justifiable excuse" - in doing so, until, at least, they were in some way countermanded, which was never done within the prescribed period. It is true that the last paragraph of that letter drew attention to the importance of making good-faith efforts to obtain the documents necessary to effect departure within the time prescribed, but that language did not in terms negate, and cannot fairly be said implicitly to have negated, the earlier paragraph of the letter, because, as stated, that paragraph of the letter plainly told petitioner that the Service was itself making the necessary arrangements for his deportation and, when completed, he would be notified when and where to present himself for deportation. In this factual setting we believe there was not sufficient evidence to support the jury's finding that petitioner acted willfully in failing to apply for documents necessary to his departure within the time prescribed. The evidence on Count 2 is thus insufficient to support the verdict, and the judgment of conviction on that count must also fall. Reversed.

Petitioner's death sentence for murder cannot be carried out where one prospective juror was excluded from the jury for cause for merely expressing scruples against the death penalty, rather than being irrevocably committed to vote against it. Witherspoon v. Illinois, . Certiorari granted; 236 Ga. 804, 225 S. E. 2d 241, reversed and remanded.PER CURIAM.The petitioner in this case was convicted of murder and sentenced to death after trial by a jury selected in violation of the standards enunciated in Witherspoon v. Illinois, , and applied in Boulden v. Holman, , and Maxwell v. Bishop, . The Witherspoon case 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.The Supreme Court of Georgia found that one prospective juror had been excluded in violation of the Witherspoon standard. The court nevertheless affirmed the conviction and death sentence, reasoning that the erroneous exclusion of one death-scrupled juror did not deny the petitioner a jury representing a cross section of the community since other jurors sharing that attitude were not excused for cause: "The rationale of Witherspoon and its progeny is not violated where merely one of a qualified class or group is excluded where it is shown, as here, that others of such group were qualified to serve. This record is completely void of any evidence of a systematic and intentional exclusion of a qualified group of jurors so as to deny the appellant a jury of veniremen representing a cross section of the community." 236 Ga. 804, 809-810, 225 S. E. 2d 241, 244-245.That, however, is not the test established in Witherspoon, and it is not the test that this Court has applied in subsequent cases where a death penalty was imposed after the improper exclusion of one member of the venire. See Wigglesworth v. Ohio, , rev'g 18 Ohio St. 2d 171, 248 N. E. 2d 607 (1969); Harris v. Texas, , rev'g 457 S. W. 2d 903 (Tex. Crim. App. 1970); Adams v. Washington, , rev'g 76 Wash. 2d 650, 458 P.2d 558 (1969). Unless a venireman is "irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings," 391 U.S., at 522 n. 21, he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand.Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.As is clear from the most cursory reading, Witherspoon v. Illinois, , does not inexorably lead to the result this Court now reaches. Indeed, much of the language in that opinion would support the reasoning, and the result, reached by the Supreme Court of Georgia. The extension of Witherspoon to cover the case where a sole venireman is excluded in violation of its test deserves plenary consideration, not a per se rule that precludes application of even the harmless-error test of Chapman v. California, . There is no indication that the Supreme Court of Georgia was wrong when it observed that the "record is completely void of any evidence of a systematic and intentional exclusion of a qualified group of jurors so as to deny the appellant a jury of veniremen representing a cross section of the community," 236 Ga. 804, 809-810, 225 S. E. 2d 241, 245.It is, moreover, unclear whether the State was entitled to another peremptory challenge,* and surely Witherspoon does not decide whether the presence of unexercised peremptory challenges might render harmless the improper exclusion of a limited number of veniremen. Finally, the defect in this case is not that a juror was improperly excluded because she was not irrevocably opposed to the death penalty; rather, the defect is a failure to question sufficiently to determine whether or not she was irrevocably opposed. It is not inconceivable that a hearing with the excluded juror could be conducted now to finish the aborted questioning and determine whether she would have, in fact, been excludable for cause.The effects of the arguably improper exclusion, in short, are too murky to warrant summary reversal of the sentence imposed. Since I do not believe this case is controlled by our past decisions, I would grant certiorari and set the case for argument.[Footnote *] Normally, the defense, in a capital case, is entitled to 20 peremptory challenges, and the State is entitled to one-half as many as the defense. Ga. Code Ann. 59-805 (1965). In this case, the transcript reveals that the defense utilized 21 peremptory challenges; the State, 10.

Certiorari dismissed. Reported below: 750 F.2d 205 and 758 F.2d 46.Michael F. Close argued the cause for petitioners. With him on the brief was George J. Calcagnini.George Russell Miller argued the cause and filed a brief for respondent.* [Footnote *] Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, Charles A. Rothfeld, Barbara L. Herwig, and John F. Daly filed a brief for the United States as amicus curiae urging reversal. Steven R. Shapiro filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.PER CURIAM.The writ of certiorari is dismissed as improvidently granted.

The FTC filed a complaint against respondent, the country's second largest shoe manufacturer, under 5 of the Federal Trade Commission Act, charging unfair trade practices by the use of a "Franchise Stores Program" through which respondent sells its shoes to more than 650 retail stores. In return for special benefits from Brown Shoe Company, the franchise stores agree to buy Brown shoe lines and to refrain from buying competitive lines. After hearings the FTC concluded that the restrictive contract program was an unfair method of competition and ordered respondent to cease and desist from its use. The Court of Appeals set aside the FTC's order, holding that there was "complete failure to prove an exclusive dealing agreement" violative of 5 of the Act. Held: The FTC acted well within its authority under the Act in declaring respondent's franchise program an unfair trade practice. Pp. 319-322. (a) On this record the FTC has power to find such anticompetitive practice unfair. Federal Trade Comm'n v. Gratz, , relied on by the Court of Appeals, has been rejected by this Court. Pp. 320-321. (b) The franchise program conflicts with the policy of 1 of the Sherman Act and 3 of the Clayton Act against contracts which remove freedom of purchasers to buy in an open market. P. 321. (c) Under 5 of the Federal Trade Commission Act the FTC has power to arrest restraints of trade in their incipiency without proof that they are outright violations of 3 of the Clayton Act or other antitrust provisions. F. T. C. v. Motion Picture Adv. Co., . Pp. 321-322. 339 F.2d 45, reversed.Ralph S. Spritzer argued the cause for petitioner. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Robert S. Rifkind, Howard E. Shapiro, Milton J. Grossman, James McI. Henderson, Thomas F. Howder and Gerald J. Thain.Robert H. McRoberts argued the cause for respondent. With him on the brief were Gaylord C. Burke and Edwin S. Taylor.MR. JUSTICE BLACK delivered the opinion of the Court.Section 5 (a) (6) of the Federal Trade Commission Act empowers and directs the Commission "to prevent persons, partnerships, or corporations ... from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce."1 Proceeding under the authority of 5, the Federal Trade Commission filed a complaint against the Brown Shoe Co., Inc., one of the world's largest manufacturers of shoes with total sales of $236,946,078 for the year ending October 31, 1957. The unfair practices charged against Brown revolve around the "Brown Franchise Stores' Program" through which Brown sells its shoes to some 650 retail stores. The complaint alleged that under this plan Brown, a corporation engaged in interstate commerce, had "entered into contracts or franchises with a substantial number of its independent retail shoe store operator customers which require said customers to restrict their purchases of shoes for resale to the Brown lines and which prohibit them from purchasing, stocking or reselling shoes manufactured by competitors of Brown." Brown's customers who entered into these restrictive franchise agreements, so the complaint charged, were given in return special treatment and valuable benefits which were not granted to Brown's customers who did not enter into the agreements. In its answer to the Commission's complaint Brown admitted that approximately 259 of its retail customers had executed written franchise agreements and that over 400 others had entered into its franchise program without execution of the franchise agreement. Also in its answer Brown attached as an exhibit an unexecuted copy of the "Franchise Agreement" which, when executed by Brown's representative and a retail shoe dealer, obligates Brown to give to the dealer but not to other customers certain valuable services, including among others architectural plans, costly merchandising records, services of a Brown field representative, and a right to participate in group insurance at lower rates than the dealer could obtain individually. In return, according to the franchise agreement set out in Brown's answer, the retailer must make this promise: "In return I will: "1. Concentrate my business within the grades and price lines of shoes representing Brown Shoe Company Franchises of the Brown Division and will have no lines conflicting with Brown Division Brands of the Brown Shoe Company." Brown's answer further admitted that the operators of "such Brown Franchise Stores in individually varying degrees accept the benefits and perform the obligations contained in such franchise agreements or implicit in such Program," and that Brown refuses to grant these benefits "to dealers who are dropped or voluntarily withdraw from the Brown Franchise Program ... ." The foregoing admissions of Brown as to the existence and operation of the franchise program were buttressed by many separate detailed fact findings of a trial examiner, one of which findings was that the franchise program effectively foreclosed Brown's competitors from selling to a substantial number of retail shoe dealers.2 Based on these findings and on Brown's admissions the Commission concluded that the restrictive contract program was an unfair method of competition within the meaning of 5 and ordered Brown to cease and desist from its use.On review the Court of Appeals set aside the Commission's order. In doing so the court said: "By passage of the Federal Trade Commission Act, particularly 5 thereof, we do not believe that Congress meant to prohibit or limit sales programs such as Brown Shoe engaged in in this case... . The custom of giving free service to those who will buy their shoes is widespread, and we cannot agree with the Commission that it is an unfair method of competition in commerce." 339 F.2d 45, 56. In addition the Court of Appeals held that there was a "complete failure to prove an exclusive dealing agreement which might be held violative of 5 of the Act." We are asked to treat this general conclusion as though the court intended it to be a rejection of the Commission's findings of fact. We cannot do this. Neither this statement of the court nor any other statement in the opinion indicates a purpose to hold that the evidence failed to show an agreement between Brown and more than 650 franchised dealers which restrained the dealers from buying competing lines of shoes from Brown's competitors. Indeed, in view of the crucial admissions in Brown's formal answer to the complaint we cannot attribute to the Court of Appeals a purpose to set aside the Commission's findings that these restrictive agreements existed and that Brown and most of the franchised dealers in varying degrees lived up to their obligations. Thus the question we have for decision is whether the Federal Trade Commission can declare it to be an unfair practice for Brown, the second largest manufacturer of shoes in the Nation, to pay a valuable consideration to hundreds of retail shoe purchasers in order to secure a contractual promise from them that they will deal primarily with Brown and will not purchase conflicting lines of shoes from Brown's competitors. We hold that the Commission has power to find, on the record here, such an anticompetitive practice unfair, subject of course to judicial review. See Atlantic Rfg. Co. v. FTC, .In holding that the Federal Trade Commission lacked the power to declare Brown's program to be unfair the Court of Appeals was much influenced by and quoted at length from this Court's opinion in Federal Trade Comm'n v. Gratz, . That case, decided shortly after the Federal Trade Commission Act was passed, construed the Act over a strong dissent by Mr. Justice Brandeis as giving the Commission very little power to declare any trade practice unfair. Later cases of this Court, however, have rejected the Gratz view and it is now recognized in line with the dissent of Mr. Justice Brandeis in Gratz that the Commission has broad powers to declare trade practices unfair.3 This broad power of the Commission is particularly well established with regard to trade practices which conflict with the basic policies of the Sherman and Clayton Acts even though such practices may not actually violate these laws.4 The record in this case shows beyond doubt that Brown, the country's second largest manufacturer of shoes, has a program, which requires shoe retailers, unless faithless to their contractual obligations with Brown, substantially to limit their trade with Brown's competitors. This program obviously conflicts with the central policy of both 1 of the Sherman Act and 3 of the Clayton Act against contracts which take away freedom of purchasers to buy in an open market.5 Brown nevertheless contends that the Commission had no power to declare the franchise program unfair without proof that its effect "may be to substantially lessen competition or tend to create a monopoly" which of course would have to be proved if the Government were proceeding against Brown under 3 of the Clayton Act rather than 5 of the Federal Trade Commission Act. We reject the argument that proof of this 3 element must be made for as we pointed out above our cases6 hold that the Commission has power under 5 to arrest trade restraints in their incipiency without proof that they amount to an outright violation of 3 of the Clayton Act or other provisions of the antitrust laws. This power of the Commission was emphatically stated in F. T. C. v. Motion Picture Adv. Co., , at pp. 394-395:"It is ... clear that the Federal Trade Commission Act was designed to supplement and bolster the Sherman Act and the Clayton Act ... to stop in their incipiency acts and practices which, when full blown, would violate those Acts ... as well as to condemn as `unfair methods of competition' existing violations of them." We hold that the Commission acted well within its authority in declaring the Brown franchise program unfair whether it was completely full blown or not. Reversed.

Per Curiam. This case turns on the Fourth Amendment rule that a confession "obtained by exploitation of an illegal arrest" may not be used against a criminal defendant. Brown v. Illinois, 422 U. S. 590, 603 (1975). After a 14-year-old girl disappeared in January 1999, the Harris County Sheriff's Department learned she had had a sexual relationship with her 19-year-old half brother, who had been in the company of petitioner Robert Kaupp, then 17 years old, on the day of the girl's disappearance. On January 26th, deputy sheriffs questioned the brother and Kaupp at headquarters; Kaupp was cooperative and was permitted to leave, but the brother failed a polygraph examination (his third such failure). Eventually he confessed that he had fatally stabbed his half sister and placed her body in a drainage ditch. He implicated Kaupp in the crime. Detectives immediately tried but failed to obtain a warrant to question Kaupp.1 Detective Gregory Pinkins nevertheless decided (in his words) to "get [Kaupp] in and confront him with what [the brother] had said." App. A to Pet. for Cert. 2. In the company of two other plain clothes detectives and three uniformed officers, Pinkins went to Kaupp's house at approximately 3 a.m. on January 27th. After Kaupp's father let them in, Pinkins, with at least two other officers, went to Kaupp's bedroom, awakened him with a flashlight, identified himself, and said, " 'we need to go and talk.' " Ibid. Kaupp said " 'Okay.' " Ibid. The two officers then handcuffed Kaupp and led him, shoeless and dressed only in boxer shorts and a T-shirt, out of his house and into a patrol car. The state points to nothing in the record indicating Kaupp was told that he was free to decline to go with the officers. They stopped for 5 or 10 minutes where the victim's body had just been found, in anticipation of confronting Kaupp with the brother's confession, and then went on to the sheriff's headquarters. There, they took Kaupp to an interview room, removed his handcuffs, and advised him of his rights under Miranda v. Arizona, 384 U. S. 436 (1966). Kaupp first denied any involvement in the victim's disappearance, but 10 or 15 minutes into the interrogation, told of the brother's confession, he admitted having some part in the crime. He did not, however, acknowledge causing the fatal wound or confess to murder, for which he was later indicted. After moving unsuccessfully to suppress his confession as the fruit of an illegal arrest, Kaupp was convicted and sentenced to 55 years' imprisonment. The State Court of Appeals affirmed the conviction by unpublished opinion, concluding that no arrest had occurred until after the confession. The state court said that Kaupp consented to go with the officers when he answered " 'Okay' " to Pinkins's statement that " 'we need to go and talk.' " App. A to Pet. for Cert. 2, 6. The court saw no contrary significance in the subsequent handcuffing and removal to the patrol car, given the practice of the sheriff's department in "routinely" using handcuffs for safety purposes when transporting individuals, as officers had done with Kaupp only the day before. Id., at 6. The court observed that "a reasonable person in [Kaupp's] position would not believe that being put in handcuffs was a significant restriction on his freedom of movement." Ibid. Finally, the state court noted that Kaupp "did not resist the use of handcuffs or act in a manner consistent with anything other than full cooperation." Id., at 6-7. Kaupp appealed, but the Court of Criminal Appeals of Texas denied discretionary review. App. B to Pet. for Cert. We grant the motion for leave to proceed in forma pauperis, grant the petition for certiorari, and vacate the judgment below. A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, "taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.' " Florida v. Bostick, 501 U. S. 429, 437 (1991) (quoting Michigan v. Chesternut, 486 U. S. 567, 569 (1988)). This test is derived from Justice Stewart's opinion in United States v. Mendenhall, 446 U. S. 544 (1980), see California v. Hodari D., 499 U. S. 621, 627-628 (1991), which gave several "[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave," including "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, supra, at 554. Although certain seizures may be justified on something less than probable cause, see, e.g., Terry v. Ohio, 392 U. S. 1 (1968), we have never "sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes ... absent probable cause or judicial authorization." Hayes v. Florida, 470 U. S. 811, 815 (1985)2; cf. Payton v. New York, 445 U. S. 573, 589-590 (1980); compare Florida v. Royer, 460 U. S. 491, 499 (1983) (plurality opinion) ("[The police] may [not] seek to verify [mere] suspicions by means that approach the conditions of arrest"), with United States v. Sokolow, 490 U. S. 1, 7 (1989) ("[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause" (quoting Terry, supra, at 30)). Such involuntary transport to a police station for questioning is "sufficiently like arres[t] to invoke the traditional rule that arrests may constitutionally be made only on probable cause." Hayes, supra, at 816. The state does not claim to have had probable cause here, and a straightforward application of the test just mentioned shows beyond cavil that Kaupp was arrested within the meaning of the Fourth Amendment, there being evidence of every one of the probative circumstances mentioned by Justice Stewart in Mendenhall.3 A 17-year-old boy was awakened in his bedroom at three in the morning by at least three police officers, one of whom stated "we need to go and talk." He was taken out in handcuffs, without shoes, dressed only in his underwear in January, placed in a patrol car, driven to the scene of a crime and then to the sheriff's offices, where he was taken into an interrogation room and questioned. This evidence points to arrest even more starkly than the facts in Dunaway v. New York, 442 U. S. 200, 212 (1979), where the petitioner "was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room." There we held it clear that the detention was "in important respects indistinguishable from a traditional arrest" and therefore required probable cause or judicial authorization to be legal. Ibid. The same is, if anything, even clearer here. Contrary reasons mentioned by the state courts are no answer to the facts. Kaupp's " 'Okay' " in response to Pinkins's statement is no showing of consent under the circumstances. Pinkins offered Kaupp no choice, and a group of police officers rousing an adolescent out of bed in the middle of the night with the words "we need to go and talk" presents no option but "to go." There is no reason to think Kaupp's answer was anything more than "a mere submission to a claim of lawful authority." Royer, supra, at 497 (plurality opinion); see also Schneckloth v. Bustamonte, 412 U. S. 218, 226, 233-234 (1973). If reasonable doubt were possible on this point, the ensuing events would resolve it: removal from one's house in handcuffs on a January night with nothing on but underwear for a trip to a crime scene on the way to an interview room at law enforcement headquarters. Even "an initially consensual encounter ... can be transformed into a seizure or detention within the meaning of the Fourth Amendment." INS v. Delgado, 466 U. S. 210, 215 (1984); see Hayes, supra, at 815-816 ("[A]t some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect's freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments"). It cannot seriously be suggested that when the detectives began to question Kaupp, a reasonable person in his situation would have thought he was sitting in the interview room as a matter of choice, free to change his mind and go home to bed. Nor is it significant, as the state court thought, that the sheriff's department "routinely" transported individuals, including Kaupp on one prior occasion, while handcuffed for safety of the officers, or that Kaupp "did not resist the use of handcuffs or act in a manner consistent with anything other than full cooperation." App. A to Pet. for Cert. 6. The test is an objective one, see, e.g., Chesternut, 486 U. S., at 574, and stressing the officers' motivation of self-protection does not speak to how their actions would reasonably be understood. As for the lack of resistance, failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer. Since Kaupp was arrested before he was questioned, and because the state does not even claim that the sheriff's department had probable cause to detain him at that point, well-established precedent requires suppression of the confession unless that confession was "an act of free will [sufficient] to purge the primary taint of the unlawful invasion." Wong Sun v. United States, 371 U. S. 471, 486 (1963). Demonstrating such purgation is, of course, a function of circumstantial evidence, with the burden of persuasion on the state. See Brown, 422 U. S., at 604. Relevant considerations include observance of Miranda, "[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct." 422 U. S., at 603-604 (footnotes and citation omitted). The record before us shows that only one of these considerations, the giving of Miranda warnings, supports the state, and we held in Brown that "Miranda warnings, alone and per se, cannot always ... break, for Fourth Amendment purposes, the causal connection between the illegality and the confession." 457 U. S. 687, 699 (1982) (O'Connor, J., dissenting) (noting that, although Miranda warnings are an important factor, "they are, standing alone, insufficient"). All other factors point the opposite way. There is no indication from the record that any substantial time passed between Kaupp's removal from his home in handcuffs and his confession after only 10 or 15 minutes of interrogation. In the interim, he remained in his partially clothed state in the physical custody of a number of officers, some of whom, at least, were conscious that they lacked probable cause to arrest. See Brown, supra, at 604-605. In fact, the state has not even alleged "any meaningful intervening event" between the illegal arrest and Kaupp's confession. Taylor, supra, at 691. Unless, on remand, the state can point to testimony undisclosed on the record before us, and weighty enough to carry the state's burden despite the clear force of the evidence shown here, the confession must be suppressed. The judgment of the State Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.FOOTNOTESFootnote 1 The detectives applied to the district attorney's office for a "pocket warrant," which they described as authority to take Kaupp into custody for questioning. App. 3 to App. D to Pet. for Cert. 6 (trial transcript). The detectives did not seek a conventional arrest warrant, as they did not believe they had probable cause for Kaupp's arrest. See ibid. As the trial court later explained, the detectives had no evidence or motive to corroborate the brother's allegations of Kaupp's involvement, see App. C to Pet. for Cert. 2; the brother had previously failed three polygraph examinations, while, only two days earlier, Kaupp had voluntarily taken and passed one, in which he denied his involvement, see id., at 1-2.Footnote 2 We have, however, left open the possibility that, "under circumscribed procedures," a court might validly authorize a seizure on less than probable cause when the object is fingerprinting. Hayes, 470 U. S., at 817.Footnote 3 On the record before us, it is possible to debate whether the law enforcement officers were armed. The State Court of Appeals not only described them as armed but said specifically that Pinkins's weapon was visible, though not drawn, when he confronted Kaupp in the bedroom. See App. A to Pet. for Cert. 6. But at least one officer testified before the trial court that they went to Kaupp's house unarmed. See App. 3 to App. D to Pet. for Cert. 8 (trial transcript).

A Federal District Court issued a temporary restraining order restraining the Governor and other officials of Michigan from continuing with proceedings under state law for the removal of certain municipal officers for alleged misfeasance in office. Without passing on the merits of the complaint or a motion to dismiss it, a three-judge District Court, convened to consider the case, continued the temporary restraining order in effect for several months, pending determination of criminal proceedings against the same municipal officers. The Governor and Attorney General filed a motion in this Court for leave to file a petition for writ of mandamus or for writs of prohibition and mandamus directed against the members of the three-judge District Court to compel them to decide the motion for a preliminary injunction and the motion to dismiss, or to refrain from proceeding further in the cause and to vacate the temporary restraining order. This Court issued an order to the members of the District Court to show cause why a writ of mandamus or prohibition should not issue. The District Court, on motion of one of the complainants in the proceeding before it, then vacated its temporary restraining order and dismissed the complaint. Held: It appearing that the cause has become moot, the rule to show cause is discharged and the motion is denied.G. Mennen Williams, Governor of Michigan, Thomas M. Kavanagh, Attorney General, Edmund E. Shepherd, then Solicitor General, Samuel J. Torina, now Solicitor General, and Joseph A. Sullivan, Deputy Attorney General, for petitioners. PER CURIAM.It appearing that this case has become moot, the rule to show cause is discharged and the motion for leave to file petition for writ of mandamus or in the alternative prohibition and mandamus is denied.Memorandum by MR. JUSTICE FRANKFURTER, in which MR. JUSTICE BRENNAN joins.In view of the disposition the Court makes of this unusual litigation, it seems desirable to set forth the facts. (1) Inquiry Into Municipal Officers' Wrongdoing. Aug. 1956 - The Attorney General of Michigan and the Prosecuting Attorney of Wayne County, Michigan, filed with the Circuit Court of the Third Judicial Circuit for Wayne County an application for a judicial investigation of criminal offenses and unlawful practices in the City of Ecorse and other governmental units in Wayne County. In re Kavanagh, Misc. No. 83258. That court entered an order appointing Theodore R. Bohn, Circuit Judge, to conduct an inquiry pursuant to Mich. Comp. Laws, 1948, 767.3 and 767.4, as amended by Mich. Pub. Acts 1949, No. 311, Mich. Pub. Acts 1951, No. 276.1 Sept. 1956 - Inquiry conducted by Judge Bohn pursuant to 767.3 and 767.4. Oct. 17, 1956 - Warrant signed by Judge Bohn for the arrest of William Voisine, mayor of the City of Ecorse, and Albert Buday and Francis Labadie, members of the city council of Ecorse. The warrant recites that there is probable cause to believe that Voisine, Buday, Labadie, and others have conspired to obstruct justice by knowingly permitting illegal gambling to flourish in return for bribes and gratuities. A separate warrant issued, evidently on October 22d, charging Elmer Korn, also a member of the city council, with accepting bribes. Oct. 23, 1956 - Judge Bohn signed and transmitted to G. Mennen Williams, Governor of Michigan, findings of probable cause to believe Voisine, Labadie, and Buday guilty of misfeasance in office, and of other offenses constituting grounds for removal, and recommended that the Governor, the official empowered to do so, take steps to remove them from office. Similar findings were transmitted to the Governor concerning Elmer Korn. (2) Criminal Proceedings. Nov. 1956 - Preliminary examination held by Justice of the Peace, and accused officers bound over for trial in the Circuit Court on criminal charges. Dec. 21, 1956 - Information filed in the Circuit Court for Wayne County against Voisine, Buday, Labadie, and others, by the Attorney General, charging a conspiracy to obstruct justice by knowingly permitting illegal gambling in return for bribes and gratuities. Arraignment set for January 15, 1957. People v. Voisine, No. 34092. Jan. 11, 1957 - Information filed against Korn. ___Motions to quash filed by Voisine and Labadie. (3) Removal Proceedings. Governor initiated removal proceedings against accused officers, pursuant to constitutional and statutory authorization. Mich. Const., Art. IX, 8; Mich. Comp. Laws, 1948, 767.4, as amended by Mich. Pub. Acts 1949, No. 311, Mich. Pub. Acts 1951, No. 276; Mich. Comp. Laws, 1948, 168.327, as added by Mich. Pub. Acts 1954, No. 116, c. XV; Mich. Comp. Laws, 1948, 201.7, 201.10.2 Oct. 25, 1956 - Executive order issued by Governor Williams, on the basis of the findings of Judge Bohn, directing the Attorney General to inquire into the charges made against Korn, and appointing John W. Conlin, Probate Judge, to conduct hearings and take testimony produced before him. ___Executive order issued by Governor directing the Attorney General and Judge Conlin to conduct similar proceedings against Voisine, Labadie, and Buday. Nov. 1 or 2, 1956 - Notice of removal proceedings was served on Voisine, Labadie, and Buday, and hearing set for November 13th. ___Korn also served with notice of the removal proceedings. Nov. 13, 1956 - Removal proceedings continued to November 21st. Nov. 21, 1956 - Accused officers filed motions to dismiss the proceedings, and objected to hearing on removal charges before trial in the criminal proceedings. Removal proceedings continued to January 7th, 1957, and then to January 9th. Jan. 9, 1957 - Order issued by Judge Conlin the effect of which, according to accused officers, was to deny their various motions. (4) Intervention by United States District Court. Jan. 14, 1957 - Complaint filed by Voisine, Labadie, Buday, and Korn in the United States District Court for the Eastern District of Michigan, naming as defendants Judge Conlin, Governor Williams, Judge Bohn, and Attorney General Kavanagh, and alleging that the statute conferring removal power on the Governor, and the statutes under which Judge Bohn acted, violate the complainants' rights under the Federal Constitution. The complaint prays: that a temporary restraining order issue to prevent defendants from continuing with the removal proceedings until other matters of relief prayed for can be determined; that a three-judge District Court be organized under 28 U.S.C. 2284, as required by 28 U.S.C. 2281, to issue a preliminary injunction; that on final hearing the removal proceedings be declared unconstitutional and void, and that a permanent injunction issue against defendants' continuing the proceedings; that the warrant and information underlying the criminal action be determined to have arisen out of unconstitutional proceedings. Voisine v. Conlin, Civ. No. 16638. Complainants also filed a notice of motion for a preliminary injunction and for the formation of a three-judge District Court, and prayed for a temporary restraining order to issue without notice. Temporary restraining order issued without notice by District Judge Levin, restraining defendants from continuing with removal proceedings. See 28 U.S.C. 2284 (3) and Fed. Rules Civ. Proc., 65. Jan. 15, 1957 - Announcement of organization of three-judge District Court, and hearing set for January 29th. Defendants agreed that temporary restraining order should remain in effect until matter disposed of by three-judge court. Jan. 21, 1957 - Defendants filed answer to complaint, denying jurisdiction of the court on the grounds, among others, that complainants had failed to exhaust their state remedies, and that the suit was in substance one to enjoin the State of Michigan from exercising its sovereign powers. Defendants filed motion to dismiss on similar grounds. Jan. 29, 1957 - Hearing held before three-judge District Court on motions of complainants and defendants. Feb. 1, 1957 - District Court entered amended order holding in abeyance determination of the questions submitted until the termination of complainants' criminal trials or until further order of court, and continuing in force the temporary restraining order. The court recited as grounds for its action that complainants may forthwith be tried in the criminal proceedings and the constitutional questions presented may thereby become moot, and that complainants may be prejudiced in the criminal proceedings by the investigation in the removal proceedings. Chief Judge Lederle, District Judge, dissented on the ground that the case was ripe for decision. Feb. 28, 1957 - The Governor and Attorney General filed a motion to dissolve the temporary restraining order or to pass on defendants' motion to dismiss, on the ground that the court had no authority to refuse to decide the motion and to continue the temporary restraining order. Mar. 8, 1957 - Proceedings on the motion to dissolve. Mar. 11, 1957 - Voisine filed an answer to the motion to dissolve. Apr. 9, 1957 - The court entered an order denying the motion to dissolve on the ground that, deeming it a motion for a rehearing, it presented no considerations that were not before the court when it entered its amended order of February 1st. Chief Judge Lederle dissented. (5) Proceedings in This Court for Review of District Court's Action. July 3, 1957 - The Governor and Attorney General filed in this Court a motion for leave to file a petition for writ of mandamus or for writs of prohibition and mandamus directed against the members of the three-judge District Court to compel them to decide the motion for a preliminary injunction and the motion to dismiss, or to refrain from proceeding further in the cause and to vacate the temporary restraining order. Petitioners asserted, among other grounds for the issuance of the writs, that in a case of great public importance the District Court had, for an unreasonable time, failed to perform its judicial function by granting or denying the motions before it, while continuing in effect the temporary restraining order. Oct. 24 or 25, 1957 - Counsel for Voisine filed in the District Court a motion to dismiss the complaint, noticed for hearing on November 4th. The Attorney General received a copy of this motion and on October 29th a copy of a similar motion by Labadie, also noticed for hearing on November 4th. Oct. 28, 1957 - This Court issued an order to the members of the District Court to show cause on or before November 12th why a writ of mandamus or prohibition should not issue. This order was sent to the respondents the same day, Monday, October 28th. Oct. 29, 1957 - The next day, the District Court entered an order, on the motion of Voisine and with the concurrence of the other complainants, vacating the temporary restraining order and dismissing the complaint. The Attorney General, we are advised, was not given notice that the District Court would act on the motion to dismiss, or given an opportunity to present objections. Oct. 31, 1957 - Defendants filed with the District Court an answer to the motion to dismiss, asserting that the court should refrain from acting on the motion until it had filed a return to this Court's order of October 28th to show cause. Nov. 4, 1957 - The District Court advised this Court of the order of dismissal of October 29th, and expressed its view that, since the issues presented by the case are moot, this Court should vacate its order to show cause. Nov. 8, 1957 - The Attorney General of Michigan, protesting against the District Court's action, requested a determination of the issues presented in spite of the District Court's order dismissing the complaint.From the foregoing it appears that as a result of the District Court's refusal to pass on the questions presented by the complainants' motion for a preliminary injunction and the defendants' motion to dismiss, together with the court's continuance of the temporary restraining order, the Governor of Michigan and subordinate state officials designated by him were prevented for almost nine months from exercising powers claimed to be conferred upon them by Michigan law to remove municipal officers guilty of misconduct. The motion for leave to file a petition for mandamus or prohibition was filed in this Court at the end of the 1956 Term and could not be considered until the commencement of the new Term. Immediately after the Court considered the motion and issued its order to show cause on the basis of a claim that challenged the validity of the actions taken by the District Court, that court dismissed the complaint and thereby derailed, as in effect it has asserted, consideration on the merits of the issues presented by the order to show cause. Putting to one side the validity or propriety of the District Court's action in relation to the order of October 28th, and accepting the dismissal as accomplished, we must deny the petition for mandamus or prohibition. By vacating the temporary restraining order and dismissing the complaint, the District Court has brought to pass one alternative of the order petitioners would have this Court issue, thus rendering the petition for all practical purposes moot. But, although the past cannot be recalled and the physical entries in the records expunged, the legal significance and implications of this case are to be deemed expunged as though the restraints imposed by the District Court had never been ordered.

Appeal from the Court of Special Sessions of the City of New York, State of New York. Mr. Arthur N. Seiff, of New York City, for appellant. Mr. Whitman Knapp, of New York City, for appellee. [ Winters v. People of State of New York ], 508] Mr. Justice REED delivered the opinion of the Court. Appellant is a New York City bookdealer, convicted, on information,1 of a misdemeanor for having in his possession with intent to sell certain magazines charged to violate subsection 2 of 1141 of the New York Penal Law, Consol.Laws, c. 40. It reads as follows:'s 1141. Obscene prints and articles'1. A person * * * who,'2. Prints, utters, publishes, sells, lends, gives away, distributes or shows, or has in his possession with intent to sell, lend, give away, distribute or show, or otherwise offers for sale, loan, gift or distribution, any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime;'Is guilty of a misdemeanor, * * *.' , 509] Upon appeal from the Court of Special Sessions, the trial court, the conviction was upheld by the Appellate Division of the New York Supreme Court, 268 App.Div. 30, 48 N.Y.S.2d 230, whose judgment was later upheld by the New York Court of Appeals. 294 N.Y. 545, 63 N.E.2d 98. The validity of the statute was drawn in question in the state courts as repugnant to the Fourteenth Amendment to the Constitution of the United States in that it denied the accused the right of freedom of speech and press, protected against state interference by the Fourteenth Amendment. Gitlow v. New York, , 629; Pennekamp v. Florida, , 1031. The principle of a free press covers distribution as well as publication. Lovell v. City of Griffin, , 669. As the validity of the section ws upheld in a final judgment by the highest court of the state against this constitutional challenge, this Court has jurisdiction under Judicial Code, 237(a), 28 U. S.C.A. 344(a). This appeal was argued at the October 1945 Term of this Court and set down for reargument before a full bench at the October 1946 Term. It was then reargued and again set down for further reargument at the present term. The appellant contends that the subsection violates the right of free speech and press because it is vague and indefinite. It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment. Stromberg v. People of State of California, , 535, 73 A.L.R. 1484; Herndon v. Lowry, , 739. A failure of a statute limiting freedom of expression to give fair notice of what acts will be punished and such a statute's inclusion of prohibitions against expressions, , 510] protected by the principles of the First Amendment violates an accused's rights under procedural due process and freedom of speech or press. Where the alleged vagueness of a state statute had been cured by an opinion of the state court, confining a statute, Rem. & Bal. Code, 2564, punishing the circulation of publications 'having a tendency to encourage or incite the commission of any crime' to 'encouraging an actual breach of law,' this Court affirmed a conviction under the stated limitation of meaning. The accused publication was read as advocating the commission of the crime of indecent exposure. Fox v. Washington, , 384. We recognize the importance of the exercise of a state's police power to minimize all incentives to crime, particularly in the field of sanguinary or salacious publications with their stimulation of juvenile delinquency. Although we are dealing with an aspect of a free press in its relation to public morals, the principles of unrestricted distribution of publications admonish us of the particular importance of a maintenance of standards of certainty in the field of criminal prosecution for violation of statutory prohibitions against distribution. We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature. Cf. Hannegan v. Esquire, , 153, 158, 460, 462. They are equally subject to control if they are lewd, indecent, obscene or profane. Ex parte Jackson, ; Chaplinsky v. State of New Hampshire, . , 511] The section of the Penal Law, 1141(2), under which the information was filed is a part of the 'indecency' article of that law. It comes under the caption 'Obscene prints and articles.' Other sections make punishable various acts of indecency. For example, 1141(1), a section not here in issue but under the same caption, punishes the distribution of obscene, lewd, lascivious, filthy, indecent or disgusting magazines. 2 Section 1141( 2) originally was aimed at the protection of minors from the distribution of publications devoted principally to criminal news and stories of bloodshed, lust or crime. 3 It was later broadened to include all the population and other phases of production and possession. Although many other states have similar statutes, they, like the early statutes restricting paupers from changing residence, have lain dormant for decades. Edwards v. People of State of California, , 168. Only two other state courts, whose reports are printed, appear to have construed language in their laws similar to that here involved. In Strohm v. People of State of Illinois, 160 Ill. 582, 43 N.E. 622, a statute to suppress exhibiting to any minor child publications of this character was considered. The conviction was upheld. The case, however, apparently did not involve any problem of free speech or press or denial of due , 512] process for uncertainty under the Fourteenth Amendment. In State v. McKee, 73 Conn. 18, 46 A. 409, 413, 49 L.R.A. 542, 84 Am. St.Rep. 124, the court considered a conviction under a statute which made criminal the sale of magazines 'devoted to the publication or principally made up of criminal news, police reports, or pictures, and stories of deeds of bloodshed, lust, or crime.' The gist of the offense was thought to be a 'selection of immoralities so treated as to excite attention and interest sufficient to command circulation for a paper devoted mainly to the collection of such matters.' 73 Conn. at page 27, 46 A. at page 413, 49 L.R.A. 542, 84 Am.St.Rep. 124. It was said, apropos of the state's constitutional provision as to free speech, that the act did not violate any constitutional provision relating to the freedom of the press. It was held, in 73 Conn. at page 31, 46 A. at page 414, 49 L.R.A. 542, 84 Am.St. Rep. 124, that the principal evil at which the statute was directed was 'the circulation of this massed immorality.' As the charge stated that the offense might be committed 'whenever the objectionable matter is a leading feature of the paper, or special attention is devoted to the publication of the prohibited items,' the court felt that it failed to state the full meaning of the statute and reversed. As in the Strohm case, denial of due process for uncertainty was not raised. On its face, the subsection here involved violates the rule of the Stromberg and Herndon cases, supra, that statutes which include prohibitions of acts fairly within the protection of a free press are void. It covers detective stories, treatises on crime, reports of battle carnage, et cetera. In recognition of this obvious defect, the New York Court of Appeals limited the scope by construction. Its only interpretation of the meaning of the pertinent subsection is that given in this case. After pointing out that New York statutes against indecent or obscene publications have generally been construed to refer to sexual impurity, it interpreted the section here in question to forbid these publications as 'indecent or obscene' in a , 513] different manner. The Court held that collections of criminal deeds of bloodshed or lust 'can be so massed as to become vehicles for inciting violent and depraved crimes against the person and in that case such publications are indecent or obscene in an admissible sense, * * *.' 294 N. Y. at page 550, 63 N.E.2d at page 100. 'This idea,' its opinion goes on to say, 'was the principal reason for the enactment of the statute.' The Court left open the question of whether 'the statute extends to accounts of criminal deeds not characterized by bloodshed or lust' because the magazines in question 'are nothing but stories and pictures of criminal deeds of bloodshed and lust.' As the statute in terms extended to other crimes, it may be supposed that the reservation was on account of doubts as to the validity of so wide a prohibition. The court declared: 'In short, we have here before us accumulations of details of heinous wrongdoing which plainly carried an appeal to that portion of the public who (as many recent records remind us) are disposed to take to vice for its own sake.' Further, the Court of Appeals, 294 N.Y. at page 549, 63 N.E.2d at page 99, limited the statute so as not to 'outlaw all commentaries on crime from detective tales to scientific treatises' on the ground that the legislature did not intend such literalness of construction. It thought that the magazines the possession of which caused the filing of the information were indecent in the sense just explained. The Court had no occasion to and did not weigh the character of the magazine exhibits by the more frequently used scales of 1141(1), printed in note 2. It did not interpret 1141(2) to punish distribution of indecent or obscene publications, in the usual sense, but that the present magazines were indecent and obscene because they 'massed' stories of bloodshed and lust to incite crimes. Thus interpreting 1141(2) to include the expanded concept of indecency and obscenity stated in its opinion, the Court of Appeals met appellant's contention , 514] of invalidity from indefiniteness and uncertainty of the subsection by saying, 294 N.Y. at page 551, 63 N.E.2d at pages 100, 101,'In the nature of things there can be no more precise test of written indecency or obscenity than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals or other analogous injury to the public order. Consequently, a question as to whether a particular publication is indecent or obscene in that sense is a question of the times which must be determined as matter of fact, unless the appearances are thought to be necessarily harmless from the stand-point of public order or morality.' The opinion went on to explain that publication of any crime magazine would be no more hazardous under this interpretation than any question of degree and concluded, 294 N.Y. at page 552, 63 N.E.2d at page 101.'So when reasonable men may fairly classify a publication as necessarily or naturally indecent or obscene, a mistaken view by the publisher as to its character or tendency is immaterial.' The Court of Appeals by this authoritative interpretation made the subsection applicable to publications that, besides meeting the other particulars of the statute, so massed their collection of pictures and stories of bloodshed and of lust 'as to become vehicles for inciting violent and depraved crimes against the person.' Thus, the statute forbids the massing of stories of bloodshed and lust in such a way as to incite to crime against the person. This construction fixes the meaning of the statute for this case. The interpretation by the Court of Appeals puts these words in the statute as definitely as if it had been so amended by the legislature. Hebert v. State of Louisiana, , 104, 48 A.L.R. 1102; Skiriotes v. Florida, , 930. We assume that the defendant, at the time he acted, was chargeable with knowledge of the scope of subsequent , 515] interpretation. Compare Lanzetta v. State of New Jersey, . As lewdness in publications is punishable under 1141(1) and the usual run of stories of bloodshed, such as detective stories, are excluded, it is the massing as an incitation to crime that becomes the important element. Acts of gross and open indecency or obscenity, injurious to public morals, are indictable at common law, as violative of the public policy that requires from the offender retributionf or acts that flaunt accepted standards of conduct. 1 Bishop, Criminal Law, 9th Ed., 500; Wharton, Criminal Law, 12th Ed., 16. When a legislative body concludes that the mores of the community call for an extension of the impermissible limits, an enactment aimed at the evil is plainly within its power, if it does not transgress the boundaries fixed by the Constitution for freedom of expression. The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. The crime 'must be defined with appropriate definiteness.' Pierce v. United States, , 239; Cantwell v. State of Connecticut, , 128 A.L.R. 1352. There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. 4 The vagueness may be from uncertainty in regard to persons within the scope of the act, Lanzetta v. State of , 516] New Jersey, , or in regard to the applicable tests to ascertain guilt. 5 Other states than New York have been confronted with similar problems involving statutory vagueness in connection with free speech. In State v. Diamond, 27 N.Mex. 477, 202 P. 988, 989, 20 A.L.R. 1527, a statute punishing 'any act of any kind whatsoever which has for its purpose or aim the destruction of organized government, federal, state or municipal, or to do or cause to be done any act which is antagonistic to or in opposition to such organized government, or incite or attempt to incite revolution or opposition to such organized government' was construed. The court said, 27 N.Mex. at page 479, 202 P. at page 989, 20 A.L.R. 1527: 'Under its terms no distinction is made between the man who advocates a change in the form of our government by constitutional means, or advocates the abandonment of organized government by peaceful methods, and the man who advocates the overthrow of our government by armed revolution, or other form of force and violence.' Later in the opinion the statute was held void for uncertainty, 27 N.Mex. at page 485, 202 P. at page 991, 20 A. L.R. 1527:'Where the statute uses words of no determinative meaning, or the language is so general and indefinite as to embrace not only acts commonly recognized as reprehensible, but also others which it is unreasonable to presume were intended to be made criminal, it will be declared void for uncertainty.' Again in State v. Klapprott, 127 N.J.L. 395, 22 A.2d 877, a statute was held invalid on an attack against its constitutionality under state and federal constitutional provisions that protect an individual's freedom of expression. The statute read as follows, 127 N.J.L. at page 396, 22 A. 2d at page 878:'Any person who h all, in the presence of two or more persons, in any language, make or utter any , 517] speech, statement or declaration, which in any way incites, counsels, promotes, or advocates hatred, abuse, violence or hostility against any group or groups of persons residing or being in this state by reason of race, color, religion or manner of worship, shall be guilty of a misdemeanor.' The court said, 127 N.J.L. at pages 401, 402, 22 A.2d at page 881:'It is our view that the statute, supra, by punitive sanction, tends to restrict what one may say lest by one's utterances there be incited or advocated hatred, hostility or violence against a group 'by reason of race, color, religion or manner of worship.' But additionally and looking now to strict statutory construction, is the statute definite, clear and precise so as to be free from the constitutional infirmity of the vague and indefinite? That the terms 'hatred,' 'abuse,' 'hostility,' are abstract and indefinite admits of no contradiction. When do they arise? Is it to be left to a jury to conclude beyond reasonable doubt when the emotion of hatred or hostility is aroused in the mind of the listener as a result of what a speaker has said? Nothing in our criminal law can be invoked to justify so wide a discretion. The Criminal Code must be definite and informative so that there may be no doubt in the mind of the citizenry that the interdicted act or conduct is illicit.' This Court goes far to uphold state statutes that deal with offenses, difficult to define, when they are not entwined with limitations on free expression. 6 We have the same attitude toward federal statutes. 7 Only a definite conviction by a majority of this Court that the conviction violates the Fourteenth Amendment justifies , 518] reversal of the court primarily charged with responsibility to protect persons from conviction under a vague state statute. The impossibility of defining the precise line between permissible uncertainty in statutes caused by describing crimes by words well understood through long use in the criminal law-obscene, lewd, lascivious, filthy, indecent or disgusting-and the unconstitutional vagueness that leaves a person uncertain as to the kind of prohibited conduct-massing stories to incite crime-has resulted in three arguments of this case in this Court. The legislative bodies in draftsmanship obviously have the same difficulty as do the judicial in interpretation. Nevertheless despite the difficulties, courts must do their best to determine whether or not the vagueness is of such a character 'that men of common intelligence must necessarily guess at its meaning.' Connally v. General Constr. Co., , 127. The entire text of the statute or the subjects dealt with may furnish an adequate standard. 8 The present case as to a vague statute abridging free speech involves the circulation of only vulgar magazines. The next may call for decision as to free expression of political views in the light of a statute intended to punish subversive activities. The subsection of the New York Penal Law, as now interpreted by the Court of Appeals prohibits distribution of a magazine principally made up of criminal news or stories of deeds of bloodshed, or lust, so massed as to become vehicles for inciting violent and depraved crimes against the person. But even considerin the gloss put upon the literal meaning by the Court of Appeals' restriction of the statute to collections of stories 'so massed as to become vehicles for inciting violent and depraved , 519] crimes against the person * * * not necessarily * * * sexual passion,' we find the specification of publications, prohibited from distribution, too uncertain and indefinite to justify the conviction of this petitioner. Even though all detective tales and treatises on criminology are not forbidden, and though publications made up of criminal deeds not characterized by bloodshed or lust are omitted from the interpretation of the Court of Appeals, we think fair use of collections of pictures and stories would be interdicted because of the utter impossibility of the actor or the trier to know where this new standard of guilt would draw the line between the allowable and the forbidden publications. No intent or purpose is required-no indecency or obscenity in any sense heretofore known to the law. 'So massed as to incite to crime' can become meaningful only by concrete instances. This one example is not enough. The clause proposes to punish the printing and circulation of publications that courts or juries may think influence generally persons to commit crime of violence against the person. No conspiracy to commit a crime is required. See Musser v. State of Utah, this Term. It is not an effective notice of new crime. The clause has no technical or common law meaning. Nor can light as to the meaning be gained from the section as a whole or the Article of the Penal Law under which it appears. As said in the Cohen Grocery Co. case, supraat page 89, 41 S.Ct. at page 300, 14 A.L.R. 1045:'It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against.' The statute as construed by the Court of Appeals does not limit punishment to the indecent and obscene, as formerly understood. When stories of deeds of bloodshed, such as many in the accused magazines, are massed so as to incite to violent crimes, the statute is violated. it does , 520] not seem to us that an honest distributor of publications could know when he might be held to have ignored such a prohibition. Collections of tales of war horrors, otherwise unexceptionable, might well be found to be 'massed' so as to become 'vehicles for inciting violent and depraved crimes.' Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained. Herndon v. Lowry, , 739. To say that a state may not punish by such a vague statute carries no implication that it may not punish circulation of objectionable printed matter, assuming that it is not protected by the principles of the First Amendment, by the use of apt words to describe the prohibited publications. Section 1141, subsection 1, quoted in note 2, is an example. Neither the states nor Congress are prevented by the requirement of specificity from carrying out their duty of eliminating evils to which, in their judgment, such publications give rise. Reversed. Mr. Justice FRANKFURTER, joined by Mr. Justice JACKSON and Mr. Justice BURTON, dissenting. By today's decision the Court strikes down an enactment that has been part of the laws of New York for more than sixty years,1 and New York is but one of twenty States having such legislation. Four more States , 521] have statutes of like tenor which are brought into question by this decision, but variations of nicety preclude one from saying that these four enactments necessarily fall within the condemnation of this decision. Most of this legilsation is also more than sixty years old. The latest of the statutes which cannot be differentiated from New York's law, that of the State of Washington, dates from 1909. It deserves also to be noted that the legislation was judicially apl ied and sustained nearly fifty years ago. See State v. McKee, 73 Conn. 18, 46 A. 409, 49 L.R.A. 542, 84 Am.St.Rep. 124. Nor is this an instance where the pressure of proximity or propaganda led to the enactment of the same measure in a concentrated region of States. The impressiveness of the number of States which have this law on their statute , 522] books is reinforced by their distribution throughout the country and the time range of the adoption of the measure. 2 Cf. Hughes, C.J., in West Coast Hotel Co. v. Parrish, , 585, 108 A.L.R. 1330. These are the statutes that fall by this decision:3 1. Gen.Stat.Conn.1930, c. 329, 6245, derived from L.1885, c. 47, 2.* 2. Ill.Ann.Stat.Smith-Hurd, c. 38, 106, derived from Act of June 3, 1889, p. 114, 1 (minors). 3. Iowa Code 1946, 725.8, derived from 21 Acts, Gen.Assembly, c. 177, 4 (1886) (minors). 4. Gen.Stat.Kan.1935, 21-1102, derived from L.1886, c. 101, 1. 5. Ky.Rev.Stat.1946, 436.110, derived from L.1891-93, c. 182, 217 ( 1893) (similar). 6. Rev.Stat.Maine 1944, c. 121, 27, derived from L.1885, c. 348, 1 (minors). 7. Ann.Code Md.1939, Art. 27, 496, derived from L.1894, c. 271, 2. 8. Ann.Laws Mass. 1933, c. 272, 30, derived from Acts and Resolves 1885, c. 305 (minors). 9. Mich.Stat.Ann.1938, 28.576, Pub. Laws 1931, Act 328, 344, derived from L.1885, No. 138. 10. Minn.St.1945 and M.S.A., 617.72, derived from L. 1885, c. 268, 1 (minors). 11. Mo.Rev.Stat.1939 4656, Mo.R.S.A., derived from Act of April 2, 1885, p. 146, 1 (minors). , 523] 12. Rev.Code Mont.1935, 11134, derived from Act of March 4, 1891, p. 255, 13. Rev.Stat.Neb.1943, 28-924, derived 13. Rev.Stat.Neb.1943, 28-924, derived from L.1887, c. 113, 4 ( minors). 14. N.Y.Consol.L. c. 40 (1944), Penal Law, Art. 106, 1141(2), derived from L.1884, c. 380. 15. N.D.Rev.Code 1943, 12-2109, derived from L.1895, c. 84, 1 ( similar). 16. Ohio Code Ann.Throckmorton 1940, 13035, derived from 82 Sess.L. p. 184 (1885) (similar). 17. Or.Comp.L.Ann.1940, 23-924, derived from Act of Feb. 25, 1885, p. 126 (similar). 18. 18 Pa.Stat.Ann. 4524, derived from L.1887, P.L. 84, 2. 19. Rev.Stat.Wash.Remington, 1932, 2459(2), derived from L.1909, c. 249, 207(2). 20. Wis.Stat.1945, 351.38(4), derived from L.1901, c. 256. The following statutes are somewhat similar, but may not necessarily be rendered unconstitutional by the Court's decision in the instant case: 1. Colo.Stat.Ann.1935, c. 48, 217, derived from Act of April 9, 1885, p. 172, 1. 2. Ind.Stat.Ann.1934, 2607, Burns' Ann.St. 10-2805, derived from L.1895, c. 109. 3. S.D.Code 1939, 13.1722(4), derived from L.1913, c. 241, 4. 4. Tex.Stat.Vernon, 1936, Penal Code, Art. 527, derived from Acts 1897, c. 116. This body of laws represents but one of the many attempts by legislatures to solve what is perhaps the most persistent, intractable, elusive, and demanding of all problems of society-the problem of crime, and, more particularly, of its prevention. By this decision , 524] the Court invalidates such legislation of almost half the States of the Union. The destructiveness of the decision is even more far-reaching. This is not one of those situations where power is denied to the States because it belongs to the Nation. These enactments are invalidated on the ground that they fall within the prohibitions of the 'vague contours' of the Due Process Clause. The decision thus operates equally as a limitation upon Congressional authority to deal with crime, and, more especially, with juvenile delinquency. These far-reaching consequences result from the Court's belief that what New York, among a score of States, has prohibited, is so empty of meaning that no one desirous of obeying the law could fairly be aware that he was doing that which was prohibited. Fundamental fairness of course requires that people be given notice of what to avoid. If the purpose of a statute is undisclosed, if the legislature's will has not been revealed, it offends reason that punishment should be meted out for conduct which at the time of its commission was not forbidden to the understanding of those who wished to observe the law. This requirement of fair notice that there is a boundary of prohibited conduct not to be overstepped is included in the conception of 'due process of law.' The legal jargon for such failure to give forewarning is to say that the statute is void for 'indefiniteness.' But 'indefiniteness' is not a quantitative concept. It is not even a technical concept of definite components. It is itself an indefinite concept. There is no such thing as 'indefiniteness' in the abstract, by which the sufficiency of the requirement expressed by the term may be ascertained. The requirement is fair notice that conduct may entail punishment. But whether notice is or is not 'fair' depends upon the subject matter to which it relates. Unlike the abstract stuff of mathematics, or , 525] the quantitatively ascertainable elements of much of natural science, legislation is greatly concerned with the multiform psychological complexities of individual and social conduct. Accordingly, the demands upon legislation, and its responses, are variable and multiform. That which may appear to be too vague and even meaningless as to one subject matter may be as definite as another subject matter of legislation permits, if the legislative power to dealw ith such a subject is not to be altogether denied. The statute books of every State are full of instances of what may look like unspecific definitions of crime, of the drawing of wide circles of prohibited conduct. In these matters legislatures are confronted with a dilemma. If a law is framed with narrow particularity, too easy opportunities are afforded to nullify the purposes of the legislation. If the legislation is drafted in terms so vague that no ascertainable line is drawn in advance between innocent and condemned conduct, the purpose of the legislation cannot be enforced because no purpose is defined. It is not merely in the enactment of tax measures that the task of reconciling these extremes-of avoiding throttling particularity or unfair generality-is one of the most delicate and difficult confronting legislators. The reconciliation of these two contradictories is necessarily an empiric enterprise largely depending on the nature of the particular legislative problem. What risks do the innocent run of being caught in a net not designed for them? How important is the policy of the legislation, so that those who really like to pursue innocent conduct are not likely to be caught unaware? How easy is it to be explicitly particular? How necessary is it to leave a somewhat penumbral margin but sufficiently revealed by what is condemned to those who do not want to sail close to the shore of questionable conduct? These and like questions confront legislative , 526] draftsmen. Answers to these questions are not to be found in any legislative manual nor in the work of great legislative draftsmen. They are not to be found in the opinions of this Court. These are questions of judgment, peculiarly within the responsibility and the competence of legislatures. The discharge of that responsibility should not be set at naught by abstract notions about 'indefiniteness.' The action of this Court today in invalidating legislation having the support of almost half the States of the Union rests essentially on abstract notions about 'indefiniteness.' The Court's opinion could have been written by one who had never read the issues of 'Headquarters Detective' which are the basis of the prosecution before us, who had never deemed their contents as relevant to the form in which the New York legislation was cast, had never considered the bearing of such 'literature' on juvenile delinquency, in the allowable judgment of the legislature. Such abstractions disregard the considerations that may well have moved and justified the State in not being more explicit than these State enactments are. Only such abstract notions would reject the judgment of the States that they have outlawed what they have a right to outlaw, in the effort to curb crimes of lust and violence, and that they have not done it so recklessly as to occasion real hazard that other publications will thereby be inhibited, or also be subjected to prosecution. This brings our immediate problem into focus. No one would deny, I assume, that New York may punish crimes of lust and violence. Presumably also, it may take appropriate measures to lower the crime rate. But he must be a bold man indeed who is confident that he knows what causes crimes. Those whose lives are devoted to an understanding of the problem are certain only that they are uncertain regarding the role of the , 527] various alleged 'causes' of crime. Bibliographies of criminology reveal a depressing volume of writings on theories of causation. See e.g., Kuhlman, A Guide to Material on Crime and Criminal Justice (1929) Item Nos. 292 to 1211; Culver, Bibliography of Crime and Criminal Justice (1927-1931) and Item Nos. 877-1475, (1932-1937) Item Nos. 799-1560. Is it to be seriously questioned, however, that the State of New York, or the Congress of the United States, may make incitement to crime itself an offense? He too would indeed be a bold man who denied that incitement may be caused by the written word no less than by the spoken. If 'the Fourteent Amendment does not enact Mr. Herbert Spencer's Social Statics' (Holmes, J., dissenting in Lochner v. State of New York, , 546, 3 Ann.Cas. 1133) neither does it enact the psychological dogmas of the Spencerian era. The painful experience which resulted from confusing economic dogmas with constitutional edicts ought not to be repeated by finding constitutional barriers to a State's policy regarding crime, because it may run counter to our inexpert psychological assumptions or offend our presuppositions regarding incitements to crime in relation to the curtailment of utterance. This Court is not ready, I assume, to pronounce on causative factors of mental disturbance and their relation to crime. Without formally professing to do so, it may actually do so by invalidating legislation dealing with these problems as too 'indefinite.' Not to make the magazines with which this case is concerned part of the Court's opinion is to play 'Hamlet' without Hamlet. But the Court sufficiently summarizes one aspect of what the State of New York here condemned when it says 'we can see nothing of any possible value to society in these magazines.' From which it jumps to the conclusion that, nevertheless, 'they are as much entitled to the protection of free speech as , 528] the best of literature.' Wholly neutral futilities, of course, come under the protection of free speech as fully as do Keats' poems or Donne's sermons. But to say that these magazines have 'nothing of any possible value to society' is only half the truth. This merely denies them goodness. It disregards their mischief. As a result of appropriate judicial determination, these magazines were found to come within the prohibition of the law against inciting 'violent and depraved crimes against the person,' and the defendant was convicted because he exposed for sale such materials. The essence of the Court's decision is that it gives publications which have 'nothing of any possible value to society' constitutional protection but denies to the States the power to prevent the grave evils to which, in their rational judgment, such publications give rise. The legislatures of New York and the other States were concerned with these evils and not with neutral abstractions of harmlessness. Nor was the New York Court of Appeals merely resting, as it might have done, on a deepseated conviction as to the existence of an evil and as to the appropriate means for checking it. That court drew on its experience, as revealed by 'many recent records' of criminal convictions before it for its understanding of the practical concrete reasons that led the legislatures of a score of States to pass the enactments now here struck down. The New York Court of Appeals thus spoke out of extensive knowledge regarding incitements to crimes of violence. In such matters, local experience, as this Court has said again and again, should carry the greatest weight against our denying a State authority to adjust its legislation to local needs. But New York is not peculiar in concluding that 'collections of pictures or stories of criminal deeds of bloodshed or lust unquestionably can be so massed as to become vehicles for inciting violent and , 529] depraved crimes against the person.' 294 N.Y. at page 550, 63 N.E.2d at page 100. A recent murder case before the High Court of Australia sheds light on the considerations which may well have induced legislation such as that now before us, and on the basis of which the New York Court of Appeals sustained its validity. The murder was committed by a lad who had just turned seventeen years of age, and the victim was the driver of a taxicab. I quote the following from the opinion of Mr. Justice Dixon: 'In his evidence on the voir dire Graham (a friend of the defendant and apparently a very reliable witness) said that he knew Boyd Sinclair (the murderer) and his moods very well and that he just left him; that Boyd had on a number of occasions outlined plans for embarking on a life of crime, plan based mainly on magazine thrillers which he was reading at the time. They included the obtaining of a motor car and an automatic gun.' Sinclair v. The King, 73 Comm.L.R. 316, 330.'Magazine thrillers' hardly characterizes what New York has outlawed. New York does not lay hold of publications merely because they are 'devoted to and principally made up of criminal news or police reports or accounts of criminal deeds, regardless of the manner of treatment.' So the Court of Appeals has authoritatively informed us. 294 N.Y. at 549, 63 N.E. 2d at 99. The aim of the publication must be incitation to 'violent and depraved crimes against the person' by so massing 'pictures and stories of criminal deeds of bloodshed or lust' as to encourage like deeds in others. It would be sheer dogmatism in a field not within the professional competence of judges to deny to the New York legislature the right to believe that the intent of the type of publications which it has proscribed is to cater to morbid and immature minds-whether chronologically or permanently immature. It would be sheer dogmatism to deny that in some instances, , 530] as in the case of young Boyd Sinclair, deeply embedded, unconsicious impulses may be discharged into destructive and often fatal action. If legislation like that of New York 'has been enacted upon a belief of evils that is not arbitrary we cannot measure their extent against the estimate of the legislature.' Tanner v. Little, , 384. The Court fails to give enough force to the influence of the evils with which the New York legislature was concerned 'upon conduct and habit, not enough to their insiduous potentialities.' Rast v. Van Deman & Lewis Co., , 377, L.R.A.1917A, 421 Ann.Cas.1917B, 455. The other day we indicated that, in order to support its constitutionality, legislation need not employ the old practice of preambles, nor be accompanied by a memorandum of explanation setting forth the reasons for the enactment. See Woods v. Cloyd W. Miller Co., , 424. Accordingly, the New York statute, when challenged for want of due process on the score of 'indefiniteness,' must be considered by us as though the legislature had thus spelled out its convictions and beliefs for its enactment: Whereas, we believe that the destructive and adventurous potentialities of boys and adolescents, and of adults of weak character or those leading a drab existence are often stimulated by collections of pictures and stories of criminal deeds of bloodshed or lust so massed as to incite to violent and depraved crimes against the person; and Whereas, we believe that such juveniles and other susceptible characters do in fact commit such crimes at least partly because incited to do so by such publications, the purpose of which is to exploit such susceptible characters; and Whereas, such belief, even though not capable of statistical demonstration, is supported by our experience as well as by the opinions of some specialists , 531] qualified to express opinions regarding criminal psychology and not disproved by others; and Whereas, in any event there is nothing of possible value to society in such publications, so that there is no gain to the State, whether in edification or enlightenment or amusement or good of any kind; and Whereas, the possibility of harm by restricting free utterance through harmless publications is too remote and too negligible a consequence of dealing with the evil publications with which we are here concerned; Be it therefore enacted that- Unless we can say that such beliefs are intrinsically not reasonably entertainable by a legislature, or that the record disproves them, or that facts of which we must take judicial notice preclude the legislature from entertaining such views, we must assume that the legislature was dealing with a real problem touching the commission of crime and not with fanciful evils, and that te measure was adapted to the serious evils to which it was addressed. The validity of such legislative beliefs or their importance ought not to be rejected out of hand. Surely this Court is not prepared to say that New York cannot prohibit traffic in publications exploiting 'criminal deeds of bloodshed or lust' so 'as to become vehicles for inciting violent and depraved crimes against the person.' Laws have here been sustained outlawing utterance far less confined. A Washington statute directed against printed matter tending to encourage and advocate disrespect for law was judged and found not wanting, on these broad lines:'We understand the State court by implication at least to have read the statute as confined to encouraging an actual breach of law. Therefore the argument that this act is both an unjutifiable restriction of liberty and too vague for a criminal law must fail. , 532] It does not appear and is not likely that the statute will be construed to prevent publications merely because they tend to produce unfavorable opinions of a particular statute or of law in general. In this present case the disrespect for law that was encouraged was disregard of it-an overt breach and technically criminal act. It would be in accord with the usages of English to interpret disrespect as manifested disrespect, as active disregard going beyond the line drawn by the law. That is all that has happened as yet, and we see no reason to believe that the statute will be stretched beyond that point.'If the statute should be construed as going no farther than it is necessary to go in order to bring the defendant within it, there is no trouble with it for want of definiteness.' Fox v. Washington, , 384. In short, this Court respected the policy of a State by recognizing the practical application which the State court gave to the statute in the case before it. This Court rejected constitutional invalidity based on a remote possibility that the language of the statute, abstractly considered, might be applied with unbridled looseness. Since Congress and the States may take measures against 'violent and depraved crimes,' can it be claimed that 'due process of law' bars measures against incitement to such crimes? But if they have power to deal with incitement, Congress and the States must be allowed the effective means for translating their policy into law. No doubt such a law presents difficulties in draftsmanship where publications are the instruments of incitement. The problem is to avoid condemnation so unbounded that neither the text of the statute nor its subject matter affords 'a standard of some sort.' United States v. Cohen Grocery Co., , 301, 14 A.L.R. 1045. Legislation must put people on notice as to the kind of conduct , 533] from which to refrain. Legislation must also avoid so tight a phrasing as to leave the area for evasion ampler than that which is condemned. How to escape, on the one hand, having a law rendered futile because no standard is afforded by which conduct is to be judged, and, on the other, a law so particularized as to defeat itself through the opportunities it affords for evasion, involves an exercise of judgment which is at the heart of the legislative process. It calls for the accommodation of delicate factors. But this accommodation is for the legislature to make and for us to respect, when it concerns a subject so clearly within the scope of the police power as the control of crime. Here we are asked to declare void the law which expresses the balance so struck by the legislature, on the ground that the legislature has not expressed its policy clearly enough. That is what it gets down to. What were the alternatives open to the New York legislature? It could of course conclude that publications such as those before us could not 'become vehicles for inciting violent and depraved crimes.' But surely New York was entitled to believe otherwise. It is o t for this Court to impose its belief, even if entertained, that no 'massing of print and pictures' could be found to be effective means for inciting crime in minds open to such stimulation. What gives judges competence to say that while print and pictures may be constitutionally outlawed because judges deem them 'obscene,' print and pictures which in the judgment of half the States of the Union operate as incitements to crime, enjoy a constitutional prerogative? When on occasion this Court has presumed to act as an authoritative faculty of chemistry, the result has not been fortunate. See Burns Baking Co. v. Bryan, A. L.R. 661, where this Court ventured a view of its own as to what is reasonable 'tolerance' in breadmaking. Considering the extent to which the whole domain of psychological inquiry has only recently , 534] been transformed and how largely the transformation is still in a pioneer stage, I should suppose that the Court would feel even less confidence in its views on psychological issues. At all events, it ought not to prefer its psychological views-for, at bottom, judgment on psychological matters underlies the legal issue in this case-to those implicit in an impressive body of enactments and explicitly given by the New York Court of Appeals, out of the abundance of its experience, as the reason for sustaining the legislation which the Court is nullifying. But we are told that New York has not expressed a policy, that what looks like a law is not a law because it is so vague as to be meaningless. Suppose then that the New York legislature now wishes to meet the objection of the Court. What standard of definiteness does the Court furnish the New York legislature in finding indefiniteness in the present law? Should the New York legislature enumerate by name the publications which in its judgment are 'inciting violent and depraved crimes'? Should the New York legislature spell out in detail the ingredients of stories or pictures which accomplish such 'inciting'? What is there in the condemned law that leaves men in the dark as to what is meant by publications that exploit 'criminal deeds of bloodshed or lust' thereby 'inciting violent and depraved crimes'? What real risk do the Conan Doyles, the Edgar Allen Poes, the William Rougheads, the ordinary tribe of detective story writers, their publishers, or their booksellers run? Insofar as there is uncertainty, the uncertainty derives not from the terms of condemnation, but from the application of a standard of conduct to the varying circumstances of different cases. The Due Process Clause does not preclude such fallibilities of judgment in the administration of justice by men. Our penal codes are loaded with prohibitions of conduct depending on ascertainment through fallible judges and juries of a man's intent or , 535] motive-on ascertainment, that is, from without of a man's inner thoughts, feelings and purposes. Of course a man runs the risk of having a jury of his peers misjudge him. Mr. Justice Holmes has given the conclusive answer to the suggestion that the Due Process Clause protects against such a hazard: 'the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.' Nash v. United States, , 781. To which it is countered that such uncertainty not in the standard but in its application is not objectionable in legislation having a long history, but is inadmissible as to more recent laws. Is this not another way of saying that when new circumstances or new insights lead to new legislation the Due Process Clause denies to legislatures the power to frame legislation with such regard for the subject matter as legislatures had in the past? When neither the Constitution nor legislation has formulate legal principles for courts, and they must pronounce them, they find it impossible to impose upon themselves such a duty of definiteness as this decision exacts from legislatures. The Court has been led into error, if I may respectfully suggest, by confusing want of certainty as to the outcome of different prosecutions for similar conduct, with want of definiteness in what the law prohibits. But diversity in result for similar conduct in different trials under the same statute, is an unavoidable feature of criminal justice. So long as these diversities are not designed consequences but due merely to human fallibility, they do not deprive persons of due process of law. In considering whether New York has struck an allowable balance between its right to legislate in a field that is so closely related to the basic function of government, , 536] and the duty to protect the innocent from being punished for crossing the line of wrongdoing without awareness, it is relevant to note that this legislation has been upheld as putting law-abiding people on sufficient notice by a court that has been astutely alert to the hazards of vaguely phrased penal laws and zealously protective of individual rights against 'indefiniteness.' See, e.g., People v. Phyfe, 136 N.Y. 554, 32 N.E. 978, 19 L.R.A. 141; People v. Briggs, 193 N.Y. 457, 86 N.E. 522; People v. Shakun, 251 N.Y. 107, 167 N.E. 187, 64 A.L.R. 1066; People v. Grogan, 260 N.Y. 138, 183 N.E. 273, 86 A.L.R. 1266. The circumstances of this case make it particularly relevant to remind, even against a confident judgment of the invalidity of legislation on the vague ground of 'indefiniteness,' that certitude is not the test of certainty. If men may reasonably differ whether the State has given sufficient notice that it is outlawing the exploitation of criminal potentialities, that in itself ought to be sufficient, according to the repeated pronouncements of this Court, to lead us to abstain from denying power to the States. And it deserves to be repeated that the Court is not denying power to the States in order to leave it to the Nation. It is denying power to both. By this decision Congress is denied power, as part of its effort to grapple with the problems of juvenile delinquency in Washington, to prohibit what twenty States have seen fit to outlaw. Moreover, a decision like this has a destructive momentum much beyond the statutes of New York and of the other States immediately involved. Such judicial nullification checks related legislation which the States might deem highly desirable as a matter of policy, and this Court might not find unconstitutional. Almost by his very last word on this Court, as by his first, Mr. Justice Holmes admonished against employing 'due process of law' to strike down enactments, which, though supported on grounds that may not , 537] commend themselves to judges, can hardly be deemed offensive to reason itself. It is not merely in the domain of economics that the legislative judgment should not be subtly supplanted by the judicial judgment. 'I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.' So wrote Mr. Justice Holmes in summing up his protest for nearly thirty years against using the Fourteenth Amendment to cut down the constitutional rights of the States. Baldwin v. State of Missouri, , 439, 72 A.L.R. 1303 (dissenting). Indeed, Mr. Justice Holmes is a good guide in deciding this case. In three opinions in which, speaking for the Court, he dealt with the problem of 'indefiniteness' in relation to the requirement of due process, he indicated the directions to be followed and the criteria to be applied. Pursuit of those directions and due regard for the criteria require that we hold that the New York legislature has not offended the limitations which the Due Process Clause has placed upon the power of States to counteract avoidable incitements to violent and e praved crimes. Reference has already been made to the first of the trilogy, Nash v. United States, supra. There the Court repelled the objection that the Sherman Law, 15 U.S.C.A. 1-7, 15 note, 'was so vague as to be inoperative on its criminal side.' The opinion rested largely on a critical analysis of the requirement of 'definiteness' in criminal statutes to be drawn from the Due Process Clause. I have already quoted the admonishing generalization that 'the law is full of instances where a man's fate depends on his estimating rightly, that it, as the jury subsequently estimates it, some matter of degree.' at page 377, 33 S.Ct. at page 781. Inasmuch as 'the common law as to the restraint of trade' was 'taken up' by the Sherman Law, the opinion in the Nash case also drew support from the suggestion that language in a criminal statute which might otherwise appear indefi- , 538] nite may derive definiteness from past usage. How much definiteness 'the common law of restraint of trade' has imparted to 'the rule of reason,' which is the guiding consideration in applying the Sherman Law, may be gathered from the fact that since the Nash case this Court has been substantially divided in at least a dozen cases in determining whether a particular situation fell within the undefined limits of the Sherman Law. 4 The Court's opinion in this case invokes this doctrine of 'permissible uncertainty' in criminal statutes as to words that have had long use in the criminal law, and assumes that 'long use' gives assurance of clear meaning. I do not believe that the law reports permit one to say that statutes condemning 'restraint of trade' or 'obscenity' are much more unequivocal guides to conduct than this statute furnishes, nor do they cast less risk of 'estimating rightly' what judges and juries will decide, than does this legislation. The second of this series of cases, International Harvester Co. v. Kentucky, , likewise concerned anti-trust legislation. But that case brought before the Court a statute quite different from the Sherman Law. However indefinite the terms of the latter, whereby 'it throws upon men the risk of rightly estimating a matter of degree,' it is possible by due care to keep to the line of safety. But the Kentucky statute was such that no , 539] amount of care would give safety. To compel men, wrote Mr. Justice Holmes 'to guess, on peril of indictment, what the community would have given for them (commodities) if the continually changing conditions were other than they are, to an uncertain extent; to divine prophetically what the reaction of only partially determinate facts would be upon the imaginations and desires of purchasers, is to exact gifts that mankind does not possess.' at pages 223, 224, 34 S.Ct. at pages 855, 856. The vast difference between this Kentucky statute and the New York law, so far as forewarnn g goes, needs no laboring. The teaching of the Nash and the Harvester cases is that it is not violative of due process of law for a legislature in framing its criminal law to cast upon the public the duty of care and even of caution, provided that there is sufficient warning to one bent on obedience that he comes near the proscribed area. In his last opinion on this subject, Mr. Justice Holmes applied this teaching on behalf of a unanimous Court, United States v. Wurzbach, , 168, 169. The case sustained the validity of the Federal Corrupt Practices Act, 18 U.S.C. A. 208. What he wrote is too relevant to the matter in hand not to be fully quoted:'It is argued at some length that the statute, if extended beyond the political purposes under the control of Congress, is too vague to be valid. The objection to uncertainty concerning the persons embraced need not trouble us now. There is no doubt that the words include representatives, and if there is any difficulty, which we are far from intimating, it will be time enough to consider it when raised by someone whom it concerns. The other objection is to the meaning of 'political purposes.' This would be open even if we accepted the limitations that would make the law satisfactory to the respondent's counsel. But we imagine that no one not in search of trouble would feel any. Wherever the law draws a line there , 540] will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so, it is familiar to the criminal law to make him take the risk. Nash v. United States, .' Only a word needs to be said regarding Lanzetta v. State of New Jersey, . The case involved a New Jersey statute, N.J.S.A. 2:136-4, of the type that seek to control 'vagrancy.' These statutes are in a class by themselves, in view of the familiar abuses to which they are put. See Note, 47 Col.L.Rev. 613, 625. Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense. In short, these 'vagrancy statutes,' and laws against 'gangs' are not fenced in by the text of the statute or by the subject matter so as to give notice of conduct to be avoided. And so I conclude that New York, in the legislation before us, has not exceeded its constitutional power to control crime. The Court strikes down laws that forbid publications inciting to crime, and as such not within the constitutional immunity of free speech, because in effect it does not trust State tribunals, nor ultimately this Court, to safeguard inoffensive publications from condemnation under this legislation. Every legislative limitation upon utterance, however valid, may in a particular case serve as an inroad upon the freedom of speech which the Constitution protects. See, e.g., Cantwell v. Connecticut, , 128 A.L.R. 1352, and Mr. Justice Holmes' dissent in Abrams v. United States, , 20. The decision of the Court is concerned solely with the validity of the statute, and this opinion is restricted to that issue.

A labor dispute arose between petitioner railroad and respondent railroad union over petitioner's proposal to establish new "out-lying work assignments" away from its principal yard. There was nothing in the collective-bargaining agreement that prohibited such assignments. The union filed a notice under 6 of the Railway Labor Act of a proposed change in the agreement, and after the failure of the parties to negotiate a settlement, invoked the service of the National Mediation Board. While the Mediation Board proceedings were pending, the railroad announced the creation of the disputed work assignments, and the union threatened to strike. Petitioner brought this action to enjoin a strike and the union counterclaimed for an injunction prohibiting the establishment of the outlying assignments on the ground that 6, which provides that "where ... the services of the Mediation Board have been requested by either party ..., rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon ... by the Mediation Board," forbids such unilateral action by the carrier. The District Court dismissed the railroad's complaint, but granted the union's request for an injunction restraining the railroad from establishing any new outlying assignments, despite the absence of a provision prohibiting such assignments in the collective-bargaining agreement. The Court of Appeals affirmed. Held: The status quo that is to be maintained pursuant to 6 of the Railway Labor Act while the procedures of the Act are being exhausted consists of the actual, objective working conditions out of which the dispute arose, whether or not those conditions are covered in an existing collective-bargaining agreement. Order of Conductors v. Pitney, , and Williams v. Terminal Co., , distinguished. Pp. 148-159. 401 F.2d 368, affirmed. Francis M. Shea argued the cause for petitioner. With him on the briefs were Ralph J. Moore, Jr., David W. Miller, James A. Wilcox, and John M. Curphey.Richard R. Lyman argued the cause for respondents. With him on the brief was Clarence M. Mulholland.Milton Kramer filed a brief for the Railway Labor Executives' Association as amicus curiae urging affirmance.MR. JUSTICE BLACK delivered the opinion of the Court.This case raises a question concerning the extent to which the Railway Labor Act of 19261 imposes an obligation upon the parties to a railroad labor dispute to maintain the status quo while the "purposely long and drawn out"2 procedures of the Act are exhausted. Petitioner, a railroad, contends that the status quo which the Act requires be maintained consists only of the working conditions specifically covered in the parties' existing collective-bargaining agreement. Respondent railroad brotherhood contends that what must be preserved as the status quo are the actual, objective working conditions out of which the dispute arose, irrespective of whether these conditions are covered in an existing collective agreement. For the reasons stated below, we think that only the union's position is consistent with the language and purposes of the Railway Labor Act.The facts involved in this case are these: The main line of the Detroit and Toledo Shore Line (Shore Line), petitioner's railroad, runs from Lang Yard in Toledo, Ohio, 50 miles north to Dearoad Yard near Detroit, Michigan. For many years prior to 1961, Lang Yard was the terminal at which all train and engine crews reported for work and from which they left at the end of the day. As the occasions arose, the Shore Line transported crews from Lang Yard to perform switching and other operations at various points to the north, assuming the costs of transportation and overtime for the crew members. On February 21, 1961, the railroad advised respondent, the Brotherhood of Locomotive Firemen and Enginemen (BLF&E),3 of its intention to establish "outlying work assignments"4 at Trenton, Michigan, a point on the main line about 35 miles north of Lang Yard. These new assignments would have required many employees to report for work at Trenton rather than Lang Yard where they had been reporting. The BLF&E responded to this announcement by filing a notice under 6 of the Railway Labor Act5 proposing an amendment to the collective-bargaining agreement to cover the changed working conditions of the employees who would work out of Trenton. Section 6 requires both the carrier and union to give the other party a 30-day notice of an "intended change in agreements affecting rates of pay, rules, or working conditions."6 Since the union thus invoked the "major-dispute" settlement procedures of the Railway Labor Act,7 the dispute first went to conference and, when the parties failed to agree between themselves, then to the National Mediation Board.While the case was pending before the National Mediation Board, the Shore Line announced two new outlying assignments at Dearoad, Michigan, at the northern end of the line. Because work crews could be taken by cab from Dearoad south to Trenton, the railroad concluded that it no longer needed to establish assignments at Trenton and so advised the Mediation Board. When the Dearoad assignments were announced, the union withdrew from the Mediation Board proceedings, and, before a Special Board of Adjustment convened under 3 of the Act,8 challenged the railroad's right under the parties' collective agreement to establish outlying assignments. On November 30, 1965, the Special Board ruled that the Shore Line-BLF&E agreement did not prohibit the railroad from making the assignments.9 Relying in part on the ruling of the Special Board, the railroad notified the union on January 24, 1966, that it was reviving its plan for work assignments at Trenton. Again the union responded by filing a 6 notice of a proposed change in the parties' collective agreement. This time the union sought to amend the agreement to forbid the railroad from making any outlying assignments at all. The parties were again unable to negotiate a settlement themselves, and on June 17, 1966, the union invoked the services of the National Mediation Board. While the Mediation Board proceedings were pending, the railroad posted a bulletin definitely creating the disputed work assignments at Trenton effective September 26, 1966. Faced with this unilateral change in working conditions, the union threatened a strike. The railroad then brought this action in the United States District Court to enjoin the BLF&E10 from calling and carrying out the allegedly illegal strike. The union counterclaimed for an injunction prohibiting the Shore Line from establishing outlying assignments on the ground that the status quo provision of 6 of the Railway Labor Act forbids a carrier from taking unilateral action altering "rates of pay, rules, or working conditions" while the dispute is pending before the National Mediation Board. The pertinent part of 6 provides:11 "In every case where ... the services of the Mediation Board have been requested by either party ..., rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon ... by the Mediation Board ... ." 45 U.S.C. 156. The District Court dismissed the railroad's complaint, from which no appeal has been taken, but it granted the injunction sought by the union restraining the railroad from establishing any new outlying assignments at Trenton or elsewhere.12 The United States Court of Appeals for the Sixth Circuit affirmed the issuance of the injunction against the railroad. 401 F.2d 368 (1968). We granted certiorari, .In granting the injunction the District Court held that the status quo requirement of 6 prohibited the Shore Line from making outlying assignments even though there was nothing in the parties' collective agreement which prohibited such assignments. The Shore Line vigorously challenges this holding. It contends that the purpose of the status quo provisions of the Act is to guarantee only that existing collective agreements continue to govern the parties' rights and duties during efforts to change those agreements. Therefore, the railroad argues, what Congress intended by writing in 6 that "rates of pay, rules, or working conditions shall not be altered" was that rates of pay, rules, or working conditions as expressed in an agreement shall not be altered. And since nothing in the railroad's agreement with the union precluded the railroad from altering the location of work assignments, this working condition was not "expressed in an agreement." Thus, the argument runs, the railroad could make outlying assignments without violating the status quo provision of 6, and the judgments below must be reversed.We not at the outset that the language of 6 simply does not say what the railroad would have it say. Instead, the section speaks plainly of "rates of pay, rules, or working conditions" without any limitation to those obligations already embodied in collective agreements. More important, we are persuaded that the railroad's interpretation of this section is sharply at variance with the overall design and purpose of the Railway Labor Act.The Railway Labor Act was passed in 1926 to encourage collective bargaining by railroads and their employees in order to prevent, if possible, wasteful strikes and interruptions of interstate commerce.13 The problem of strikes was considered to be particularly acute in the area of "major disputes," those disputes involving the formation of collective agreements and efforts to change them. Elgin, J. & E. R. Co. v. Burley, . Rather than rely upon compulsory arbitration, to which both sides were bitterly opposed, the railroad and union representatives who drafted the Act chose to leave the settlement of major disputes entirely to the processes of noncompulsory adjustment. Id., at 724. To this end, the Act established rather elaborate machinery for negotiation, mediation, voluntary arbitration, and conciliation. General Committee, B. L. E. v. Missouri-K.-T. R. Co., . It imposed upon the parties an obligation to make every reasonable effort to negotiate a settlement and to refrain from altering the status quo by resorting to self-help while the Act's remedies were being exhausted.14 Railroad Trainmen v. Terminal Co., ; Elgin, J. & E. R. Co. v. Burley, supra, at 721-731; Texas & N. O. R. Co. v. Railway Clerks, . A final and crucial aspect of the Act was the power given to the parties and to representatives of the public to make the exhaustion of the Act's remedies an almost interminable process. As we noted in Railway Clerks v. Florida E. C. R. Co., , "the procedures of the Act are purposely long and drawn out, based on the hope that reason and practical considerations will provide in time an agreement that resolves the dispute." The Act's status quo requirement is central to its design. Its immediate effect is to prevent the union from striking and management from doing anything that would justify a strike. In the long run, delaying the time when the parties can resort to self-help provides time for tempers to cool, helps create an atmosphere in which rational bargaining can occur, and permits the forces of public opinion to be mobilized in favor of a settlement without a strike or lockout. Moreover, since disputes usually arise when one party wants to change the status quo without undue delay, the power which the Act gives the other party to preserve the status quo for a prolonged period will frequently make it worthwhile for the moving party to compromise with the interests of the other side and thus reach agreement without interruption to commerce.There are three status quo provisions in the Act, each covering a different stage of the major dispute settlement procedures. Section 6, the section of immediate concern in this case, provides that "rates of pay, rules, or working conditions shall not be altered" during the period from the first notice of a proposed change in agreements up to and through any proceedings before the National Mediation Board.15 Section 5 First provides that for 30 days following the closing of Mediation Board proceedings "no change shall be made in the rates of pay, rules, or working conditions or established practices in effect prior to the time the dispute arose," unless the parties agree to arbitration or a Presidential Emergency Board is created during the 30 days.16 Finally, 10 provides that after the creation of an Emergency Board and for 30 days after the Board has made its report to the President, "no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose."17 These provisions must be read in conjunction with the implicit status quo requirement in the obligation imposed upon both parties by 2 First, "to exert every reasonable effort" to settle disputes without interruption to interstate commerce.18 While the quoted language of 5, 6, and 10 is not identical in each case, we believe that these provisions, together with 2 First, form an integrated, harmonious scheme for preserving the status quo from the beginning of the major dispute through the final 30-day "cooling-off" period. Although these three provisions are applicable to different stages of the Act's procedures, the intent and effect of each is identical so far as defining and preserving the status quo is concerned.19 The obligation of both parties during a period in which any of these status quo provisions is properly invoked is to preserve and maintain unchanged those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.20 It is quite apparent that under our interpretation of the status quo requirement, the argument advanced by the Shore Line has little merit. The railroad contends that a party is bound to preserve the status quo in only those working conditions covered in the parties' existing collective agreement, but nothing in the status quo provisions of 5, 6, or 10 suggests this restriction. We have stressed that the status quo extends to those actual, objective working conditions out of which the dispute arose, and clearly these conditions need not be covered in an existing agreement. Thus, the mere fact that the collective agreement before us does not expressly prohibit outlying assignments would not have barred the railroad from ordering the assignments that gave rise to the present dispute if, apart from the agreement, such assignments had occurred for a sufficient period of time with the knowledge and acquiescence of the employees to become in reality a part of the actual working conditions. Here, however, the dispute over the railroad's establishment of the Trenton assignments arose at a time when actual working conditions did not include such assignments. It was therefore incumbent upon the railroad by virtue of 6 to refrain from making outlying assignments at Trenton or any other place in which there had previously been none, regardless of the fact that the railroad was not precluded from making these assignments under the existing agreement.21 The Shore Line's interpretation of the status quo requirement is also fundamentally at odds with the Act's primary objective - the prevention of strikes. This case provides a good illustration of why that is so. The goal of the BLF&E was to prevent the Shore Line from making outlying assignments, a matter not covered in their existing collective agreement. To achieve its goal, the union invoked the procedures of the Act. The railroad, however, refused to maintain the status quo and, instead, proceeded to make the disputed outlying assignments. It could hardly be expected that the union would sit idly by as the railroad rushed to accomplish the very result the union was seeking to prohibit by agreement. The union undoubtedly felt it could resort to self-help if the railroad could, and, not unreasonably, it threatened to strike. Because the railroad prematurely resorted to self-help, the primary goal of the Act came very close to being defeated. The example of this case could no doubt be multiplied many times. It would be virtually impossible to include all working conditions in a collective-bargaining agreement. Where a condition is satisfactorily tolerable to both sides, it is often omitted from the agreement, and it has been suggested that this practice is more frequent in the railroad industry than in most others.22 When the union moves to bring such a previously uncovered condition within the agreement, it is absolutely essential that the status quo provisions of the Act apply to that working condition if the purpose of the Act is to be fulfilled. If the railroad is free at this stage to take advantage of the agreement's silence and resort to self-help, the union cannot be expected to hold back its own economic weapons, including the strike. Only if both sides are equally restrained can the Act's remedies work effectively.23 We now turn to answer some of the arguments advanced by the Shore Line in support of its position. The first of these involves 2 Seventh of the Act. That section forbids a carrier from changing "the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act."24 (Emphasis added.) The Shore Line argues that this section is a status quo provision and that the "as embodied in agreements" restriction it contains should be read into the status quo provisions of 5, 6, and 10. We find no merit in this argument. Section 2 Seventh, which was added to the Act in 1934, does not impose any status quo duties attendant upon major dispute procedures. It simply states one category of cases in which those procedures must be invoked. The purpose of 2 Seventh is twofold: it operates to give legal and binding effect to collective agreements, and it lays down the requirement that collective agreements can be changed only by the statutory procedures. The violation of this section is a criminal offense punishable by imprisonment or fine or both.25 Violations of the status quo provisions of 5, 6, and 10 are only civil wrongs.Second, the Shore Line contends that the interpretation of 6 which we adopt today is at variance with the position we have taken on two previous occasions, citing Order of Conductors v. Pitney, , and Williams v. Terminal Co., . Although these cases do contain statements which out of context tend to support petitioner's position, neither dealt with the question we have before us today. Pitney involved a suit brought by a union to enjoin the reorganization trustees of a bankrupt railroad from transferring certain job assignments to another union. The plaintiff's contention was that the disputed jobs belonged to its members by both custom and agreement. The trustees were therefore prohibited from reassigning the jobs, the union argued, since they had never filed the appropriate notice of "intended change in agreements" required by 6. The railroad disputed that the reassignments of the jobs would require a "change in agreements" and thus put the meaning of the parties' agreements in issue. We held that the proper forum for interpreting the agreements was the Adjustment Board provided by Congress in the Railway Labor Act, 3 First (i), for that purpose, and directed the District Court to stay its proceedings accordingly. 326 U.S., at 567-568. Thus, Pitney, at most, involved a question of the necessity of filing a 6 notice and was not at all concerned with the status quo provision of that section.The Williams case is equally inapposite. In that case "redcaps" brought suit through their union representative against the Dallas railroad terminal to recover wages allegedly owed them and retained by the terminal in violation of the Fair Labor Standards Act and the Railway Labor Act. The redcaps' argument under the Fair Labor Standards Act was that Congress had not intended that tips be included in their wages for purposes of satisfying minimum wage requirements. Yet, that is what the terminal had done under its "accounting and guarantee" plan from October 1938, when the F. L. S. A. became effective, until March 1940. The majority of the Court rejected the redcaps' argument, holding that the F. L. S. A. neither prohibited nor required the inclusion of tips within wages. The question was held to be one for contract between the parties. 315 U.S., at 407-408. The redcaps' claim under the Railway Labor Act was that the terminal's "accounting and guarantee" plan under which tips were considered as part of wages was put into operation unilaterally by the terminal on the effective date of the F. L. S. A., despite the fact that the redcaps had two weeks earlier asked for a conference to negotiate an agreement which would include the subject of wages. This, the redcaps argued, violated the status quo provisions of 6 since prior to the F. L. S. A. tips had not been included in wages. The Court concluded, however, that 6 was not applicable to the dispute between the parties. The Court reasoned that when the redcaps continued to work after being individually notified of the "accounting and guarantee" plan, new and independent contracts were formed between each redcap and the terminal. The Court held that these contracts were not affected by the pending request for collective bargaining under the Railway Labor Act. The decision rested partially on the ground that "[i]ndependent individual contracts are not affected by the Act." 315 U.S., at 399. And the Court also said more narrowly that the status quo requirements of 6 were inapplicable since that section applies only when a "change in agreements" is involved. 315 U.S., at 400. In Williams there was absolutely no prior history of any collective bargaining or agreement between the parties on any matter. Without pausing to comment upon the present vitality of either of these grounds for dismissing the redcaps' Railway Labor Act claim, it is readily apparent that Williams involved only the question of whether the status quo requirement of 6 applied at all. The Court in Williams therefore never reached the question of the scope of the status quo requirement in a dispute, such as the one before the Court today, to which that requirement concededly applies.Finally, the Shore Line points out, quite correctly, that its position on 6 is identical to that taken by the National Mediation Board in several of its Annual Reports.26 However, the Mediation Board has no adjudicatory authority with regard to major disputes, nor has it a mandate to issue regulations construing the Act generally. Certainly there is nothing in the Act which can be interpreted as giving the Mediation Board the power to change the plain, literal meaning of the statute, which would be the result were we to adopt its interpretation of 6.The judgment is Affirmed.

The incidence of state and local sales taxes falls upon appellant national bank as purchaser and not upon vendors, and therefore the national bank is exempt from the taxes under former 12 U.S.C. 548 (1964 ed.), which was in effect at the time here pertinent. 49 Cal. App. 3d 778, 123 Cal. Rptr. 160, reversed.PER CURIAM.The judgment is reversed. We are not bound by the California court's contrary conclusion and hold that the incidence of the state and local sales taxes falls upon the national bank as purchaser and not upon the vendors. The national bank is therefore exempt from the taxes under former 12 U.S.C. 548 (1964 ed.), which was in effect at the time here pertinent. First Agricultural Nat. Bank v. Tax Comm'n, . Reversed.MR. JUSTICE STEVENS, with whom MR. JUSTICE REHNQUIST joins, dissenting.Appellants contend that California may not impose its sales tax on the sale of printed forms and other tangibles to Crocker-Citizens National Bank because the legal incidence of the tax falls upon a federal instrumentality. The California Court of Appeal, applying a construction of the California statute that has been consistently followed for over 40 years, held that the legal incidence of the tax falls upon the vendor rather than the purchaser.1 Since the case involves a federal claim of immunity from state taxation, we are not bound by the California court's determination of where the incidence of the tax falls.2 On the other hand, we are not free simply to disregard the state court's determination.3 More narrowly, I believe we must accept the state court's interpretation of the meaning of a state statute insofar as it defines the legal obligations of the vendor, the purchaser, and the tax collector independently of any claim of federal immunity.In this case we have the benefit of completely consistent construction by the California courts since the statute was enacted in 1933. Both in cases involving a federal claim of immunity,4 and also in cases which involved no question of federal law,5 the California courts have unambiguously held that the statute imposes no legal obligation on a purchaser either to pay the tax himself or to reimburse his vendor.That consistent, nondiscriminatory construction of California law avoids appellants' reliance on First Agricultural Nat. Bank v. Tax Comm'n, . In that case we held that "a sales tax which by its terms must be passed on to the purchaser imposes the legal incidence of the tax upon the purchaser." Id., at 347 (emphasis added).6 This is not a case in which the state statute, either by its own terms or as construed by the state courts, imposes any legal obligation on the purchaser.7 It is true that the bank expressly agreed to assume the economic burden imposed by the tax and, furthermore, that the statutory scheme contemplates that as a practical matter the vendor will pass that burden on to his customers. As I understand our cases, however, these facts do not provide a sufficient basis for concluding that the legal incidence of the tax falls upon the purchaser.8 Deciding where the legal incidence of a state tax falls is not the most intriguing task that judges are called upon to perform. Such work is facilitated, however, when the controlling standards are expressed in simple language. I had thought two rather clear rules controlled this case. First, the location of the economic impact of a tax does not identify the place where its legal incidence falls. Second, it is only if the State imposes a legal obligation on the purchaser either to pay the tax, or to reimburse the vendor for a tax payment, that the legal incidence is on the purchaser. The Court's disposition of this appeal apparently is not predicated on either of those rules. However, I am persuaded that they require us to affirm the judgment of the California Court of Appeal.

The Age Discrimination in Employment Act of 1967 makes it unlawful for an employer to discriminate against any employee or potential employee between the ages of 40 and 70 on the basis of age, except "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age." In 1974, the definition of "employer" under 11(b) of the Act was extended to include state and local governments. After a supervisor for the Wyoming Game and Fish Department was involuntarily retired at age 55 pursuant to a Wyoming statute, he filed a complaint with the Equal Employment Opportunity Commission, alleging violation of the Act. The Commission ultimately filed suit in Federal District Court against appellees, the State and various state officials, seeking relief on behalf of the supervisor and others similarly situated. The District Court dismissed the suit, holding that insofar as the Act regulated Wyoming's employment relationship with its game wardens and other law enforcement officials, it violated the doctrine of Tenth Amendment immunity articulated in National League of Cities v. Usery, , which struck down Congress' attempt to extend the wage and hour provisions of the Fair Labor Standards Act to state and local governments.Held: The extension of the Age Discrimination in Employment Act to cover state and local governments is a valid exercise of Congress' powers under the Commerce Clause, both on its face and as applied in this case, and is not precluded by virtue of external constraints imposed on Congress' commerce powers by the Tenth Amendment. Pp. 235-244. (a) The purpose of the doctrine of Tenth Amendment immunity articulated in National League of Cities, supra, is to protect States from federal intrusions that might threaten their "separate and independent existence." A claim that congressional commerce power legislation is invalid can succeed only if (1) the challenged statute regulates the States as States, (2) the federal regulation addresses matters that are indisputably attributes of state sovereignty, and (3) the States' compliance with the federal law would "directly impair their ability `to structure integral operations in areas of traditional governmental functions.'" Hodel v. Virginia Surface Mining & Reclamation Assn., . The first requirement is met in this case, but even assuming, arguendo, that the second requirement is met, the Act does not "directly impair" the State's ability to "structure integral operations in areas of traditional governmental functions." Pp. 236-239. (b) In this case, the degree of federal intrusion on the States' ability to structure their integral operations is not sufficient to override Congress' choice to extend its regulatory authority to the States. Appellees claim no substantial stake in their retirement policy other than assuring the physical preparedness of Wyoming game wardens to perform their duties. The Act does not require the State to abandon those goals, or the public policy decisions underlying them. Under the Act, the State may assess the fitness of its game wardens on an individualized basis and may dismiss those wardens whom it reasonably finds to be unfit. Moreover, appellees remain free under the Act to continue to do precisely what they are doing now, if they can demonstrate that age is a "bona fide occupational qualification" for the job of game warden. And nothing in the nature of the Act suggests that it will have substantial and unintended consequential effects on state decisionmaking in other areas, such as the allocation of state financial resources or the pursuit of broad social and economic policies. National League of Cities, supra, distinguished. Pp. 239-242. 514 F. Supp. 595, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 244. BURGER, C. J., filed a dissenting opinion, in which POWELL, REHNQUIST, and O'CONNOR, JJ., joined, post, p. 251. POWELL, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 265.Solicitor General Lee argued the cause for appellant. With him on the briefs were Deputy Solicitor General Wallace, George W. Jones, Michael J. Connolly, Philip B. Sklover, and Vella M. Fink.Bruce A. Salzburg, Senior Assistant Attorney General of Wyoming, argued the cause for appellees. With him on the briefs was Steven F. Freudenthal, Attorney General.* [Footnote *] Steven J. Cole and Richard Kirschner filed a brief for the American Federation of State, County and Municipal Employees, AFL-CIO, as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Charles A. Graddick, Attorney General of Alabama, and Algert S. Agricola, Jr., Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, and Anthony B. Ching, Solicitor General, Michael J. Bowers, Attorney General of Georgia, and Gary R. Hurst, Assistant Attorney General, Tany S. Hong, Attorney General of Hawaii, Tyrone C. Fahner, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, and James F. Schmidt, Deputy Attorney General, William J. Guste, Jr., Attorney General of Louisiana, and Kendall L. Vick, Assistant Attorney General, Frank J. Kelly, Attorney General of Michigan, and Susan Peck Iannotti, Assistant Attorney General, John Ashcroft, Attorney General of Missouri, Louis J. Caruso, Solicitor General, and Preston Dean, Assistant Attorney General, Michael J. Greely, Attorney General of Montana, and F. Woodside Wright, Special Assistant Attorney General, Paul L. Douglas, Attorney General of Nebraska, and Bernard L. Packett, Assistant Attorney General, William J. Brown, Attorney General of Ohio, and James R. Rishel, Rufus L. Edmisten, Attorney General, of North Carolina, and Douglas A. Johnston, Assistant Attorney General, LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Debra K. Wallet, Deputy Attorney General, William M. Leech, Jr., Attorney General of Tennessee, and Michael E. Terry, Deputy Attorney General, Mark White, Attorney General of Texas, and William O. Goodman, Assistant Attorney General, David L. Wilkinson, Attorney General of Utah, and Stephen G. Schwendiman, Assistant Attorney General, John J. Easton, Jr., Attorney General of Vermont, and Denise Johnson, Assistant Attorney General, and Jack Avery, Attorney General of Guam; for the State of California et al. by George Deukmejian, Attorney General of California, Willard A. Shank, Chief Assistant Attorney General, Richard D. Martland, Assistant Attorney General, and Mary C. Michel, Deputy Attorney General, and Charles A. Graddick, Attorney General of Alabama, and Algert S. Agricola, Jr., Assistant Attorney General; for the County of Marathon, Wisconsin, et al. by Charles C. Mulcahy, Michael R. Wherry, and William J. Mulligan; for the City of Baltimore by Benjamin L. Brown and Ambrose T. Hartman; and for the National Institute of Municipal Law Officers by James B. Brennan, Henry W. Underhill, Jr., Benjamin L. Brown, J. Lamar Shelley, Roy D. Bates, Roger F. Cutler, Alan J. Davis, John Dekker, Lee E. Holt, George F. Knox, Jr., Walter M. Powell, William H. Taube, John W. Witt, Max P. Zall, Conard B. Mattox, Jr., and Charles S. Rhyne. JUSTICE BRENNAN delivered the opinion of the Court.Under the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U.S.C. 621 et seq. (1976 ed. and Supp. V) (ADEA or Act), it is unlawful for an employer to discriminate against any employee or potential employee on the basis of age, except "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age."1 The question presented in this case is whether Congress acted constitutionally when, in 1974, it extended the definition of "employer" under 11(b) of the Act to include state and local governments. The United States District Court for the District of Wyoming, in an enforcement action brought by the Equal Employment Opportunity Commission (EEOC or Commission), held that, at least as applied to certain classes of state workers, the extension was unconstitutional. 514 F. Supp. 595 (1981). The Commission filed a direct appeal under 28 U.S.C. 1252, and we noted probable jurisdiction. . We now reverse.IEfforts in Congress to prohibit arbitrary age discrimination date back at least to the 1950's.2 During floor debate over what was to become Title VII of the Civil Rights Act of 1964, amendments were offered in both the House and the Senate to ban discrimination on the basis of age as well as race, color, religion, sex, and national origin. These amendments were opposed at least in part on the basis that Congress did not yet have enough information to make a considered judgment about the nature of age discrimination, and each was ultimately defeated. 110 Cong. Rec. 2596-2599, 9911-9913, 13490-13492 (1964); EEOC, Legislative History of the Age Discrimination in Employment Act 5-14 (1981) (hereinafter Legislative History). Title VII did, however, include a provision, 715, 78 Stat. 265 (since superseded by 10 of the Equal Employment Opportunity Act of 1972, 86 Stat. 111), which directed the Secretary of Labor to "make a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected," and to report the results of that study to Congress. That report was transmitted approximately one year later. Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment (1965), Legislative History 16-41.In 1966, Congress directed the Secretary of Labor to submit specific legislative proposals for prohibiting age discrimination. Fair Labor Standards Amendments of 1966, 606, 80 Stat. 845. The Secretary transmitted a draft bill in early 1967, see 113 Cong. Rec. 1377 (1967), and the President, in a message to Congress on older Americans, recommended its enactment and expressed serious concern about the problem of age discrimination, see Special Message to the Congress Proposing Programs for Older Americans, 1 Public Papers of the Presidents, Lyndon B. Johnson, 1967, pp. 32, 37 (1968). Congress undertook further study of its own, and Committees in both the House and the Senate conducted detailed hearings on the proposed legislation. See Age Discrimination in Employment: Hearings on S. 830 and S. 788 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess. (1967); Age Discrimination in Employment: Hearings on H. R. 3651 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., 1st Sess. (1967); see also Retirement and the Individual: Hearings before the Subcommittee on Retirement and the Individual of the Senate Special Committee on Aging, 90th Cong., 1st Sess. (1967).The report of the Secretary of Labor, whose findings were confirmed throughout the extensive factfinding undertaken by the Executive Branch and Congress, came to the following basic conclusions: (1) Many employers adopted specific age limitations in those States that had not prohibited them by their own antidiscrimination laws, although many other employers were able to operate successfully without them. (2) In the aggregate, these age limitations had a marked effect upon the employment of older workers. (3) Although age discrimination rarely was based on the sort of animus motivating some other forms of discrimination, it was based in large part on stereotypes unsupported by objective fact, and was often defended on grounds different from its actual causes. (4) Moreover, the available empirical evidence demonstrated that arbitrary age lines were in fact generally unfounded and that, as an overall matter, the performance of older workers was at least as good as that of younger workers. (5) Finally, arbitrary age discrimination was profoundly harmful in at least two ways. First, it deprived the national economy of the productive labor of millions of individuals and imposed on the governmental treasury substantially increased costs in unemployment insurance and federal Social Security benefits. Second, it inflicted on individual workers the economic and psychological injury accompanying the loss of the opportunity to engage in productive and satisfying occupations.The product of the process of factfinding and deliberation formally begun in 1964 was the Age Discrimination in Employment Act of 1967. The preamble to the Act emphasized both the individual and social costs of age discrimination.3 The provisions of the Act as relevant here prohibited various forms of age discrimination in employment, including the discharge of workers on the basis of their age. 4(a), 29 U.S.C. 623(a).4 The protection of the Act was limited, however, to workers between the ages of 40 and 65, 12(a), 29 U.S.C. 631, raised to age 70 in 1978, Age Discrimination in Employment Act Amendments of 1978, 3(a), 92 Stat. 189. Moreover, in order to insure that employers were permitted to use neutral criteria not directly dependant on age, and in recognition of the fact that even criteria that are based on age are occasionally justified, the Act provided that certain otherwise prohibited employment practices would not be unlawful "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age." 4(f)(1), 29 U.S.C. 623(f) (1).The ADEA, as originally passed in 1967, did not apply to the Federal Government, to the States or their political subdivisions, or to employers with fewer than 25 employees. In a Report issued in 1973, a Senate Committee found this gap in coverage to be serious, and commented that "[t]here is ... evidence that, like the corporate world, government managers also create an environment where young is somehow better than old." Senate Special Committee on Aging, Improving the Age Discrimination Law, 93d Cong., 1st Sess., 14 (Comm. Print 1973), Legislative History 231. In 1974, Congress extended the substantive prohibitions of the Act to employers having at least 20 workers, and to the Federal and State Governments.5 IIPrior to the District Court decision in this case, every federal court that considered the question upheld the constitutionality of the 1974 extension of the Age Discrimination in Employment Act to state and local workers as an exercise of Congress' power under either the Commerce Clause or 5 of the Fourteenth Amendment.6 This case arose out of the involuntary retirement at age 55 of Bill Crump, a District Game Division supervisor for the Wyoming Game and Fish Department. Crump's dismissal was based on a Wyoming statute that conditions further employment for Game and Fish Wardens who reach the age of 55 on "the approval of [their] employer."7 Crump filed a complaint with the EEOC, alleging that the Game and Fish Department had violated the Age Discrimination in Employment Act. After conciliation efforts between the Commission and the Game and Fish Department failed, the Commission filed suit in the District Court for the District of Wyoming against the State and various of its officials seeking declaratory and injunctive relief, backpay, and liquidated damages on behalf of Mr. Crump and others similarly situated.The District Court, upon a motion by the defendants, dismissed the suit. It held that the Age Discrimination in Employment Act violated the doctrine of Tenth Amendment immunity articulated in National League of Cities v. Usery, , at least insofar as it regulated Wyoming's employment relationship with its game wardens and other law enforcement officials. 514 F. Supp., at 600. The District Court also held, citing Pennhurst State School and Hospital v. Halderman, , that the application of the ADEA to the States could not be justified as an exercise of Congress' power under 5 of the Fourteenth Amendment because Congress did not explicitly state that it invoked that power in passing the 1974 amendments. 514 F. Supp., at 600.IIIThe appellees have not claimed either in the District Court or in this Court that Congress exceeded the scope of its affirmative grant of power under the Commerce Clause8 in enacting the ADEA. See generally National League of Cities v. Usery, supra, at 840-841; Heart of Atlanta Motel, Inc. v. United States, . Rather, the District Court held and appellees argue that, at least with respect to state game wardens, application of the ADEA to the States is precluded by virtue of external constraints imposed on Congress' commerce powers by the Tenth Amendment.ANational League of Cities v. Usery struck down Congress' attempt to extend the wage and hour provisions of the Fair Labor Standards Act to state and local governments. National League of Cities was grounded on a concern that the imposition of certain federal regulations on state governments might, if left unchecked, "allow `the National Government [to] devour the essentials of state sovereignty,'" 426 U.S., at 855 (quoting Maryland v. Wirtz, (Douglas, J., dissenting)). It therefore drew from the Tenth Amendment an "affirmative limitation on the exercise of [congressional power under the Commerce Clause] akin to other commerce power affirmative limitations contained in the Constitution." 426 U.S., at 841. The principle of immunity articulated in National League of Cities is a functional doctrine, however, whose ultimate purpose is not to create a sacred province of state autonomy, but to ensure that the unique benefits of a federal system in which the States enjoy a "`separate and independent existence,'" id., at 845 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)), not be lost through undue federal interference in certain core state functions. See FERC v. Mississippi, ; United Transportation Union v. Long Island R. Co., ; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., .9 Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., supra, summarized the hurdles that confront any claim that a state or local governmental unit should be immune from an otherwise legitimate exercise of the federal power to regulate commerce: "[I]n order to succeed, a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities must satisfy each of three requirements. First, there must be a showing that the challenged statute regulates the `States as States.' Second, the federal regulation must address matters that are indisputably `attribute[s] of state sovereignty.' And third, it must be apparent that the States' compliance with the federal law would directly impair their ability `to structure integral operations in areas of traditional governmental functions.'" 452 U.S., at 287-288 (citations omitted; emphasis in original). Moreover, "Demonstrating that these three requirements are met does not ... guarantee that a Tenth Amendment challenge to congressional commerce power action will succeed. There are situations in which the nature of the federal interest advanced may be such that it justifies state submission." Id., at 288, n. 29 (citations omitted). See also United Transportation Union v. Long Island R. Co., supra, at 684, and n. 9. The first requirement - that the challenged federal statute regulate the "States as States" - is plainly met in this case.10 The second requirement - that the federal statute address an "undoubted attribute of state sovereignty" - poses significantly more difficulties.11 We need not definitively resolve this issue, however, nor do we have any occasion to reach the final balancing step of the inquiry described in Hodel,12 for we are convinced that, even if Wyoming's decision to impose forced retirement on its game wardens does involve the exercise of an attribute of state sovereignty, the Age Discrimination in Employment Act does not "directly impair" the State's ability to "structure integral operations in areas of traditional governmental functions."BThe management of state parks is clearly a traditional state function. National League of Cities, 426 U.S., at 851. As we have already emphasized, however, the purpose of the doctrine of immunity articulated in National League of Cities was to protect States from federal intrusions that might threaten their "separate and independent existence." Ibid. Our decision as to whether the federal law at issue here directly impairs the States' ability to structure their integral operations must therefore depend, as it did in National League of Cities itself, on considerations of degree. See id., at 845, 852; FERC v. Mississippi, 456 U.S., at 769-770. We conclude that the degree of federal intrusion in this case is sufficiently less serious than it was in National League of Cities so as to make it unnecessary for us to override Congress' express choice to extend its regulatory authority to the States.In this case, appellees claim no substantial stake in their retirement policy other than "assur[ing] the physical preparedness of Wyoming game wardens to perform their duties." Brief for Appellees 18.13 Under the ADEA, however, the State may still, at the very least, assess the fitness of its game wardens and dismiss those wardens whom it reasonably finds to be unfit. Put another way, the Act requires the State to achieve its goals in a more individualized and careful manner than would otherwise be the case, but it does not require the State to abandon those goals, or to abandon the public policy decisions underlying them. FERC v. Mississippi, supra, at 771; cf. n. 11, supra. Perhaps more important, appellees remain free under the ADEA to continue to do precisely what they are doing now, if they can demonstrate that age is a "bona fide occupational qualification" for the job of game warden. See supra, at 232-233. Thus, in distinct contrast to the situation in National League of Cities, supra, at 848, even the State's discretion to achieve its goals in the way it thinks best is not being overridden entirely, but is merely being tested against a reasonable federal standard.Finally, the Court's concern in National League of Cities was not only with the effect of the federal regulatory scheme on the particular decisions it was purporting to regulate, but also with the potential impact of that scheme on the States' ability to structure operations and set priorities over a wide range of decisions. 426 U.S., at 849-850.14 Indeed, National League of Cities spelled out in some detail how application of the federal wage and hour statute to the States threatened a virtual chain reaction of substantial and almost certainly unintended consequential effects on state decisionmaking. Id., at 846-852. Nothing in this case, however, portends anything like the same wide-ranging and profound threat to the structure of state governance.The most tangible consequential effect identified in National League of Cities was financial: forcing the States to pay their workers a minimum wage and an overtime rate would leave them with less money for other vital state programs. The test of such financial effect as drawn in National League of Cities does not depend, however, on "particularized assessments of actual impact," which may vary from State to State and time to time, but on a more generalized inquiry, essentially legal rather than factual, into the direct and obvious effect of the federal legislation on the ability of the States to allocate their resources. Id., at 851-852; see Hodel, 452 U.S., at 292, n. 33. In this case, we cannot conclude from the nature of the ADEA that it will have either a direct or an obvious negative effect on state finances. Older workers with seniority may tend to get paid more than younger workers without seniority, and may by their continued employment accrue increased benefits when they do retire. But these increased costs, even if they were not largely speculative in their own right, might very well be outweighed by a number of other factors: Those same older workers, as long as they remain employed, will not have to be paid any pension benefits at all, and will continue to contribute to the pension fund. And, when they do retire, they will likely, as an actuarial matter, receive benefits for fewer years than workers who retire early.15 Admittedly, as some of the amici point out, the costs of certain state health and other benefit plans would increase if they were automatically extended to older workers now forced to retire at an early age. But Congress, in passing the ADEA, included a provision specifically disclaiming a construction of the Act which would require that the health and similar benefits received by older workers be in all respects identical to those received by younger workers. ADEA 4(f)(2), 29 U.S.C. 623(f)(2) (1976 ed. and Supp. V).16 The second consequential effect identified in National League of Cities was on the States' ability to use their employment relationship with their citizens as a tool for pursuing social and economic policies beyond their immediate managerial goals. See, e. g., 426 U.S., at 848 (offering jobs at below the minimum wage to persons who do not possess "minimum employment requirements"). Appellees, however, have claimed no such purposes for Wyoming's involuntary retirement statute. Moreover, whatever broader social or economic purposes could be imagined for this particular Wyoming statute would not, we are convinced, bring with them either the breadth or the importance of the state policies identified in National League of Cities.17 IVThe extension of the ADEA to cover state and local governments, both on its face and as applied in this case, was a valid exercise of Congress' powers under the Commerce Clause. We need not decide whether it could also be upheld as an exercise of Congress' powers under 5 of the Fourteenth Amendment.18 The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered.

In 1954 the Committee of Bar Examiners of California refused to certify petitioner to practice law in that State, though he had satisfactorily passed the bar examination, on the grounds that he had failed to prove (1) that he was of good moral character, and (2) that he did not advocate forcible overthrow of the Government. He sought review by the State Supreme Court, contending that the Committee's action deprived him of rights secured by the Fourteenth Amendment. The State Supreme Court denied his petition without opinion. Held: 1. This Court has jurisdiction to review the case, and the constitutional issues are properly here. Pp. 254-258. 2. The evidence in the record does not rationally support the only two grounds upon which the Committee relied in rejecting petitioner's application, and therefore the State's refusal to admit him to the bar was a denial of due process and equal protection of the laws, in violation of the Fourteenth Amendment. Pp. 258-274. (a) That petitioner was a member of the Communist Party in 1941, if true, does not support an inference that he did not have good moral character, absent any evidence that he ever engaged in or abetted or supported any unlawful or immoral activities. Pp. 266-268. (b) An inference of bad moral character cannot rationally be drawn from editorials in which petitioner severely criticized, inter alia, this country's participation in the Korean War, the actions and policies of the leaders of the major political parties, the influence of "big business" in American life, racial discrimination, and this Court's decisions in Dennis v. United States, , and other cases. Pp. 268-269. (c) On the record in this case, inferences of bad moral character from petitioner's refusal to answer questions about his political affiliations and opinions are unwarranted. Pp. 269-271. (d) There is no evidence in the record which rationally justifies a finding that petitioner failed to show that he did not advocate forcible overthrow of the Government. Pp. 271-274. Reversed and remanded. Edward Mosk argued the cause for petitioner. With him on the brief was Samuel Rosenwein.Frank B. Belcher argued the cause for respondents. With him on the brief was Ralph E. Lewis.Briefs of amici curiae in support of petitioner were filed by A. L. Wirin for the American Civil Liberties Union, Southern California Branch, and Osmond K. Fraenkel for the National Lawyers Guild.MR. JUSTICE BLACK delivered the opinion of the Court.The petitioner, Raphael Konigsberg, graduated from the Law School of the University of Southern California in 1953 and four months later satisfactorily passed the California bar examination. Nevertheless, the State Committee of Bar Examiners, after several hearings, refused to certify him to practice law on the grounds he had failed to prove (1) that he was of good moral character and (2) that he did not advocate overthrow of the Government of the United States or California by unconstitutional means.1 As permitted by state law, Konigsberg asked the California Supreme Court to review the Committee's refusal to give him its certification. He contended that he had satisfactorily proved that he met all the requirements for admission to the bar, and that the Committee's action deprived him of rights secured by the Fourteenth Amendment to the United States Constitution. The State Supreme Court, without opinion, and with three of its seven justices dissenting, denied his petition for review. We granted certiorari because the constitutional questions presented were substantial. .I.Before reaching the merits, we must first consider the State's contention that this Court does not have jurisdiction to review the case. The State argues (1) that petitioner did not present his constitutional claims to the California Supreme Court in the manner prescribed by that court's rules, and (2) that the state court's decision not to grant him relief can be attributed to his failure to conform to its procedural rules rather than to a rejection of his constitutional claims.In considering actions of the Committee of Bar Examiners the California Supreme Court exercises original jurisdiction and is not restricted to the limited review made by an appellate court. For example, that court declared in In re Lacey, 11 Cal. 2d 699, at 701, 81 P.2d 935, at 936: "That this court has the inherent power and authority to admit an applicant to practice law in this state or to reinstate an applicant previously disbarred despite an unfavorable report upon such application by the Board of Bar Governors of the State Bar, we think is now well settled in this state... . The recommendation of the Board of Bar Governors is advisory only ... . [T]he final determination in all these matters rests with this court, and its powers in that regard are plenary and its judgment conclusive."2 The California Supreme Court has a special rule, Rule 59 (b), which governs review of actions of the Bar Examiners.3 Rule 59 (b) requires that a petition for review "shall specify the grounds relied on and shall be accompanied by petitioner's brief." Konigsberg complied with this rule. In his petition for review he specifically charged that the findings of the Committee were not supported by any lawful evidence.4 The petition then went on to assert that the Committee's action, which was based on findings that the petition had previously alleged were not supported by evidence, was an attempt by the State of California in violation of the Fourteenth Amendment to deprive him "of liberty or property without due process of law" and to deny him "the equal protection of the laws."Throughout the hearings before the Bar Examiners Konigsberg repeatedly objected to questions about his beliefs and associations asserting that such inquiries infringed rights guaranteed him by the First and Fourteenth Amendments. He urged that the Committee would abridge freedom of speech, press and assembly, violate due process, and deny equal protection of the laws if it denied his application because of his political opinions, writings, and affiliations. He asserted that he had affirmatively proved his good moral character and that there was no legal basis for finding that he was morally unfit to practice law. He insisted that in determining whether he was qualified the Committee had to comply with due process of law and cited as supporting his position Wieman v. Updegraff, , and Joint Anti-Fascist Committee v. McGrath, , where this Court condemned arbitrary findings as offensive to due process.5 Since Konigsberg challenged the sufficiency of the evidence in his petition for review, it seems clear that the State Supreme Court examined the entire record of the hearings before the Bar Examiners6 and must have been aware of the constitutional arguments made by Konigsberg during the hearings and the authorities relied on to support these arguments.The State contends, however, that it was not enough for Konigsberg to raise his constitutional objections in his petition, in the manner prescribed by Rule 59 (b), and at the hearings. It claims that under California practice the State Supreme Court will not consider a contention unless it is supported by an argument and citation of authorities in a brief submitted by the person seeking review. Because Konigsberg's brief did not repeat, precisely and in detail, the constitutional objections set forth in his petition,7 the argument continues, this Court is compelled to hold that the State Supreme Court could have refused relief to petitioner on a narrow procedural ground. But the California cases cited by the State do not require such a conclusion. It is true that the State Supreme Court has insisted that on appeal in ordinary civil cases alleged errors should be pointed out clearly and concisely, with reasons why they are erroneous, and with reference to supporting authorities.8 However this case was not reviewed under the rules of appeal which apply to the ordinary civil case but rather under a special rule applying to original proceedings. We are pointed to nothing which indicates that the State Supreme Court has adopted any rule in this type of case which requires that contentions raised in the petition for review must also be set out in the brief. The one case cited, Johnson v. State Bar of California, 4 Cal. 2d 744, 52 P.2d 928, indicates the contrary. In challenging the recommendation of the Board of Governors of the State Bar that he be suspended from the practice of law, Johnson alleged, apparently in an offhand way, that the entire State Bar Act was "unconstitutional." He made no argument and cited no authority to support this bare, sweeping assertion. While the court said that this was an insufficient presentation of the issue it nevertheless went ahead to consider and reject Johnson's argument and to hold the Act constitutional.Counsel for California concedes that the state courts in criminal cases often pass on issues ineptly argued in a defendant's brief or sometimes not raised there at all.9 As counsel states, the reasons for relaxing this standard in criminal cases are obvious - such cases may involve forfeiture of the accused's property, liberty, or life. While this is not a criminal case, its consequences for Konigsberg take it out of the ordinary run of civil cases. The Committee's action prevents him from earning a living by practicing law. This deprivation has grave consequences for a man who has spent years of study and a great deal of money in preparing to be a lawyer.In view of the grounds relied on in Konigsberg's petition for review, his repeated assertions throughout the hearings of various federal constitutional rights, and the practices of the California Supreme Court, we cannot conclude that that court, with three of its seven justices dissenting, intended to uphold petitioner's exclusion from the practice of law because his lawyer failed to elaborate in his brief the constitutional claims set forth in his petition for review and in the record of the hearings. Our conclusion is that the constitutional issues are before us and we must consider them.10 II.We now turn to the merits. In passing on Konigsberg's application, the Committee of Bar Examiners conducted a series of hearings. At these hearings Konigsberg was questioned at great length about his political affiliations and beliefs. Practically all of these questions were directed at finding out whether he was or ever had been a member of the Communist Party. Konigsberg declined to respond to this line of questioning, insisting that it was an intrusion into areas protected by the Federal Constitution. He also objected on the ground that California law did not require him to divulge his political associations or opinions in order to qualify for the Bar and that questions about these matters were not relevant.11 The Committee of Bar Examiners rejected Konigsberg's application on the ground that the evidence in the record raised substantial doubts about his character and his loyalty which he had failed to dispel. At the conclusion of the hearings, the Committee sent a formal written notice - which later served as the basis for his petition to the California Supreme Court - stating that his application was denied because: 1. He failed to demonstrate that he was a person of good moral character and 2. He failed to show that he did not advocate the overthrow of the Government of the United States or of the State by force, violence or other unconstitutional means. He was not denied admission to the California Bar simply because he refused to answer questions.12 In Konigsberg's petition for review to the State Supreme Court there is no suggestion that the Committee had excluded him merely for failing to respond to its inquiries. Nor did the Committee in its answer indicate that this was the basis for its action. After responding to Konigsberg's allegations, the Bar Committee set forth a defense of its action which in substance repeated the reasons it had given Konigsberg in the formal notice of denial for rejecting his application.13 There is nothing in the California statutes, the California decisions, or even in the Rules of the Bar Committee, which has been called to our attention, that suggests that failure to answer a Bar Examiner's inquiry is, ipso facto, a basis for excluding an applicant from the Bar, irrespective of how overwhelming is his showing of good character or loyalty or how flimsy are the suspicions of the Bar Examiners. Serious questions of elemental fairness would be raised if the Committee had excluded Konigsberg simply because he failed to answer questions without first explicitly warning him that he could be barred for this reason alone, even though his moral character and loyalty were unimpeachable, and then giving him a chance to comply.14 In our opinion, there is nothing in the record which indicates that the Committee, in a matter of such grave importance to Konigsberg, applied a brand new exclusionary rule to his application - all without telling him that it was doing so.15 If it were possible for us to say that the Board had barred Konigsberg solely because of his refusal to respond to its inquiries into his political associations and his opinions about matters of public interest, then we would be compelled to decide far-reaching and complex questions relating to freedom of speech, press and assembly. There is no justification for our straining to reach these difficult problems when the Board itself has not seen fit, at any time, to base its exclusion of Konigsberg on his failure to answer. If and when a State makes failure to answer a question an independent ground for exclusion from the Bar, then this Court, as the cases arise, will have to determine whether the exclusion is constitutionally permissible. We do not mean to intimate any view on that problem here nor do we mean to approve or disapprove Konigsberg's refusal to answer the particular questions asked him.We now pass to the issue which we believe is presented in this case: Does the evidence in the record support any reasonable doubts about Konigsberg's good character or his loyalty to the Governments of State and Nation? In considering this issue, we must, of course, take into account the Committee's contention that Konigsberg's failure to respond to questions was evidence from which some inference of doubtful character and loyalty can be drawn.Konigsberg claims that he established his good moral character by overwhelming evidence and carried the burden of proving that he does not advocate overthrow of the Government. He contends here, as he did in the California court, that there is no evidence in the record which rationally supports a finding of doubt about his character or loyalty. If this contention is correct, he has been denied the right to practice law although there was no basis for the finding that he failed to meet the qualifications which the State demands of a person seeking to become a lawyer. If this is true, California's refusal to admit him is a denial of due process and of equal protection of the laws because both arbitrary and discriminatory.16 After examination of the record,17 we are compelled to agree with Konigsberg that the evidence does not rationally support the only two grounds upon which the Committee relied in rejecting his application for admission to the California Bar.A. Good Moral Character. - The term "good moral character" has long been used as a qualification for membership in the Bar and has served a useful purpose in this respect. However the term, by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer.18 Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.While we do not have the benefit of a definition of "good moral character" by the California Supreme Court in this case, counsel for the State tells us that the definition of that term adopted in California "stresses elements of honesty, fairness and respect for the rights of others and for the laws of the state and nation." The decisions of California courts cited here do not support so broad a definition as claimed by counsel. These cases instead appear to define "good moral character" in terms of an absence of proven conduct or acts which have been historically considered as manifestations of "moral turpitude." To illustrate, California has held that an applicant did not have good character who had been convicted of forgery and had practiced law without a license,19 or who had obtained money by false representations and had committed fraud upon a court,20 or who had submitted false affidavits to the Committee along with his application for admission.21 It should be emphasized that neither the definition proposed by counsel nor those appearing in the California cases equates unorthodox political beliefs or membership in lawful political parties with bad moral character. Assuming for purposes of this case that counsel's broad definition of "good moral character" is the one adopted in California, the question is whether on the whole record a reasonable man could fairly find that there were substantial doubts about Konigsberg's "honesty, fairness and respect for the rights of others and for the laws of the state and nation."A person called on to prove his character is compelled to turn to the people who know him. Here, forty-two individuals who had known Konigsberg at different times during the past twenty years attested to his excellent character.22 These testimonials came from persons in every walk of life. Included among them were a Catholic priest, a Jewish rabbi, lawyers, doctors, professors, businessmen and social workers. The following are typical of the statements made about Konigsberg: An instructor at the University of Southern California Law School:"He seems to hold the Constitution in high esteem and is a vigorous supporter of civil rights... . He indicated to me an open-mindedness seemingly inconsistent with any calculated disregard of his duty as a loyal and conscientious citizen." A rabbi: "I unreservedly recommend Mr. Konigsberg as a person who is morally and ethically qualified to serve as a member of [the bar]." A lawyer: "I recommend Mr. Konigsberg unreservedly as a person of high moral principle and character... . He is a much more profound person than the average bar applicant and exhibits a social consciousness which, in my opinion, is unfortunately too rare among applicants." A Catholic Monsignor: "I do not hesitate to recommend him to you. I am satisfied that he will measure up to the high requirements established for members of the legal profession." Other witnesses testified to Konigsberg's belief in democracy and devotion to democratic ideas, his principled convictions, his honesty and integrity, his conscientiousness and competence in his work, his concern and affection for his wife and children and his loyalty to the country. These, of course, have traditionally been the kind of qualities that make up good moral character. The significance of the statements made by these witnesses about Konigsberg is enhanced by the fact that they had known him as an adult while he was employed in responsible professional positions. Even more significant, not a single person has testified that Konigsberg's moral character was bad or questionable in any way.Konigsberg's background, which was also before the Committee, furnished strong proof that his life had always been honest and upright. Born in Austria in 1911, he was brought to this country when eight years old. After graduating from Ohio State University in 1931, he taught American history and literature for a time in a Cleveland high school. In 1934 he was given a scholarship to Ohio State University and there received his Master of Arts degree in Social Administration. He was then employed by the District of Columbia as a supervisor in its Department of Health. In 1936 he went to California where he worked as an executive for several social agencies and at one time served as District Supervisor for the California State Relief Administration. With our entry into the Second World War, he volunteered for the Army and was commissioned a second lieutenant. He was selected for training as an orientation officer in the Army's information and education program and in that capacity served in North Africa, Italy, France, and Germany. He was promoted to captain and while in Germany was made orientation officer for the entire Seventh Army. As an orientation officer one of his principal functions was to explain to soldiers the advantages of democracy as compared with totalitarianism. After his honorable discharge in 1946 he resumed his career in social work. In 1950, at the age of thirtynine, Konigsberg entered the Law School of the University of Southern California and was graduated in 1953. There is no criticism in the record of his professional work, his military service, or his performance at the law school.Despite Konigsberg's forceful showing of good moral character and the fact that there is no evidence that he has ever been convicted of any crime or has ever done anything base or depraved, the State nevertheless argues that substantial doubts were raised about his character by: (1) the testimony of an ex-Communist that Konigsberg had attended meetings of a Communist Party unit in 1941; (2) his criticism of certain public officials and their policies; and (3) his refusal to answer certain questions about his political associations and beliefs. When these items are analyzed, we believe that it cannot rationally be said that they support substantial doubts about Konigsberg's moral fitness to practice law.(1) Testimony of the Ex-Communist. - The suspicion that Konigsberg was or had been a Communist was based chiefly on the testimony of a single ex-Communist that Konigsberg had attended meetings of a Communist Party unit in 1941. From the witness' testimony it appears that this unit was some kind of discussion group. On cross-examination she conceded that her sole basis for believing that Konigsberg was a member of that party was his attendance at these meetings. Her testimony concerned events that occurred many years before and her identification of Konigsberg was not very convincing.23 She admitted that she had not known him personally and never had any contact with him except at these meetings in 1941. Konigsberg denied that he had ever seen her or known her. And in response to a Bar Examiner's question as to whether he was a communist, in the philosophical sense, as distinguished from a member of the Communist Party, Konigsberg replied: "If you want a categorical answer to `Are you a communist?' the answer is no."24 Even if it be assumed that Konigsberg was a member of the Communist Party in 1941, the mere fact of membership would not support an inference that he did not have good moral character.25 There was no evidence that he ever engaged in or abetted any unlawful or immoral activities - or even that he knew of or supported any actions of this nature. It may be, although there is no evidence in the record before us to that effect, that some members of that party were involved in illegal or disloyal activities, but petitioner cannot be swept into this group solely on the basis of his alleged membership in that party. In 1941 the Communist Party was a recognized political party in the State of California. Citizens of that State were free to belong to that party if they wanted to do so. The State had not attempted to attach penalties of any kind to membership in the Communist Party. Its candidates' names were on the ballots California submitted to its voters. Those who accepted the State at its word and joined that party had a right to expect that the State would not penalize them, directly or indirectly, for doing so thereafter.26 (2) Criticism of Certain Public Officials and Their Policies. - In 1950 Konigsberg wrote a series of editorials for a local newspaper. In these editorials he severely criticized, among other things, this country's participation in the Korean War, the actions and policies of the leaders of the major political parties, the influence of "big business" in American life, racial discrimination, and this Court's decisions in Dennis and other cases.27 When read in the light of the ordinary give-and-take of political controversy the editorials Konigsberg wrote are not unusually extreme and fairly interpreted only say that certain officials were performing their duties in a manner that, in the opinion of the writer, was injurious to the public. We do not believe that an inference of bad moral character can rationally be drawn from these editorials.28 Because of the very nature of our democracy such expressions of political views must be permitted. Citizens have a right under our constitutional system to criticize government officials and agencies. Courts are not, and should not be, immune to such criticism.29 Government censorship can no more be reconciled with our national constitutional standard of freedom of speech and press when done in the guise of determining "moral character," than if it should be attempted directly.(3) Refusal to Answer Questions. - During the prolonged hearings before the Committee of Bar Examiners, Konigsberg was not asked directly about his honesty, trustworthiness, or other traits which are generally thought of as related to good character. Almost all of the Bar Examiners' questions concerned his political affiliations, editorials and beliefs. Konigsberg repeatedly declined to answer such questions, explaining that his refusal was based on his understanding that under the First and Fourteenth Amendments to the United States Constitution a State could not inquire into a person's political opinions or associations and that he had a duty not to answer. Essentially, this is the same stand he had taken several years before when called upon to answer similar questions before the Tenney Committee.The State argues that Konigsberg's refusal to tell the Examiners whether he was a member of the Communist Party or whether he had associated with persons who were members of that party or groups which were allegedly Communist dominated tends to support an inference that he is a member of the Communist Party and therefore a person of bad moral character. We find it unnecessary to decide if Konigsberg's constitutional objections to the Committee's questions were well founded. Prior decisions by this Court indicate that his claim that the questions were improper was not frivolous30 and we find nothing in the record which indicates that his position was not taken in good faith. Obviously the State could not draw unfavorable inferences as to his truthfulness, candor or his moral character in general if his refusal to answer was based on a belief that the United States Constitution prohibited the type of inquiries which the Committee was making.31 On the record before us, it is our judgment that the inferences of bad moral character which the Committee attempted to draw from Konigsberg's refusal to answer questions about his political affiliations and opinions are unwarranted.B. Advocating the Overthrow of Government by Force. - The Committee also found that Konigsberg had failed to prove that he did not advocate the overthrow of the Government of the United States or California by force and violence. Konigsberg repeatedly testified under oath before the Committee that he did not believe in nor advocate the overthrow of any government in this country by any unconstitutional means. For example, in response to one question as to whether he advocated overthrowing the Government, he emphatically declared: "I answer specifically I do not, I never did or never will." No witness testified to the contrary. As a matter of fact, many of the witnesses gave testimony which was utterly inconsistent with the premise that he was disloyal.32 And Konigsberg told the Committee that he was ready at any time to take an oath to uphold the Constitution of the United States and the Constitution of California.33 Even if it be assumed that Konigsberg belonged to the Communist Party in 1941, this does not provide a reasonable basis for a belief that he presently advocates overthrowing the Government by force.34 The ex-Communist, who testified that Konigsberg attended meetings of a Communist unit in 1941, could not remember any statements by him or anyone else at those meetings advocating the violent overthrow of the Government. And certainly there is nothing in the newspaper editorials that Konigsberg wrote that tends to support a finding that he champions violent overthrow. Instead, the editorials expressed hostility to such a doctrine. For example, Konigsberg wrote: "It is vehemently asserted that advocacy of force and violence is a danger to the American government and that its proponents should be punished. With this I agree. Such advocacy is un-American and does undermine our democratic processes. Those who preach it must be punished." Counsel for California offers the following editorial as evidence that Konigsberg advocates overthrow of the Government by force and violence: "Loyalty to America, in my opinion, has always meant adherence to the basic principles of our Constitution and Declaration of Independence - not loyalty to any man or group of men. Loyalty to America means belief in and militant support of her noble ideals and the faith of her people. Loyalty to America today, therefore, must mean opposition to those who are betraying our country's traditions, who are squandering her manpower, her honor and her riches." On its surface this editorial does not appear to be a call for armed revolution. To the contrary, it manifests a strongly held conviction for our constitutional system of government. However, the State attempts to draw an inference adverse to Konigsberg from his use of the word "militant" which it points out in one sense means "warlike." To us it seems far-fetched to say that exhortation to "militant" support of America's "noble ideals" demonstrates a willingness to overthrow our democratic institutions.35 We recognize the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner nor in such way as to impinge on the freedom of political expression or association. A bar composed of lawyers of good character is a worthy objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal. It is also important both to society and the bar itself that lawyers be unintimidated - free to think, speak, and act as members of an Independent Bar.36 In this case we are compelled to conclude that there is no evidence in the record which rationally justifies a finding that Konigsberg failed to establish his good moral character or failed to show that he did not advocate forceful overthrow of the Government. Without some authentic reliable evidence of unlawful or immoral actions reflecting adversely upon him, it is difficult to comprehend why the State Bar Committee rejected a man of Konigsberg's background and character as morally unfit to practice law. As we said before, the mere fact of Konigsberg's past membership in the Communist Party, if true, without anything more, is not an adequate basis for concluding that he is disloyal or a person of bad character. A lifetime of good citizenship is worth very little if it is so frail that it cannot withstand the suspicions which apparently were the basis for the Committee's action.The judgment of the court below is reversed and the case remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.

Appellee owns and operates a pipe line from its refinery in Oklahoma to its terminals in other States. It uses the pipe line solely to carry its own refined petroleum products. No other pipe line or refiner has connections with appellee's line, and no other refiner has ever shipped products through it. At each of its terminals, appellee has storage facilities from which it makes deliveries to jobber purchasers, who supply their own transportation therefrom. At two of its terminals it has ethyl plants where it processes 20% of its products. Appellee presently handles 1.98% of the total products consumed in its marketing area. There are ample common-carrier pipe-line facilities available to these markets; and no refinery or other pipe-line company has requested a connection with appellee. In an earlier proceeding, Champlin Refining Co. v. United States, , this Court found that appellee was a "common carrier" within the meaning of 1 of the Interstate Commerce Act, and sustained a Commission order under 19a requiring appellee to file valuation data, maps, charts, etc. pertaining to its operations. Held: 1. A subsequent order of the Commission is sustained, insofar as it requires appellee, under 20 of the Act, to file annual, periodic and special reports, and to institute and maintain a uniform system of accounts applicable to pipe lines. Pp. 294-297. 2. Insofar as the order requires appellee, under 6 of the Act, to publish and file schedules showing rates and charges for interstate transportation of refined petroleum products - which might force appellee to devote its pipe line, at least partially, to public use - it goes beyond what Congress contemplated when it passed the Act; and it cannot be sustained. Pp. 297-301. 95 F. Supp. 170, affirmed in part and reversed in part. The Interstate Commerce Commission issued an order requiring appellee to take certain steps under 6 and 20 of the Interstate Commerce Act. 274 I. C. C. 409. A three-judge district court denied enforcement. 95 F. Supp. 170. On direct appeal to this Court, affirmed in part and reversed in part, p. 301.Charles H. Weston argued the cause for appellants. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, John F. Davis, Daniel W. Knowlton and H. L. Underwood.Dan Moody argued the cause for appellee. With him on the brief were Harry O. Glasser, Nathan Scarritt, E.S. Champlin and Samuel H. Horne.MR. JUSTICE CLARK delivered the opinion of the Court.Section 1 of the Interstate Commerce Act provides that "common carriers" engaged in the "transportation" of oil or other commodities shall be subject to the regulatory requirements specified in other sections of the statute.1 In an earlier proceeding, this Court found that Champlin, as owner of a pipe line, was a "common carrier" within the meaning of 1; and on the record there presented the Court upheld an I. C. C. order under 19a (a)-(e) of the Act requiring the company to submit valuation data, maps, charts and other documents pertaining to its operations.2 Champlin Refining Co. v. United States 29 (1946). The present proceeding involves a subsequent I. C. C. order directing Champlin (1) to file annual, periodic and special reports, and to institute and maintain a uniform system of accounts applicable to pipe lines, both under 20 of the Act;3 and (2) to publish and file schedules showing the rates and charges for interstate transportation of refined petroleum products, pursuant to 6.4 A specially constituted three-judge District Court, with one member dissenting, refused to enforce the order on the ground that Champlin, at least for the purposes of 6 and 20, is not within the class of carriers intended to be regulated by the Act. It held further that to impose the requirements of 6 on Champlin would be to take its property without due process in violation of the Fifth Amendment. 95 F. Supp. 170. The Government and the Commission appealed, 28 U.S.C. 1253, 2101 (e), 2325.The facts here are substantially the same as in the earlier case. Champlin owns and operates a pipe line running from its refinery at Enid, Oklahoma, to terminals at Hutchinson, Kansas; Superior, Nebraska; and Rock Rapids, Iowa - a distance of 516 miles. It uses the pipe line solely to carry its own refined petroleum products, such as gasoline and kerosene. No other refiner has connections with the line, and none has ever shipped products through it. The line does not connect with any other pipe line. Champlin has storage facilities at each of its three terminals. Jobbers purchasing Champlin products supply their own transportation from the storage tanks to their bulk depots.Since the first case, there has been a change in Champlin's method of quoting prices. At the time of the earlier proceeding, the price was computed as f. o. b. the Enid refinery, plus a differential equal to the through rail rate from Enid to the purchaser's destination minus the charges for local transportation between the nearest pipeline terminal and the destination. However, Champlin made frequent and substantial departures from this formula in order to meet competitive prices at various locations. In May 1948, the company began quoting prices as f. o. b. the respective terminals, a policy which is still in effect. But as before, adjustments are made so that delivered prices to jobbers will be competitive with those offered by other refiners.On the basis of these and other facts, the Government contends (1) that there are no significant factual differences between this and the prior case, and therefore Champlin is barred by collateral estoppel from relitigating the holding of this Court that it is a "common carrier" engaged in "transportation" within the meaning of 1 of the Act; (2) that since the definition of "common carrier" in 1 applies to 6 and 20 as well as to 19a, the Court's prior holding per se establishes the validity of the present order; (3) that even if estoppel does not apply, the facts are adequate under the statute to support the Commission's order; (4) that the alleged constitutional question is frivolous.Champlin claims (1) that factual changes remove this case from the realm of collateral estoppel; (2) that the Court specifically reserved the statutory issue presented by this case, namely whether the I. C. C. may convert a private carrier into a common carrier for hire; and (3) that the lower court was correct in holding that the Act violates the Fifth Amendment if construed to authorize the I. C. C.'s order.We agree with the Government that there have been no significant factual changes in Champlin's operations since the prior case. The practice of quoting prices f. o. b. Enid made it superficially more obvious that transportation charges were being collected, a point which the Court brought out. at 34. And the record indicates that the change to an f. o. b. terminal formula resulted in minor alterations in the pattern of relative delivered prices at various locations. But Champlin is still transporting, and unless it has launched on a calculated plan of bankruptcy, its prices on the average are necessarily intended to cover transportation costs as well as other costs. Champlin further points out that it has constructed ethyl plants at two of its pipe-line terminals and is there processing some 20 percent of its products. It claims that this change makes the pipe line a part of "manufacturing" facilities and thus brings the company within the Uncle Sam rule, which excepted a class of gathering lines from the coverage of the Act. Pipe Line Cases, . But a Champlin officer testified in this case that the company has "always done some blending and treating" of its products at the terminals; and 80 percent of the products are still transported in their final form. Hence, there is no justification for reconsidering this Court's refusal to "expand the actual holding" of the Uncle Sam case to include Champlin, and its ruling that Champlin was a "common carrier" as defined by 1 of the Act.However, we disagree with the Government's contention that the prior holding disposes of all the statutory issues in this case. To be sure, the literal terms of the statute lend some weight to the Government's argument. Section 1 (1) provides that "the provisions of this part" shall apply to "common carriers" as defined, the word "part" referring to 1-27 inclusive. Section 19a, under which the earlier order was issued, applies to "every common carrier subject to the provisions of this part." Section 20 applies to "carriers," which is defined in subparagraph (8) as "common carrier[s] subject to this chapter"; and 6 applies to "every common carrier subject to the provisions of this chapter." Hence, the Commission's jurisdiction to issue orders under any of these sections is determined by a decision that a company is a "common carrier" under 1. The Government in effect argues, however, that a decision as to jurisdiction also settles the merits, that facts adequate to support a specific valuation order under 19a are also adequate to support an order under 6 and 20. But this is the very conclusion which this Court necessarily rejected in Champlin I. In that case, it was Champlin which argued that an interpretation encompassing it within 1 would convert a private pipe line into a public utility and require it to become a common carrier in fact. But the Court stated that "our conclusion rests on no such basis and affords no such implication... . The contention ... is too premature and hypothetical to warrant consideration ... ." at 35. In holding merely that Champlin could be required to submit information as a "common carrier" under the Act, the Court plainly indicated that the application of more rigorous sanctions would be reserved for treatment as an independent statutory issue on a proper record.The reasons for this approach were suggested in Valvoline Oil Co. v. United States, . Collection of information has a significance independent from the imposition of regulations, whether or not such regulations ever come forth. Valuation and cost data from companies not subject to rate making may add to the statistical reliability of standards imposed on those companies which are. "Publicity alone may give effective remedy to abuses, if any there be." Id. at 146. Disclosure may alter the future course of a company otherwise disposed to indulge in activities which the statute condemns. Disclosure provides the basis for prompt action should a future change in circumstances make full-scale regulation appropriate. Finally, reports may bring to light new abuses and thus provide the groundwork for future statutory amendments. We assume that the Congress which passed the Interstate Commerce Act was well aware of these benefits. We conclude, as before, that the Congress did not mean to eschew them by omitting a general provision empowering the Commission to collect pertinent data from all interstate pipe lines.The prior holding, therefore, supports that part of the Commission's order involving 20 of the Act. The requirement of annual and special reports cannot be differentiated from a request for maps, charts and valuation data. The requirement that Champlin maintain a uniform system of accounts is somewhat more burdensome, but we think its independent value as a measuring rod for companies fully regulated under the Act is clearly sufficient to justify the Commission's requesting so much as is pertinent.At the same time, we find it hard to conclude, despite the generality of the statutory terms used, that Congress intended to apply the sanctions of 6 - imposing the duty of serving the public at regulated rates - on all private pipe lines merely because they cross state lines. The statute cannot be divorced from the circumstances existing at the time it was passed, and from the evil which Congress sought to correct and prevent. The circumstances and the evil are well-known. Pipe lines were few in number and heavily concentrated under the control of one company, Standard Oil. That company, through the ownership of subsidiaries and affiliates, had "made itself master of the only practicable oil transportation between the oil fields east of California and the Atlantic Ocean and carried much the greater part of the oil between those points... . Availing itself of its monopoly of the means of transportation [it] refused through its subordinates to carry any oil unless the same was sold to it or to them ... on terms more or less dictated by itself." Pipe Line Cases, supra, at 559. Small independent producers - who lacked the resources to construct their own lines, or whose output was so small that a pipe line built to carry that output alone would be economically unfeasible - were in a desperate competitive position. There is little doubt, from the legislative history, that the Act was passed to eliminate the competitive advantage which existing or future integrated companies might possess from exclusive ownership of a pipe line. This evil could not have been reached by bringing within the coverage of the Act only those pipe lines who were common carriers for hire in the common-law sense. Attempts so to limit the Act's scope were made during the course of congressional debates. Senator Lodge, sponsor of the principal amendment, rendered the obvious answer that such an alteration would "absolutely destroy [the proposal] ... so far as its effectiveness is concerned." 40 Cong. Rec. 7000 (1906). Hence the bill as finally enacted was clearly intended "to bring within its scope pipe lines that although not technically common carriers yet were carrying all oil offered, if only the offerers would sell at their price." Pipe Line Cases, supra, at 560. And see Valvoline Oil Co. v. United States, supra. We may also assume for purposes of argument - no such facts ever having been before this Court - that the generality of the term "all pipe lines" was meant to impose full regulation on integrated producer pipe lines who exploit a competitive advantage simply by refusing to deal with independent producers having no comparably cheap method of reaching consuming markets. But it would be strange to suppose that Congress, in adopting a term broad enough to cover all competitive imbalances which might arise, intended that the Commission should make common carriers for hire out of private pipe lines whose services were unused, unsought after, and unneeded by independent producers, and whose presence fosters competition in markets heavily blanketed by large "majors." Such a step would at best be pointless; it might well subvert the chief purpose of the Act.Yet on the record before us, this is precisely what the Commission is attempting to do. Unlike the crude-oil gathering lines of Valvoline, which carried the products of over 3,800 independent owners and operators, Champlin's refined-products line carries only its own.5 The Government concedes that the order under 6 carries a necessary implication that Champlin may now be forced to devote its pipe line, at least partially, to public use. Nevertheless, the Commission has not only failed to disclose circumstances which the Act was passed to correct, but has either assumed or made findings to the contrary. In addition to findings previously referred to, the Commission stated as follows: "Only about 1.98 percent of the total gasoline consumed in [Champlin's marketing] area is moved through the pipe line and sold from respondent's terminal storage facilities... . The total capacity of the common-carrier lines into the Nebraska market is about 13 times that of the Champlin line and about 10 times that of the latter into the Iowa market. The common-carrier pipe-line capacity available to refineries in Oklahoma and Kansas aggregates 172,800 barrels a day [in contrast to Champlin's capacity of 9,800 barrels], and respondent's pipe line is the smallest of any common-carrier or private pipe line operating in this territory. Apparently, common-carrier pipe-line transportation is available to any small refiner in this area desiring such transportation. ... . . "So far as appears, no other pipe-line company has threatened to force ... a connection [with Champlin's], and because of the ample common-carrier pipe-line facilities available, as revealed by respondent, no refinery would be likely to interest itself in such a connection." 274 I. C. C. 412-413, 415 (1949). (Emphasis supplied.) The court below, in its Findings of Fact, concluded that "Champlin does not have a monopoly or any power to establish a monopoly either in the transportation of petroleum products into the trade territory or in the sale of petroleum products therein." It further found that "Champlin ... is a small company in comparison with companies with which it competes in the area reached by its pipe line... . Champlin's acts create competition." See also Chairman Splawn, dissenting from the Commission report. 274 I. C. C. 416.6 The Government seeks to rebuild its case by pointing to small refiners who are closer to Champlin's pipe line than to any other, and by stressing the expense of building long connecting lines. But there is no evidence that any of these refiners wish to market outside their immediate area. And in any event, it is not the function of this Court to rescue the Commission by making findings de novo which the Commission itself was unable or unwilling to make. We hold that on this record the Commission's order, insofar as it concerns 6, goes beyond what Congress contemplated when it passed the Act.The judgment below will be modified by striking out those portions setting aside the Commission's order in Cause No. 29912, Champlin Refining Company Accounts and Reports, and as modified, it is affirmed. So ordered.MR. JUSTICE FRANKFURTER, while joining the Court's opinion, would overrule the earlier Champlin decision, , on the ground set forth in the dissent in that case.

Airline pilot taxpayer is not entitled under 262 of the Internal Revenue Code to an exclusion from "personal" expenses for the costs of commuting by car from his home to his place of employment because by happenstance he must carry incidentals of his occupation with him. Certiorari granted; 472 F.2d 561, affirmed.PER CURIAM.Petitioner Donald Fausner, a commercial airlines pilot, who regularly traveled by private automobile from his home to his place of employment and back again, a round trip of approximately 84 miles, sought to deduct the entire cost of commuting under 162 (a) of the Internal Revenue Code of 1954, on the theory that his automobile expenses were incurred to transport his flight bag and overnight bag and thus constituted ordinary and necessary business expenses. It is not disputed that petitioner would have commuted by private automobile regardless of whether he had to transport his two bags. The Tax Court disallowed the deduction in toto. On appeal, the Court of Appeals for the Fifth Circuit affirmed the decision of the Tax Court. 472 F.2d 561.This issue has been addressed by two other circuits, Sullivan v. Commissioner, 368 F.2d 1007 (CA2 1966), and Tyne v. Commissioner, 385 F.2d 40 (CA7 1967). Both of these circuits concluded that some allocable portion of the expenses incurred could be deducted as an ordinary and necessary business expense. The Court of Appeals for the Fifth Circuit refused to follow those cases on the ground that there was no rational basis for any allocation between the nondeductible commuting component and the deductible business component of the total expense.As the Court of Appeals indicated, Congress has determined that all taxpayers shall bear the expense of commuting to and from work without receiving a deduction for that expense. We cannot read 262 of the Internal Revenue Code1 as excluding such expense from "personal" expenses because by happenstance the taxpayer must carry incidentals of his occupation with him. Additional expenses may at times be incurred for transporting job-required tools and material to and from work.2 Then an allocation of costs between "personal" and "business" expenses3 may be feasible. But no such allocation can be made here.We grant the petition for certiorari and affirm the judgment below.MR. JUSTICE BLACKMUN would grant the petition for a writ of certiorari and set the case for oral argument.

A sheriff, acting on a tip, made a complaint before a magistrate charging that petitioner and another individual on the date and at the place named "did then and there unlawfully break and enter into [the described] locked ... building," and a warrant was issued. A police radio bulletin named and described the two persons, the type of car they were probably driving, and the amount and type of money taken. Relying on the bulletin, an officer in another county made a warrantless arrest of the suspects. The car was then searched and various incriminating items removed, which were later used at petitioner's trial, which resulted in his conviction. Petitioner filed a habeas corpus petition reiterating the challenge he had made at his arraignment and trial to the constitutionality of the use of evidence seized during a search incident to the assertedly illegal arrest. The District Court denied the petition, and the Court of Appeals affirmed. Held: 1. Petitioner's arrest violated his rights under the Fourth and Fourteenth Amendments and the evidence secured incident thereto should have been excluded from his trial. Pp. 564-569. (a) The complaint, which did not mention that the sheriff acted on an informer's tip, and which consisted of no more than the sheriff's conclusion that the individuals named committed the offense, could not support the independent judgment of a disinterested magistrate. P. 565. (b) The standards applicable to the factual basis for an arresting officer's probable-cause assessment are no less strict than those applicable to the magistrate's assessment. Here the arresting officer had no information to corroborate the report that the suspects had committed the crime and the fact that the warrantless arrest was based on a police radio bulletin cannot supply the element of probable cause that the officer who issued the bulletin lacked. Pp. 565-567. 2. Since, notwithstanding petitioner's constitutional challenge at each stage, respondent made no attempt to show that the magistrate had more information than was presented in the complaint, he may not attempt to do so now on remand; and the writ must issue unless the State appropriately arranges to retry the petitioner. P. 569. 416 F.2d 36, reversed and remanded.HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. BLACK, J., filed a dissenting opinion, in which BURGER, C. J., joined, post, p. 570. BLACKMUN, J., filed a dissenting statement, post, p. 575.William J. Knudsen, Jr., argued the cause for petitioner. With him on the briefs was Richard A. Mullens.Jack Speight, Assistant Attorney General of Wyoming, argued the cause for respondent. With him on the brief was James E. Barrett, Attorney General.MR. JUSTICE HARLAN delivered the opinion of the Court.Petitioner Whiteley, in 1965, was convicted in the District Court for the Second Judicial District of the State of Wyoming on charges of breaking and entering and being an habitual criminal.1 Both at his arraignment and at trial Whiteley challenged the constitutionality of the use of evidence seized during a search incident to an arrest which he claimed was illegal. The trial court overruled petitioner's motion to suppress, and on appeal the Supreme Court of Wyoming affirmed. Whiteley v. State, 418 P.2d 164 (1966). This proceeding commenced with a petition for habeas corpus in the United States District Court for the District of Wyoming, which was denied on November 25, 1968.2 Whiteley v. Wyoming, 293 F. Supp. 381. On appeal, the United States Court of Appeals for the Tenth Circuit affirmed. Whiteley v. Meacham, 416 F.2d 36 (1969). We granted certiorari, limiting the writ to the issue of the constitutionality of the arrest and ensuing search and seizure. .3 We reverse the judgment of the Tenth Circuit for the reasons stated herein.IThe circumstances surrounding petitioner's arrest and the incidental search and seizure, as stated by the Wyoming Supreme Court, 418 P.2d 164, 165-166, are as follows:4 "On November 23, 1964, certain business establishments in Saratoga were broken into, including the Rustic Bar and Shively's Hardware, the offenses being investigated by the Carbon County Sheriff [Sheriff Ogburn] who, acting on a tip, the next day signed a complaint charging defendant and another with breaking and entering the building identified as the Rustic Bar. This complaint was made before a justice of the peace at approximately 11:30 a. m. on the 24th, and a warrant issued. After the investigation, the sheriff put out a state item on the radio to pick up two suspects of the breaking and entering, defendant and another. The message went to the network at Casper and was transmitted over the State, received by the Albany County Sheriff's Office and communicated to the Laramie Police Department, the message giving names and descriptions of the two persons and advising the type of car probably being driven and the amount of money taken, including certain old coins with the dates. Late at night on November 24, a Laramie patrolman, in reliance on the information in the radio item, arrested the defendant and his companion. At the time, the patrolman had no warrant for defendant's arrest nor search warrant. The officer together with a deputy sheriff, who had come up in the meantime, searched the car and removed a number of items introduced in evidence, including tools and old coins, identified at the trial as taken from Shively's Hardware... ." Sheriff Ogburn's complaint, which provided the basis for the arrest warrant issued by the justice of the peace, is as follows: "I, C. W. Ogburn, do solemnly swear that on or about the 23 day of November, A. D. 1964, in the County of Carbon and State of Wyoming, the said Harold Whiteley and Jack Daley, defendants did then and there unlawfully break and enter a locked and sealed building [describing the location and ownership of the building]." App. 28. A state item 881, the bulletin which Sheriff Ogburn put out on the radio and which led to petitioner's arrest and search by the Laramie patrolman, is as follows:"P & H for B & E Saratoga, early A.M. 11-24-64. Subj. #1. Jack Daley, WMA, 38, D.O.B. 2-29-26., 5'10", 175, med. build, med. comp., blonde and blue. Tat. left shoulder: `Love Me or Leave Me.' #2. Harold Whitley, WMA, 43, D.O.B. 6-22-21, 5' 11", 180, med. build, fair comp. brown eyes. Tat. on right arm `Bird.' Poss. driving 1953 or 1954 Buick, light green bottom, dark top. Wyo. lic. 2-bal. unknown. Taken: $281.71 in small change, numerous old coins ranging from .5 pieces to silver dollars, dated from 1853 to 1908. Warrant issues, will extradite. Special attention Denver... ." App. 31.5 IIThe decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.6 Spinelli v. United States, ; United States v. Ventresca, ; Aguilar v. Texas, ; Rugendorf v. United States, ; Jones v. United States, ; Giordenello v. United States, . In the instant case - so far as the record stipulated to by the parties reveals7 - the sole support for the arrest warrant issued at Sheriff Ogburn's request was the complaint reproduced above.8 That complaint consists of nothing more than the complainant's conclusion that the individuals named therein perpetrated the offense described in the complaint. The actual basis for Sheriff Ogburn's conclusion was an informer's tip, but that fact, as well as every other operative fact, is omitted from the complaint. Under the cases just cited, that document alone could not support the independent judgment of a disinterested magistrate.The State,9 however, contends that regardless of the sufficiency of the complaint to support the arrest warrant, the Laramie police officer who actually made the arrest possessed sufficient factual information to support a finding of probable cause for arrest without a warrant. In support of this proposition, the State argues that a reviewing court should employ less stringent standards for reviewing a police officer's assessment of probable cause as a prelude to a warrantless arrest than the court would employ in reviewing a magistrate's assessment as a prelude to issuing an arrest or search warrant.10 That proposition has been consistently rejected by this Court. United States v. Ventresca, 380 U.S., at 105-109; Aguilar v. Texas, 378 U.S., at 110-111; Jones v. United States, 362 U.S., at 270-271. And the reason for its rejection is both fundamental and obvious: less stringent standards for reviewing the officer's discretion in effecting a warrantless arrest and search would discourage resort to the procedures for obtaining a warrant. Thus the standards applicable to the factual basis supporting the officer's probable-cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate's assessment. See McCray v. Illinois, .Applying those standards to the instant case, the information possessed by the Laramie police officer at the time of arrest and search consisted of: (1) the data contained in state bulletin 881, reproduced supra; (2) the knowledge, obtained by personal observation, that two men were driving a car matching the car described in the radio bulletin; (3) the knowledge, possessed by one of the arresting officers, that one of the people in the car was Jack Daley, App. 71; (4) the knowledge, acquired by personal observation, that the other individual in the car fitted the description of Whiteley contained in state bulletin 881; and (5) the knowledge, acquired by the officer after stopping Whiteley, that he had given a false name.11 This Court has held that where the initial impetus for an arrest is an informer's tip, information gathered by the arresting officers can be used to sustain a finding of probable cause for an arrest that could not adequately be supported by the tip alone. Draper v. United States, . See Spinelli v. United States, . But the additional information acquired by the arresting officers must in some sense be corroborative of the informer's tip that the arrestees committed the felony or, as in Draper itself, were in the process of committing the felony. See the opinions of the Court and that of MR. JUSTICE WHITE concurring in Spinelli v. United States, supra, and p. 423. In the present case, the very most the additional information tended to establish is that either Sheriff Ogburn, or his informant, or both of them, knew Daley and Whiteley and the kind of car they drove; the record is devoid of any information at any stage of the proceeding from the time of the burglary to the event of the arrest and search that would support either the reliability of the informant or the informant's conclusion that these men were connected with the crime. Spinelli v. United States, supra; McCray v. Illinois, supra; Aguilar v. Texas, supra. The State, however, offers one further argument in support of the legality of the arrest and search: the Laramie police relied on the radio bulletin in making the arrest, and not on Sheriff Ogburn's unnamed informant. Clearly, it is said, they had probable cause for believing that the passengers in the car were the men described in the bulletin, and, in acting on the bulletin, they reasonably assumed that whoever authorized the bulletin had probable cause to direct Whiteley's and Daley's arrest. To prevent arresting officers from acting on the assumption that fellow officers who call upon them to make an arrest have probable cause for believing the arrestees are perpetrators of a crime would, it is argued, unduly hamper law enforcement.We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.In sum, the complaint on which the warrant issued here clearly could not support a finding of probable cause by the issuing magistrate. The arresting officer was not himself possessed of any factual data tending to corroborate the informer's tip that Daley and Whiteley committed the crime.12 Therefore, petitioner's arrest violated his constitutional rights under the Fourth and Fourteenth Amendments; the evidence secured as an incident thereto should have been excluded from his trial. Mapp v. Ohio, .IIIThere remains the question as to the proper disposition of this case. The State urges us to remand so that it will have an opportunity to develop a record which might show that the issuing magistrate had factual information additional to that presented in Sheriff Ogburn's complaint. Brief for Respondent 8-9. Yet the State concedes, as on the record it must, that at every stage in the proceedings below petitioner argued the insufficiency of the warrant as well as the lack of probable cause at the time of the arrest. Brief for Respondent 4. Knowing the basis for petitioner's constitutional claim, the State chose to try those proceedings on the record it had developed in the state courts. See n. 4, supra. Its sole explanation for this state of affairs is that "the state has felt, based on precedent and logic, that no court would accept the legal reasoning of petitioner." Brief for Respondent 9. In the circumstances of this case, that justification, as we have shown, is untenable.Pursuant to our authority under 28 U.S.C. 2106 to make such disposition of the case "as may be just under the circumstances," we reverse the judgment of the Tenth Circuit and remand with directions that the writ is to issue unless the State makes appropriate arrangements to retry petitioner.13 Cf. Giordenello v. United States, 357 U.S., at 487-488. It is so ordered.

Petitioner mine operator's nonunion work force designated two employees of the United Mine Workers of America (UMWA) to serve as miners' representatives under 30 U.S.C. 813(f). Claiming that the designations compromised its rights under the National Labor Relations Act (NLRA), petitioner refused to post information about the representatives as required by a regulation issued by the Department of Labor's Mine Safety and Health Administration (MSHA), 30 CFR 40.4. Rather, petitioner filed suit in the District Court and obtained an injunction preventing enforcement of 30 CFR pt. 40. In reversing, the Court of Appeals held that district court jurisdiction was precluded by the administrative review scheme of the Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C. 801 et seq. (Mine Act or Act), under which challenges to enforcement measures are reviewed by the Federal Mine Safety and Health Review Commission and then by the appropriate court of appeals. The court rejected petitioner's contention that requiring it to challenge the MSHA's interpretation of 30 U.S.C. 813(f) and 30 CFR pt. 40 through the statutory review procedures would violate its rights under the Due Process Clause of the Fifth Amendment.Held: 1. The Mine Act's statutory review scheme precludes a district court from exercising subject matter jurisdiction over a pre-enforcement challenge to the Act. Pp. 5-18. (a) In cases involving delayed judicial review of final agency actions, this Court finds that Congress has allocated initial review to an administrative body where such intent is fairly discernible in Page II the statutory scheme. Whether a statute is intended to preclude initial judicial review is determined from the statute's language, structure, and purpose, its legislative history, and whether the claims can be afforded meaningful review. Pp. 5-6. (b) Although the Mine Act is facially silent about pre-enforcement claims, its comprehensive enforcement structure demonstrates that Congress intended to preclude challenges such as the present one. The statutory review process does not distinguish between pre- and post-enforcement challenges, but applies to all violations of the Act and its regulations. The Act expressly authorizes district court jurisdiction in only two provisions, which respectively empower the Secretary to enjoin habitual violations of health and safety standards and to coerce payment of civil penalties. Mine operators enjoy no corresponding right, but must complain to the Commission and then to the court of appeals. Pp. 6-8. (c) The Mine Act's legislative history confirms the foregoing interpretation by demonstrating that Congress intended to channel and streamline enforcement, directing ordinary challenges to a single review process. Abbott Laboratories v. Gardner, , 155-156, distinguished. Pp. 8-11. (d) Petitioner's claims are of the type that Congress intended to be addressed through the statutory review process, and can be meaningfully reviewed under the Mine Act. The NLRA claims, at root, require interpretation of the parties' rights and duties under 813(f) and 30 CFR pt. 40, and, as such, arise under the Act and fall squarely within the expertise of the Commission, which recently has addressed the precise NLRA claims presented here. As for petitioner's due process claim, the general rule disfavoring constitutional adjudication by agencies is not mandatory, and is perhaps of less consequence where, as here, the reviewing body is not the agency itself, but an independent commission established exclusively to adjudicate Mine Act disputes. The Commission has addressed constitutional questions in previous enforcement proceedings and, even if it had not, petitioner's claims could be meaningfully addressed in the Court of Appeals. Pp. 11-16. 2. The Court need not consider petitioner's contention that, because the absence of pre-enforcement declaratory relief before the Commission will subject petitioner to serious and irreparable harm, due process requires district court review. The record contains no evidence that petitioner will be subject to a serious prehearing deprivation if it complies with 813(f) and 30 CFR pt. 40 by posting the designations. The potential for abuse of the miners' representative position appears limited, and petitioner has Page III failed to demonstrate that any such abuse could not be remedied on an individual basis under the Mine Act. Nor will petitioner face any serious prehearing deprivation if it refuses to post the designations while challenging MSHA's interpretation. Although the Act's civil penalties unquestionably may become onerous if petitioner chooses not to comply, full judicial review is available before any penalty must be paid. Under the Act, petitioner is neither barred as a practical matter from all access to the courts nor put to a constitutionally intolerable choice between compliance and potent coercive penalties. Pp. 16-18. 969 F.2d 970, affirmed. BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, and GINSBURG, JJ., joined, and in which SCALIA and THOMAS, JJ., joined except for Parts III-B, IV, and V. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 1] JUSTICE BLACKMUN delivered the opinion of the Court.In this case, we address the question whether the statutory review scheme in the Federal Mine Safety and Health Amendments Act of 1977, 91 Stat. 1292, as amended, 30 U.S.C. 801 et seq. (1988 ed. and Supp. IV) (Mine Act or Act), prevents a district court from exercising subject matter jurisdiction over a pre-enforcement challenge to the Act. We hold that it does.ICongress adopted the Mine Act "to protect the health and safety of the nation's coal or other miners." 30 U.S.C. 801(g). The Act requires the Secretary of Labor or his representative to conduct periodic, unannounced health and safety inspections of the Nation's mines.1 Section 813(f) provides:"A representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative during the physical [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 2] inspection of any coal or other mine ... for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine." Regulations promulgated under this section define a miners' representative as "[a]ny person or organization which represents two or more miners at a coal or other mine for purposes of the Act." 30 CFR 40.1(b)(1) (1993).In addition to exercising these "walk-around" inspection rights under 813(f), persons designated as representatives of the miners may obtain certain health and safety information2 and promote health and safety enforcement.3 Once the mine employees designate one or more persons as their representatives, the employer must post at the mine information regarding these designees. 30 CFR 40.4.The Secretary has broad authority to compel immediate compliance with Mine Act provisions through the use [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 3] of mandatory civil penalties, discretionary daily civil penalties, and other sanctions.4 Challenges to enforcement are reviewed by the Federal Mine Safety and Health Review Commission, 30 U.S.C. 815 and 823, which is independent of the Department of Labor, and by the appropriate United States Court of Appeals, 816.IIPetitioner Thunder Basin Coal Company operates a surface coal mine in Wyoming with approximately 500 nonunion employees. In 1990, petitioner's employees selected two employees of the United Mine Workers of America (UMWA), who were not employees of the mine, to serve as their miners' representatives pursuant to 813(f). Petitioner did not post the information regarding the miners' representatives as required by 30 CFR 40.4, but complained to the Mine Safety and Health Administration (MSHA)5 that the designation compromised its rights under the National Labor Relations Act. App. 31. The MSHA District Manager responded with a letter instructing petitioner to post the miners' representative designations. Id., at 49.Rather than post the designations and before receiving the MSHA letter, petitioner filed suit in the United States District Court for the District of Wyoming for [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 4] pre-enforcement injunctive relief. Id., at 6. Petitioner contended that the designation of non-employee UMWA "representatives" violated the principles of collective-bargaining representation under the NLRA as well as the company's NLRA rights to exclude union organizers from its property. Id., at 9-10. Petitioner argued then, as it does here, that deprivation of these rights would harm the company irreparably by "giv[ing] the union organizing advantages in terms of access, personal contact and knowledge that would not be available under the labor laws, as well as enhanced credibility flowing from the appearance of government imprimatur." Reply Brief for Petitioner 14.Petitioner additionally alleged that requiring it to challenge the MSHA's interpretation of 30 U.S.C. 813(f) and 30 CFR pt. 40 through the statutory review process would violate the Due Process Clause of the Fifth Amendment, since the company would be forced to choose between violating the Act and incurring possible escalating daily penalties,6 or, on the other hand, complying with the designations and suffering irreparable harm. The District Court enjoined respondents from enforcing 30 CFR pt. 40, finding that petitioner had raised serious questions going to the merits and that it might face irreparable harm.7 [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 5] The Court of Appeals for the Tenth Circuit reversed, holding that the Mine Act's comprehensive enforcement and administrative review scheme precluded district court jurisdiction over petitioner's claims. 969 F.2d 970 (1992). The court stated:"The gravamen of Thunder Basin's case is a dispute over an anticipated citation and penalty ... . Operators may not avoid the Mine Act's administrative review process simply by filing in a district court before actually receiving an anticipated citation, order, or assessment of penalty." Id., at 975. To hold otherwise, the court reasoned, "would permit preemptive strikes that could seriously hamper effective enforcement of the Act, disrupting the review scheme Congress intended." Ibid. The court also concluded that the Mine Act's review procedures adequately protected petitioner's due process rights. Ibid.We granted certiorari on the jurisdictional question___ (1993), to resolve a claimed conflict with the Sixth Circuit Court of Appeals. See Southern Ohio Coal Co. v. Donovan, 774 F.2d 693 (1985), amended, 781 F.2d 57 (1986).IIIIn cases involving delayed judicial review8 of final [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 6] agency actions, we shall find that Congress has allocated initial review to an administrative body where such intent is "fairly discernible in the statutory scheme." Block v. Community Nutrition Institute, , quoting Data Processing Service v. Camp, . Whether a statute is intended to preclude initial judicial review is determined from the statute's language, structure, and purpose, its legislative history, Block, 467 U.S., at 345, and whether the claims can be afforded meaningful review. See, e.g., Board of Governors of Federal Reserve System v. MCorp Financial, Inc.___ (1991); Whitney Bank v. New Orleans Bank, .AApplying this analysis to the review scheme before us, we conclude that the Mine Act precludes district court jurisdiction over the preenforcement challenge made here. The Act establishes a detailed structure for reviewing violations of "any mandatory health or safety standard, rule, order, or regulation promulgated" under the Act. 814(a). A mine operator has 30 days to challenge before the Commission any citation issued under the Act, after which time an uncontested order becomes "final" and "not subject to review by any court or agency." 815(a) and (d). Timely challenges are heard before an administrative law judge (ALJ), 823(d)(1), with possible Commission review.9 Only the Commission has authority actually to impose civil [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 7] penalties proposed by the Secretary, 820(i), and the Commission reviews all proposed civil penalties de novo according to six criteria.10 The Commission may grant temporary relief pending review of most orders, 815(b)(2), and must expedite review where necessary, 815(d).Mine operators may challenge adverse Commission decisions in the appropriate Court of Appeals, 816(a)(1), whose jurisdiction "shall be exclusive and its judgment and decree shall be final" except for possible Supreme Court review. Ibid. The Court of Appeals must uphold findings of the Commission that are substantially supported by the record, ibid., but may grant temporary relief pending final determination of most proceedings, 816(2).Although the statute establishes that the Commission and the courts of appeals have exclusive jurisdiction over challenges to agency enforcement proceedings, the Act is facially silent with respect to pre-enforcement claims. The structure of the Mine Act, however, demonstrates that Congress intended to preclude challenges such as the present one. The Act's comprehensive review process does not distinguish between pre- and post-enforcement challenges, but applies to all violations of the Act and its regulations. 814(a). Contrary to petitioner's suggestion, Reply Brief for Petitioner 3, actions before the Commission are initiated not by the Secretary, but by a mine operator who claims to be aggrieved. See 815(a). The Act expressly authorizes [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 8] district court jurisdiction in only two provisions, 818(a) and 820(j), which respectively empower the Secretary to enjoin habitual violations of health and safety standards and to coerce payment of civil penalties. Mine operators enjoy no corresponding right11 but are to complain to the Commission and then to the Court of Appeals.BThe legislative history of the Mine Act confirms this interpretation. At the time of the Act's passage, at least one worker was killed and 66 miners were disabled every working day in the Nation's mines. See S.Rep. No. 95-181, p. 4 (1977), Legislative History of the Federal Mine Safety and Health Act of 1977 (Committee Print prepared for the Subcommittee on Labor of the Senate Committee on Human Resources) Ser. No. 95-2, p. 592 (1977) (Leg. Hist.). Frequent and tragic mining disasters testified to the ineffectiveness of then-existing enforcement measures.12 Under existing legislation,13 [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 9] civil penalties were not always mandatory, and were too low to compel compliance, and enforcement was hobbled by a cumbersome review process.14 Congress expressed particular concern that under the previous Coal Act mine operators could contest civil penalty assessments de novo in federal district court once the administrative review process was complete, thereby "seriously hamper[ing] the collection of civil penalties."15 Concluding that "rapid abatement of [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 10] violations is essential for the protection of miners," Leg.Hist. 618, Congress accordingly made improved penalties and enforcement measures a primary goal of the Act.The 1977 Mine Act thus strengthened and streamlined health and safety enforcement requirements. The Act authorized the Secretary to compel payment of penalties and to enjoin habitual health and safety violators in federal district court. See Leg.Hist. 627; 30 U.S.C. 820(j) and 818(a). Assessment of civil penalties was made mandatory for all mines, and Congress expressly eliminated the power of a mine operator to challenge a final penalty assessment de novo in district court. Cf. Whitney Bank, 379 U.S., at 420 (1965) (that "Congress rejected a proposal for a de novo review in the district courts of Board decisions" supports a finding of district court preclusion).16 We consider the legislative history and these amendments to be persuasive evidence that Congress intended to direct ordinary challenges under the Mine Act to a single review process. [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 11] Abbott Laboratories v. Gardner, , is not to the contrary. In that case, this Court held that statutory review of certain provisions of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended by the Drug Amendments of 1962, 76 Stat. 780, 21 U.S.C. 301 et seq., did not preclude district court jurisdiction over a pre-enforcement challenge to regulations promulgated under separate provisions of that Act. In so holding, the Court found that the presence of a statutory saving clause, see 387 U.S., at 144, and the statute's legislative history demonstrated "rather conclusively that the specific review provisions were designed to give an additional remedy, and not to cut down more traditional channels of review." Id., at 142. It concluded that Congress' primary concern in adopting the administrative review procedures was to supplement review of specific agency determinations over which traditional forms of review might be inadequate. Id., at 142-144. Contrary to petitioner's contentions, no comparable statutory language or legislative intent is present here. Indeed, as discussed above, the Mine Act's text and legislative history suggest precisely the opposite. The prospect that federal jurisdiction might thwart effective enforcement of the statute also was less immediate in Abbott Laboratories, since the Abbott petitioners did not attempt to stay enforcement of the challenged regulation pending judicial review, as petitioner did here. Id., at 155-156.CWe turn to the question whether petitioner's claims are of the type Congress intended to be reviewed within this statutory structure. This Court previously has upheld district court jurisdiction over claims considered "wholly `collateral'" to a statute's review provisions and outside the agency's expertise, Heckler v. Ringer, , discussing Mathews v. Eldridge, , particularly where a finding of [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 12] preclusion could foreclose all meaningful judicial review. See Traynor v. Turnage, (statutory prohibition of all judicial review of Veterans Administration benefits determinations did not preclude jurisdiction over an otherwise unreviewable collateral statutory claim); Bowen v. Michigan Academy of Family Physicians, ; Johnson v. Robison, ; Oestereich v. Selective Service Bd., ; Leedom v. Kyne, (upholding injunction of agency action where petitioners had "no other means within their control ... to protect and enforce that right"). In Mathews v. Eldridge, for example, it was held that 42 U.S.C. 405(g), which requires exhaustion of administrative remedies before the denial of Social Security disability benefits may be challenged in district court, was not intended to bar federal jurisdiction over a due process challenge that was "entirely collateral" to the denial of benefits, 424 U.S., at 330, and where the petitioner had made a colorable showing that full postdeprivation relief could not be obtained, id., at 331.McNary v. Haitian Refugee Center, Inc., , similarly held that an alien could bring a due process challenge to Immigration and Naturalization Service amnesty determination procedures despite an Immigration and Nationality Act provision expressly limiting judicial review of individual amnesty determinations to deportation or exclusion proceedings. See 8 U.S.C. 1160(e). This Court held that the statutory language did not evidence an intent to preclude broad "pattern and practice" challenges to the program, 498 U.S., at 494, 497, and acknowledged that, "if not allowed to pursue their claims in the District Court, respondents would not, as a practical matter, be able to obtain meaningful judicial review," id., at 496.An analogous situation is not presented here. Petitioner [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 13] pressed two primary claims below: that the UMWA designation under 813(f) violates the principles of collective bargaining under the NLRA and petitioner's right "to exclude nonemployee union organizers from [its] property," Lechmere, Inc. v. NLRB___, ___ (1992), and that adjudication of petitioner's claims through the statutory review provisions will violate due process by depriving petitioner of meaningful review. Petitioner's statutory claims, at root, require interpretation of the parties' rights and duties under 813(f) and 30 CFR pt. 40, and, as such, arise under the Mine Act and fall squarely within the Commission's expertise. The Commission, which was established as an independent review body to "develop a uniform and comprehensive interpretation" of the Mine Act, Hearing on the Nomination of Members of the Federal Mine Safety and Health Review Commission before the Senate Committee on Human Resources, 95th Cong., 2d Sess., 1 (1978), has extensive experience interpreting the walk-around rights17 and recently addressed the precise NLRA claims presented here.18 Although the Commission has [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 14] no particular expertise in construing statutes other than the Mine Act, we conclude that exclusive review before the Commission is appropriate, since "agency expertise [could] be brought to bear on" the statutory questions presented here. Whitney Bank, 379 U.S., at 420.As for petitioner's constitutional claim, we agree that "[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies," Johnson v. Robison, 415 U.S., at 368, quoting Oestereich v. Selective Service Bd., (Harlan, J., concurring in result); accord, Califano v. Sanders, . This rule is not mandatory, however, and is perhaps of less consequence where, as here, the reviewing body is not the agency itself, but an independent commission established exclusively to adjudicate Mine Act disputes. See Secretary v. Richardson, 3 F.M.S.H.R.C. 8, 18-20 (1981). The Commission has addressed constitutional questions in previous enforcement proceedings.19 Even if this were not the case, however, petitioner's statutory and constitutional [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 15] claims here can be meaningfully addressed in the court of appeals.20 We conclude that the Mine Act's comprehensive enforcement structure, combined with the legislative history's clear concern with channeling and streamlining the enforcement process, establishes a "fairly discernible" intent to preclude district court review in the present case. See Block v. Community Nutrition Institute, 467 U.S., at 351. Petitioner's claims are "pre-enforcement" only because the company sued before a citation was issued, and its claims turn on a question of statutory interpretation that can be meaningfully reviewed under the Mine Act. Had petitioner persisted in its refusal to post the designation, the Secretary would have been required to issue a citation and commence enforcement proceedings. See 30 U.S.C. 815(a) and 820 (1988 ed. and Supp. IV). Nothing in the language and structure of the Act or its legislative history suggests that Congress intended to allow mine operators to evade the statutory review process by enjoining the Secretary from commencing enforcement proceedings, as petitioner sought to do here. To uphold the District Court's jurisdiction in these circumstances would be inimical to the structure and the purposes of the Mine Act.IVPetitioner finally contends, in the alternative, that due process requires district court review because the absence of pre-enforcement declaratory relief before the Commission will subject petitioner to serious and irreparable harm. We need not consider this claim, however, because neither compliance with, nor continued [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 16] violation of, the statute will subject petitioner to a serious prehearing deprivation.The record before us contains no evidence that petitioner will be subject to serious harm if it complies with 30 U.S.C. 813(f) and 30 CFR pt. 40 by posting the designations, and the potential for abuse of the miners' representative position appears limited. As the District Manager of the MSHA stated to petitioner, designation as a miners' representative does not convey "an uncontrolled access right to the mine property to engage in any activity that the miners' representative wants." App. 49-50. Statutory inspections of petitioner's mine need occur only twice annually and are conducted with representatives of the Secretary and the operator. Because the miners' representative cannot receive advance notice of an inspection, the ability of the nonemployee UMWA designees to exercise these limited walk-around rights is speculative. See Tr. of Oral Arg. 31; Brief for International Union, UMWA, as Amicus Curiae 11, n. 2. Although it is possible that a miners' representative could abuse his privileges, we agree with the Court of Appeals that petitioner has failed to demonstrate that such abuse, entirely hypothetical on the record before us, cannot be remedied on an individual basis under the Mine Act. See 969 F.2d, at 976-977, and n. 6; Utah Power & Light Co. v. Secretary of Labor, 897 F.2d 447, 452 (CA10 1990); Kerr-McGee Coal Corp. v. Secretary, 15 F.M.S.H.R.C. 352, 361-362 (1993).21 [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 17] Nor will petitioner face any serious prehearing deprivation if it refuses to post the designation while challenging the Secretary's interpretation.22 Although the Act's civil penalties unquestionably may become onerous if petitioner chooses not to comply, the Secretary's penalty assessments become final and payable only after full review by both the Commission and the appropriate Court of Appeals. 30 U.S.C. 820(i) and 816. A mine operator may request that the Commission expedite its proceedings, 815(d), and temporary relief of certain orders is available from the Commission and the Court of Appeals. 815(b)(2) and 816(a)(2). Thus, this case does not present the situation confronted in Ex Parte Young, in which the practical effect of coercive penalties for noncompliance was to foreclose all access to the courts. Nor does this approach a situation in which compliance is sufficiently onerous and coercive penalties sufficiently potent that a constitutionally intolerable choice might be presented.VWe conclude that the Mine Act's administrative structure was intended to preclude district court jurisdiction over petitioner's claims and that those claims can be meaningfully reviewed through that structure consistent with due process.23 The judgment of the Court of [ THUNDER BASIN COAL CO. v. REICH, ___ U.S. ___ (1994), 18] Appeals is affirmed. It is so ordered.

Petitioner, a retailer of burial monuments and bronze grave markers, brought suit for damages and injunctive relief under 4 and 16 of the Clayton Act, alleging that respondents had violated 1 and 2 of the Sherman Act by conspiring to monopolize and monopolizing the manufacture and sale of bronze grave markers. After extensive pretrial discovery respondents' motion for summary judgment was granted, the District Court concluding that there was no material issue of fact and no evidence of conspiracy. The Court of Appeals affirmed. Held: The alleged conspiracy had not been conclusively disproved by pretrial discovery and there remained material issues of fact which could only be resolved by a jury after a plenary trial. "[S]ummary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles ... ." Poller v. Columbia Broadcasting System, . Certiorari granted; 404 F.2d 1008, reversed.Howard I. Legum and Louis B. Fine for petitioner.Frederick S. Albrink for Woodlawn Memorial Gardens, Inc., William C. Worthington for Rosewood Memorial Park, Inc., et al., Jefferson B. Brown for Greenlawn Cemetery Park Corp., Bernard Glasser and Stuart D. Glasser for Roosevelt Memorial Park & Cemetery Corp., and William H. King for Jas. H. Matthews & Co. of Virginia et al., respondents.PER CURIAM.The petitioner, a retailer of burial monuments and bronze grave markers, brought this action for damages and injunctive relief under 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U.S.C. 15, 26, alleging that the respondents had violated 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 1, 2, by conspiring to monopolize and monopolizing the manufacture and sale of bronze grave markers. The respondents - Matthews, a manufacturer of such markers, and five operators of cemeteries (called "memorial parks") that sell the markers - were charged with having jointly adopted various restrictive devices to prevent, restrict, and discourage sales of markers by the petitioner for installation in the cemeteries. After extensive pretrial discovery, the District Court granted the respondents' motion for summary judgment, concluding that there was no material issue of fact and no evidence of conspiracy. 290 F. Supp. 1. The Court of Appeals affirmed. 404 F.2d 1008.We cannot agree that on the record before the District Court a jury could not have found that the respondents had conspired to exclude the petitioner from and monopolize the market for bronze grave markers. As Circuit Judge Craven pointed out in his dissenting opinion, the record disclosed the following conduct on the part of the respondents: "(1) Despite the unskilled nature of the work, all of the memorial parks refuse to permit the plaintiff to install markers sold by it; all of them insist that the work be done by the cemeteries themselves. "(2) None of the memorial parks charges lot owners a separate installation fee in the case of markers purchased from the cemeteries. "(3) All of the memorial parks require the payment of an installation fee by the plaintiff for installing markers purchased from the plaintiff. The plaintiff plausibly maintains that the actual cost of installation comes to about $3. Yet, enormous installation fees are charged plaintiff ... . "(4) All of the memorial parks require a specific alloy content in the bronze markers installed, and reserve the right to reject non-conforming markers. The alloy content requirement happens to be the same as manufacturer Matthews' markers and the same as is implicitly suggested in a pamphlet (`Modern Cemeteries') distributed by Matthews to its customers. All of the memorial parks except Roosevelt are customers of Matthews. "(5) There is evidence that Greenlawn, Woodlawn and Princess Anne have attempted to dissuade lot owners from purchasing markers from the plaintiff. The affidavit of plaintiff's president states that numerous other incidents of this nature have occurred. "(6) Defendant Matthews, in its pamphlet `Modern Cemeteries,' suggests a number of practices which in effect erect competitive barriers to retailers other than the cemeteries themselves. "(7) Many of these practices have been adopted by the memorial park defendants, as evidenced by affidavits in the record, and by the `rule books' of Rosewood, Princess Anne and Greenlawn. "(8) There is evidence of numerous visits to and conferences with the memorial parks by sales representatives of Matthews." 404 F.2d, at 1012-1014. The District Court found that the rules relating to the alloy content and installation of the markers were reasonable "[i]n view of the continuing obligation of perpetual care imposed upon the cemeteries, in [their] contracts with lot owners ... ." 290 F. Supp., at 3. But the business justification for these restrictive rules was disputed by the petitioner, which proffered evidence that the markers required very little permanent care and that, in any event, the funds for that purpose were already provided from another source. The reasonableness of the rules was a material question of fact whose resolution was the function of the jury and not of the court on a motion for summary judgment. The same is true of the inferences to be drawn from respondent Matthews' pamphlet. The District Court dismissed it as without any possible significance because it was a mere "form book," which "specifically points out ... that it contains suggested standards of fair and reasonable regulations which the cemetery would be advised to adopt but says that `... Jas. H. Matthews & Co. is not permitted to make recommendations and suggests that the reader consult his own attorney.'"* 290 F. Supp., at 3. Again this self-serving disclaimer raised a question for the jury, and it surely did not alone conclusively rebut the petitioner's contention that the pamphlet evidenced an agreement among the respondents to participate in the alleged restrictive practices.Nor do the other findings of the District Court necessarily dispel the inferences which the jury would be asked by the petitioner to draw. The District Court found, for example, that there was "a wide divergence of prices" charged for installation "which would completely negative any systematic scheming or conscious parallelism." 290 F. Supp., at 3. The petitioner's complaint, however, was not that the respondent cemeteries were charging uniform fees but that they were charging deliberately "excessive and unreasonable" fees for the purpose of injuring the petitioner. The fact that the District Court appeared to consider dispositive of the conspiracy allegations was that the petitioner's principal officer "admitted that he has no letters, agreements, correspondence, or any other testimonials to a conspiracy among the several defendants ... ." 290 F. Supp., at 3. But it is settled that "[n]o formal agreement is necessary to constitute an unlawful conspiracy," American Tobacco Co. v. United States, , and that "business behavior is admissible circumstantial evidence from which the fact finder may infer agreement." Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., .We express no opinion, of course, on the strength or weakness of the petitioner's case, but hold only that the alleged conspiracy had not been conclusively disproved by pretrial discovery and that there remained material issues of fact which could only be resolved by the jury after a plenary trial. As we have cautioned before, "summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot." Poller v. Columbia Broadcasting System, .The writ of certiorari is granted. The judgment is reversed, and the case is remanded for further proceedings in the District Court consistent with this opinion. It is so ordered.MR. JUSTICE HARLAN, MR. JUSTICE FORTAS, and MR. JUSTICE MARSHALL are of the opinion that certiorari should be denied.[Footnote *] Judge Craven noted that the reason for the disclaimer is that "Matthews is under an injunction prohibiting it from making any suggestions to memorial parks as to the quality of markers installed in the parks." 404 F.2d, at 1013, n. 6. The injunction was entered in one of the three consent decrees which have settled prior antitrust actions against Matthews. See 404 F.2d, at 1014.

Respondent, who is not an Indian, operates a general store in Arizona on the Navajo Indian Reservation under a license required by federal statute. He brought this action in an Arizona state court against petitioners, a Navajo Indian and his wife who live on the Reservation, to collect for goods sold to them there on credit. They moved to dismiss on the ground that jurisdiction lay in the tribal court rather than in the state court. Held: The motion should have been granted, since the exercise of state jurisdiction in this case would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves, which right was recognized by Congress in the Treaty of 1868 with the Navajos and has never been taken away. Pp. 217-223. 83 Ariz. 241, 319 P.2d 998, reversed.Norman M. Littell argued the cause for petitioners. With him on the brief was Frederick Bernays Wiener.Wm. W. Stevenson argued the cause for respondent. With him on the brief was W. Dean Nutting.Solicitor General Rankin, Assistant Attorney General Morton and Roger P. Marquis filed a brief for the United States, as amicus curiae, at the invitation of the Court, , urging reversal.MR. JUSTICE BLACK delivered the opinion of the Court.Respondent, who is not an Indian, operates a general store in Arizona on the Navajo Indian Reservation under a license required by federal statute.1 He brought this action in the Superior Court of Arizona against petitioners, a Navajo Indian and his wife who live on the Reservation, to collect for goods sold them there on credit. Over petitioners' motion to dismiss on the ground that jurisdiction lay in the tribal court rather than in the state court, judgment was entered in favor of respondent. The Supreme Court of Arizona affirmed, holding that since no Act of Congress expressly forbids their doing so Arizona courts are free to exercise jurisdiction over civil suits by non-Indians against Indians though the action arises on an Indian reservation. 83 Ariz. 241, 319 P.2d 998. Because this was a doubtful determination of the important question of state power over Indian affairs, we granted certiorari. .Originally the Indian tribes were separate nations within what is now the United States. Through conquest and treaties they were induced to give up complete independence and the right to go to war in exchange for federal protection, aid, and grants of land. When the lands granted lay within States these governments sometimes sought to impose their laws and courts on the Indians. Around 1830 the Georgia Legislature extended its laws to the Cherokee Reservation despite federal treaties with the Indians which set aside this land for them.2 The Georgia statutes forbade the Cherokees from enacting laws or holding courts and prohibited outsiders from being on the Reservation except with permission of the State Governor. The constitutionality of these laws was tested in Worcester v. Georgia, 6 Pet. 515, when the State sought to punish a white man, licensed by the Federal Government to practice as a missionary among the Cherokees, for his refusal to leave the Reservation. Rendering one of his most courageous and eloquent opinions, Chief Justice Marshall held that Georgia's assertion of power was invalid. "The Cherokee nation ... is a distinct community, occupying its own territory ... in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States." 6 Pet., at 561.Despite bitter criticism and the defiance of Georgia which refused to obey this Court's mandate in Worcester3 the board principles of that decision came to be accepted as law.4 Over the years this Court has modified these principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized, but the basic policy of Worcester has remained. Thus, suits by Indians against outsiders in state courts have been sanctioned. See Felix v. Patrick, ; United States v. Candelaria, . See also Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456. And state courts have been allowed to try non-Indians who committed crimes against each other on a reservation. E. g., New York ex rel. Ray v. Martin, . But if the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive.5 Donnelly v. United States, ; Williams v. United States, . Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them. Cf. Utah & Northern Railway v. Fisher, .Congress has also acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation. To assure adequate government of the Indian tribes it enacted comprehensive statutes in 1834 regulating trade with Indians and organizing a Department of Indian Affairs. 4 Stat. 729, 735. Not satisfied solely with centralized government of Indians, it encouraged tribal governments and courts to become stronger and more highly organized. See, e. g., the Wheeler-Howard Act, 16, 17, 48 Stat. 987, 988, 25 U.S.C. 476, 477. Congress has followed a policy calculated eventually to make all Indians full-fledged participants in American society. This policy contemplates criminal and civil jurisdiction over Indians by any State ready to assume the burdens that go with it as soon as the educational and economic status of the Indians permits the change without disadvantage to them. See H. R. Rep. No. 848, 83d Cong., 1st Sess. 3, 6, 7 (1953). Significantly, when Congress has wished the States to exercise this power it has expressly granted them the jurisdiction which Worcester v. Georgia had denied.6 No departure from the policies which have been applied to other Indians is apparent in the relationship between the United States and the Navajos. On June 1, 1868, a treaty was signed between General William T. Sherman, for the United States, and numerous chiefs and headmen of the "Navajo nation or tribe of Indians."7 At the time this document was signed the Navajos were an exiled people, forced by the United States to live crowded together on a small piece of land on the Pecos River in eastern New Mexico, some 300 miles east of the area they had occupied before the coming of the white man. In return for their promises to keep peace, this treaty "set apart" for "their permanent home" a portion of what had been their native country, and provided that no one, except United States Government personnel, was to enter the reserved area. Implicit in these treaty terms, as it was in the treaties with the Cherokees involved in Worcester v. Georgia, was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed. Since then, Congress and the Bureau of Indian Affairs have assisted in strengthening the Navajo tribal government and its courts. See the Navajo-Hopi Rehabilitation Act of 1950, 6, 64 Stat. 46, 25 U.S.C. 636; 25 CFR 11.1 through 11.87NH. The Tribe itself has in recent years greatly improved its legal system through increased expenditures and better-trained personnel. Today the Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian defendants.8 No Federal Act has given state courts jurisdiction over such controversies.9 In a general statute Congress did express its willingness to have any State assume jurisdiction over reservation Indians if the State Legislature or the people vote affirmatively to accept such responsibility.10 To date, Arizona has not accepted jurisdiction, possibly because the people of the State anticipate that the burdens accompanying such power might be considerable.11 There can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves. It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. Cf. Donnelly v. United States, supra; Williams v. United States, supra. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone Wolf v. Hitchcock, . Reversed.

Petitioners, Negro citizens of Montgomery, Ala., brought this class action in 1958 to desegregate the city's public parks, and in 1959 the District Court ordered the parks desegregated. The Court of Appeals affirmed, and ordered the District Court to retain jurisdiction. Thereafter, however, segregated recreational programs were continued by the city in cooperation with the YMCA, public swimming pools were closed allegedly to prevent the mixing of races, and recreational facilities in Negro neighborhoods were not maintained equally with those in white neighborhoods. The petitioners by motion in 1970 reopened the litigation based on facts developed in Smith v. YMCA, 316 F. Supp. 899 (MD Ala. 1970), in which relief was obtained against the "coordinated effort" of the city and the YMCA to perpetuate the segregated parks. The claims raised by the 1970 motion were settled by agreement. In 1971 the petitioners filed the "Motion for Supplemental Relief," which forms the basis for the present phase of the litigation, complaining that the city was permitting racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. The District Court enjoined the city and its officials from permitting or sanctioning the use of city recreational facilities by any racially segregated private school or affiliated group, or by any private nonschool group, club, or organization that has a racially discriminatory admissions policy. The Court of Appeals sustained the injunction insofar as the use of city facilities by segregated private schools was "exclusive" and not in common with other citizens, but reversed the injunction as it applied to "nonexclusive" use by segregated private schools and to use by nonschool groups. The court found an insufficient threat to desegregated public education to support an injunction restraining nonexclusive use by private school groups, and no "symbiotic relationship" between the city and nonschool groups so that the injunction impermissibly intruded upon the freedom of association of citizens who were members of such groups. Held: 1. The city was properly enjoined from permitting exclusive access to its recreational facilities by segregated private schools and by groups affiliated with such schools. Pp. 566-569. (a) Using the term "exclusive use" as implying that an entire facility is exclusively, and completely, in the possession, control, and use of a private group, and as also implying, without mandating, a decisionmaking role for the city in allocating such facilities among private and public groups, the city's policy of allocating facilities to segregated private schools, in the context of the 1959 order and subsequent history, created, in effect, "enclaves of segregation" and deprived petitioners of equal access to parks and recreational facilities. Pp. 566-567. (b) The exclusive use and control of city recreational facilities, however temporary, by private segregated schools were little different from the city's agreement with the YMCA to run a "coordinated" but, in effect, segregated recreational program. This use carried the brand of "separate but equal" and, in the circumstances of this case, was properly terminated by the District Court. Pp. 567-568. (c) More importantly, the city's policies operated directly to contravene an outstanding school desegregation order, and any arrangement, implemented by state officials at any level, that significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible. Pp. 568-569. 2. On the record, it is not possible to determine whether the use of the city's recreational facilities by private school groups in common with others, and by private nonschool organizations, involved the city so directly in the actions of those users as to warrant court intervention on constitutional grounds. Pp. 569-574. (a) The record does not contain sufficient facts upon which to predicate legal judgment as to whether certain uses of city facilities in common by private school groups or exclusively or in common by nonschool groups contravened the parks desegregation order or the school desegregation order, or in some way constitute "state action" ascribing to the city the discriminatory actions of the groups in question. P. 570. (b) The portion of the District Court's order prohibiting the mere use of city recreational facilities by any segregated "private group, club or organization" is invalid because it was not predicated upon a proper finding of state action. Moose Lodge No. 107 v. Irvis, , distinguished. Pp. 572-574. 473 F.2d 832, reversed in part, and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p. 576. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 577. WHITE, J., filed an opinion concurring in the judgment, in which DOUGLAS, J., joined, post, p. 581.Joseph J. Levin, Jr., argued the cause for petitioners. With him on the briefs was Morris S. Dees, Jr.Joseph D. Phelps argued the cause for respondents. With him on the brief were Drayton N. Hamilton and Walter J. Knabe.MR. JUSTICE BLACKMUN delivered the opinion of the Court.The present phase of this prolonged litigation concerns the propriety of a federal court's enjoining a municipality from permitting the use of public park recreational facilities by private segregated school groups and by other non-school groups that allegedly discriminate in their membership on the basis of race. We granted certiorari to consider this important issue. .IPetitioners are Negro citizens of Montgomery, Alabama. In December 1958, now over 15 years ago, they instituted this class action to desegregate Montgomery's public parks. The defendants are the city, its Board of Commissioners and the members thereof, the Parks and Recreation Board and its members, and the Superintendent of the Parks and Recreational Program.By their original complaint, the petitioners specifically challenged, on Fourteenth Amendment due process and equal protection grounds, a Montgomery ordinance (No. 21-57, adopted June 4, 1957) which made it a misdemeanor, subject to fine and imprisonment, "for white and colored persons to enter upon, visit, use or in any way occupy public parks or other public houses or public places, swimming pools, wadding [sic] pools, beaches, lakes or ponds except those assigned to their respective races." Both declaratory and injunctive relief were requested.1 On September 9, 1959, the District Court entered its judgment that the ordinance was unconstitutional and enjoined the defendants from enforcing the ordinance "or any custom, practice, policy or usage which may require plaintiffs, or any other Negroes similarly situated, to submit to enforced segregation solely because of race or color in their use of any public parks owned and operated by the City of Montgomery, Alabama." The judgment was accompanied by a memorandum opinion. 176 F. Supp. 776 (MD Ala. 1959). On appeal, the Fifth Circuit affirmed but ordered the judgment modified to provide that the District Court retain jurisdiction. 277 F.2d 364, 368 (1960). The trial court, accordingly, ruled that it "will and does hereby retain jurisdiction of this cause until further order."2 In 1970, the petitioners sought to reopen the litigation. They filed a motion asking, among other relief, that the respondents be cited for contempt "for deliberately avoiding and violating this Court's Judgment and Order in this case."3 The motion contained allegations that some of the municipal parks had been reopened "in such a manner to avoid the total and full integration of said parks"; that the city had conspired with the Montgomery YMCA to segregate swimming and other recreational facilities and programs; that recreational facilities were unequally allocated as between white and Negro neighborhoods; and that the city discriminated in its employment of personnel in recreational programs. The basis for these claims arose from other, separate litigation initiated in 1969 and resulting in the granting of affirmative relief to the plaintiffs in that suit. See Smith v. Young Men's Christian Assn., 316 F. Supp. 899 (MD Ala. 1970), aff'd as modified, 462 F.2d 634 (CA5 1972). In that action the District Court found that the "coordinated effort" of the city and of the YMCA, 316 F. Supp., at 908, and an agreement between them, reached shortly before the closing of the city parks and the entry of the court's 1959 decree, had effectuated "the perpetuation of segregated recreational facilities and programs in the City of Montgomery," id., at 909, and that it was "unmistakably clear that its purpose was to circumvent the Supreme Court's and this Court's desegregation rulings in the area of public recreation." Id., at 908.4 As summarized by the Court of Appeals, the District Court concluded:"[T]he YMCA, as a result of the cooperative agreement, has been performing a statutorily declared `public function'; the Montgomery Park and Recreation Board has, in effect, transferred some of its statutory authority and responsibility to the YMCA, thereby investing the YMCA with a municipal character; and therefore the YMCA has been serving as a municipal rather than a private agency in assisting the Park Board in providing recreational programs for the city. ... . . "[T]he YMCA's discriminatory conduct denied the plaintiffs their Fourteenth Amendment rights to Equal Protection of the law; under the facts of this case the plaintiffs' showing of `state action' satisfies the requirement under Title 42, U.S.C. Section 1983 that the YMCA's conduct be `under color of law.'" 462 F.2d, at 641-642. The modification by the Court of Appeals related only to the disapproval of a provision in the District Court's order directing a specific Negro-white ratio in the YMCA's board and executive committee. No review was sought here.The claims raised by the petitioners in their 1970 motion were settled by agreement dated January 29, 1971.5 On July 29, the respondents filed their first written progress report. On September 8, the petitioners filed a "Motion for Supplemental Relief." App. 15. This motion forms the basis for the present phase of the litigation. The petitioners complained that the city was permitting racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. They requested injunctive relief against "the use of City owned and operated recreational facilities by any private school group, club, or organization which is racially segregated or which has a racially discriminatory admissions policy."The District Court granted the petitioners the relief they requested. 337 F. Supp. 22 (MD Ala. 1972). The court reasoned that Montgomery officials were under an affirmative duty to bring about and to maintain a desegregated public school system. Providing recreational facilities to de facto or de jure segregated private schools was inconsistent with that duty because such aid enhanced the attractiveness of those schools, generated capital savings that could be used to improve their private educational offerings, and provided means to raise other revenue to support the institutions, all to the detriment of establishing the constitutionally mandated unitary public school system. The court, consequently, enjoined the city and its officials "from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private school, or private school affiliated group, if such school or group is racially segregated or if it has a racially discriminatory admissions policy." Id., at 26. The court went on, however, with sparse findings and brief discussion, and similarly enjoined the city and its officials from permitting or sanctioning the use of city recreational facilities "by any private group, club or organization which is not affiliated with a private school and which has a racially discriminatory admissions policy." Ibid.6 On appeal, the Court of Appeals reversed in part and remanded the case with directions. 473 F.2d 832 (CA5 1973). It sustained that part of the injunction which restrained the use of city facilities by segregated private schools when that use was "exclusive" and not in common with other citizens. Id., at 837. The court ruled, however, that "nonexclusive enjoyment" of those facilities by private school children "was not proven to present a sufficient threat to desegregated public education to support an injunction restraining the clear personal right of the affected children to enjoy such usage in common with the rest of the public." Ibid. With respect to that portion of the District Court's order concerning other private nonschool groups, the Court of Appeals held that there was no "symbiotic relationship" of the kind present and condemned in Burton v. Wilmington Parking Authority, . Consequently, it held that under Moose Lodge No. 107 v. Irvis, , that portion of the District Court's order dealing with nonschool groups had to be reversed because the injunction impermissibly intruded upon the freedom of association of citizens who were members of private groups. The court, accordingly, ordered deletion of certain paragraphs of the injunctive order and the clarification of others. 473 F.2d, at 839-840. The District Court complied with that mandate and, in particular, added the following paragraph to its injunctive order: "The injunction issued by this Court does not prohibit the City of Montgomery from permitting non-exclusive access to public recreational facilities and general government services by private schools or school affiliated groups." The plaintiffs petitioned for certiorari; the defendants did not cross-petition.IIThe Equal Protection Clause of the Fourteenth Amendment does not prohibit the "[i]ndividual invasion of individual rights." Civil Rights Cases, . It does proscribe, however, state action "of every kind" that operates to deny any citizen the equal protection of the laws. Ibid. This proscription on state action applies de facto as well as de jure because "[c]onduct that is formally `private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Evans v. Newton, . In the present case we must determine whether the city of Montgomery engaged in discriminatory activity violative of the parks desegregation order. We must also decide whether the city's involvement in the alleged discriminatory activity of segregated private schools and other private groups, through its providing recreational facilities, constitutes "state action" subject to constitutional limitation.AThe Court of Appeals affirmed the District Court insofar as the latter enjoined the "exclusive possession of public recreational facilities such as football stadiums, baseball diamonds, basketball courts, and tennis courts for official athletic contests and similar functions sponsored by racially segregated private schools." 473 F.2d, at 836-837. The boundaries of this "exclusive" use approach, however, are not self-evident. We find the concept helpful not so much as a controlling legal principle but as a description of a type of use and, in the context of this case, suggestive of a means of allocating public recreational facilities. The term "exclusive use" implies that an entire facility is exclusively, and completely, in the possession, control, and use of a private group.7 It also implies, without mandating, a decision-making role for the city in allocating such facilities among private and, for that matter, public groups.Upon this understanding of the term, we agree with petitioners that the city's policy of allocating facilities to segregated private schools, in the context of the 1959 parks desegregation order and subsequent history, created, in effect, "enclaves of segregation" and deprived petitioners of equal access to parks and recreational facilities. The city was under an affirmative constitutional duty to eliminate every "custom, practice, policy or usage" reflecting an "impermissible obeisance to the now thoroughly discredited doctrine of `separate but equal.'" Watson v. Memphis, . This obviously meant that discriminatory practices in Montgomery parks and recreational facilities were to be eliminated "root and branch," to use the phrase employed in Green v. County School Board of New Kent County, .Instead of prompt and orderly compliance with the District Court's mandate, however, the city of Montgomery engaged in an elaborate subterfuge to anticipate and circumvent the court's order. Segregated recreational programs continued to be presented through the conveniently cooperating private agency of the local YMCA. All public swimming pools were closed allegedly to prevent the mixing of races. Facilities in Negro neighborhoods were not maintained equally with those in white neighborhoods. In light of these facts, made part of the record in this case,8 it was entirely appropriate for the District Court carefully to scrutinize any practice or policy that would tend to abandon to segregated private groups facilities normally open to members of all races on an equal basis. Here, the exclusive use and control of city recreational facilities, however temporary, by private segregated schools were little different from the city's agreement with the YMCA to run a "coordinated" but, in effect, segregated recreational program. Such use and control carried the brand of "separate but equal" and, in the circumstances of this case, were properly terminated by the District Court.Particularly important is the fact that the city's policies operated directly to contravene an outstanding school desegregation order. See Carr v. Montgomery County Board of Education, 232 F. Supp. 705 (MD Ala. 1964); 253 F. Supp. 306 (1966); 289 F. Supp. 647 (1968), aff'd as modified, 400 F.2d 1 and 402 F.2d 782, 784, 787 (CA5 1968), rev'd and remanded sub nom. United States v. Montgomery County Board of Education, with directions to affirm the judgment of the District Court, .9 Certainly, the city's officials were aware of this order and were responsible for seeing that no actions on their part would significantly impede the progress of school desegregation in the city. Cooper v. Aaron, ; Green v. County School Board of New Kent County, 391 U.S., at 437-438; Alexander v. Holmes County Board of Education, . Any arrangement, implemented by state officials at any level, which significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible. "[T]he constitutional rights of children not to be discriminated against ... can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted `ingeniously or ingenuously.'" Cooper v. Aaron, 358 U.S., at 17. This means that any tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has "a significant tendency to facilitate, reinforce, and support private discrimination." Norwood v. Harrison, . The constitutional obligation of the State "requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination." Id., at 467.Here, the city's actions significantly enhanced the attractiveness of segregated private schools, formed in reaction against the federal court school order, by enabling them to offer complete athletic programs. The city's provision of stadiums and recreational fields resulted in capital savings for those schools and enabled them to divert their own funds to other educational programs. It also provided the opportunity for the schools to operate concessions that generated revenue. We are persuaded, as were both the District Court and the Court of Appeals, that this assistance significantly tended to undermine the federal court order mandating the establishment and maintenance of a unitary school system in Montgomery. It therefore was wholly proper for the city to be enjoined from permitting exclusive access to public recreational facilities by segregated private schools and by groups affiliated with such schools.BAlthough the Court of Appeals ruled out the exclusive use of city facilities by private schools, it went on to modify the District Court order "to make clear that the City of Montgomery is not prohibited from permitting nonexclusive access to public recreational facilities and general government services by private schools or school affiliated groups," 473 F.2d, at 840, or from permitting access to these facilities by private organizations that have a racially discriminatory admissions policy. Id., at 839. Upon this record, we are unable to draw a conclusion as to whether the use of zoos, museums, parks, and other recreational facilities by private school groups in common with others, and by private nonschool organizations, involves government so directly in the actions of those users as to warrant court intervention on constitutional grounds.It would be improper to determine at this stage the appropriateness of further relief in all the many and varied situations where facilities are used in common by school groups or used exclusively or in common by private groups. It is possible that certain uses of city facilities will be judged to be in contravention of the parks desegregation order or the school desegregation order, or in some way to constitute impermissible "state action" ascribing to the city the discriminatory actions of the groups. The record before us does not contain sufficient facts upon which to predicate legal judgments of this kind. The questions to be resolved and the decisions to be made rest upon careful identification of the different types of city facilities that are available and the various uses to which they might be put by private groups.10 The difficulties that confront us on this record are readily apparent. Under appropriate circumstances, the District Court might conclude, as it did in the instance of exclusive use by private schools, that access in common to city facilities by private school groups would indeed contravene the school desegregation order. For example, all-white private school basketball teams might be invited to participate in a tournament conducted on public recreational facilities with desegregated private and public school teams. Because "discriminatory treatment exerts a pervasive influence on the entire educational process," Norwood v. Harrison, 413 U.S., at 469, citing Brown v. Board of Education, , such assistance, although proffered in common with fully desegregated groups, might so directly impede the progress of court-ordered school desegregation within the city that it would be appropriate to fashion equitable relief "adjusting and reconciling public and private needs." Brown v. Board of Education, . The essential finding justifying further relief would be a showing of direct impairment of an outstanding school desegregation order. Cooper v. Aaron, 358 U.S., at 17; Bush v. Orleans Parish School Board, ; Brown v. South Carolina State Board of Education, 296 F. Supp. 199 (SC), aff'd, ; Poindexter v. Louisiana Financial Assistance Comm'n, 275 F. Supp. 833 (ED La. 1967), aff'd, ; Lee v. Macon County Board of Education, 267 F. Supp. 458 (MD Ala.), aff'd, sub nom. Wallace v. United States, ; Norwood v. Harrison, supra.Relief would also be appropriate if a particular use constitutes a vestige of the type of state-sponsored racial segregation in public recreational facilities that was prohibited in the parks decree and likewise condemned in Watson v. Memphis, . See also Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386 (CA4), aff'd, ; Muir v. Louisville Park Theatrical Assn., ; Holmes v. City of Atlanta, ; New Orleans City Park Improvement Assn. v. Detiege, . For example, the record contains indications that there are all-white private and all-Negro public Dixie Youth and Babe Ruth baseball leagues for children, all of which use city-provided ballfields and lighting, balls, bats, mitts, and other aid. Were the District Court to determine that this dual system came about as a means of evading the parks decree, or of serving to perpetuate the separate-but-equal use of city facilities on the basis of race, through the aid and assistance of the city, further relief would be appropriate.The problem of private group use is much more complex. The Court of Appeals relied on Moose Lodge No. 107 v. Irvis, , in concluding that the use of city facilities by private clubs did not reflect a "symbiotic relationship" between government and those groups so as to constitute state action. 473 F.2d, at 838-839.We feel that Moose Lodge is not fully applicable here. In that case, we generally followed the approach taken in Burton v. Wilmington Parking Authority, supra, where it was stated:"Owing to the very `largeness' of government, a multitude of relationships might appear to some to fall within the Amendment's embrace, but that, it must be remembered, can be determined only in the framework of the peculiar facts or circumstances present." 365 U.S., at 725-726. In Moose Lodge the litigation was directly against a private organization, and it was alleged that the organization's racially discriminatory policies constituted state action. We held that there was no state action in the mere fact that the fraternal organization's beverage bar was licensed and regulated by the State. In contrast, here, as in Burton, the question of the existence of state action centers in the extent of the city's involvement in discriminatory actions by private agencies using public facilities, and in whether that involvement makes the city "a joint participant in the challenged activity, which, on that account, cannot be considered to have been so `purely private' as to fall without the scope of the Fourteenth Amendment." 365 U.S., at 725. Because the city makes city property available for use by private entities, this case is more like Burton than Moose Lodge. The question then is whether there is significant state involvement in the private discrimination alleged. Reitman v. Mulkey, ; Burton v. Wilmington Parking Authority, supra; Evans v. Newton, ; Moose Lodge No. 107 v. Irvis, supra. "The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever." 407 U.S., at 173. Traditional state monopolies, such as electricity, water, and police and fire protection - all generalized governmental services - do not by their mere provision constitute a showing of state involvement in invidious discrimination. Norwood v. Harrison, 413 U.S., at 465; Moose Lodge No. 107 v. Irvis, 407 U.S., at 173. The same is true of a broad spectrum of municipal recreational facilities: parks, playgrounds, athletic facilities, amphitheaters, museums, zoos, and the like. Cf. Evans v. Newton, 382 U.S., at 302. It follows, therefore, that the portion of the District Court's order prohibiting the mere use of such facilities by any segregated "private group, club or organization" is invalid because it was not predicated upon a proper finding of state action.If, however, the city or other governmental entity rations otherwise freely accessible recreational facilities, the case for state action will naturally be stronger than if the facilities are simply available to all comers without condition or reservation. Here, for example, petitioners allege that the city engages in scheduling softball games for an all-white church league and provides balls, equipment, fields, and lighting. The city's role in that situation would be dangerously close to what was found to exist in Burton, where the city had "elected to place its power, property and prestige behind the admitted discrimination." 365 U.S., at 725. We are reminded, however, that the Court has never attempted to formulate "an infallible test for determining whether the State ... has become significantly involved in private discriminations" so as to constitute state action. Reitman v. Mulkey, 387 U.S., at 378. "`Only by sifting facts and weighing circumstances' on a case-by-case basis can a `nonobvious involvement of the State in private conduct be attributed its true significance.'" Ibid., quoting Burton, 365 U.S., at 722. This is the task for the District Court on remand. IIIWe close with this word of caution. It should be obvious that the exclusion of any person or group - all-Negro, all-Oriental, or all-white - from public facilities infringes upon the freedom of the individual to associate as he chooses. MR. JUSTICE DOUGLAS emphasized this in his dissent, joined by MR. JUSTICE MARSHALL, in Moose Lodge. He observed: "The associational rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires." 407 U.S., at 179-180. The freedom to associate applies to the beliefs we share, and to those we consider reprehensible. It tends to produce the diversity of opinion that oils the machinery of democratic government and insures peaceful, orderly change. Because its exercise is largely dependent on the right to own or use property, Healy v. James, , any denial of access to public facilities must withstand close scrutiny and be carefully circumscribed. Certainly, a person's mere membership in an organization which possesses a discriminatory admissions policy would not alone be ground for his exclusion from public facilities. Having said this, however, we must also be aware that the very exercise of the freedom to associate by some may serve to infringe that freedom for others. Invidious discrimination takes its own toll on the freedom to associate, and it is not subject to affirmative constitutional protection when it involves state action. Norwood v. Harrison, 413 U.S., at 470.The judgment of the Court of Appeals is therefore reversed in part. The case is remanded to that court with directions to remand it in turn to the District Court for further proceedings consistent with this opinion. It is so ordered.

A three-judge District Court's judgment upholding the constitutionality of a Connecticut statute that requires the mother of an illegitimate child receiving Aid to Families with Dependent Children (AFDC) assistance to disclose the putative father's name and imposing a criminal sanction for noncompliance, and concluding that the statute does not conflict with the Social Security Act, is vacated and the case is remanded for further consideration in light of an intervening Social Security Act amendment requiring parents, as a condition of eligibility for AFDC assistance, to cooperate with state efforts to locate and obtain support from absent parents but providing no punitive sanctions, and, also, if a relevant state criminal proceeding is pending, in light of Younger v. Harris, , and Huffman v. Pursue, Ltd., . 365 F. Supp. 65, vacated and remanded.Frank Cochran argued the cause and filed briefs for parent appellants. David N. Rosen argued the cause for children appellants. With him on the brief was Edward J. Dolan.Michael Anthony Arcari, Assistant Attorney General of Connecticut, argued the cause for appellee. With him on the brief were Robert K. Killian, Attorney General. and Paige J. Everin, Lorna M. Dwyer, and Francis J. MacGregor, Assistant Attorneys General.* [Footnote *] Marian Wright Edelman, Norman Dorsen, and Leo Pfeffer filed a brief for the American Academy of Child Psychiatry et al. as amici curiae. PER CURIAM.Appellants, mothers of illegitimate children receiving Aid to Families With Dependent Children (AFDC) assistance, and the children, commenced this action challenging 52-440b, Conn. Gen. Stat. Rev. (1973),* which requires the mother of an illegitimate child to divulge to designated officials the name of the putative father of the child. Noncompliance with the statute is a contempt punishable by imprisonment up to one year and a fine of up to $200. A three-judge District Court upheld the constitutionality of 52-440b against appellants' claims of denial of due process and equal protection and invasion of appellants' right to privacy, and also concluded that the statute did not conflict with the purpose and objectives of the Social Security Act. We noted probable jurisdiction, . However, since that time Pub. L. 93-647, 88 Stat. 2337, was enacted. Public L. 93-647 amends 402 (a) of the Social Security Act to require parents, as a condition of eligibility for AFDC assistance, to cooperate with state efforts to locate and obtain support from absent parents but provides no punitive sanctions comparable to those provided by Conn. Gen. Stat. Rev. 52-440b (1973). Section 402 (a), as amended, 88 Stat. 2359, 42 U.S.C. 602 (a) (1970 ed., Supp. IV), provides in pertinent part: "A State plan for aid and services to needy families with children must ... . . "(26) provide that, as a condition of eligibility for aid, each applicant or recipient will be required - ... . . "(B) to cooperate with the State (i) in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed, and (ii) in obtaining support payments for such applicant and for a child with respect to whom such aid is claimed, or in obtaining any other payments or property due such applicant or such child and that, if the relative with whom the child is living is found to be ineligible because of failure to comply with the requirements of subparagraphs (A) and (B) of this paragraph, any aid for which such child is eligible will be provided in the form of protective payments as described in section [606 (b) (2) of this title] (without regard to subparagraphs (A) through (E) of such section) ... ." We vacate the judgment of the District Court and remand the case for further consideration in light of Pub. L. 93-647, and, if a relevant state criminal proceeding is pending, also for further consideration in light of Younger v. Harris, , and Huffman v. Pursue, Ltd., . It is so ordered.MR. JUSTICE DOUGLAS concurs except with respect to Younger v. Harris, , and Huffman v. Pursue, Ltd., .[Footnote *] Section 52-440b, Conn. Gen. Stat. Rev., provides:"(a) If the mother of any child born out of wedlock, or the mother of any child born to any married woman during marriage which child shall be found not to be issue of the marriage terminated by a divorce decree or by decree of any court of competent jurisdiction, fails or refuses to disclose the name of the putative father of such child under oath to the welfare commissioner, if such child is a recipient of public assistance, or to a selectman of a town in which such child resides, if such child is a recipient of general assistance, or otherwise to a guardian or a guardian ad litem of such child, such mother may be cited to appear before any judge of the circuit court and compelled to disclose the name of the putative father under oath and to institute an action to establish the paternity of said child."(b) Any woman who, having been cited to appear before a judge of the circuit court pursuant to subsection (a), fails to appear or fails to disclose or fails to prosecute a paternity action may be found to be in contempt of said court and may be fined not more than two hundred dollars or imprisoned not more than one year or both."

Petitioner company, an Alabama corporation, entered into a dealership agreement to market copier products of respondent, a nationwide manufacturer with its principal place of business in New Jersey. The agreement contained a clause providing that any dispute arising out of the contract could be brought only in a court located in Manhattan in New York City. Petitioner company (and the individual stockholder petitioners) filed a diversity action in the United States District Court for the Northern District of Alabama, alleging, inter alia, that respondent had breached the agreement. Relying on the contractual forum-selection clause, respondent filed a motion seeking, inter alia, the transfer of the case to the Southern District of New York under 28 U.S.C. 1404(a), which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The court denied the motion, holding that Alabama law controlled and that Alabama looks unfavorably upon contractual forum-selection clauses. On interlocutory appeal, the Court of Appeals reversed and remanded with instructions to transfer the case, holding that venue is a matter of federal procedure and that, under the standards articulated in the admiralty case of The Bremen v. Zapata Off-Shore Co., , the forum-selection clause was in all respects enforceable generally as a matter of federal law.Held: 1. When a federal law sought to be applied in a diversity action is a congressional statute, the chief question for the district court's determination is whether the statute is sufficiently broad to control the issue before the court. If so, the court then must inquire whether the statute represents a valid exercise of Congress' authority under the Constitution. If Congress intended to reach the issue before the court, and if it enacted its intention into law in a manner that abides with the Constitution, that is the end of the matter; federal courts are bound to apply laws enacted by Congress with respect to matters over which it has legislative power. Pp. 25-27. 2. In this case, federal law, specifically 1404(a), governs the decision whether to give effect to the parties' forum-selection clause and to transfer the case to a court in Manhattan. Pp. 28-32. (a) Although the Court of Appeals properly noted that the Bremen case - which held that federal courts sitting in admiralty generally should enforce forum-selection clauses absent a showing that to do so would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching - may prove "instructive" in resolving the parties' dispute, the court erred in its articulation of the relevant inquiry as being whether the forum-selection clause in this case was unenforceable under the Bremen standards. The first question for consideration should have been whether 1404(a) itself controls respondent's request to give effect to the contractual choice of venue and to transfer the case to a Manhattan court. Pp. 28-29. (b) Section 1404(a) is sufficiently broad to control the forum-selection issue. The statute is intended to place discretion in the district courts to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness. A motion to transfer under 1404(a) calls on the district court to weigh in the balance a number of case-specific factors, and the presence of a forum-selection clause will figure centrally in the calculus. A forum-selection clause should receive neither dispositive consideration nor no consideration, but rather the consideration for which Congress provided in 1404(a). Section 1404(a) must be applied since it represents a valid exercise of Congress' authority under Article III as augmented by the Necessary and Proper Clause. In this case, the District Court should determine in the first instance the appropriate effect under federal law of the parties' forum-selection clause on respondent's 1404(a) motion. Pp. 29-32. 810 F.2d 1066, affirmed and remanded.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, WHITE, BLACKMUN, STEVENS, O'CONNOR, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, in which O'CONNOR, J., joined, post, p. 33. SCALIA, J., filed a dissenting opinion, post, p. 33.F. A. Flowers III argued the cause for petitioners. With him on the briefs was Joseph W. Letzer.Scott M. Phelps argued the cause and filed a brief for respondents. JUSTICE MARSHALL delivered the opinion of the Court.This case presents the issue whether a federal court sitting in diversity should apply state or federal law in adjudicating a motion to transfer a case to a venue provided in a contractual forum-selection clause.IThe dispute underlying this case grew out of a dealership agreement that obligated petitioner company, an Alabama corporation, to market copier products of respondent, a nationwide manufacturer with its principal place of business in New Jersey. The agreement contained a forum-selection clause providing that any dispute arising out of the contract could be brought only in a court located in Manhattan.1 Business relations between the parties soured under circumstances that are not relevant here. In September 1984, petitioner brought a complaint in the United States District Court for the Northern District of Alabama. The core of the complaint was an allegation that respondent had breached the dealership agreement, but petitioner also included claims for breach of warranty, fraud, and antitrust violations.Relying on the contractual forum-selection clause, respondent moved the District Court either to transfer the case to the Southern District of New York under 28 U.S.C. 1404(a) or to dismiss the case for improper venue under 28 U.S.C. 1406. The District Court denied the motion. Civ. Action No. 84-AR-2460-S (Jan. 29, 1985). It reasoned that the transfer motion was controlled by Alabama law and that Alabama looks unfavorably upon contractual forum-selection clauses. The court certified its ruling for interlocutory appeal, see 28 U.S.C. 1292(b) (1982 ed., Supp. IV), and the Court of Appeals for the Eleventh Circuit accepted jurisdiction.On appeal, a divided panel of the Eleventh Circuit reversed the District Court. The panel concluded that questions of venue in diversity actions are governed by federal law, and that the parties' forum-selection clause was enforceable as a matter of federal law. 779 F.2d 643 (1986). The panel therefore reversed the order of the District Court and remanded with instructions to transfer the case to a Manhattan court. After petitioner successfully moved for rehearing en banc, 785 F.2d 896 (1986), the full Court of Appeals proceeded to adopt the result, and much of the reasoning, of the panel opinion. 810 F.2d 1066 (1987).2 The en banc court, citing Congress' enactment or approval of several rules to govern venue determinations in diversity actions, first determined that "[v]enue is a matter of federal procedure." Id., at 1068. The Court of Appeals then applied the standards articulated in the admiralty case of The Bremen v. Zapata Off-Shore Co., , to conclude that "the choice of forum clause in this contract is in all respects enforceable generally as a matter of federal law ... ." 810 F.2d, at 1071. We now affirm under somewhat different reasoning.IIBoth the panel opinion and the opinion of the full Court of Appeals referred to the difficulties that often attend "the sticky question of which law, state or federal, will govern various aspects of the decisions of federal courts sitting in diversity." 779 F.2d, at 645. A district court's decision whether to apply a federal statute such as 1404(a) in a diversity action,3 however, involves a considerably less intricate analysis than that which governs the "relatively unguided Erie choice." Hanna v. Plumer, (referring to Erie R. Co. v. Tompkins, ). Our cases indicate that when the federal law sought to be applied is a congressional statute, the first and chief question for the district court's determination is whether the statute is "sufficiently broad to control the issue before the Court." Walker v. Armco Steel Corp., ; Burlington Northern R. Co. v. Woods, . This question involves a straightforward exercise in statutory interpretation to determine if the statute covers the point in dispute. See Walker v. Armco Steel Corp., supra, at 750, and n. 9.4 See also Burlington Northern R. Co. v. Woods, supra, at 7 (identifying inquiry as whether a Federal Rule "occupies [a state rule's] field of operation").If the district court determines that a federal statute covers the point in dispute, it proceeds to inquire whether the statute represents a valid exercise of Congress' authority under the Constitution. See Hanna v. Plumer, supra, at 471 (citing Erie R. Co. v. Tompkins, supra, at 77-79).5 If Congress intended to reach the issue before the district court, and if it enacted its intention into law in a manner that abides with the Constitution, that is the end of the matter; "[f]ederal courts are bound to apply rules enacted by Congress with respect to matters ... over which it has legislative power." Prima Paint Corp. v. Flood & Conklin Mfg. Co., ; cf. Hanna v. Plumer, supra, at 471 ("When a situation is covered by one of the Federal Rules ... the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions").6 Thus, a district court sitting in diversity must apply a federal statute that controls the issue before the court and that represents a valid exercise of Congress' constitutional powers. IIIApplying the above analysis to this case persuades us that federal law, specifically 28 U.S.C. 1404(a), governs the parties' venue dispute.AAt the outset we underscore a methodological difference in our approach to the question from that taken by the Court of Appeals. The en banc court determined that federal law controlled the issue based on a survey of different statutes and judicial decisions that together revealed a significant federal interest in questions of venue in general, and in choice-of-forum clauses in particular. The Court of Appeals then proceeded to apply the standards announced in our opinion in The Bremen v. Zapata Off-Shore Co., ,7 to determine that the forum-selection clause in this case was enforceable. But the immediate issue before the District Court was whether to grant respondent's motion to transfer the action under 1404(a),8 and as Judge Tjoflat properly noted in his special concurrence below, the immediate issue before the Court of Appeals was whether the District Court's denial of the 1404(a) motion constituted an abuse of discretion. Although we agree with the Court of Appeals that the Bremen case may prove "instructive" in resolving the parties' dispute, 810 F.2d, at 1069; but cf. Texas Industries, Inc. v. Radcliff Materials, Inc., (federal common law developed under admiralty jurisdiction not freely transferable to diversity setting), we disagree with the court's articulation of the relevant inquiry as "whether the forum selection clause in this case is unenforceable under the standards set forth in The Bremen." 810 F.2d, at 1069. Rather, the first question for consideration should have been whether 1404(a) itself controls respondent's request to give effect to the parties' contractual choice of venue and transfer this case to a Manhattan court. For the reasons that follow, we hold that it does.BSection 1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Under the analysis outlined above, we first consider whether this provision is sufficiently broad to control the issue before the court. That issue is whether to transfer the case to a court in Manhattan in accordance with the forum-selection clause. We believe that the statute, fairly construed, does cover the point in dispute.Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an "individualized, case-by-case consideration of convenience and fairness." Van Dusen v. Barrack, . A motion to transfer under 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors. The presence of a forum-selection clause such as the parties entered into in this case will be a significant factor that figures centrally in the district court's calculus. In its resolution of the 1404(a) motion in this case, for example, the District Court will be called on to address such issues as the convenience of a Manhattan forum given the parties' expressed preference for that venue, and the fairness of transfer in light of the forum-selection clause and the parties' relative bargaining power. The flexible and individualized analysis Congress prescribed in 1404(a) thus encompasses consideration of the parties' private expression of their venue preferences.Section 1404(a) may not be the only potential source of guidance for the District Court to consult in weighing the parties' private designation of a suitable forum. The premise of the dispute between the parties is that Alabama law may refuse to enforce forum-selection clauses providing for out-of-state venues as a matter of state public policy.9 If that is so, the District Court will have either to integrate the factor of the forum-selection clause into its weighing of considerations as prescribed by Congress, or else to apply, as it did in this case, Alabama's categorical policy disfavoring forum-selection clauses. Our cases make clear that, as between these two choices in a single "field of operation," Burlington Northern R. Co. v. Woods, 480 U.S., at 7, the instructions of Congress are supreme. Cf. ibid. (where federal law's "discretionary mode of operation" conflicts with the nondiscretionary provision of Alabama law, federal law applies in diversity).It is true that 1404(a) and Alabama's putative policy regarding forum-selection clauses are not perfectly coextensive. Section 1404(a) directs a district court to take account of factors other than those that bear solely on the parties' private ordering of their affairs. The district court also must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of "the interest of justice." It is conceivable in a particular case, for example, that because of these factors a district court acting under 1404(a) would refuse to transfer a case notwithstanding the counterweight of a forum-selection clause, whereas the coordinate state rule might dictate the opposite result.10 See 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3847, p. 371 (2d ed. 1986). But this potential conflict in fact frames an additional argument for the supremacy of federal law. Congress has directed that multiple considerations govern transfer within the federal court system, and a state policy focusing on a single concern or a subset of the factors identified in 1404(a) would defeat that command. Its application would impoverish the flexible and multifaceted analysis that Congress intended to govern motions to transfer within the federal system. The forum-selection clause, which represents the parties' agreement as to the most proper forum, should receive neither dispositive consideration (as respondent might have it) nor no consideration (as Alabama law might have it), but rather the consideration for which Congress provided in 1404(a). Cf. Norwood v. Kirkpatrick, ( 1404(a) accords broad discretion to district court, and plaintiff's choice of forum is only one relevant factor for its consideration). This is thus not a case in which state and federal rules "can exist side by side ... each controlling its own intended sphere of coverage without conflict." Walker v. Armco Steel Corp., 446 U.S., at 752.Because 1404(a) controls the issue before the District Court, it must be applied if it represents a valid exercise of Congress' authority under the Constitution. The constitutional authority of Congress to enact 1404(a) is not subject to serious question. As the Court made plain in Hanna, "the constitutional provision for a federal court system ... carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either." 380 U.S., at 472. See also id., at 473 ("Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts"). Section 1404(a) is doubtless capable of classification as a procedural rule, and indeed, we have so classified it in holding that a transfer pursuant to 1404(a) does not carry with it a change in the applicable law. See Van Dusen v. Barrack, 376 U.S., at 636-637 ("[B]oth the history and purposes of 1404(a) indicate that it should be regarded as a federal judicial housekeeping measure"). It therefore falls comfortably within Congress' powers under Article III as augmented by the Necessary and Proper Clause. See Burlington Northern R. Co. v. Woods, supra, at 5, n. 3.We hold that federal law, specifically 28 U.S.C. 1404(a), governs the District Court's decision whether to give effect to the parties' forum-selection clause and transfer this case to a court in Manhattan.11 We therefore affirm the Eleventh Circuit order reversing the District Court's application of Alabama law. The case is remanded so that the District Court may determine in the first instance the appropriate effect under federal law of the parties' forum-selection clause on respondent's 1404(a) motion. It is so ordered.

Isolated, personal act of negligence by a fellow longshoreman resulting in injury to petitioner did not make shipowner liable on ground of unseaworthiness of vessel, as injury was not caused by ship's condition, appurtenances, cargo, or crew. There is a "complete divorcement of unseaworthiness liability from concepts of negligence." Mitchell v. Trawler Racer, . Pp. 496-500. 413 F.2d 984, affirmed.STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a dissenting opinion in which BLACK and BRENNAN, JJ., joined, post, p. 501. HARLAN, J., filed a dissenting opinion, post, p. 503.H. Alva Brumfield argued the cause for petitioner. With him on the brief were Evangeline M. Vavrick and H. Alva Brumfield III.Charles Kohlmeyer, Jr., argued the cause for respondents. With him on the brief were Thomas W. Thorne, Jr., and Benjamin W. Yancey.Arthur J. Mandell filed a brief for the American Trial Lawyers Association as amicus curiae urging reversal.MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner, a longshoreman employed by an independent stevedoring contractor, was injured while engaged with his fellow employees in loading cargo aboard the S. S. Edgar F. Luckenbach. He brought this action for damages against the respondents, the owner and the charterer of the ship, in a federal district court, alleging that his injuries had been caused by the ship's unseaworthiness.In the course of pretrial proceedings the circumstances under which the petitioner had been injured were fully disclosed, and they are not in dispute. On the day in question the ship lay moored to a dock in New Orleans, Louisiana, receiving cargo from a barge positioned alongside. The loading operations were being performed by the petitioner and his fellow longshoremen under the direction of their employer. Some of the men were on the ship, operating the port winch and boom at the No. 2 hatch. The petitioner and others were on the barge, where their job was to "break out" the bundles of cargo by securing them to a sling attached to the fall each time it was lowered from the ship's boom by the winch operator. The loading operations had been proceeding in this manner for some time, until upon one occasion the winch operator did not lower the fall far enough. Finding the sling beyond his reach, the petitioner motioned to the flagman standing on the deck of the ship to direct the winch operator to lower the fall farther. The winch operator then lowered the fall, but he lowered it too far and too fast. The sling struck the petitioner, knocking him to the deck of the barge and causing his injuries. Neither before nor after this occurrence was any difficulty experienced with the winch, boom, fall, sling, or any other equipment or appurtenance of the ship or her cargo.The respondents moved for summary judgment in the District Court, upon the ground that a single negligent act by a fellow longshoreman could not render the ship unseaworthy. The District Court denied the motion, but granted the respondents leave to take an interlocutory appeal under 28 U.S.C. 1292 (b).1 The United States Court of Appeals for the Fifth Circuit allowed the appeal and, reversing the District Court, directed that the respondents' motion for summary judgment be granted. 413 F.2d 984. It was the appellate court's view that "`[i]nstant unseaworthiness' resulting from `operational negligence' of the stevedoring contractor is not a basis for recovery by an injured longshoreman." 413 F.2d, at 985-986. We granted certiorari, , because of a conflict among the circuits on the basic issue presented.2 The development in admiralty law of the doctrine of unseaworthiness as a predicate for a shipowner's liability for personal injuries or death has been fully chronicled elsewhere, and it would serve no useful purpose to repeat the details of that development here.3 Suffice it to recall that from its humble origin as a dictum in an obscure case in 1922,4 the doctrine of liability based upon unseaworthiness has experienced a most extraordinary expansion in a series of cases decided by this Court over the last 25 years.5 The Court's decisions in some of those cases have been severely questioned, by dissenting Justices and by others, on the basis of history, reason, and logic.6 The present case, however, offers no occasion to re-examine any of our previous decisions. We may accept it as fully settled that a shipowner's liability for an unseaworthy vessel extends beyond the members of the crew and includes a longshoreman like the petitioner.7 We may accept it as settled, too, that the shipowner is liable though the unseaworthiness be transitory,8 and though the injury be suffered elsewhere than aboard the ship.9 But these propositions do not dispose of the case before us. For the question here goes to the very definition of what unseaworthiness is and what it is not.A major burden of the Court's decisions spelling out the nature and scope of the cause of action for unseaworthiness has been insistence upon the point that it is a remedy separate from, independent of, and additional to other claims against the shipowner, whether created by statute10 or under general maritime law.11 More specifically, the Court has repeatedly taken pains to point out that liability based upon unseaworthiness is wholly distinct from liability based upon negligence.12 The reason, of course, is that unseaworthiness is a condition, and how that condition came into being - whether by negligence or otherwise - is quite irrelevant to the owner's liability for personal injuries resulting from it.We had occasion to emphasize this basic distinction again in Mitchell v. Trawler Racer, . There the unseaworthy condition causing the plaintiff's injury was a ship's rail made slippery by the presence of fish gurry and slime. The trial judge had instructed the jury that the shipowner could be held liable for this unseaworthy condition only upon a finding that the slime and gurry had been on the ship's rail for a time long enough for the respondent to have learned about it and to have removed it. The Court of Appeals affirmed the judgment for the defendant shipowner, holding that at least with respect to "an unseaworthy condition which arises only during the progress of the voyage," the shipowner's obligation "is merely to see that reasonable care is used under the circumstances ... incident to the correction of the newly arisen defect." 265 F.2d 426, 432. We reversed the judgment, holding that the trial and appellate courts had been wrong in confusing liability for negligence with liability for unseaworthiness. What has evolved in our case law, we said, is the "complete divorcement of unseaworthiness liability from concepts of negligence." 362 U.S., at 550.Trawler Racer involved the defective condition of a physical part of the ship itself. But our cases have held that the scope of unseaworthiness is by no means so limited. A vessel's condition of unseaworthiness might arise from any number of circumstances. Her gear might be defective,13 her appurtenances in disrepair,14 her crew unfit.15 The number of men assigned to perform a shipboard task might be insufficient.16 The method of loading her cargo, or the manner of its stowage, might be improper.17 For any of these reasons, or others, a vessel might not be reasonably fit for her intended service. What caused the petitioner's injuries in the present case, however, was not the condition of the ship, her appurtenances, her cargo, or her crew,18 but the isolated, personal negligent act of the petitioner's fellow longshoreman. To hold that this individual act of negligence rendered the ship unseaworthy would be to subvert the fundamental distinction between unseaworthiness and negligence that we have so painstakingly and repeatedly emphasized in our decisions.19 In Trawler Racer, supra, there existed a condition of unseaworthiness, and we held it was error to require a finding of negligent conduct in order to hold the shipowner liable. The case before us presents the other side of the same coin. For it would be equally erroneous here, where no condition of unseaworthiness existed, to hold the shipowner liable for a third party's single and wholly unforeseeable act of negligence. The judgment of the Court of Appeals is affirmed. It is so ordered.

Respondent mines cement rock and manufactures it into Portland cement. Section 611 (a) of the Internal Revenue Code of 1954 allows respondent, as a miner, to deduct from its taxable income a percentage of its gross income from mining as a recoupment of capital investment in the depleting mineral. Because respondent, as an integrated miner-manufacturer, has no actual gross income from mining, it must base its depletion deduction upon a constructive gross income from mining. For each of the tax years at issue in this case, respondent used the proportionate profits method prescribed by the Treasury Regulations to compute such constructive gross income. This method uses the costs of and proceeds from the taxpayer's "first marketable product" to derive the constructive gross income. The regulations define "first marketable product" as "the product (or group of essentially the same products) produced by the taxpayer as a result of the application of nonmining processes, in the form or condition in which such product or products are first marketed in significant quantities by the taxpayer." The regulations provide that bulk and packaged products are considered to be essentially the same product for this purpose. The method required respondent to derive the portion of total proceeds that reflects the ratio between its mining costs and its total costs. Under the regulations, respondent must include in the total-costs figure "all the mining and nonmining costs paid or incurred to produce, sell, and transport the first marketable product." Respondent took the position that its "first marketable product" was cement sold in bulk, rather than all cement sold, whether in bulk or in bags. The costs of bags and bagging exceeded respondent's bagging premium (the increase in proceeds for selling cement in bags). Hence, respondent did not include proceeds from the sale of cement in bags in the total-proceeds figure of the proportionate profits method. Nor did respondent include in the total-costs figure of the method the costs incurred for bags, bagging, storage, distribution, and sales. The result was that the proportionate profits method yielded a greater constructive gross income from mining, and respondent reported a correspondingly greater depletion deduction, than it would have if it had included those proceeds in costs in its computation by such method. Petitioner Commissioner of Internal Revenue determined that respondent's reported tax liabilities were deficient, taking the position that respondent's "first marketable product" is cement, whether sold in bulk or in bags, and that respondent should have included proceeds from its sale of bagged cement in its calculation by the method, and also the costs incurred for bags, bagging, storage, distribution, and sales. Respondent then filed suit in the Tax Court for a redetermination. That court accepted respondent's position, and the Court of Appeals affirmed.Held: The Treasury Regulations defining "first marketable product" and prescribing the treatment of the costs of bags, bagging, storage, distribution, and sales support the Commissioner's position. Pp. 165-174. (a) This Court customarily defers to Treasury Regulations that "implement the congressional mandate in some reasonable manner." United States v. Correll, . P. 169. (b) Respondent's contention that the Commissioner's position will yield a distorted constructive gross income from mining if it is applied without regard to the particular circumstances in this case, i. e., that respondent's bagging costs exceed its bagging premium, misperceives both the meaning of "gross income from mining" and the holding in United States v. Cannelton Sewer Pipe Co., . Under the Code and regulations, gross income from mining means income received, whether actually or constructively, without regard to value. In Cannelton, in interpreting an earlier statutory definition of "mining," the Court said that "Congress intended integrated mining-manufacturing operations to be treated as if the operator were selling the mineral mined to himself for fabrication." Id., at 89. This statement, in the context in which it occurs, does not support respondent's contention that the method used to determine constructive gross income must take into account forces that might cause income to differ from value. Nor does the difference between bagging costs and the bagging premium warrant a deviation from the regulation's definition of "first marketable product." Pp. 170-173. (c) The statutory definition of "mining" to include all processes up to the introduction of the kiln feed into the kiln, "but not ... any subsequent processes," forecloses respondent's further contention that the costs it incurred in the storage, distribution, and sales of its first marketable product, if they must be included in the proportionate profits method, should be treated as indirect costs which benefit the entire mining-manufacturing operation, and hence should be allocated between mining and manufacturing. The regulations recognizing that storage, distribution, and sales are "subsequent processes" are reasonable. Pp. 173-174. 614 F.2d 724 reversed.POWELL, J., delivered the opinion for a unanimous Court.Stuart A. Smith argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Acting Assistant Attorney General Murray, Jonathan S. Cohen, and David English Carmack.Dennis P. Bedell argued the cause for respondent. With him on the brief were Mark L. Evans, John J. Martin, and Glen E. Fuller.* [Footnote *] Richard A. Freling and David G. Glickman filed a brief for Centex Corp. as amicus curiae urging affirmance.JUSTICE POWELL delivered the opinion of the Court.This case concerns the depletion deduction taken under 611 of the Internal Revenue Code of 1954, 26 U.S.C. 611, by a company that mines and manufactures Portland cement. The question presented is whether the company's "first marketable product," for the purpose of determining gross income from mining by the proportionate profits method, is cement, whether sold in bulk or in bags, or only cement sold in bulk.IRespondent, Portland Cement Co. of Utah, is an integrated miner-manufacturer. It mines argillaceous limestone rock, known in the trade as cement rock, and it manufactures the rock into Portland cement.1 As a miner, respondent is allowed by 611 (a)2 to deduct from its taxable income an amount that permits it a recoupment of capital investment in the depleting mineral. Section 611 (a) provides: "In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary... ." The amount which respondent may deduct is a percentage of its "gross income from the property." 26 U.S.C. 613 (a).3 In respondent's case, gross income from property means "gross income from mining."4 Thus, respondent may deduct from its taxable income a percentage of the gross income it receives from mining.If respondent were only a miner and therefore sold the product of its mining, respondent's gross income from mining would be the receipts from its sales. But as an integrated miner-manufacturer, respondent itself uses the product of its mining.5 Respondent therefore has no actual gross income from mining and must base its depletion deduction upon a constructive gross income from mining. See United States v. Cannelton Sewer Pipe Co., .The Commissioner of Internal Revenue, petitioner here, has prescribed in Treasury Regulations two methods of determining constructive gross income from mining. If other miners in the industry sell the product of their mining on an open market, then miners who do not sell their product must use "the representative market or field price" to compute their constructive gross income from mining. Treas. Reg. 1.613-4 (c), 26 CFR 1.613-4 (c) (1980). If other miners do not sell their mining product and a representative market or field price cannot be determined, as is the case in the integrated cement industry, then constructive gross income from mining must be determined by the "proportionate profits method." 1.613-4 (d). In addition to providing these two methods, the Commissioner also has provided that a tax-payer may compute a constructive gross income from mining by any other method that, upon the taxpayer's request, the Commissioner determines to be more appropriate than the proportionate profits method under the taxpayer's particular circumstances. 1.613-4 (d) (1) (ii).6 For each of the tax years at issue in this case, respondent used the proportionate profits method to compute its constructive gross income from mining.7 The proportionate profits method uses the costs of and proceeds from the taxpayer's "first marketable product" to derive the taxpayer's constructive gross income from mining. The principle of the method is that each dollar of the total costs which the taxpayer incurs to produce, sell, and transport its first marketable product earns the same proportionate part of the proceeds from sales of that product. 1.613-4 (d) (4) (i). The objective of the method is to identify - from among the total proceeds from sales of the first marketable product - that portion of the proceeds that has been earned by the costs which the taxpayer incurred in its mining operations. To identify that portion of the proceeds, the formula requires the taxpayer to apportion the total proceeds from its first marketable product between mining income and total income in the same ratio as its mining costs bear to its total costs. The amount of proceeds which bears the same relationship to total proceeds as mining costs bear to total costs is the taxpayer's constructive gross income from mining.8 On its returns for the tax years in question, respondent took the position that its first marketable product was cement sold in bulk. Respondent sells most of its cement in bulk, by loading finished cement directly from silos into customers' trucks or railroad tank cars. But respondent also sells cement in bags to customers who want to buy relatively small quantities.9 Cement is bagged by running it from the storage silo into a bin above a bagging machine, which then pours the cement into bags and seals them. The cost that respondent incurs for bags and bagging exceeds the increase in proceeds, known as the bagging premium, that respondent receives for selling cement in bags.10 Respondent still receives a profit on the cement it sells in bags, but less profit than if it had sold the cement in bulk.11 Because respondent considered its first marketable product to be cement sold in bulk rather than all cement sold, whether in bulk or in bags, respondent did not include proceeds from the sale of cement in bags in the total-proceeds figure of the proportionate profits method. Nor did respondent include in the total-costs figure the costs it incurred for bags, bagging, storage, distribution, and sales.12 The result of this position was that the proportionate profits method yielded a greater constructive gross income from mining, and respondent reported a correspondingly greater depletion deduction, than would have been the case if respondent had included those proceeds and costs in its computation by the method.After an audit, the Commissioner determined that respondent's reported tax liabilities were deficient.13 The Commissioner took the position that respondent's first marketable product is cement, whether sold in bulk or in bags, that respondent therefore should have included proceeds from its sales of bagged cement in its total-proceeds figure, and also that respondent should have included in its total-costs figure the costs it incurred for bags, bagging, storage, distribution, and sales. Respondent then filed this suit in the Tax Court for a redetermination.The Tax Court, following its rule of applying the law of the court of appeals to which an appeal would be taken,14 relied upon United States v. Ideal Basic Industries, Inc., 404 F.2d 122 (CA10 1968), cert. denied, , and accepted respondent's position. 36 TCM 578 (1977), § 77,137 P-H Memo TC. Ideal Basic Industries had held that cement sold in bulk is the first marketable product of an integrated miner-manufacturer and that revenues from sales of cement in bags, and the costs of bags, bagging, storage, distribution, and sales, should not be included in calculations under the proportionate profits method. 404 F.2d, at 125-126. The Court of Appeals for the Tenth Circuit affirmed, also adhering to Ideal Basic Industries. 614 F.2d, 724 (1980) (per curiam). It rejected the Commissioner's argument that Treasury Regulations dictate the opposite result. We granted the Commissioner's petition for a writ of certiorari because other Courts of Appeals have accepted the Commissioner's position in cases with substantially identical facts.15 . We now reverse. IICongress requires in 611 that the allowance of the depletion deduction is "in all cases to be made under regulations prescribed by the Secretary." The Commissioner provided the proportionate profits method pursuant to this delegation of authority.16 Also pursuant to this authority, the Commissioner has promulgated regulations which specifically address the questions before us. We find these regulations dispositive.The Treasury Regulations define "first marketable product" as "the product (or group of essentially the same products) produced by the taxpayer as a result of the application of nonmining processes, in the form or condition in which such product or products are first marketed in significant quantities by the taxpayer or by others in the taxpayer's marketing area." 26 CFR 1.613-4 (d) (4) (iv) (1980). This definition continues: "For this purpose, bulk and packaged products are considered to be essentially the same product... . The first marketable product or group of products does not include any product which results from additional manufacturing or other nonmining processes applied to the product or products first marketed in significant quantities by the taxpayer or others in the taxpayer's marketing area. For example, if a cement manufacturer sells his own finished cement in bulk and bags and also sells concrete blocks or dry ready-mix aggregates containing additives, the finished cement, in bulk and bags, constitutes the first marketable product or group of products produced by him." This regulation supports the Commissioner's position that cement sold in bulk is the same product as cement sold in bags, and that the container for the cement - whether a tank car supplied by the customer or a bag supplied by respondent - does not distinguish cement in bulk from cement in bags for the purpose of determining respondent's first marketable product. Federal Courts of Appeals other than the court below have relied on the regulation to uphold the Commissioner's position. General Portland Cement Co. v. United States, 628 F.2d 321, 323 (CA5 1980), cert. pending, No. 80-1211; United States v. California Portland Cement Co., 413 F.2d 161 (CA9 1969). Indeed, the Commissioner's position also is supported by respondent's stipulation in the Tax Court that "[t]hat portion of its cement sold ... in bags is the same material as the cement sold in bulk."The Treasury Regulations also support the Commissioner's position that respondent must include in the total-costs figure of the method the costs of bags, bagging, storage, and distribution. To derive the portion of total proceeds that reflects the ratio between respondent's mining costs and its total costs, respondent must include in the total-costs figure "all the mining and nonmining costs paid or incurred to produce, sell, and transport the first marketable product." 26 CFR 1.613-4 (d) (4) (ii) (1980). The exclusion of nonmining costs from the total-costs figure has the effect of including the proportionate profits earned by such costs within respondent's depletion base. Such inclusion enhances respondent's depletion base by proceeds that were not earned by respondent's mining operation, and accordingly respondent's depletion deduction becomes a recoupment for more than the exhaustion of respondent's mine. It is undisputed, however, that Congress allows the depletion deduction to permit recoupment for the exhaustion of the mineral only. See United States v. Cannelton Sewer Pipe Co., 364 U.S., at 81, 85-86; Commissioner v. Southwest Exploration Co., ; General Portland Cement Co. v. United States, supra, at 322. It also is undisputed that the Treasury Regulations classify the costs of bags, bagging, storage, and distribution as nonmining costs. 26 CFR 1.613-4 (d) (3) (iii) (1980).17 Courts of Appeals have accepted the Commissioner's position on this question also. General Portland Cement Co. v. United States, supra, at 326; Southwestern Portland Cement Co. v. United States, 435 F.2d 504, 508, 510 (CA9 1970); United States v. California Portland Cement Co., supra, at 168-169; Whitehall Cement Manufacturing Co. v. United States, 369 F.2d 468, 473-474 (CA3 1966).Finally, the Treasury Regulations support the Commissioner's position that respondent must include as nonmining costs the costs incurred in selling the first marketable product. The regulations provide that integrated miner-manufacturers must treat sales expenses as nonmining costs absent evidence that unintegrated miners typically incur such expenses in selling their mineral product. 1.613-4 (d) (3) (iv), 1.613-5 (c) (4) (ii).18 These regulations simply recognize that sales of finished cement occur after the point at which an integrated miner-manufacturer's mining phase ends and its manufacturing phase begins. See 26 U.S.C. 613 (c) (4) (F); cf. General Portland Cement Co. v. United States, supra, at 333. Integrated miner-manufacturers may allocate selling costs between their mining and manufacturing phases if they can show that unintegrated miners typically incur selling expenses, for that maintains a parity of tax treatment between integrated miner-manufacturers and unintegrated miners. But respondent has not put forth such evidence in this case, there being no unintegrated miners in the cement industry.These regulations command our respect, for Congress has delegated to the Secretary of the Treasury, not to this Court, the task "of administering the tax laws of the Nation." United States v. Cartwright, ; accord, United States v. Correll, ; see 26 U.S.C. 7805 (a). We therefore must defer to Treasury Regulations that "implement the congressional mandate in some reasonable manner." United States v. Correll, supra, at 307; accord, National Muffler Dealers Assn. v. United States, . To put the same principle conversely, Treasury Regulations "must be sustained unless unreasonable and plainly inconsistent with the revenue statutes." Commissioner v. South Texas Lumber Co., ; accord, Fulman v. United States, ; Bingler v. Johnson, . Indeed, our customary deference to Treasury Regulations is particularly appropriate in this case, for the Court previously has recognized the necessity of a "broad rule-making delegation" of authority in the area of depletion: "As Congress obviously could not foresee the multifarious circumstances which would involve questions of depletion, it delegated to the Commissioner the duty of making the regulations." Douglas v. Commissioner, , 281 (1944);19 accord, Helvering v. Wilshire Oil Co., Inc., . IIIRespondent does not contend that these Treasury Regulations are either unreasonable on their face or inconsistent with the Code. To the contrary, respondent acknowledges that several courts have found the regulations to prescribe a reasonable formula for determining gross income from mining in cases where no actual income is realized and no representative market price is available. Respondent's contention is that the Commissioner's position will yield a distorted constructive gross income from mining if it is applied without regard to the particular circumstances in this case.ARespondent's position rests upon (i) an assumption about gross income from mining and (ii) an interpretation of this Court's decision in United States v. Cannelton Sewer Pipe Co., . Respondent deems "gross income from mining," for the purpose of the percentage depletion deduction, to be the same thing as "the market value of the extracted minerals" at the end of the mining phase, Brief for Respondent 14; and respondent reads Cannelton to hold that, for the purpose of determining gross income from mining, the mining phase of an integrated mining-manufacturing operation should be considered one independent business selling its product to another independent business, the manufacturing phase. On the basis of these notions, respondent perceives a potential for distortion of constructive gross income inhering in the premise of the proportionate profits method. The premise of that method is that each dollar of costs, mining and nonmining alike, earns the same proportionate part of the proceeds from the first marketable product. In respondent's view, however, it simply will not be true in some cases that each dollar of costs earns the same share of proceeds. For example, respondent contends, market forces and arm's-length negotiations may so affect market value when an independent miner sells to an independent manufacturer that it will not be true that each dollar of cost earns the same share of proceeds; and respondent contends that it certainly is not true in this case that each of its dollars of cost earned the same share of proceeds, for the cost of bags and bagging exceeds the bagging premium.Respondent does not conclude from this reasoning that the proportionate profits method is unreasonable in itself. Rather, it argues that the method will distort constructive gross income from mining to the extent that the particular facts of a case deviate from the method's premise, and that the possibility of distortion increases as costs and proceeds attending postmining processes are included. To remedy this, respondent asks that the Commissioner take into account the "peculiar" circumstance that respondent's bagging costs exceed its bagging premium.20 If this were done, respondent says, the distortion that it perceives could be obviated by considering its first marketable product to be only cement sold in bulk, not cement sold both in bulk and in bags. If only bulk sales are considered to be the first marketable product, then the proceeds from cement sold in bags, and the costs of bags, bagging, storage, and distribution, will be excluded from the proportionate profits method. This was essentially the reasoning and holding of Ideal Basic Industries, 404 F.2d, at 125-127.We cannot accept respondent's contention, for it misperceives both the meaning of "gross income from mining" and the holding in Cannelton. Respondent cites nothing to support the assumption that gross income from mining means market value of the mining product. The language of 613 (a) and (c) does not support this assumption; and Helvering v. Mountain Producers Corp., , rejected it.21 See also Commissioner v. Southwest Exploration Co., 350 U.S., at 312. Under the Code and regulations, gross income from mining means income received, whether actually or constructively, without regard to value. Nor does Cannelton support respondent's argument. That case did not involve the proportionate profits method of determining constructive gross income from mining. The question there, under an earlier statutory definition of "mining," was when the mining phase ended in the operation of an integrated miner-manufacturer of burnt clay products. See 364 U.S., at 84, and n. 8. In interpreting the definition of "mining," the Court observed that "the Congress intended integrated mining-manufacturing operations to be treated as if the operator were selling the mineral mined to himself for fabrication." Id., at 89. This statement, in the context in which it occurs, does not support respondent's contention that the method used to determine constructive gross income must take into account forces that might cause income to differ from value.Nor does the difference between bagging costs and the bagging premium warrant a deviation from the Treasury Regulation's definition of "first marketable product." Respondent receives a net profit on every bag of cement that it sells, despite the fact that bagging costs exceed markup on the product. It is reasonable to infer, therefore, that the costs of bagging the cement contribute to respondent's profits from sales of cement in bags. Courts of Appeals other than the court below have found this inference reasonable. General Portland Cement Co. v. United States, 628 F.2d, at 330-331; Whitehall Cement Manufacturing Co. v. United States, 369 F.2d, at 474; see also United States v. California Portland Cement, 413 F.2d, at 169.BThere remains only respondent's contention that the costs it incurred in the storage, distribution, and sales of its first marketable product, if they must be included in the proportionate profits method, should be treated as indirect costs which benefit the entire mining-manufacturing operation. For that reason, respondent urges that these costs should be allocated between mining and manufacturing.The statutory definition of "mining" forecloses this contention. Section 613 (c) (4) (F) of the Code defines "mining" to include all processes up to the introduction of the kiln feed into the kiln, "but not ... any subsequent process." The regulations recognize that storage, distribution, and sales are "subsequent process[es]," and we find the regulations reasonable. 26 CFR 1.613-4 (d) (3) (iii) (1980) (storage and distribution); 1.613-4 (d) (3) (iv) and 1.613-5 (c) (4) (ii) (sales). These regulations allow a different treatment only for sales expenses. See supra, at 168-169. Respondent, who bore the burden of proof in the Tax Court, made no showing to warrant treating sales expenses as anything but nonmining costs.22 IVIn sum, the Treasury Regulations defining first marketable product, and those prescribing the treatment of the costs of bags, bagging, storage, distribution, and sales, dictate the result in this case. To be sure, the proportionate profits method can only approximate gross income from mining. The Commissioner does not contend that the method does more than approximate. But an approximate must suffice absent an actual gross income from mining, and respondent concedes that the proportionate profits method is a reasonable means of approximating. The method also is a means that respondent accepted, as it did not seek the Commissioner's approval of any other method.23 Accordingly, respondent must apply the method as prescribed by the Commissioner.The judgment of the Court of Appeals is reversed. It is so ordered.

Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is "permanently neglected." The New York Family Court Act ( 622) requires that only a "fair preponderance of the evidence" support that finding. Neglect proceedings were brought in Family Court to terminate petitioners' rights as natural parents in their three children. Rejecting petitioners' challenge to the constitutionality of 622's "fair preponderance of the evidence" standard, the Family Court weighed the evidence under that standard and found permanent neglect. After a subsequent dispositional hearing, the Family Court ruled that the best interests of the children required permanent termination of petitioners' custody. The Appellate Division of the New York Supreme Court affirmed, and the New York Court of Appeals dismissed petitioners' appeal to that court.Held: 1. Process is constitutionally due a natural parent at a state-initiated parental rights termination proceeding. Pp. 752-757. (a) The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. A parental rights termination proceeding interferes with that fundamental liberty interest. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. Pp. 752-754. (b) The nature of the process due in parental rights termination proceedings turns on a balancing of three factors: the private interests affected by the proceedings; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. Mathews v. Eldridge, . In any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the public and private interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants. The minimum standard is a question of federal law which this Court may resolve. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard. Pp. 754-757. 2. The "fair preponderance of the evidence" standard prescribed by 622 violates the Due Process Clause of the Fourteenth Amendment. Pp. 758-768. (a) The balance of private interests affected weighs heavily against use of such a standard in parental rights termination proceedings, since the private interest affected is commanding and the threatened loss is permanent. Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. Pp. 758-761. (b) A preponderance standard does not fairly allocate the risk of an erroneous factfinding between the State and the natural parents. In parental rights termination proceedings, which bear many of the indicia of a criminal trial, numerous factors combine to magnify the risk of erroneous factfinding. Coupled with the preponderance standard, these factors create a significant prospect of erroneous termination of parental rights. A standard of proof that allocates the risk of error nearly equally between an erroneous failure to terminate, which leaves the child in an uneasy status quo, and an erroneous termination, which unnecessarily destroys the natural family, does not reflect properly the relative severity of these two outcomes. Pp. 761-766. (c) A standard of proof more strict than preponderance of the evidence is consistent with the two state interests at stake in parental rights termination proceedings - a parens patriae interest in preserving and promoting the child's welfare and a fiscal and administrative interest in reducing the cost and burden of such proceedings. Pp. 766-768. 3. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence. A "clear and convincing evidence" standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. Determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts. Pp. 768-770. 75 App. Div. 2d 910, 427 N. Y. S. 2d 319, vacated and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and WHITE and O'CONNOR, JJ., joined, post, p. 770.Martin Guggenheim argued the cause for petitioners. With him on the briefs was Alan N. Sussman.Steven Domenic Scavuzzo argued the cause pro hac vice for respondents. With him on the brief was H. Randall Bixler. Wilfrid E. Marrin and Frederick J. Magovern filed a brief for respondents Balogh et al.* [Footnote *] Briefs of amici curiae urging reversal were filed by Marcia Robinson Lowry, Steven R. Shapiro, and Margaret Hayman for the American Civil Liberties Union Children's Rights Project et al.; and by Louise Gruner Gans, Catherine P. Mitchell, Norman Siegel, Gary Connor, and Daniel Greenberg for Community Action for Legal Services, Inc., et al. Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, Shirley Adelson Siegel, Solicitor General, and Lawrence J. Logan and Robert J. Schack, Assistant Attorneys General, for the State of New York; and by Dave Frohnmayer, Attorney General, William F. Gary, Solicitor General, and Jan Peter Londahl, Assistant Attorney General, for the State of Oregon.JUSTICE BLACKMUN delivered the opinion of the Court.Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is "permanently neglected." N. Y. Soc. Serv. Law 384-b.4.(d), 384-b.7.(a) (McKinney Supp. 1981-1982) (Soc. Serv. Law). The New York Family Court Act 622 (McKinney 1975 and Supp. 1981-1982) (Fam. Ct. Act) requires that only a "fair preponderance of the evidence" support that finding. Thus, in New York, the factual certainty required to extinguish the parent-child relationship is no greater than that necessary to award money damages in an ordinary civil action.Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.IANew York authorizes its officials to remove a child temporarily from his or her home if the child appears "neglected," within the meaning of Art. 10 of the Family Court Act. See 1012(f), 1021-1029. Once removed, a child under the age of 18 customarily is placed "in the care of an authorized agency," Soc. Serv. Law 384-b.7.(a), usually a state institution or a foster home. At that point, "the state's first obligation is to help the family with services to ... reunite it ... ." 384-b.1.(a)(iii). But if convinced that "positive, nurturing parent-child relationships no longer exist," 384-b.1.(b), the State may initiate "permanent neglect" proceedings to free the child for adoption.The State bifurcates its permanent neglect proceeding into "fact-finding" and "dispositional" hearings. Fam. Ct. Act 622, 623. At the factfinding stage, the State must prove that the child has been "permanently neglected," as defined by Fam. Ct. Act 614.1.(a)-(d) and Soc. Serv. Law 384-b.7.(a). See Fam. Ct. Act 622. The Family Court judge then determines at a subsequent dispositional hearing what placement would serve the child's best interests. 623, 631.At the factfinding hearing, the State must establish, among other things, that for more than a year after the child entered state custody, the agency "made diligent efforts to encourage and strengthen the parental relationship." Fam. Ct. Act 614.1.(c), 611. The State must further prove that during that same period, the child's natural parents failed "substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although physically and financially able to do so." 614.1.(d). Should the State support its allegations by "a fair preponderance of the evidence," 622, the child may be declared permanently neglected. 611. That declaration empowers the Family Court judge to terminate permanently the natural parents' rights in the child. 631(c), 634. Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child.1 New York's permanent neglect statute provides natural parents with certain procedural protections.2 But New York permits its officials to establish "permanent neglect" with less proof than most States require. Thirty-five States, the District of Columbia, and the Virgin Islands currently specify a higher standard of proof, in parental rights termination proceedings, than a "fair preponderance of the evidence."3 The only analogous federal statute of which we are aware permits termination of parental rights solely upon "evidence beyond a reasonable doubt." Indian Child Welfare Act of 1978, Pub. L. 95-608, 102(f), 92 Stat. 3072, 25 U.S.C. 1912(f) (1976 ed., Supp. IV). The question here is whether New York's "fair preponderance of the evidence" standard is constitutionally sufficient.BPetitioners John Santosky II and Annie Santosky are the natural parents of Tina and John III. In November 1973, after incidents reflecting parental neglect, respondent Kramer, Commissioner of the Ulster County Department of Social Services, initiated a neglect proceeding under Fam. Ct. Act 1022 and removed Tina from her natural home. About 10 months later, he removed John III and placed him with foster parents. On the day John was taken, Annie Santosky gave birth to a third child, Jed. When Jed was only three days old, respondent transferred him to a foster home on the ground that immediate removal was necessary to avoid imminent danger to his life or health.In October 1978, respondent petitioned the Ulster County Family Court to terminate petitioners' parental rights in the three children.4 Petitioners challenged the constitutionality of the "fair preponderance of the evidence" standard specified in Fam. Ct. Act 622. The Family Court Judge rejected this constitutional challenge, App. 29-30, and weighed the evidence under the statutory standard. While acknowledging that the Santoskys had maintained contact with their children, the judge found those visits "at best superficial and devoid of any real emotional content." Id., at 21. After deciding that the agency had made "`diligent efforts' to encourage and strengthen the parental relationship," id., at 30, he concluded that the Santoskys were incapable, even with public assistance, of planning for the future of their children. Id., at 33-37. The judge later held a dispositional hearing and ruled that the best interests of the three children required permanent termination of the Santoskys' custody.5 Id., at 39.Petitioners appealed, again contesting the constitutionality of 622's standard of proof.6 The New York Supreme Court, Appellate Division, affirmed, holding application of the preponderance-of-the-evidence standard "proper and constitutional." In re John AA, 75 App. Div. 2d 910, 427 N. Y. S. 2d 319, 320 (1980). That standard, the court reasoned, "recognizes and seeks to balance rights possessed by the child ... with those of the natural parents ... ." Ibid.The New York Court of Appeals then dismissed petitioners' appeal to that court "upon the ground that no substantial constitutional question is directly involved." App. 55. We granted certiorari to consider petitioners' constitutional claim. .IILast Term, in Lassiter v. Department of Social Services, , this Court, by a 5-4 vote, held that the Fourteenth Amendment's Due Process Clause does not require the appointment of counsel for indigent parents in every parental status termination proceeding. The case casts light, however, on the two central questions here - whether process is constitutionally due a natural parent at a State's parental rights termination proceeding, and, if so, what process is due.In Lassiter, it was "not disputed that state intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause." Id., at 37 (first dissenting opinion); see id., at 24-32 (opinion of the Court); id., at 59-60 (STEVENS, J., dissenting). See also Little v. Streater, . The absence of dispute reflected this Court's historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. Quilloin v. Walcott, ; Smith v. Organization of Foster Families, ; Moore v. East Cleveland, (plurality opinion); Cleveland Board of Education v. LaFleur, ; Stanley v. Illinois, ; Prince v. Massachusetts, ; Pierce v. Society of Sisters, ; Meyer v. Nebraska, .The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.7 In Lassiter, the Court and three dissenters agreed that the nature of the process due in parental rights termination proceedings turns on a balancing of the "three distinct factors" specified in Mathews v. Eldridge, : the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. See 452 U.S., at 27-31; id., at 37-48 (first dissenting opinion). But see id., at 59-60 (STEVENS, J., dissenting). While the respective Lassiter opinions disputed whether those factors should be weighed against a presumption disfavoring appointed counsel for one not threatened with loss of physical liberty, compare 452 U.S., at 31-32, with id., at 41, and n. 8 (first dissenting opinion), that concern is irrelevant here. Unlike the Court's right-to-counsel rulings, its decisions concerning constitutional burdens of proof have not turned on any presumption favoring any particular standard. To the contrary, the Court has engaged in a straightforward consideration of the factors identified in Eldridge to determine whether a particular standard of proof in a particular proceeding satisfies due process.In Addington v. Texas, , the Court, by a unanimous vote of the participating Justices, declared: "The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'" Id., at 423, quoting In re Winship, (Harlan, J., concurring). Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a "fair preponderance of the evidence" standard indicates both society's "minimal concern with the outcome," and a conclusion that the litigants should "share the risk of error in roughly equal fashion." 441 U.S., at 423. When the State brings a criminal action to deny a defendant liberty or life, however, "the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment." Ibid. The stringency of the "beyond a reasonable doubt" standard bespeaks the "weight and gravity" of the private interest affected, id., at 427, society's interest in avoiding erroneous convictions, and a judgment that those interests together require that "society impos[e] almost the entire risk of error upon itself." Id., at 424. See also In re Winship, 397 U.S., at 372 (Harlan, J., concurring).The "minimum requirements [of procedural due process] being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action." Vitek v. Jones, . See also Logan v. Zimmerman Brush Co., ante, at 432. Moreover, the degree of proof required in a particular type of proceeding "is the kind of question which has traditionally been left to the judiciary to resolve." Woodby v. INS, .8 "In cases involving individual rights, whether criminal or civil, `[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.'" Addington v. Texas, 441 U.S., at 425, quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (CA4 1971) (opinion concurring in part and dissenting in part), cert. dism'd sub nom. Murel v. Baltimore City Criminal Court, .This Court has mandated an intermediate standard of proof - "clear and convincing evidence" - when the individual interests at stake in a state proceeding are both "particularly important" and "more substantial than mere loss of money." Addington v. Texas, 441 U.S., at 424. Notwithstanding "the state's `civil labels and good intentions,'" id., at 427, quoting In re Winship, 397 U.S., at 365-366, the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with "a significant deprivation of liberty" or "stigma." 441 U.S., at 425, 426. See, e. g., Addington v. Texas, supra (civil commitment); Woodby v. INS, 385 U.S., at 285 (deportation); Chaunt v. United States, (denaturalization); Schneiderman v. United States, , 159 (1943) (denaturalization).In Lassiter, to be sure, the Court held that fundamental fairness may be maintained in parental rights termination proceedings even when some procedures are mandated only on a case-by-case basis, rather than through rules of general application. 452 U.S., at 31-32 (natural parent's right to court-appointed counsel should be determined by the trial court, subject to appellate review). But this Court never has approved case-by-case determination of the proper standard of proof for a given proceeding. Standards of proof, like other "procedural due process rules[,] are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions." Mathews v. Eldridge, 424 U.S., at 344 (emphasis added). Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.9 IIIIn parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. Evaluation of the three Eldridge factors compels the conclusion that use of a "fair preponderance of the evidence" standard in such proceedings is inconsistent with due process.A"The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be `condemned to suffer grievous loss.'" Goldberg v. Kelly, . 262-263 (1970), quoting Joint Anti-Fascist Refugee Committee v. McGrath, (Frankfurter, J., concurring). Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss. Lassiter declared it "plain beyond the need for multiple citation" that a natural parent's "desire for and right to `the companionship, care, custody, and management of his or her children'" is an interest far more precious than any property right. 452 U.S., at 27, quoting Stanley v. Illinois, 405 U.S., at 651. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. "If the State prevails, it will have worked a unique kind of deprivation... . A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one." 452 U.S., at 27.In government-initiated proceedings to determine juvenile delinquency, In re Winship, supra; civil commitment, Addington v. Texas, supra; deportation, Woodby v. INS, supra; and denaturalization, Chaunt v. United States, supra, and Schneiderman v. United States, supra, this Court has identified losses of individual liberty sufficiently serious to warrant imposition of an elevated burden of proof. Yet juvenile delinquency adjudications, civil commitment, deportation, and denaturalization, at least to a degree, are all reversible official actions. Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. See n. 1, supra. Few forms of state action are both so severe and so irreversible.Thus, the first Eldridge factor - the private interest affected - weighs heavily against use of the preponderance standard at a state-initiated permanent neglect proceeding. We do not deny that the child and his foster parents are also deeply interested in the outcome of that contest. But at the factfinding stage of the New York proceeding, the focus emphatically is not on them.The factfinding does not purport - and is not intended - to balance the child's interest in a normal family home against the parents' interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home. Rather, the factfinding hearing pits the State directly against the parents. The State alleges that the natural parents are at fault. Fam. Ct. Act 614.1.(d). The questions disputed and decided are what the State did - "made diligent efforts," 614.1.(c) - and what the natural parents did not do - "maintain contact with or plan for the future of the child." 614.1.(d). The State marshals an array of public resources to prove its case and disprove the parents' case. Victory by the State not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children.10 At the factfinding, the State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. See Fam. Ct. Act 631 (judge shall make his order "solely on the basis of the best interests of the child," and thus has no obligation to consider the natural parents' rights in selecting dispositional alternatives). But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.11 Thus, at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures.However substantial the foster parents' interests may be, cf. Smith v. Organization of Foster Families, 431 U.S., at 845-847, they are not implicated directly in the factfinding stage of a state-initiated permanent neglect proceeding against the natural parents. If authorized, the foster parents may pit their interests directly against those of the natural parents by initiating their own permanent neglect proceeding. Fam. Ct. Act 1055(d); Soc. Serv. Law 384-6.3(b), 392.7.(c). Alternatively, the foster parents can make their case for custody at the dispositional stage of a state-initiated proceeding, where the judge already has decided the issue of permanent neglect and is focusing on the placement that would serve the child's best interests. Fam. Ct. Act 623, 631. For the foster parents, the State's failure to prove permanent neglect may prolong the delay and uncertainty until their foster child is freed for adoption. But for the natural parents, a finding of permanent neglect can cut off forever their rights in their child. Given this disparity of consequence, we have no difficulty finding that the balance of private interests strongly favors heightened procedural protections.BUnder Mathews v. Eldridge, we next must consider both the risk of erroneous deprivation of private interests resulting from use of a "fair preponderance" standard and the likelihood that a higher evidentiary standard would reduce that risk. See 424 U.S., at 335. Since the factfinding phase of a permanent neglect proceeding is an adversary contest between the State and the natural parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties. In New York, the factfinding stage of a state-initiated permanent neglect proceeding bears many of the indicia of a criminal trial. Cf. Lassiter v. Department of Social Services, 452 U.S., at 42-44 (first dissenting opinion); Meltzer v. C. Buck LeCraw & Co., (Black, J., dissenting from denial of certiorari). See also dissenting opinion, post, at 777-779 (describing procedures employed at factfinding proceeding). The Commissioner of Social Services charges the parents with permanent neglect. They are served by summons. Fam. Ct. Act 614, 616, 617. The factfinding hearing is conducted pursuant to formal rules of evidence. 624. The State, the parents, and the child are all represented by counsel. 249, 262. The State seeks to establish a series of historical facts about the intensity of its agency's efforts to reunite the family, the infrequency and insubstantiality of the parents' contacts with their child, and the parents' inability or unwillingness to formulate a plan for the child's future. The attorneys submit documentary evidence, and call witnesses who are subject to cross-examination. Based on all the evidence, the judge then determines whether the State has proved the statutory elements of permanent neglect by a fair preponderance of the evidence. 622.At such a proceeding, numerous factors combine to magnify the risk of erroneous factfinding. Permanent neglect proceedings employ imprecise substantive standards that leave determinations unusually open to the subjective values of the judge. See Smith v. Organization of Foster Families, 431 U.S., at 835, n. 36. In appraising the nature and quality of a complex series of encounters among the agency, the parents, and the child, the court possesses unusual discretion to underweigh probative facts that might favor the parent.12 Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups, id., at 833-835, such proceedings are often vulnerable to judgments based on cultural or class bias.The State's ability to assemble its case almost inevitably dwarfs the parents' ability to mount a defense. No predetermined limits restrict the sums an agency may spend in prosecuting a given termination proceeding. The State's attorney usually will be expert on the issues contested and the procedures employed at the factfinding hearing, and enjoys full access to all public records concerning the family. The State may call on experts in family relations, psychology, and medicine to bolster its case. Furthermore, the primary witnesses at the hearing will be the agency's own professional caseworkers whom the State has empowered both to investigate the family situation and to testify against the parents. Indeed, because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination.13 The disparity between the adversaries' litigation resources is matched by a striking asymmetry in their litigation options. Unlike criminal defendants, natural parents have no "double jeopardy" defense against repeated state termination efforts. If the State initially fails to win termination, as New York did here, see n. 4, supra, it always can try once again to cut off the parents' rights after gathering more or better evidence. Yet even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts.Coupled with a "fair preponderance of the evidence" standard, these factors create a significant prospect of erroneous termination. A standard of proof that by its very terms demands consideration of the quantity, rather than the quality, of the evidence may misdirect the factfinder in the marginal case. See In re Winship, 397 U.S., at 371, n. 3 (Harlan, J., concurring). Given the weight of the private interests at stake, the social cost of even occasional error is sizable.Raising the standard of proof would have both practical and symbolic consequences. Cf. Addington v. Texas, 441 U.S., at 426. The Court has long considered the heightened standard of proof used in criminal prosecutions to be "a prime instrument for reducing the risk of convictions resting on factual error." In re Winship, 397 U.S., at 363. An elevated standard of proof in a parental rights termination proceeding would alleviate "the possible risk that a factfinder might decide to [deprive] an individual based solely on a few isolated instances of unusual conduct [or] ... idiosyncratic behavior." Addington v. Texas, 441 U.S., at 427. "Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate" terminations will be ordered. Ibid.The Appellate Division approved New York's preponderance standard on the ground that it properly "balanced rights possessed by the child ... with those of the natural parents... ." 75 App. Div. 2d, at 910, 427 N. Y. S. 2d, at 320. By so saying, the court suggested that a preponderance standard properly allocates the risk of error between the parents and the child.14 That view is fundamentally mistaken.The court's theory assumes that termination of the natural parents' rights invariably will benefit the child.15 Yet we have noted above that the parents and the child share an interest in avoiding erroneous termination. Even accepting the court's assumption, we cannot agree with its conclusion that a preponderance standard fairly distributes the risk of error between parent and child. Use of that standard reflects the judgment that society is nearly neutral between erroneous termination of parental rights and erroneous failure to terminate those rights. Cf. In re Winship, 397 U.S., at 371 (Harlan, J., concurring). For the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo.16 For the natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family. A standard that allocates the risk of error nearly equally between those two outcomes does not reflect properly their relative severity.CTwo state interests are at stake in parental rights termination proceedings - a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings. A standard of proof more strict than preponderance of the evidence is consistent with both interests."Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision" at the factfinding proceeding. Lassiter v. Department of Social Services, 452 U.S., at 27. As parens patriae, the State's goal is to provide the child with a permanent home. See Soc. Serv. Law 384-b.1.(a)(i) (statement of legislative findings and intent). Yet while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds.17 384-b.1.(a)(ii). "[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents." Stanley v. Illinois, 405 U.S., at 652. The State's interest in finding the child an alternative permanent home arises only "when it is clear that the natural parent cannot or will not provide a normal family home for the child." Soc. Serv. Law 384-b.1.(a)(iv) (emphasis added). At the factfinding, that goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home.Unlike a constitutional requirement of hearings, see, e. g., Mathews v. Eldridge, 424 U.S., at 347, or court-appointed counsel, a stricter standard of proof would reduce factual error without imposing substantial fiscal burdens upon the State. As we have observed, 35 States already have adopted a higher standard by statute or court decision without apparent effect on the speed, form, or cost of their factfinding proceedings. See n. 3, supra.Nor would an elevated standard of proof create any real administrative burdens for the State's factfinders. New York Family Court judges already are familiar with a higher evidentiary standard in other parental rights termination proceedings not involving permanent neglect. See Soc. Serv. Law 384-b.3.(g), 384-b.4.(c), and 384-b.4.(e) (requiring "clear and convincing proof" before parental rights may be terminated for reasons of mental illness and mental retardation or severe and repeated child abuse). New York also demands at least clear and convincing evidence in proceedings of far less moment than parental rights termination proceedings. See, e. g., N. Y. Veh. & Traf. Law 227.1 (McKinney Supp. 1981) (requiring the State to prove traffic infractions by "clear and convincing evidence") and In re Rosenthal v. Hartnett, 36 N. Y. 2d 269, 326 N. E. 2d 811 (1975); see also Ross v. Food Specialties, Inc., 6 N. Y. 2d 336, 341, 160 N. E. 2d 618, 620 (1959) (requiring "clear, positive and convincing evidence" for contract reformation). We cannot believe that it would burden the State unduly to require that its factfinders have the same factual certainty when terminating the parent-child relationship as they must have to suspend a driver's license.IVThe logical conclusion of this balancing process is that the "fair preponderance of the evidence" standard prescribed by Fam. Ct. Act 622 violates the Due Process Clause of the Fourteenth Amendment.18 The Court noted in Addington: "The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." 441 U.S., at 427. Thus, at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable. The next question, then, is whether a "beyond a reasonable doubt" or a "clear and convincing" standard is constitutionally mandated.In Addington, the Court concluded that application of a reasonable-doubt standard is inappropriate in civil commitment proceedings for two reasons - because of our hesitation to apply that unique standard "too broadly or casually in non-criminal cases," id., at 428, and because the psychiatric evidence ordinarily adduced at commitment proceedings is rarely susceptible to proof beyond a reasonable doubt. Id., at 429-430, 432-433. To be sure, as has been noted above, in the Indian Child Welfare Act of 1978, Pub. L. 95-608, 102(f), 92 Stat. 3072, 25 U.S.C. 1912(f) (1976 ed., Supp. IV), Congress requires "evidence beyond a reasonable doubt" for termination of Indian parental rights, reasoning that "the removal of a child from the parents is a penalty as great [as], if not greater, than a criminal penalty ... ." H. R. Rep. No. 95-1386, p. 22 (1978). Congress did not consider, however, the evidentiary problems that would arise if proof beyond a reasonable doubt were required in all state-initiated parental rights termination hearings.Like civil commitment hearings, termination proceedings often require the factfinder to evaluate medical and psychiatric testimony, and to decide issues difficult to prove to a level of absolute certainty, such as lack of parental motive, absence of affection between parent and child, and failure of parental foresight and progress. Cf. Lassiter v. Department of Social Services, 452 U.S., at 30; id., at 44-46 (first dissenting opinion) (describing issues raised in state termination proceedings). The substantive standards applied vary from State to State. Although Congress found a "beyond a reasonable doubt" standard proper in one type of parental rights termination case, another legislative body might well conclude that a reasonable-doubt standard would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.A majority of the States have concluded that a "clear and convincing evidence" standard of proof strikes a fair balance between the rights of the natural parents and the State's legitimate concerns. See n. 3, supra. We hold that such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. We further hold that determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts. Cf. Addington v. Texas, 441 U.S., at 433.We, of course, express no view on the merits of petitioners' claims.19 At a hearing conducted under a constitutionally proper standard, they may or may not prevail. Without deciding the outcome under any of the standards we have approved, we vacate the judgment of the Appellate Division and remand the case for further proceedings not inconsistent with this opinion. It is so ordered.

Petitioner's 15-second "human cannonball" act, in which he is shot from a cannon into a net some 200 feet away, was, without his consent, videotaped in its entirety at a county fair in Ohio by a reporter for respondent broadcasting company and shown on a television news program later the same day. Petitioner then brought a damages action in state court against respondent, alleging an "unlawful appropriation" of his "professional property." The trial court's summary judgment for respondent was reversed by the Ohio Court of Appeals on the ground that the complaint stated a cause of action. The Ohio Supreme Court, while recognizing that petitioner had a cause of action under state law on his "right to the publicity value of his performance," nevertheless, relying on Time, Inc. v. Hill, , rendered judgment for respondent on the ground that it is constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose. Held: 1. It appears from the Ohio Supreme Court's opinion syllabus (which is to be looked to for the rule of law in the case), as clarified by the opinion itself, that the judgment below did not rest on an adequate and independent state ground but rested solely on federal grounds in that the court considered the source of respondent's privilege to be the First and Fourteenth Amendments, and therefore this Court has jurisdiction to decide the federal issue. Pp. 566-568. 2. The First and Fourteenth Amendments do not immunize the news media when they broadcast a performer's entire act without his consent, and the Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner, or to film or broadcast a prize fight or a baseball game, where the promoters or participants had other plans for publicizing the event. Time, Inc. v. Hill, supra, distinguished. Pp. 569-579. (a) The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance, since (1) if the public can see the act free on television it will be less willing to pay to see it at the fair, and (2) the broadcast goes to the heart of petitioner's ability to earn a living as an entertainer. Pp. 575-576. (b) The protection of petitioner's right of publicity provides an economic incentive for him to make the investment required to produce a performance of interest to the public. Pp. 576-577. (c) While entertainment, as well as news, enjoys First Amendment protection, and entertainment itself can be important news, neither the public nor respondent will be deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized. P. 578. (d) Although the State may as a matter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not require it to do so. Pp. 578-579. 47 Ohio St. 2d 224, 351 N. E. 2d 454, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. POWELL, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 579. STEVENS, J., filed a dissenting opinion, post, p. 582.John G. Lancione argued the cause and filed a brief for petitioner.Ezra K. Bryan argued the cause for respondent. With him on the brief were Don H. Pace and Lawrence V. Lindberg.MR. JUSTICE WHITE delivered the opinion of the Court.Petitioner, Hugo Zacchini, is an entertainer. He performs a "human cannonball" act in which he is shot from a cannon into a net some 200 feet away. Each performance occupies some 15 seconds. In August and September 1972, petitioner was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio. He performed in a fenced area, surrounded by grandstands, at the fair grounds. Members of the public attending the fair were not charged a separate admission fee to observe his act.On August 30, a freelance reporter for Scripps-Howard Broadcasting Co., the operator of a television broadcasting station and respondent in this case, attended the fair. He carried a small movie camera. Petitioner noticed the reporter and asked him not to film the performance. The reporter did not do so on that day; but on the instructions of the producer of respondent's daily newscast, he returned the following day and videotaped the entire act. This film clip, approximately 15 seconds in length, was shown on the 11 o'clock news program that night, together with favorable commentary.1 Petitioner then brought this action for damages, alleging that he is "engaged in the entertainment business," that the act he performs is one "invented by his father and ... performed only by his family for the last fifty years," that respondent "showed and commercialized the film of his act without his consent," and that such conduct was an "unlawful appropriation of plaintiff's professional property." App. 4-5. Respondent answered and moved for summary judgment, which was granted by the trial court.The Court of Appeals of Ohio reversed. The majority held that petitioner's complaint stated a cause of action for conversion and for infringement of a common-law copyright, and one judge concurred in the judgment on the ground that the complaint stated a cause of action for appropriation of petitioner's "right of publicity" in the film of his act. All three judges agreed that the First Amendment did not privilege the press to show the entire performance on a news program without compensating petitioner for any financial injury he could prove at trial. Like the concurring judge in the Court of Appeals, the Supreme Court of Ohio rested petitioner's cause of action under state law on his "right to publicity value of his performance." 47 Ohio St. 2d 224, 351 N. E. 2d 454, 455 (1976). The opinion syllabus, to which we are to look for the rule of law used to decide the case,2 declared first that one may not use for his own benefit the name or likeness of another, whether or not the use or benefit is a commercial one, and second that respondent would be liable for the appropriation, over petitioner's objection and in the absence of license or privilege, of petitioner's right to the publicity value of his performance. Ibid. The court nevertheless gave judgment for respondent because, in the words of the syllabus:"A TV station has a privilege to report in its newscasts matters of legitimate public interest which would otherwise be protected by an individual's right of publicity, unless the actual intent of the TV station was to appropriate the benefit of the publicity for some non-privileged private use, or unless the actual intent was to injure the individual." Ibid. We granted certiorari, , to consider an issue unresolved by this Court: whether the First and Fourteenth Amendments immunized respondent from damages for its alleged infringement of petitioner's state-law "right of publicity." Pet. for Cert. 2. Insofar as the Ohio Supreme Court held that the First and Fourteenth Amendments of the United States Constitution required judgment for respondent, we reverse the judgment of that court.IIf the judgment below rested on an independent and adequate state ground, the writ of certiorari should be dismissed as improvidently granted, Wilson v. Loew's Inc., , for "[o]ur only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." Herb v. Pitcairn, . We are confident, however, that the judgment below did not rest on an adequate and independent state ground and that we have jurisdiction to decide the federal issue presented in this case.There is no doubt that petitioner's complaint was grounded in state law and that the right of publicity which petitioner was held to possess was a right arising under Ohio law. It is also clear that respondent's claim of constitutional privilege was sustained. The source of this privilege was not identified in the syllabus. It is clear enough from the opinion of the Ohio Supreme Court, which we are permitted to consult for understanding of the syllabus, Perkins v. Benguet Consolidated Mining Co., ,3 that in adjudicating the crucial question of whether respondent had a privilege to film and televise petitioner's performance, the court placed principal reliance on Time, Inc. v. Hill, , a case involving First Amendment limitations on state tort actions. It construed the principle of that case, along with that of New York Times Co. v. Sullivan, , to be that "the press has a privilege to report matters of legitimate public interest even though such reports might intrude on matters otherwise private," and concluded, therefore, that the press is also "privileged when an individual seeks to publicly exploit his talents while keeping the benefits private." 47 Ohio St. 2d, at 234, 351 N. E. 2d, at 461. The privilege thus exists in cases "where appropriation of a right of publicity is claimed." The court's opinion also referred to Draft 21 of the relevant portion of Restatement (Second) of Torts (1975), which was understood to make room for reasonable press appropriations by limiting the reach of the right of privacy rather than by creating a privileged invasion. The court preferred the notion of privilege over the Restatement's formulation, however, reasoning that "since the gravamen of the issue in this case is not whether the degree of intrusion is reasonable, but whether First Amendment principles require that the right of privacy give way to the public right to be informed of matters of public interest and concern, the concept of privilege seems the more useful and appropriate one." 47 Ohio St. 2d, at 234 n. 5, 351 N. E. 2d, at 461 n. 5. (Emphasis added.)Had the Ohio court rested its decision on both state and federal grounds, either of which would have been dispositive, we would have had no jurisdiction. Fox Film Corp. v. Muller, ; Enterprise Irrigation Dist. v. Farmers Mutual Canal Co., . But the opinion, like the syllabus, did not mention the Ohio Constitution, citing instead this Court's First Amendment cases as controlling. It appears to us that the decision rested solely on federal grounds. That the Ohio court might have, but did not, invoke state law does not foreclose jurisdiction here. Steele v. Louisville & Nashville R. Co., n. 1 (1944); Indiana ex rel. Anderson v. Brand, .Even if the judgment in favor of respondent must nevertheless be understood as ultimately resting on Ohio law, it appears that at the very least the Ohio court felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did. In this event, we have jurisdiction and should decide the federal issue; for if the state court erred in its understanding of our cases and of the First and Fourteenth Amendments, we should so declare, leaving the state court free to decide the privilege issue solely as a matter of Ohio law. Perkins v. Benguet Consolidated Mining Co., supra. If the Supreme Court of Ohio "held as it did because it felt under compulsion of federal law as enunciated by this Court so to hold, it should be relieved of that compulsion. It should be freed to decide ... these suits according to its own local law." Missouri ex rel. Southern R. Co. v. Mayfield, . IIThe Ohio Supreme Court held that respondent is constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose. If under this standard respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, we would have a very different case. But petitioner is not contending that his appearance at the fair and his performance could not be reported by the press as newsworthy items. His complaint is that respondent filmed his entire act and displayed that film on television for the public to see and enjoy. This, he claimed, was an appropriation of his professional property. The Ohio Supreme Court agreed that petitioner had "a right of publicity" that gave him "personal control over commercial display and exploitation of his personality and the exercise of his talents."4 This right of "exclusive control over the publicity given to his performances" was said to be such a "valuable part of the benefit which may be attained by his talents and efforts" that it was entitled to legal protection. It was also observed, or at least expressly assumed, that petitioner had not abandoned his rights by performing under the circumstances present at the Geauga County Fair Grounds.The Ohio Supreme Court nevertheless held that the challenged invasion was privileged, saying that the press "must be accorded broad latitude in its choice of how much it presents of each story or incident, and of the emphasis to be given to such presentation. No fixed standard which would bar the press from reporting or depicting either an entire occurrence or an entire discrete part of a public performance can be formulated which would not unduly restrict the `breathing room' in reporting which freedom of the press requires." 47 Ohio St. 2d, at 235, 351 N. E. 2d, at 461. Under this view, respondent was thus constitutionally free to film and display petitioner's entire act.5 The Ohio Supreme Court relied heavily on Time, Inc. v. Hill, , but that case does not mandate a media privilege to televise a performer's entire act without his consent. Involved in Time, Inc. v. Hill was a claim under the New York "Right of Privacy" statute6 that Life Magazine, in the course of reviewing a new play, had connected the play with a long-past incident involving petitioner and his family and had falsely described their experience and conduct at that time. The complaint sought damages for humiliation and suffering flowing from these nondefamatory falsehoods that allegedly invaded Hill's privacy. The Court held, however, that the opening of a new play linked to an actual incident was a matter of public interest and that Hill could not recover without showing that the Life report was knowingly false or was published with reckless disregard for the truth - the same rigorous standard that had been applied in New York Times Co. v. Sullivan, .Time, Inc. v. Hill, which was hotly contested and decided by a divided Court, involved an entirely different tort from the "right of publicity" recognized by the Ohio Supreme Court. As the opinion reveals in Time, Inc. v. Hill, the Court was steeped in the literature of privacy law and was aware of the developing distinctions and nuances in this branch of the law. The Court, for example, cited W. Prosser, Law of Torts 831-832 (3d ed. 1964), and the same author's well-known article, Privacy, 48 Calif. L. Rev. 383 (1960), both of which divided privacy into four distinct branches.7 The Court was aware that it was adjudicating a "false light" privacy case involving a matter of public interest, not a case involving "intrusion," 385 U.S., at 384-385, n. 9, "appropriation" of a name or likeness for the purposes of trade, id., at 381, or "private details" about a non-newsworthy person or event, id., at 383 n. 7. It is also abundantly clear that Time, Inc. v. Hill did not involve a performer, a person with a name having commercial value, or any claim to a "right of publicity." This discrete kind of "appropriation" case was plainly identified in the literature cited by the Court8 and had been adjudicated in the reported cases.9 The differences between these two torts are important. First, the State's interests in providing a cause of action in each instance are different. "The interest protected" in permitting recovery for placing the plaintiff in a false light "is clearly that of reputation, with the same overtones of mental distress as in defamation." Prosser, supra, 48 Calif. L. Rev., at 400. By contrast, the State's interest in permitting a "right of publicity" is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.10 As we later note, the State's interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation. Second, the two torts differ in the degree to which they intrude on dissemination of information to the public. In "false light" cases the only way to protect the interests involved is to attempt to minimize publication of the damaging matter, while in "right of publicity" cases the only question is who gets to do the publishing. An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as he gets the commercial benefit of such publication. Indeed, in the present case petitioner did not seek to enjoin the broadcast of his act; he simply sought compensation for the broadcast in the form of damages.Nor does it appear that our later cases, such as Rosenbloom v. Metromedia, Inc., ; Gertz v. Robert Welch, Inc., ; and Time, Inc. v. Firestone, , require or furnish substantial support for the Ohio court's privilege ruling. These cases, like New York Times, emphasize the protection extended to the press by the First Amendment in defamation cases, particularly when suit is brought by a public official or a public figure. None of them involve an alleged appropriation by the press of a right of publicity existing under state law.Moreover, Time, Inc. v. Hill, New York Times, Metromedia, Gertz, and Firestone all involved the reporting of events; in none of them was there an attempt to broadcast or publish an entire act for which the performer ordinarily gets paid. It is evident, and there is no claim here to the contrary, that petitioner's state-law right of publicity would not serve to prevent respondent from reporting the newsworthy facts about petitioner's act.11 Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent. The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner, Copyrights Act, 17 U.S.C. App. 101 et seq. (1976 ed.); cf. Kalem Co. v. Harper Bros., ; Manners v. Morosco, , or to film and broadcast a prize fight, Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (CA3), cert. denied, ; or a baseball game, Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24 F. Supp. 490 (WD Pa. 1938), where the promoters or the participants had other plans for publicizing the event. There are ample reasons for reaching this conclusion.The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance. As the Ohio court recognized, this act is the product of petitioner's own talents and energy, the end result of much time, effort, and expense. Much of its economic value lies in the "right of exclusive control over the publicity given to his performance"; if the public can see the act free on television, it will be less willing to pay to see it at the fair.12 The effect of a public broadcast of the performance is similar to preventing petitioner from charging an admission fee. "The rationale for [protecting the right of publicity] is the straight-forward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay." Kalven, Privacy in Tort Law - Were Warren and Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966). Moreover, the broadcast of petitioner's entire performance, unlike the unauthorized use of another's name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner's ability to earn a living as an entertainer. Thus, in this case, Ohio has recognized what may be the strongest case for a "right of publicity" - involving, not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place.Of course, Ohio's decision to protect petitioner's right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in his act; the protection provides an economic incentive for him to make the investment required to produce a performance of interest to the public. This same consideration underlies the patent and copyright laws long enforced by this Court. As the Court stated in Mazer v. Stein, : "The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in `Science and useful Arts.' Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered." These laws perhaps regard the "reward to the owner [as] a secondary consideration," United States v. Paramount Pictures, , but they were "intended definitely to grant valuable, enforceable rights" in order to afford greater encouragement to the production of works of benefit to the public. Washingtonian Publishing Co. v. Pearson, . The Constitution does not prevent Ohio from making a similar choice here in deciding to protect the entertainer's incentive in order to encourage the production of this type of work. Cf. Goldstein v. California, ; Kewanee Oil Co. v. Bicron Corp., .13 There is no doubt that entertainment, as well as news, enjoys First Amendment protection. It is also true that entertainment itself can be important news. Time, Inc. v. Hill. But it is important to note that neither the public nor respondent will be deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized. Petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it. Nor do we think that a state-law damages remedy against respondent would represent a species of liability without fault contrary to the letter or spirit of Gertz v. Robert Welch, Inc., . Respondent knew that petitioner objected to televising his act but nevertheless displayed the entire film.We conclude that although the State of Ohio may as a matter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not require it to do so. Reversed.

Respondent Carol Sachs, a California resident, purchased a Eurail pass over the Internet from a Massachusetts-based travel agent. While using that pass to board a train in Austria operated by petitioner OBB Personenverkehr AG (OBB), the Austrian state-owned railway, Sachs fell to the tracks and suffered traumatic personal injuries. She sued OBB in Federal District Court. OBB moved to dismiss, claiming that her suit was barred by the Foreign Sovereign Immunities Act, which shields foreign states and their agencies and instrumentalities from suit in United States courts, unless a specified exception applies. Sachs countered that her suit fell within the Act's commercial activity exception, which abrogates sovereign immunity for suits "based upon a commercial activity carried on in the United States by [a] foreign state," 28 U. S. C. §1605(a)(2), reasoning that her suit was "based upon" the Massachusetts-based travel agent's sale of the Eurail pass in the United States, and that the travel agent's sale of that pass could be attributed to OBB through common law principles of agency. The District Court held that Sachs's suit did not fall within §1605(a)(2) and dismissed the suit, but the en banc Ninth Circuit reversed. The court first concluded that the Eurail pass sale by the travel agent could be attributed to OBB through common law principles of agency, and then determined that Sachs's suit was "based upon" that Eurail pass sale because the sale established a single element necessary to recover under each cause of action brought by Sachs.Held: Sachs's suit falls outside the commercial activity exception and is therefore barred by sovereign immunity. Pp. 5-11. (a) Sachs's suit is not "based upon" the sale of the Eurail pass for purposes of §1605(a)(2). Therefore, the Court has no need to address whether the Act allows the travel agent's sale of the Eurail pass to be attributed to OBB through common law principles of agency. Pp. 5-9. (1) Although the Act does not elaborate on the phrase "based upon," Saudi Arabia v. Nelson, 507 U. S. 349, provides sufficient guidance to resolve this case. There, the Court held that the "based upon" inquiry requires a court to determine the "particular conduct on which the action is 'based,' " id., at 356, and identified that conduct by looking to "the 'gravamen of the complaint,' " id., at 357. Pp. 5-6. (2) The Ninth Circuit used a flawed approach when it found that the "based upon" inquiry would be satisfied if the sale of the Eurail pass provided "an element" of each of Sachs's claims. This Court's approach in Nelson is flatly incompatible with such a one-element approach, which necessarily requires a court to identify all the elements of each claim before finding that the claim falls outside §1605(a)(2). The Nelson Court did not undertake such an exhaustive claim-by-claim, element-by-element analysis or engage in the choice-of-law analysis necessary to such an undertaking. See id., at 356-358. P. 7. (3) As opposed to adopting a one-element test, the Nelson Court zeroed in on the core of the plaintiffs' suit — the conduct that actually injured the plaintiffs — to identify the conduct that the suit was "based upon." See id., at 358. All of Sachs's claims turn on the same tragic episode in Austria, allegedly caused by wrongful conduct and dangerous conditions in Austria, which led to injuries suffered in Austria. However Sachs frames her suit, the incident in Innsbruck, Austria, remains at its foundation. Any other approach would allow plaintiffs to evade the Act's restrictions through artful pleading. See id., at 363. Pp. 7-9. (b) Sachs now contends that her claims are "based upon" OBB's entire railway enterprise. Because that argument was never presented to any lower court, it is forfeited. See Taylor v. Freeland & Kronz, 503 U. S. 638, 645-646. Pp. 9-10.737 F. 3d 584, reversed. Roberts, C. J., delivered the opinion for a unanimous Court.Opinion of the Court 577 U. S. ____ (2015)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No.13-1067OBB PERSONENVERKEHR AG, PETITIONER v. CAROL P. SACHSon writ of certiorari to the united states court of appeals for the ninth circuit[December 1, 2015] Chief Justice Roberts delivered the opinion of the Court. The Foreign Sovereign Immunities Act shields foreign states and their agencies from suit in United States courts unless the suit falls within one of the Act's specifically enumerated exceptions. This case concerns the scope of the commercial activity exception, which withdraws sovereign immunity in any case "in which the action is based upon a commercial activity carried on in the United States by [a] foreign state." 28 U. S. C. §1605(a)(2). Respondent Carol Sachs is a resident of California who purchased in the United States a Eurail pass for rail travel in Europe. She suffered traumatic personal in-juries when she fell onto the tracks at the Innsbruck, Austria, train station while attempting to board a train operated by the Austrian state-owned railway. She sued the railway in Federal District Court, arguing that her suit was not barred by sovereign immunity because it is "based upon" the railway's sale of the pass to her in the United States. We disagree and conclude that her action is instead "based upon" the railway's conduct in Innsbruck. We therefore hold that her suit falls outside the commercial activity exception and is barred by sovereign immunity.IA Petitioner OBB Personenverkehr AG (OBB) operates a railway that carries nearly 235 million passengers each year on routes within Austria and to and from points beyond Austria's frontiers. OBB is wholly owned by OBB Holding Group, a joint-stock company created by the Republic of Austria. OBB Holding Group in turn is wholly owned by the Austrian Federal Ministry of Transport, Innovation, and Technology. Sachs v. Republic of Austria, 737 F. 3d 584, 587 (CA9 2013). OBB — along with 29 other railways throughout Europe — is a member of the Eurail Group, an association responsible for the marketing and management of the Eurail pass program. Brief for International Rail Transport Committee as Amicus Curiae 12; 737 F. 3d, at 587. Eurail passes allow their holders unlimited passage for a set period of time on participating Eurail Group railways. They are available only to non-Europeans, who may purchase them both directly from the Eurail Group and indirectly through a worldwide network of travel agents. Brief for International Rail Transport Committee as Amicus Curiae 12-13, and n. 3; Brief for Respondent 4-5. Carol Sachs is a resident of Berkeley, California. In March 2007, she purchased a Eurail pass over the Internet from The Rail Pass Experts, a Massachusetts-based travel agent. The following month, Sachs arrived at the Innsbruck train station, planning to use her Eurail pass to ride an OBB train to Prague. As she attempted to board the train, Sachs fell from the platform onto the tracks. OBB's moving train crushed her legs, both of which had to be amputated above the knee. 737 F. 3d, at 587-588. Sachs sued OBB in the United States District Court for the Northern District of California, asserting five causes of action: (1) negligence; (2) strict liability for design defects in the train and platform; (3) strict liability for failure to warn of those design defects; (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses; and (5) breach of an implied warranty of fitness for providing a train and platform unfit for their intended uses. App. 14-18. OBB claimed sovereign immunity and moved to dismiss the suit for lack of subject matter jurisdiction. 737 F. 3d, at 588.B The Foreign Sovereign Immunities Act "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 443 (1989). The Act defines "foreign state" to include a state "agency or instrumentality," 28 U. S. C. §1603(a), and both parties agree that OBB qualifies as a "foreign state" for purposes of the Act. OBB is therefore "presumptively immune from the jurisdiction of United States courts" unless one of the Act's express exceptions to sovereign immunity applies. Saudi Arabia v. Nelson, 507 U. S. 349, 355 (1993). Sachs argues that her suit falls within the Act's commercial activity exception, which provides in part that a foreign state does not enjoy immunity when "the action is based upon a commercial activity carried on in the United States by the foreign state." §1605(a)(2).1 The District Court concluded that Sachs's suit did not fall within §1605(a)(2) and therefore granted OBB's motion to dismiss. 2011 WL 816854, *1, *4 (ND Cal., Jan. 28, 2011). A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. 695 F. 3d 1021 (2012). The full court ordered rehearing en banc and, with three judges dissenting, reversed the panel decision. 737 F. 3d 584. The en banc majority first observed that, "based on the agreement of the parties," "the only relevant commercial activity within the United States was [Sachs's] March 2007 purchase of a Eurail pass from the Rail Pass Experts," a Massachusetts company. Id., at 591, n. 4 (internal quotation marks omitted). The court concluded that The Rail Pass Experts had acted as OBB's agent and, using common law principles of agency, attributed that Eurail pass sale to OBB. Id., at 591-598. The court next asked whether Sachs's claims were "based upon" the sale of the Eurail pass within the meaning of §1605(a)(2). The "based upon" determination, the court explained, requires that the commercial activity within the United States be "connected with the conduct that gives rise to the plaintiff's cause of action." Id., at 590. But, the court continued, "it is not necessary that the entire claim be based upon the commercial activity of OBB." Id., at 599. Rather, in the court's view, Sachs would satisfy the "based upon" requirement for a particular claim "if an element of [that] claim consists in conduct that occurred in commercial activity carried on in the United States." Ibid. (internal quotation marks omitted). Applying California law, see id., at 600, n. 14, the court analyzed Sachs's causes of action individually and concluded that the sale of the Eurail pass established a necessary element of each of her claims. Turning first to the negligence claim, the court found that Sachs was required to show that OBB owed her a duty of care as a passenger as one element of that claim. The court concluded that such a duty arose from the sale of the Eurail pass. Id., at 600-602. Turning next to the other claims, the court determined that the existence of a "transaction between a seller and a consumer" was a necessary element of Sachs's strict liability and breach of implied warranty claims. Id., at 602. The sale of the Eurail pass, the court noted, provided proof of such a transaction. Ibid. Having found that "the sale of the Eurail pass in the United States forms an essential element of each of Sachs's claims," the court concluded that each claim was "based upon a commercial activity carried on in the United States" by OBB. Ibid. We granted certiorari. 574 U. S. ___ (2015).II OBB contends that the sale of the Eurail pass is not attributable to the railway, reasoning that the Foreign Sovereign Immunities Act does not allow attribution through principles found in the common law of agency. OBB also argues that even if such attribution were allowed under the Act, Sachs's suit is not "based upon" the sale of the Eurail pass for purposes of §1605(a)(2). We agree with OBB on the second point and therefore do not reach the first.A The Act itself does not elaborate on the phrase "based upon." Our decision in Saudi Arabia v. Nelson, 507 U. S. 349, however, provides sufficient guidance to resolve this case. In Nelson, a husband and wife brought suit against Saudi Arabia and its state-owned hospital, seeking damages for intentional and negligent torts stemming from the husband's allegedly wrongful arrest, imprisonment, and torture by Saudi police while he was employed at a hospital in Saudi Arabia. Id., at 351, 353-354. The Saudi defendants claimed sovereign immunity under the Act, arguing, inter alia, that §1605(a)(2) was inapplicable because the suit was "based upon" sovereign acts — the exercise of Saudi police authority — and not upon commercial activity. See Brief for Petitioners in Saudi Arabia v. Nelson, O. T. 1992, No. 91-552, pp. 12-14. The Nelsons countered that their suit was "based upon" the defendants' commercial activities in "recruit[ing] Scott Nelson for work at the hospital, sign[ing] an employment contract with him, and subsequently employ[ing] him." 507 U. S., at 358. We rejected the Nelsons' arguments. The Act's "based upon" inquiry, we reasoned, first requires a court to "identify[&TLRnbthsp;] the particular conduct on which the [plaintiff's] action is 'based.' " Id., at 356. Considering dictionary definitions and lower court decisions, we explained that a court should identify that "particular conduct" by looking to the "basis" or "foundation" for a claim, id., at 357 (citing dictionary definitions), "those elements . . . that, if proven, would entitle a plaintiff to relief," ibid., and "the 'gravamen of the complaint,' " ibid. (quoting Callejo v. Bancomer, S. A., 764 F. 2d 1101, 1109 (CA5 1985)). Under that analysis, we found that the commercial activities, while they "led to the conduct that eventually injured the Nelsons," were not the particular conduct upon which their suit was based. The suit was instead based upon the Saudi sovereign acts that actually injured them. 507 U. S., at 358. The Nelsons' suit therefore did not fit within §1605(a)(2). Id., at 361-362.B The Ninth Circuit held that Sachs's claims were "based upon" the sale of the Eurail pass because the sale of the pass provided "an element" of each of her claims. 737 F. 3d, at 599. Under Nelson, however, the mere fact that the sale of the Eurail pass would establish a single element of a claim is insufficient to demonstrate that the claim is "based upon" that sale for purposes of §1605(a)(2). The Ninth Circuit apparently derived its one-element test from an overreading of one part of one sentence in Nelson, in which we observed that "the phrase ['based upon'] is read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case." 507 U. S., at 357. We do not see how that mention of elements — plural — could be considered an endorsement of a one-element test, nor how the particular element the Ninth Circuit singled out for each of Sachs's claims could be construed to entitle her to relief. Be that as it may, our analysis in Nelson is flatly incompatible with a one-element approach. A one-element test necessarily requires a court to identify all the elements of each claim in a complaint before that court may reject those claims for falling outside §1605(a)(2). But we did not undertake such an exhaustive claim-by-claim, element-by-element analysis of the Nelsons' 16 causes of action, nor did we engage in the choice-of-law analysis that would have been a necessary prelude to such an undertaking. Compare id., at 356-358, with 737 F. 3d, at 600, n. 14 (noting disagreement over whether state or federal common law principles govern suits under the Foreign Sovereign Immunities Act). Nelson instead teaches that an action is "based upon" the "particular conduct" that constitutes the "gravamen" of the suit. Rather than individually analyzing each of the Nelsons' causes of action, we zeroed in on the core of their suit: the Saudi sovereign acts that actually injured them. As the Court explained:"Even taking each of the Nelsons' allegations about Scott Nelson's recruitment and employment as true, those facts alone entitle the Nelsons to nothing under their theory of the case. The Nelsons have . . . alleged . . . personal injuries caused by [the defendants'] intentional wrongs and by [the defendants'] negligent failure to warn Scott Nelson that they might commit those wrongs. Those torts, and not the arguably commercial activities that preceded their commission, form the basis for the Nelsons' suit." 507 U. S., at 358. Under this analysis, the conduct constituting the gravamen of Sachs's suit plainly occurred abroad. All of her claims turn on the same tragic episode in Austria, alleg-edly caused by wrongful conduct and dangerous conditions in Austria, which led to injuries suffered in Austria. Sachs maintains that some of those claims are not limited to negligent conduct or unsafe conditions in Austria, but rather involve at least some wrongful action in the United States. Her strict liability claim for failure to warn, for example, alleges that OBB should have alerted her to the dangerous conditions at the Innsbruck train station when OBB sold the Eurail pass to her in the United States. Under any theory of the case that Sachs presents, however, there is nothing wrongful about the sale of the Eurail pass standing alone. Without the existence of the unsafe boarding conditions in Innsbruck, there would have been nothing to warn Sachs about when she bought the Eurail pass. However Sachs frames her suit, the incident in Innsbruck remains at its foundation. As we explained in Nelson, any other approach would allow plaintiffs to evade the Act's restrictions through artful pleading. For example, any plaintiff "could recast virtually any claim of intentional tort . . . as a claim of failure to warn, simply by charging the defendant with an obligation to announce its own tortious propensity before indulging it." Id., at 363. To allow such "recast[ing]" of a complaint, we reasoned, would "give jurisdictional significance to [a] feint of language," thereby "effectively thwart[ing] the Act's manifest purpose." Ibid. A century ago, in a letter to then-Professor Frankfurter, Justice Holmes wrote that the "essentials" of a personal injury narrative will be found at the "point of contact"--"the place where the boy got his fingers pinched." Letter (Dec. 19, 1915), in Holmes and Frankfurter: Their Correspondence, 1912-1934, p. 40 (R. Mennel & C. Compston eds. 1996). At least in this case, that insight holds true. Regardless of whether Sachs seeks relief under claims for negligence, strict liability for failure to warn, or breach of implied warranty, the "essentials" of her suit for purposes of §1605(a)(2) are found in Austria.2III Sachs raises a new argument in this Court in an attempt to fit her claims within §1605(a)(2). In addition to arguing that her claims are "based upon" the sale of the Eurail pass, she now contends that her suit is "based upon" "OBB's overall commercial railway enterprise." Brief for Respondent 24; see also Tr. of Oral Arg. 38. "[C]ommercial activity carried on in the United States by the foreign state," as used in §1605(a)(2), is defined to mean "commercial activity carried on by such state and having substantial contact with the United States." §1603(e). Sachs's new theory is that OBB's entire railway enterprise constitutes the "commercial activity" that has the requisite "substantial contact with the United States," because OBB reaches out to American customers by marketing and selling Eurail passes in the United States. That argument was never presented to any lower court and is therefore forfeited. Sachs argued in the courts below only that her claims were "based upon" the sale of the Eurail pass, and the lower courts resolved the case on that understanding. See, e.g., 737 F. 3d, at 591, n. 4 ("The district court concluded, based on the agreement of the parties, that 'the only relevant commercial activity within the United States was plaintiff's March 2007 purchase of a Eurail Pass from the Rail Pass Experts.' We consider only the relevant conduct as defined by the district court.").3 Indeed, when we granted certiorari, the relevant question presented for our review was whether Sachs's claims were "based upon" the "sale of the ticket in the United States." Pet. for Cert. i; accord, Brief for Respondent i. We have answered that question in the negative. Absent unusual circumstances — none of which is present here — we will not entertain arguments not made below. Taylor v. Freeland & Kronz, 503 U. S. 638, 645-646 (1992). We therefore conclude that Sachs has failed to demonstrate that her suit falls within the commercial activity exception in §1605(a)(2). OBB has sovereign immunity under the Act, and accordingly the courts of the United States lack jurisdiction over the suit. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed.It is so ordered.FOOTNOTESFootnote 1 Section 1605(a)(2) contains three separate clauses. In full, the section provides:"A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States." As Sachs relies only on the first clause to establish jurisdiction over her suit, we limit our inquiry to that clause.Footnote 2 We cautioned in Nelson that the reach of our decision was limited, see Saudi Arabia v. Nelson, 507 U. S. 349, 358, n. 4 (1993), and similar caution is warranted here. Domestic conduct with respect to different types of commercial activity may play a more significant role in other suits under the first clause of §1605(a)(2). In addition, we consider here only a case in which the gravamen of each claim is found in the same place.Footnote 3 See also Points and Authorities in Opposition to OBB Personenverkehr AG's Motion to Dismiss in No. 08-01840 (ND Cal.), p. 8 ("The claims herein are based on the purchase of the Eurail pass."); Appellant's Opening Brief in No. 11-15458 (CA9), p. 10 ("[T]he claims are 'based upon' the purchase of the ticket which occurred in the United States."); Appellant's Reply Brief in No. 11-15458 (CA9), p. 8 ("[H]er claim was based on the purchase/sale of the ticket."). The District Court decided the case on that understanding of Sachs's argument. See 2011 WL 816854, *2 (ND Cal., Jan. 28, 2011); see also 2010 WL 4916394, *1 (ND Cal., Nov. 22, 2010). As did the Ninth Circuit panel, see 695 F. 3d 1021, 1024 (2012), and, as noted, the Ninth Circuit en banc. When OBB petitioned this Court for writ of certiorari, Sachs's brief in opposition repeated her earlier arguments. See Brief in Opposition 2; see also this Court's Rule 15.2.

Finding that the imminent departure of respondent taxpayer Samuel Shapiro (hereinafter respondent) for Israel under an extradition order to stand trial there on criminal charges jeopardized the collection of income taxes claimed owed by respondent for 1970 and 1971, petitioner Commissioner of Internal Revenue made a jeopardy assessment, filed liens against respondent, and served notices of levy on various banks in which respondent had accounts or safe-deposit boxes. Respondent then brought suit, claiming that he owed no taxes, that he could not litigate the issue while jailed in Israel, and that he would be in jail there unless he could use the levied bank accounts as bail money, and seeking an order enjoining his extradition until he could litigate whether he owed taxes or directing the Internal Revenue Service to lift the levy notices. After the Commissioner, in response to interrogatories, furnished deficiency notices disclosing that the claimed bases for the assessments were for 1970 unexplained cash bank deposits and for 1971 income derived from alleged narcotics sales, the District Court dismissed the complaint on the ground, inter alia, that the Anti-Injunction Act (Act), 7421 (a) of the Internal Revenue Code, which prohibits suits for the purpose of restraining the assessment or collection of taxes, withdrew its jurisdiction to order levies lifted. The Court of Appeals disagreed and remanded for further proceedings, holding that an unresolved fact issue existed as to whether the case fell within the exception to the Act formulated in Enochs v. Williams Packing Co., , whereby an injunction may be obtained against the collection of any tax if (1) it is "clear that under no circumstances could the Government ultimately prevail" and (2) "equity jurisdiction" otherwise exists in that the taxpayer shows that he would otherwise suffer irreparable injury. The court found that respondent had satisfied the second test because he would be incarcerated until his bank accounts could be used for bail money, and that as to the first test the District Court should not have dismissed the complaint without a further inquiry into whether upon viewing the law and the facts most favorably to the Commissioner there was no "factual foundation" for his claim that respondent was a tax-delinquent narcotics dealer during 1971 and thus no basis for the assessment. Held: The Act did not require dismissal of respondent's complaint. Pp. 624-633. (a) Whether the Commissioner has a chance of ultimately prevailing for purposes of the Williams Packing exception is a question to be resolved on the basis of the information available to the Commissioner at the time of the suit. Hence, the Court of Appeals did not err in declining to specify the precise manner in which the relevant facts would be revealed on remand, since whether the Commissioner discloses such facts because he has the technical burden of proof or discloses them in response to a discovery motion or interrogatories, under Williams Packing the relevant facts are those in the Commissioner's possession and must somehow be obtained from him. Pp. 624-628. (b) The Act's primary purpose is not interfered with by not requiring the taxpayer to plead specific facts which, if true, would establish that the Commissioner cannot ultimately prevail, since the collection of taxes will not be restrained unless the District Court is persuaded from the evidence eventually adduced that the Commissioner will under no circumstances prevail. Moreover, the Act's "collateral objective" to protect the collector from tax litigation outside the statutory scheme is not undercut, since the taxpayer himself must still plead and prove facts establishing that his remedy in the Tax Court or in a refund suit is inadequate to repair any injury caused by an erroneous assessment or collection, in which case the Commissioner is required simply to litigate the question whether his assessment has a basis in fact. Pp. 628-629. (c) While to permit the Commissioner to seize and hold property on the mere good-faith allegation of an unpaid tax would raise serious due process problems in cases like this one, where it is asserted that seizure of assets pursuant to a jeopardy assessment is causing irreparable injury, the case may be resolved, under the Williams Packing exception, solely by reference to the Act, whose required standard as to affording the taxpayer an opportunity for a hearing and as to the evidence necessary to show that an assessment has a basis in fact is at least as favorable to the taxpayer as that required by the Constitution. Pp. 629-633. App. D.C. 391, 499 F.2d 527, affirmed. WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 634. STEVENS, J., took no part in the consideration or decision of the case.Acting Deputy Assistant Attorney General Baum argued the cause for petitioner. On the brief were Solicitor General Bork, Assistant Attorney General Crampton, Stuart A. Smith, and Ernest J. Brown.Nathan Lewin argued the cause for respondents. With him on the brief were Herbert J. Miller, Jr., and Martin D. Minsker.MR. JUSTICE WHITE delivered the opinion of the Court.This case presents questions relating to the scope of the Internal Revenue Code's Anti-Injunction Act, 26 U.S.C. 7421 (a),1 in the context of a summary seizure of a taxpayer's assets pursuant to a jeopardy assessment. 6861, 6331, 6213.INormally, the Internal Revenue Service may not "assess" a tax or collect it, by levying on or otherwise seizing a taxpayer's assets, until the taxpayer has had an opportunity to exhaust his administrative remedies, which include an opportunity to litigate his tax liability fully in the Tax Court, 26 U.S.C. 6212, 6213;2 and if the Internal Revenue Service does attempt to collect the tax by levy or otherwise, before such exhaustion of remedies in violation of 6213, the collection is not protected by the Anti-Injunction Act and may be restrained by a United States district court at the instance of the taxpayer. 6213 (a), 7421 (a). The rule is otherwise when the Commissioner proceeds under 6861 and finds that collection of a tax due and owing from a taxpayer will be "jeopardized by delay" in collection. In such a case, the Commissioner may immediately assess the tax and, upon "notice and demand ... for payment thereof" followed by the taxpayer's "failure or refusal to pay such tax," may immediately levy on the taxpayer's assets. 6861, 6331.3 When the Commissioner follows this procedure, the Anti-Injunction Act applies in full force and "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." 7421 (a).In this case, the Commissioner found, on December 6, 1973, that the imminent departure of respondent Samuel Shapiro (hereinafter Shapiro or respondent) for Israel and the probable departure with him of the assets in his New York bank accounts and safe-deposit boxes jeopardized the collection of income taxes claimed to be due and owing by him for the tax years 1970 and 1971. Accordingly, he assessed income taxes against respondent in the amount of $92,726.41 for the tax years 1970 and 1971. On the same day, he filed liens against respondent and served notices of levy upon various banks in New York State in which respondent maintained accounts or had safe-deposit boxes. These notices of levy effectively froze the money in the accounts - totaling about $35,000 - and the contents of the safe-deposit boxes.At that time respondent Shapiro was under a final order of extradition to Israel, for trial on criminal fraud charges, issued by the United States District Court for the Southern District of New York, and was scheduled to leave for Israel on December 9, 1973 - three days later. That date had been set as a result of an agreement between Shapiro and the State of Israel pursuant to which he had withdrawn a petition for writ of certiorari seeking review by this Court of the affirmance of the extradition order by the Court of Appeals for the Second Circuit, Shapiro v. Ferrandina, 478 F.2d 894 (1973), and the State of Israel had agreed to grant him a speedy trial when he arrived in Israel and to release him on $60,000 bail pending such trial.Upon learning of the notices of levy, respondent obtained the consent of the State of Israel to postpone his extradition date until December 16, 1973; and then on December 13, 1973, he initiated the instant lawsuit. Claiming that he owed no taxes; that he could not litigate the issue with the Internal Revenue Service while in jail in Israel; that he would be in jail in Israel, unless he could use the frozen $35,000 as bail money; and that the Internal Revenue Service had deliberately and in bad faith waited until December 6, 1973, before filing its notices of levy precisely in order to place him in this predicament, respondent requested in his complaint an order enjoining his extradition until he had an opportunity to litigate the question whether he owed the Internal Revenue Service any taxes or, in the alternative, an order directing the Internal Revenue Service to lift the notices of levy.Over the Government's claim that the court lacked jurisdiction over the case by reason of the Anti-Injunction Act and because the timing of an extradition is a matter within the exclusive jurisdiction of the Executive Branch, the District Court granted a temporary restraining order against extradition on December 13, 1973, and set argument on the motion for a preliminary injunction for December 19, 1973, later postponed until December 21, 1973. Interrogatories were then served on the Government inquiring, inter alia, into the basis for the assessments. In partial, expedited, response to the interrogatories, the Government stated on December 19, 1973, that respondent was not yet entitled to know the basis for the assessments. Then on December 21, 1973, the Commissioner served counsel for respondent with supplements to the responses to the interrogatories to which were appended notices of deficiency, see 26 U.S.C. 6212. The notices of deficiency disclosed that the 1970 assessment was based on unexplained cash bank deposits of $18,000 and that the 1971 assessment was based on income in the amount of $137,280 derived from respondent's alleged activities as a dealer in narcotics.4 On that date, the District Court dissolved the temporary restraining order and granted the Commissioner's motion to dismiss the complaint. The court concluded that the Anti-Injunction Act withdrew its jurisdiction to order the levies to be lifted, and that the timing of the extradition, validly ordered by the United States District Court for the Southern District of New York under a treaty with Israel, was a matter within the exclusive jurisdiction of the State Department.On December 26, 1973, after respondent had filed a notice of appeal, the Court of Appeals for the District of Columbia Circuit stayed the extradition pending resolution of that appeal.5 The stay was lifted by the Court of Appeals on February 12, 1974. On May 15, 1974, the Court of Appeals affirmed the District Court's holding that it had no jurisdiction over the extradition order and respondent was extradited several days thereafter.6 The Court of Appeals, however, disagreed with the District Court that it had no jurisdiction to consider the claim for relief from the levies and remanded for further proceedings. Shapiro v. Secretary of StateApp. D.C. 391, 499 F.2d 527 (1974).The Court of Appeals held that an unresolved fact issue existed on the question whether this case falls within the narrow exception to the Anti-Injunction Act formulated in this Court's decision in Enochs v. Williams Packing Co., .7 As the court understood the Williams Packing decision, the Anti-Injunction Act does not deprive the District Court of jurisdiction to restrain collection of a tax, if (1) the taxpayer shows "extraordinary circumstances causing irreparable harm" for which he has no "adequate remedy at law," and (2) it is apparent that, under the most liberal view of the law and the facts, the United States "`cannot establish its claim.'" App. D.C., at 396, 499 F.2d, at 532. The court found that Shapiro had satisfied the first test: the money frozen in his New York banks was to be used as bail money in Israel, and without it Shapiro would be incarcerated. Accordingly, his remedy at law - i. e., his ability later to contest the validity of the assessment in the Tax Court or in a suit for a refund - was inadequate. As for the second test, the court concluded that the District Court should not have dismissed the complaint without further inquiry into the factual foundation for the jeopardy assessment and that further proceedings were necessary before finally determining whether upon viewing the law and the facts most favorably to the Government there was "no factual foundation" for the Government's claim that Shapiro was a tax-delinquent narcotics dealer during 1971 and thus no basis for the assessment. Accordingly, the court remanded in order to "allow the District Court ... to develop a record" and to determine in light of it whether the asserted deficiency was "so arbitrary and excessive"8 as to be an exaction in the guise of a tax.9 Id., at 399, 499 F.2d, at 535. IIThe Government argues that the order of the Court of Appeals was erroneous because it placed a burden on the Government to prove a factual basis for its assessment instead of requiring the taxpayer to prove that "under no circumstances could the Government ultimately prevail." Enochs v. Williams Packing Co., 370 U.S., at 7. The Government argues further that since the taxpayer had and still has wholly failed to prove or even plead specific facts establishing that the Government can under no circumstances prevail, the Court of Appeals should have affirmed the District Court's initial dismissal and its decision to the contrary should be reversed.Respondent argues on the other hand that unless the Government has some obligation to disclose the factual basis for its assessments, either in response to a discovery request or on direct order of the court, the exception to the Anti-Injunction Act provided in Enochs v. Williams Packing Co., supra, is meaningless. The taxpayer can never know, unless the Government tells him, what the basis for the assessment is and thus can never show that the Government will certainly be unable to prevail. We agree with Shapiro.In Enochs v. Williams Packing Co., supra, the Court held that an injunction may be obtained against the collection of any tax if (1) it is "clear that under no circumstances could the Government ultimately prevail" and (2) "equity jurisdiction" otherwise exists, i. e., the taxpayer shows that he would otherwise suffer irreparable injury. 370 U.S., at 7. The Court also said that "the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of the suit," ibid. The Government's claim that the Court of Appeals placed on it the burden of justifying its assessment and thereby erroneously applied the Williams Packing rule is wrong. Williams Packing did not hold that the taxpayer's burden of persuading the District Court that the Government will under no circumstances prevail must be accomplished without any disclosure of information by the Government. It says instead that the question will be resolved on the basis of the information available to the Government at the time of the suit. Since it is absolutely impossible to determine what information is available to the Government at the time of the suit, unless the Government discloses such information in the District Court pursuant to appropriate procedures, it is obvious that the Court in Williams Packing intended some disclosure by the Government. Although the Government casts its argument in terms of "burden of proof," the Court of Appeals did not place any technical burden of producing evidence on the Government and it would appear to matter little whether the Government discloses such information because it is said to have the burden of producing evidence on the question or whether it discloses such evidence by responding to a discovery motion made or interrogatories served by the taxpayer - in which case the burden of producing evidence may be said to have rested with the taxpayer. Thus the Court of Appeals cannot be said to have erred in declining to specify the precise manner in which the relevant facts would be revealed on remand. In either event, under Williams Packing the relevant facts are those in the Government's possession and they must somehow be obtainable from the Government.10 The Government argues, however, that unless the taxpayer is required to plead specific facts which, if true, would establish that the Government cannot ultimately prevail, then the Anti-Injunction Act is eviscerated. Any taxpayer can allege in conclusory fashion that he owes no tax and, therefore, under the Court of Appeals' decision, any taxpayer may in effect force the Government to justify its assessment in a United States District Court - thereby interfering with a "collateral objective" of the Act, Enochs v. Williams Packing Co., supra, at 7-8, i. e., to protect the collector from tax litigation outside of the statutory scheme provided by Congress. As the Government's argument itself implicitly concedes, the primary purpose of the Act is not interfered with, since the collection of taxes will not be restrained unless the District Court is persuaded from the evidence eventually adduced that the Government will under no circumstances prevail. We do not understand the Court of Appeals to have departed from this standard enunciated in Williams Packing, or to have removed from the taxpayer the ultimate burden, which that decision appears to place on him, of persuading the District Court that it has been met. Moreover, the "collateral objective" of the Act is undercut no more than was contemplated by Williams Packing. The taxpayer himself must still plead and prove facts establishing that his remedy in the Tax Court or in a refund suit is inadequate to repair any injury that might be caused by an erroneous assessment or collection of an asserted tax liability. Even then, the Government is not required to litigate fully the taxpayer's liability outside the statutory scheme provided by Congress. It is required simply to litigate the question whether its assessment has a basis in fact.Our conclusion that the Court of Appeals correctly reversed the judgment of the District Court and remanded for further proceedings is fortified by the fact that construing the Act to permit the Government to seize and hold property on the mere good-faith allegation of an unpaid tax would raise serious constitutional problems in cases, such as this one, where it is asserted that seizure of assets pursuant to a jeopardy assessment is causing irreparable injury. This Court has recently and repeatedly held that, at least where irreparable injury may result from a deprivation of property pending final adjudication of the rights of the parties, the Due Process Clause requires that the party whose property is taken be given an opportunity for some kind of predeprivation or prompt post-deprivation hearing at which some showing of the probable validity of the deprivation must be made.11 Here the Government seized respondent's property and contends that it has absolutely no obligation to prove that the seizure has any basis in fact no matter how severe or irreparable the injury to the taxpayer and no matter how inadequate his eventual remedy in the Tax Court.12 It is true that in Phillips v. Commissioner 589 (1931), this Court sustained against constitutional challenge the statutory scheme created by Congress for the litigation of tax disputes and in so doing referred both to the jeopardy assessment provisions and the Anti-Injunction Act, id., at 596 n. 6. However, the Phillips case itself did not involve a jeopardy assessment and the taxpayer's assets could not have been taken or frozen in that case until he had either had, or waived his right to, a full and final adjudication of his tax liability before the Tax Court (then the Board of Tax Appeals). The taxpayer's claim in that case was simply that a statutory scheme which would permit the tax to be assessed and collected prior to any judicial determination of his liability - by way of a refund suit or review of the Board of Tax Appeals' decision - was unconstitutional.13 Thus, insofar as Phillips may be said to have sustained the constitutionality of the Anti-Injunction Act, as applied to a jeopardy assessment and consequent levy on a taxpayer's assets without prompt opportunity for final resolution of the question of his liability by the Tax Court, it did so only by way of dicta. The dicta were carefully expressed. The Court said: "Where, as here, adequate opportunity is afforded for a later judicial determination of the legal rights, summary proceedings to secure prompt performance of pecuniary obligations to the government have been consistently sustained. ... . . "Where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate... ." Id., at 595, 596-597. (Emphasis supplied.) Accordingly, neither the holding nor the dicta in Phillips support the proposition that the tax collector may constitutionally seize a taxpayer's assets without showing some basis for the seizure under circumstances in which the seizure will injure the taxpayer in a way that cannot be adequately remedied by a Tax Court judgment in his favor. Instead it would appear to be entirely consistent with our more recent holdings.In any event we are satisfied that under the exception to the Anti-Injunction Act described in the Williams Packing case this case may be resolved by reference to that Act alone. At the time the District Court dismissed the complaint, the Government had done little more than assert that respondent owed taxes in an amount greater than the value of the property levied - it had alleged that respondent had made an unexplained bank deposit of $18,000 in 1970 and, in a wholly conclusory fashion, that he had received $137,280 in income from selling hashish.14 Before the taxpayer had an opportunity to inquire into the factual basis for this conclusory allegation, it was not possible to tell whether the Government had any chance of ultimately prevailing. Accordingly, the Court of Appeals properly concluded that the Anti-Injunction Act did not require dismissal of the taxpayer's complaint. Moreover, we are satisfied that the standard required by the Anti-Injunction Act is at least as favorable to the taxpayer as that required by the Constitution; and that the standard to be applied by the District Court will therefore not be affected by the resolution of the constitutional issue. The Government may defeat a claim by the taxpayer that its assessment has no basis in fact - and therefore render applicable the Anti-Injunction Act - without resort to oral testimony and cross-examination. Affidavits are sufficient so long as they disclose basic facts from which it appears that the Government may prevail. The Constitution does not invariably require more, Gerstein v. Pugh, ; Mathews v. Eldridge, , and we would not hold that it does where collection of the revenues is involved.Finally, it seems apparent that if the facts do not even disclose "probable cause," North Georgia Finishing, Inc. v. Di-Chem, Inc., ; Gerstein v. Pugh, supra, to support the assessment, the Government would certainly be unable to prevail at trial. Thus the Williams Packing standard is consistent with the applicable constitutional standard.We point out also that a preliminary issue would appear to require resolution on remand. Irreparable injury was, of course, quite properly found by the Court of Appeals. At the time of that court's decision, it appeared that respondent Shapiro had been deprived by the levies of the money needed to post bail in Israel and thereby avoid incarceration. However, it would appear that the basis for the Court of Appeals' finding of irreparable injury has since disappeared. Thus, the District Court's preliminary task on remand will be to determine whether this is so and, if so whether respondent can establish some other sort of irreparable injury flowing from the levies.15 The judgment of the Court of Appeals is Affirmed.MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

Having, as a result of a previous check of respondent's operator's permit, probable cause to arrest respondent for driving while his license was revoked, a police officer made a full-custody arrest of respondent for such offense. In accordance with prescribed procedures, the officer made a search of respondent's person, in the course of which he found in a coat pocket a cigarette package containing heroin. The heroin was admitted into evidence at the District Court trial, which resulted in respondent's conviction for a drug offense. The Court of Appeals reversed on the ground that the heroin had been obtained as a result of a search in violation of the Fourth Amendment. Held: In the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment. Pp. 224-237. (a) A search incident to a valid arrest is not limited to a frisk of the suspect's outer clothing and removal of such weapons as the arresting officer may, as a result of such frisk, reasonably believe and ascertain that the suspect has in his possession, and the absence of probable fruits or further evidence of the particular crime for which the arrest is made does not narrow the standards applicable to such a search. Terry v. Ohio, , distinguished. Pp. 227-229; 234-235. (b) A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment and a search incident to the arrest requires no additional justification, such as the probability in a particular arrest situation that weapons or evidence would in fact be found upon the suspect's person; and whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest need not be litigated in each case. P. 235. (c) Since the custodial arrest here gave rise to the authority to search, it is immaterial that the arresting officer did not fear the respondent or suspect that he was armed. Pp. 236-237. App. D.C. 114, 471 F.2d 1082, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 237. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 238.Allan A. Tuttle argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, Deputy Solicitor General Lacovara, and Jerome M. Feit.Joseph V. Gartlan, Jr., argued the cause for respondent. With him on the brief was Dorothy Sellers.* [Footnote *] Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, William E. James, Assistant Attorney General, and Robert R. Granucci and Sanford Svetcov, Deputy Attorneys General, for the State of California; by William J. Scott, Attorney General, and James B. Zagel and Jayne A. Carr, Assistant Attorneys General, for the State of Illinois; and by Fred E. Inbau, Alan S. Ganz, Frank Carrington, Glen R. Murphy, Wayne W. Schmidt, Geoffrey M. Alprin, and Scott R. Schoenfeld for Americans for Effective Law Enforcement, Inc., et al. Melvin L. Wulf and Joel M. Gora filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondent Robinson was convicted in United States District Court for the District of Columbia of the possession and facilitation of concealment of heroin in violation of 26 U.S.C. 4704 (a) (1964 ed.), and 21 U.S.C. 174 (1964 ed.). He was sentenced to concurrent terms of imprisonment for these offenses. On his appeal to the Court of Appeals for the District of Columbia Circuit, that court first remanded the case to the District Court for an evidentiary hearing concerning the scope of the search of respondent's person which had occurred at the time of his arrest. App. D.C. 46, 447 F.2d 1215 (1971). The District Court made findings of fact and conclusions of law adverse to respondent, and he again appealed. This time the Court of Appeals en banc reversed the judgment of conviction, holding that the heroin introduced in evidence against respondent had been obtained as a result of a search which violated the Fourth Amendment to the United States Constitution. App. D.C. 114, 471 F.2d 1082 (1972). We granted certiorari, , and set the case for argument together with Gustafson v. Florida, No. 71-1669, post, p. 260, also decided today.On April 23, 1968, at approximately 11 p. m., Officer Richard Jenks, a 15-year veteran of the District of Columbia Metropolitan Police Department, observed the respondent driving a 1965 Cadillac near the intersection of 8th and C Streets, N. E., in the District of Columbia. Jenks, as a result of previous investigation following a check of respondent's operator's permit four days earlier, determined there was reason to believe that respondent was operating a motor vehicle after the revocation of his operator's permit. This is an offense defined by statute in the District of Columbia which carries a mandatory minimum jail term, a mandatory minimum fine, or both. D.C. Code Ann. 40-302 (d) (1967).Jenks signaled respondent to stop the automobile, which respondent did, and all three of the occupants emerged from the car. At that point Jenks informed respondent that he was under arrest for "operating after revocation and obtaining a permit by misrepresentation." It was assumed by the Court of Appeals, and is conceded by the respondent here, that Jenks had probable cause to arrest respondent, and that he effected a full-custody arrest.1 In accordance with procedures prescribed in police department instructions,2 Jenks then began to search respondent. He explained at a subsequent hearing that he was "face-to-face" with the respondent, and "placed [his] hands on [the respondent], my right-hand to his left breast like this (demonstrating) and proceeded to pat him down thus [with the right hand]." During this patdown, Jenks felt an object in the left breast pocket of the heavy coat respondent was wearing, but testified that he "couldn't tell what it was" and also that he "couldn't actually tell the size of it." Jenks then reached into the pocket and pulled out the object, which turned out to be a "crumpled up cigarette package." Jenks testified that at this point he still did not know what was in the package:"As I felt the package I could feel objects in the package but I couldn't tell what they were... . I knew they weren't cigarettes." The officer then opened the cigarette pack and found 14 gelatin capsules of white powder which he thought to be, and which later analysis proved to be, heroin. Jenks then continued his search of respondent to completion, feeling around his waist and trouser legs, and examining the remaining pockets. The heroin seized from the respondent was admitted into evidence at the trial which resulted in his conviction in the District Court.The opinion for the plurality judges of the Court of Appeals, written by Judge Wright, the concurring opinion of Chief Judge Bazelon, and the dissenting opinion of Judge Wilkey, concurred in by three judges, gave careful and comprehensive treatment to the authority of a police officer to search the person of one who has been validly arrested and taken into custody. We conclude that the search conducted by Jenks in this case did not offend the limits imposed by the Fourth Amendment, and we therefore reverse the judgment of the Court of Appeals.IIt is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.Examination of this Court's decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area which may be searched.Because the rule requiring exclusion of evidence obtained in violation of the Fourth Amendment was first enunciated in Weeks v. United States, , it is understandable that virtually all of this Court's search-and-seizure law has been developed since that time. In Weeks, the Court made clear its recognition of the validity of a search incident to a lawful arrest: "What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, 211; Wharton, Crim. Plead. and Practice, 8th ed., 60; Dillon v. O'Brien and Davis, 16 Cox C. C. 245." Id., at 392. Agnello v. United States, , decided 11 years after Weeks, repeats the categorical recognition of the validity of a search incident to lawful arrest: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted." Id., at 30. Throughout the series of cases in which the Court has addressed the second proposition relating to a search incident to a lawful arrest - the permissible area beyond the person of the arrestee which such a search may cover - no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee. E. g., Carroll v. United States, ; Marron v. United States, ; Go-Bart Co. v. United States, ; United States v. Lefkowitz, ; Harris v. United States, ; Trupiano v. United States, ; United States v. Rabinowitz, ; Preston v. United States, ; Chimel v. California, . In Chimel, where the Court overruled Rabinowitz and Harris as to the area of permissible search incident to a lawful arrest, full recognition was again given to the authority to search the person of the arrestee:"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." 395 U.S., at 762-763. Three years after the decision in Chimel, supra, we upheld the validity of a search in which heroin had been taken from the person of the defendant after his arrest on a weapons charge, in Adams v. Williams, , saying:"Under the circumstances surrounding Williams' possession of the gun seized by Sgt. Connolly, the arrest on the weapons charge was supported by probable cause, and the search of his person and of the car incident to that arrest was lawful." Id., at 149. Last Term in Cupp v. Murphy, , we again reaffirmed the traditional statement of the authority to search incident to a valid arrest.Thus the broadly stated rule, and the reasons for it, have been repeatedly affirmed in the decisions of this Court since Weeks v. United States, supra, nearly 60 years ago. Since the statements in the cases speak not simply in terms of an exception to the warrant requirement, but in terms of an affirmative authority to search, they clearly imply that such searches also meet the Fourth Amendment's requirement of reasonableness. IIIn its decision of this case, the Court of Appeals decided that even after a police officer lawfully places a suspect under arrest for the purpose of taking him into custody, he may not ordinarily proceed to fully search the prisoner. He must, instead, conduct a limited frisk of the outer clothing and remove such weapons that he may, as a result of that limited frisk, reasonably believe and ascertain that the suspect has in his possession. While recognizing that Terry v. Ohio, , dealt with a permissible "frisk" incident to an investigative stop based on less than probable cause to arrest, the Court of Appeals felt that the principles of that case should be carried over to this probable-cause arrest for driving while one's license is revoked. Since there would be no further evidence of such a crime to be obtained in a search of the arrestee, the court held that only a search for weapons could be justified.Terry v. Ohio, supra, did not involve an arrest for probable cause, and it made quite clear that the "protective frisk" for weapons which it approved might be conducted without probable cause. Id., at 21-22, 24-25. This Court's opinion explicitly recognized that there is a "distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons.""The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, , is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, (MR. JUSTICE FORTAS, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a `full' search, even though it remains a serious intrusion. "... An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person." Id., at 25-26 (footnote omitted). Terry, therefore, affords no basis to carry over to a probable-cause arrest the limitations this Court placed on a stop-and-frisk search permissible without probable cause.The Court of Appeals also relied on language in Peters v. New York, , a companion case to Terry. There the Court held that the police officer had authority to search Peters because he had probable cause to arrest him, and went on to say:"[T]he incident search was obviously justified `by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.' Preston v. United States, . Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects." Id., at 67. It is, of course, possible to read the second sentence from this quotation as imposing a novel limitation on the established doctrine set forth in the first sentence. It is also possible to read it as did Mr. Justice Harlan in his opinion concurring in the result: "The second possible source of confusion is the Court's statement that `Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects.' [392 U.S.], at 67. Since the Court found probable cause to arrest Peters, and since an officer arresting on probable cause is entitled to make a very full incident search, I assume that this is merely a factual observation. As a factual matter, I agree with it." Id., at 77 (footnote omitted). We do not believe that the Court in Peters intended in one unexplained and unelaborated sentence to impose a novel and far-reaching limitation on the authority to search the person of an arrestee incident to his lawful arrest. While the language from Peters was quoted with approval in Chimel v. California, 395 U.S., at 764, it is preceded by a full exposition of the traditional and unqualified authority of the arresting officer to search the arrestee's person. Id., at 763. We do not believe that either Terry or Peters, when considered in the light of the previously discussed statements of this Court, justified the sort of limitation upon that authority which the Court of Appeals fashioned in this case. IIIVirtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta. We would not, therefore, be foreclosed by principles of stare decisis from further examination into history and practice in order to see whether the sort of qualifications imposed by the Court of Appeals in this case were in fact intended by the Framers of the Fourth Amendment or recognized in cases decided prior to Weeks. Unfortunately such authorities as exist are sparse. Such common-law treatises as Blackstone's Commentaries and Holmes' Common Law are simply silent on the subject. Pollock and Maitland, in their History of English Law, describe the law of arrest as "rough and rude" before the time of Edward I, but do not address the authority to search incident to arrest. 2 F. Pollock & F. Maitland, The History of English Law 582 (2d ed. 1909).The issue was apparently litigated in the English courts in Dillon v. O'Brien, 16 Cox C. C. 245 (Exch. Ireland, 1887), cited in Weeks v. United States, supra, There Baron Palles said:"But the interest of the State in the person charged being brought to trial in due course necessarily extends, as well to the preservation of material evidence of his guilt or innocence, as to his custody for the purpose of trial. His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence, without which a trial would be no more than an empty form. But if there be a right to production or preservation of this evidence, I cannot see how it can be enforced otherwise than by capture." 16 Cox C. C., at 250. Spalding v. Preston, 21 Vt. 9 (1848), represents an early holding in this country that evidence may be seized from one who is lawfully arrested. In Closson v. Morrison, 47 N. H. 482 (1867), the Court made the following statement: "[W]e think that an officer would also be justified in taking from a person whom he had arrested for crime, any deadly weapon he might find upon him, such as a revolver, a dirk, a knife, a sword cane, a slung shot, or a club, though it had not been used or intended to be used in the commission of the offence for which the prisoner had been arrested, and even though no threats of violence towards the officer had been made. A due regard for his own safety on the part of the officer, and also for the public safety, would justify a sufficient search to ascertain if such weapons were carried about the person of the prisoner, or were in his possession, and if found, to seize and hold them until the prisoner should be discharged, or until they could be otherwise properly disposed of. Spalding v. Preston, 21 Vt. 9, 16. "So we think it might be with money or other articles of value, found upon the prisoner, by means of which, if left in his possession, he might procure his escape, or obtain tools, or implements, or weapons with which to effect his escape. We think the officer arresting a man for crime, not only may, but frequently should, make such searches and seizures; that in many cases they might be reasonable and proper, and courts would hold him harmless for so doing, when he acts in good faith, and from a regard to his own or the public safety, or the security of his prisoner." Id., at 484-485. Similarly, in Holker v. Hennessey, 141 Mo. 527, 42 S. W. 1090 (1897), the Supreme Court of Missouri said: "Generally speaking, in the absence of a statute, an officer has no right to take any property from the person of the prisoner except such as may afford evidence of the crime charged, or means of identifying the criminal, or may be helpful in making an escape." Id., at 539, 42 S. W., at 1093. Then Associate Judge Cardozo of the New York Court of Appeals summarized his understanding of the historical basis for the authority to search incident to arrest in these words:"The basis principle is this: Search of the person is unlawful when the seizure of the body is a trespass, and the purpose of the search is to discover grounds as yet unknown for arrest or accusation [citation omitted]. Search of the person becomes lawful when grounds for arrest and accusation have been discovered, and the law is in the act of subjecting the body of the accused to its physical dominion. "The distinction may seem subtle, but in truth it is founded in shrewd appreciation of the necessities of government. We are not to strain an immunity to the point at which human nature rebels against honoring it in conduct. The peace officer empowered to arrest must be empowered to disarm. If he may disarm, he may search, lest a weapon be concealed. The search being lawful, he retains what he finds if connected with the crime." People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923). While these earlier authorities are sketchy, they tend to support the broad statement of the authority to search incident to arrest found in the successive decisions of this Court, rather than the restrictive one which was applied by the Court of Appeals in this case. The scarcity of case law before Weeks is doubtless due in part to the fact that the exclusionary rule there enunciated had been first adopted only 11 years earlier in Iowa; but it would seem to be also due in part to the fact that the issue was regarded as well settled.3 The Court of Appeals in effect determined that the only reason supporting the authority for a full search incident to lawful arrest was the possibility of discovery of evidence or fruits.4 Concluding that there could be no evidence or fruits in the case of an offense such as that with which respondent was charged, it held that any protective search would have to be limited by the conditions laid down in Terry for a search upon less than probable cause to arrest. Quite apart from the fact that Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other, we find additional reason to disagree with the Court of Appeals. The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. Agnello v. United States, ; Abel v. United States, . The standards traditionally governing a search incident to lawful arrest are not, therefore, commuted to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.Nor are we inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes.5 It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justification.But quite apart from these distinctions, our more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment. IVThe search of respondent's person conducted by Officer Jenks in this case and the seizure from him of the heroin, were permissible under established Fourth Amendment law. While thorough, the search partook of none of the extreme or patently abusive characteristics which were held to violate the Due Process Clause of the Fourteenth Amendment in Rochin v. California, . Since it is the fact of custodial arrest which gives rise to the authority to search,6 it is of no moment that Jenks did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed.7 Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as "fruits, instrumentalities, or contraband" probative of criminal conduct. Harris v. United States, 331 U.S., at 154-155; Warden v. Hayden, , 307 (1967); Adams v. Williams, 407 U.S., at 149. The judgment of the Court of Appeals holding otherwise is Reversed.

Pursuant to a Texas statute a district judge issued a warrant describing petitioner's home and authorizing the search and seizure there of "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas." Officers conducted a search for more than four hours, seizing more than 2,000 items, including stock in trade of petitioner's business and personal books, papers and documents, but no "records of the Communist Party" or any "party lists and dues payments." Petitioner filed a motion with the magistrate who issued the warrant to have it annulled and the property returned; but the motion was denied. Held: The protections of the Fourth Amendment are by the Fourteenth Amendment guaranteed against invasion by the States, and the States may not constitutionally issue general warrants which do not describe with particularity the things to be seized, a requirement of the most scrupulous exactitude where the seizure also impinges upon First Amendment freedoms. Pp. 480-486. Order vacated and cause remanded.Maury Maverick, Jr., and John J. McAvoy argued the cause for petitioner. With them on the briefs was Melvin L. Wulf.James E. Barlow and Hawthorne Phillips argued the cause for respondent. With them on the brief were Waggoner Carr, Attorney General of Texas, and Howard M. Fender and Lonny F. Zwiener, Assistant Attorneys General.MR. JUSTICE STEWART delivered the opinion of the Court.On December 27, 1963, several Texas law-enforcement officers presented themselves at the petitioner's San Antonio home for the purpose of searching it under authority of a warrant issued by a local magistrate. By the time they had finished, five hours later, they had seized some 2,000 of the petitioner's books, pamphlets, and papers. The question presented by this case is whether the search and seizure were constitutionally valid.The warrant was issued under 9 of Art. 6889-3A of the Revised Civil Statutes of Texas. That Article, enacted in 1955 and known as the Suppression Act, is a sweeping and many-faceted law which, among other things, outlaws the Communist Party and creates various individual criminal offenses, each punishable by imprisonment for up to 20 years. Section 9 authorizes the issuance of a warrant "for the purpose of searching for and seizing any books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings, or any written instruments showing that a person or organization is violating or has violated any provision of this Act." The section sets forth various procedural requirements, among them that "if the premises to be searched constitute a private residence, such application for a search warrant shall be accompanied by the affidavits of two credible citizens."The application for the warrant was filed in a Bexar County court by the Criminal District Attorney of that County. It recited that the applicant"... has good reason to believe and does believe that a certain place and premises in Bexar County, Texas, described as two white frame houses and one garage, located at the address of 1118 West Rosewood, in the City of San Antonio, Bexar County, Texas, and being the premises under the control and in charge of John William Stanford, Jr., is a place where books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas, and the operations of the Communist Party in Texas are unlawfully possessed and used in violation of Articles 6889-31 and 6889-3A, Revised Civil Statutes of the State of Texas, and that such belief of this officer is founded upon the following information:"That this officer has received information from two credible persons that the party named above has such books and records in his possession which are books and records of the Communist Party including party lists and dues payments, and in addition other items listed above. That such information is of recent origin and has been confirmed by recent mailings by Stanford on the 12th of December, 1963 of pro-Communist material." Attached to the application was an affidavit signed by two Assistant Attorneys General of Texas. The affidavit repeated the words of the application, except that the basis for the affiants' belief was stated to be as follows:"Recent mailings by Stanford on the 12th of December, 1963, of material from his home address, such material being identified as pro-Communist material and other information received in the course of investigation that Stanford has in his possession the books and records of the Texas Communist Party." The district judge issued a warrant which specifically described the premises to be searched, recited the allegations of the applicant's and affiants' belief that the premises were "a place where books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas, and the operations of the Communist Party in Texas are unlawfully possessed and used in violation of Article 6889-3 and Article 6889-3A, Revised Civil Statutes of the State of Texas," and ordered the executing officers "to enter immediately and search the above described premises for such items listed above unlawfully possessed in violation of Article 6889-3 and Article 6889-3A, Revised Civil Statutes, State of Texas, and to take possession of same."The warrant was executed by the two Assistant Attorneys General who had signed the affidavit, accompanied by a number of county officers. They went to the place described in the warrant, which was where the petitioner resided and carried on a mail order book business under the trade name "All Points of View."2 The petitioner was not at home when the officers arrived, but his wife was, and she let the officers in after one of them had read the warrant to her.After some delay occasioned by an unsuccessful effort to locate the petitioner in another part of town, the search began. Under the general supervision of one of the Assistant Attorneys General the officers spent more than four hours in gathering up about half the books they found in the house. Most of the material they took came from the stock in trade of the petitioner's business, but they took a number of books from his personal library as well. The books and pamphlets taken comprised approximately 300 separate titles, in addition to numerous issues of several different periodicals. Among the books taken were works by such diverse writers as Karl Marx, Jean Paul Sartre, Theodore Draper, Fidel Castro, Earl Browder, Pope John XXIII, and MR. JUSTICE HUGO L. BLACK. The officers also took possession of many of the petitioner's private documents and papers, including his marriage certificate, his insurance policies, his household bills and receipts, and files of his personal correspondence. All this material was packed into 14 cartons and hauled off to an investigator's office in the county courthouse. The officers did not find any "records of the Communist Party" or any "party lists and dues payments."The petitioner filed a motion with the magistrate who had issued the warrant, asking him to annul the warrant and order the return of all the property which had been seized under it. The motion asserted several federal constitutional claims. After a hearing the motion was denied without opinion. This order of denial was, as the parties agree, final and not appealable or otherwise reviewable under Texas law. See Ex parte Wolfson, 127 Tex. Cr. R. 277, 75 S. W. 2d 440. Accordingly, we granted certiorari, . See Thompson v. City of Louisville, .The petitioner has attacked the constitutional validity of this search and seizure upon several grounds. We rest our decision upon just one, without pausing to assess the substantiality of the others. For we think it is clear that this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid - a general warrant. Therefore, even accepting the premise that some or even all of the substantive provisions of Articles 6889-3 and 6889-3A of the Revised Civil Statutes of Texas are constitutional and have not been pre-empted by federal law,3 even accepting the premise that the warrant sufficiently specified the offense believed to have been committed and was issued upon probable cause,4 the magistrate's order denying the motion to annul the warrant and return the property must nonetheless be set aside.It is now settled that the fundamental protections of the Fourth Amendment are guaranteed by the Fourteenth Amendment against invasion by the States. Wolf v. Colorado, ; Mapp v. Ohio, ; Ker v. California, . The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (Emphasis supplied.)These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever "be secure in their persons, houses, papers, and effects" from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book," because they placed "the liberty of every man in the hands of every petty officer." The historic occasion of that denunciation, in 1761 at Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. `Then and there,' said John Adams, `then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'" Boyd v. United States, .But while the Fourth Amendment was most immediately the product of contemporary revulsion against a regime of writs of assistance, its roots go far deeper. Its adoption in the Constitution of this new Nation reflected the culmination in England a few years earlier of a struggle against oppression which had endured for centuries. The story of that struggle has been fully chronicled in the pages of this Court's reports,5 and it would be a needless exercise in pedantry to review again the detailed history of the use of general warrants as instruments of oppression from the time of the Tudors, through the Star Chamber, the Long Parliament, the Restoration, and beyond.What is significant to note is that this history is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth centuries. In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent, both Catholic and Puritan.6 In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or the arrest and seizure of all the papers of a named person thought to be connected with a libel.7 It was in the context of the latter kinds of general warrants that the battle for individual liberty and privacy was finally won - in the landmark cases of Wilkes v. Wood8 and Entick v. Carrington.9 The Wilkes case arose out of the Crown's attempt to stifle a publication called The North Briton, anonymously published by John Wilkes, then a member of Parliament - particularly issue No. 45 of that journal. Lord Halifax, as Secretary of State, issued a warrant ordering four of the King's messengers "to make strict and diligent search for the authors, printers, and publishers of a seditious and treasonable paper, entitled, The North Briton, No. 45, ... and them, or any of them, having found, to apprehend and seize, together with their papers."10 "Armed with their roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect."11 Holding that this was "a ridiculous warrant against the whole English nation,"12 the Court of Common Pleas awarded Wilkes damages against the Secretary of State. John Entick was the author of a publication called Monitor or British Freeholder. A warrant was issued specifically naming him and that publication, and authorizing his arrest for seditious libel and the seizure of his "books and papers." The King's messengers executing the warrant ransacked Entick's home for four hours and carted away quantities of his books and papers. In an opinion which this Court has characterized as a wellspring of the rights now protected by the Fourth Amendment,13 Lord Camden declared the warrant to be unlawful. "This power," he said, "so assumed by the secretary of state is an execution upon all the party's papers, in the first instance. His house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper." Entick v. Carrington.14 Thereafter, the House of Commons passed two resolutions condemning general warrants, the first limiting its condemnation to their use in cases of libel, and the second condemning their use generally.15 This is the history which prompted the Court less than four years ago to remark that "[t]he use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new." Marcus v. Search Warrant, , at 724. "This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression." Id., at 729. As MR. JUSTICE DOUGLAS has put it, "The commands of our First Amendment (as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick v. Carrington, supra. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination but `conscience and human dignity and freedom of expression as well.'" Frank v. Maryland, (dissenting opinion).In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the "things to be seized" is to be accorded the most scrupulous exactitude when the "things" are books, and the basis for their seizure is the ideas which they contain.16 See Marcus v. Search Warrant, ; A Quantity of Books v. Kansas, . No less a standard could be faithful to First Amendment freedoms. The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case.17 "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, , at 196. We need not decide in the present case whether the description of the things to be seized would have been too generalized to pass constitutional muster, had the things been weapons, narcotics or "cases of whiskey." See Steele v. United States No. 1, .18 The point is that it was not any contraband of that kind which was ordered to be seized, but literary material - "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas, and the operations of the Communist Party in Texas." The indiscriminate sweep of that language is constitutionally intolerable. To hold otherwise would be false to the terms of the Fourth Amendment, false to its meaning, and false to its history. Two centuries have passed since the historic decision in Entick v. Carrington, almost to the very day. The world has greatly changed, and the voice of nonconformity now sometimes speaks a tongue which Lord Camden might find hard to understand. But the Fourth and Fourteenth Amendments guarantee to John Stanford that no official of the State shall ransack his home and seize his books and papers under the unbridled authority of a general warrant - no less than the law 200 years ago shielded John Entick from the messengers of the King.The order is vacated and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.

After the United States Tax Court sustained the Commissioner of Internal Revenue's determination that there was a deficiency in respondent's federal estate tax, respondent appealed to the Court of Appeals but did not file the appeal bond required by the Internal Revenue Code to stay the assessment and collection of the deficiency. The Commissioner therefore assessed the deficiency and issued a notice and demand for payment. When the deficiency was not paid within 10 days, an addition to tax accrued under 6651(a)(3) of the Code. The Court of Appeals ultimately affirmed the Tax Court's decision that there was a deficiency. Shortly thereafter, respondent paid the tax but filed a petition with the Court of Appeals asking that the court "forgive" interest on the assessment and also the late-payment penalty. The court granted the requested relief "in order to achieve a fair and just result."Held: The Court of Appeals exceeded its jurisdictional authority when it granted the petition to forgive interest and the late-payment penalty. Section 7482(a) of the Code gives the courts of appeals jurisdiction to review Tax Court decisions "in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury," while 7482(c)(1) provides that "such courts shall have the power to affirm or ... modify or ... reverse" the Tax Court's decision. Thus, the Court of Appeals' only jurisdiction here was to review the Tax Court's decision that there was a deficiency and to affirm that decision upon determining that it was correct. It was not empowered to decide other questions relating to interest and a penalty - questions that were not presented to the Tax Court and that could not have been so presented under 6601(a) and 6651(a)(3) of the Code, which respectively make interest on a deficiency and accrued penalties separate and outside the scope of the petition to the Tax Court, and 6213(a), which indicates that the deficiency asserted here could be assessed only after the Tax Court had rendered its decision - or to grant relief that the Tax Court itself, as a court of limited jurisdiction lacking general equitable powers, could not provide. Certiorari granted; reversed. PER CURIAM.In this case, we are asked to determine whether the United States Court of Appeals exceeded its jurisdictional authority when, after affirming a decision of the United States Tax Court, it granted the taxpayer-estate's request to forgive interest on the determined deficiency in estate tax and also to forgive a statutorily imposed late-payment penalty. We are constrained to hold that the Court of Appeals did exceed its authority.IArthur H. McCoy died testate on April 23, 1980. His son, Robert McCoy, the respondent here, was appointed executor of his will. At his death, the decedent was the owner of an undivided interest in a family farm in Clinton County, Ohio. The then fair market value of that interest was $235,140. Under 2032A of the Internal Revenue Code of 1954, as amended, 26 U.S.C. 2032A (1982 ed. and Supp. III), however, an estate may elect a special method for valuing certain real property for federal estate tax purposes. This alternative usually is elected if it produces a lower valuation and a lower tax. At the time relevant for the McCoy estate, the election was available only if the land in question was "qualified real property," see 2032A(b)(1), and only if the election was made "not later than the time prescribed by section 6075(a) for filing the [estate tax] return ... (including extensions thereof) ... ." 26 U.S.C. 2032A(d)(1) (1976 ed.). Since 6075(a) provided that the return was to be filed within nine months of the decedent's death, and since no extension of time was obtained, respondent was required to make any election under 2032A not later than January 23, 1981.Respondent, however, did not file the return for the decedent's estate until February 11. In the return, the election as to the interest in the farm - which, it is conceded, would have been "qualified real property" - was asserted. The Commissioner of Internal Revenue, however, took the position that the election was untimely under 2032A and 6075(a), and that the farm interest therefore was to be valued at the date-of-death figure of $235,140, rather than at the special-use figure of $103,304.70 claimed in the return as filed. The lower value would have produced no tax. The Commissioner, using the higher value, determined a deficiency in estate tax of $22,159.72.Respondent sought redetermination of the asserted deficiency in the United States Tax Court. He contended that the time for making the election under 2032A had been extended retroactively by amendments to the statute effected by the Economic Recovery Tax Act of 1981, Pub. L. 97-34, 421(k)(5), 95 Stat. 314, note following 26 U.S.C. 2032A.The Tax Court rejected respondent's contention and sustained the deficiency. Estate of McCoy, 50 TCM 1194 (1985), § 85,509 P-H Memo TC. The Court of Appeals affirmed. 809 F.2d 333 (CA6 1987). After the Tax Court's decision, respondent did not file the appeal bond required by 26 U.S.C. 7485, if assessment and collection of the deficiency were to be stayed. Despite the pendency of the appeal to the Sixth Circuit, the Commissioner therefore assessed the deficiency and issued a notice and demand for payment. When the deficiency was not paid within 10 days, an addition to tax accrued under 26 U.S.C. 6651(a)(3). Shortly after the Court of Appeals issued its affirming opinion, respondent paid the tax but filed a petition with the Court of Appeals asking that that court "forgive" interest on the assessment and also the late-payment penalty. Respondent asserted that the case was one of first impression and that the estate would otherwise be the victim of an obscure after-the-fact statutory amendment. Respondent also claimed that he had litigated in good faith the validity of his 2032A election.The Court of Appeals on March 2, 1987, entered an order granting the relief requested by respondent's petition. App. to Pet. for Cert. 1a. It noted that "the interest and penalties now exceed the assessed tax," and it concluded that the interest and penalties should be forgiven "in order to achieve a fair and just result." Ibid. The Commissioner seeks a writ of certiorari.IIUnder 26 U.S.C. 7482(a), the regional federal courts of appeals have jurisdiction to review decisions of the Tax Court "in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury." Section 7482(c)(1) provides that "such courts shall have power to affirm or, if the decision of the Tax Court is not in accordance with law, to modify or to reverse the decision of the Tax Court." It follows that in reviewing a Tax Court decision, the duty of the court of appeals is to consider whether the Tax Court committed error. Plainly, the court of appeals lacks jurisdiction to decide an issue that was not the subject of the Tax Court proceeding or to grant relief that is beyond the powers of the Tax Court itself. Taylor v. Commissioner, 258 F.2d 89, 91 (CA2 1958); Vandenberge v. Commissioner, 147 F.2d 167, 168 (CA5), cert. denied, . See Commissioner v. Gooch Milling & Elevator Co., . But cf. Hormel v. Helvering, ; Singleton v. Wulff, .The Court of Appeals in this case clearly exceeded its jurisdictional bounds. Its only jurisdiction, under 7482(a), was "to review the decisio[n] of the Tax Court." The latter court's decision was that "there is a deficiency in the amount of $22,159.72 in [respondent's] Federal estate tax." App. to Pet. for Cert. 28a. The Court of Appeals ruled that that decision was correct. Its duty, then, was to affirm the decision. It was not empowered to proceed further to decide other questions relating to interest and penalty - questions that were not presented, and could not possibly have been presented, to the Tax Court - or to grant relief that the Tax Court itself had no jurisdiction to provide. Interest on a tax deficiency is separately mandated by 26 U.S.C. 6601(a). A penalty that accrues under 6651(a)(3) is also separate and outside the scope of the petition to the Tax Court. The deficiency asserted here was not assessed, and could not have been assessed, until after the Tax Court had rendered its decision. See 6213(a). The Tax Court is a court of limited jurisdiction and lacks general equitable powers. Commissioner v. Gooch Milling & Elevator Co., supra.The estate, of course, was not without an opportunity to litigate the validity of the interest and the late-payment penalty. The proper procedure was for respondent to pay the interest and penalty and sue for their refund in an appropriate federal district court or in the Claims Court. The Sixth Circuit in the former case, and the Federal Circuit in the later, then would have had jurisdiction to consider those issues on appeal.We note in passing that the fact that the Court of Appeals' order under challenge here is unpublished carries no weight in our decision to review the case. The Court of Appeals exceeded its jurisdiction regardless of nonpublication and regardless of any assumed lack of precedential effect of a ruling that is unpublished.Certiorari is therefore granted and the order of March 2, 1987, is reversed. It is so ordered. JUSTICE MARSHALL, dissenting.I continue to be troubled by this Court's willingness to dispose of appeals and petitions for certiorari through summary per curiam opinions, without the benefit of briefing on the merits or review of the full record of proceedings below. I have elaborated this view before, see Montana v. Hall, , n. 1 (1987) (MARSHALL, J., dissenting), as have other Justices of this Court, see id., at 405, n. 2, but the admonition bears repeating. My doubts about summary dispositions encompass concerns about both the parties who seek our review and the integrity, perceived and actual, of our proceedings. 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 redress in this Court and deprives them of any opportunity to argue the merits of their claims before judgment. Moreover, briefing on the merits should be encouraged not only because parties expect and deserve it, but because it leads to greater accuracy in our decisions. Briefing helps this Court to reduce as much as possible the inevitable incidence of error and confusion in our opinions each Term. Finally, the practice of summary disposition demonstrates insufficient respect for lower court judges and for our own dissenting colleagues on this Court.I adhere to the view that whenever the Court contemplates a summary disposition, it should review the full record below and invite the parties to file supplemental briefs on the merits if they wish. 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 justify these modest accommodations.

Petitioner shippers brought class action in Federal District Court against respondent motor carriers and respondent ratemaking bureau, alleging that during the years 1966 through 1981 respondents engaged in a conspiracy, in violation of the Sherman Act, to fix rates for transporting freight between the United States and Canada without complying with an agreement filed by the bureau with, and approved by, the Interstate Commerce Commission. Petitioners sought treble damages, measured by the difference between the allegedly higher rates they paid and the rates they would have paid in a freely competitive market, and also sought declaratory and injunctive relief. The District Court dismissed the complaints on the authority of Keogh v. Chicago & Northwestern R. Co., , wherein it was held that a private shipper could not recover treble damages under 7 of the Sherman Act in connection with ICC-filed tariffs. The Court of Appeals affirmed the dismissal as to the treble-damages claims.Held: Petitioners are not entitled to bring a treble-damages antitrust action. Keogh, supra. Pp. 415-423. (a) Nothing in the Reed-Bulwinkle Act or in its legislative history indicates that Congress intended to change or supplant the Keogh rule. Similarly, there is no evidence that Congress in enacting the Motor Carrier Act of 1980 intended to change the Keogh rule. And cases like Carnation Co. v. Pacific Westbound Conference, , emphasizing the necessity to strictly construe immunity of collective ratemaking activities from antitrust laws, do not render Keogh invalid. Pp. 417-422. (b) The various developments that have occurred since Keogh - the development of class actions, the emergence of precedents permitting treble damages even when there is an available regulatory remedy, greater sophistication in evaluating damages, and the development of procedures in which judicial proceedings can be stayed pending regulatory proceedings - are insufficient to overcome the strong presumption of continued validity that adheres in the judicial interpretation of a statute. P. 423. 760 F.2d 1347, affirmed. 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. 424.Douglas V. Rigler argued the cause for petitioners. With him on the briefs were Linda Heller Kamm, Michael Fischer, Joseph E. Zdarsky, H. Laddie Montague, Arnold Levin, and Howard Sedran.Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Ginsburg, Deputy Assistant Attorney General Cannon, Jerrold J. Ganzfried, Robert B. Nicholson, Robert S. Burk, Henri F. Rush, Timm L. Abendroth, and Jim J. Marquez.Donald L. Flexner argued the cause for respondents. With him on the brief were Clifton S. Elgarten, Peter A. Greene, Charles L. Freed, John W. Bryant, Bryce Rea, Jr., Donald E. Cross, Lester M. Bridgeman, Louis E. Emery, and Joel B. Harris.* [Footnote *] Briefs of amici curiae urging affirmance were filed for the Association of American Railroads by Richard T. Conway, Ralph J. Moore, Jr., John Townsend Rich, Stephen J. Hadley, and Kenneth P. Kolson; and for the National Motor Freight Traffic Association, Inc., et al. by Patrick McEligot, William W. Pugh, and Kevin M. Williams.Briefs of amici curiae were filed for American Information Technologies Corp. et al. by J. Paul McGrath; for C. D. Ambrosia Trucking Co., Inc., et al. by Lawrence R. Velvel and Bruce J. Ennis, Jr.; and for the Western Fuels Association, Inc., et al. by Frederick L. Miller, Jr.JUSTICE STEVENS delivered the opinion for the Court.Petitioners have alleged that rates filed with the Interstate Commerce Commission by respondent motor carriers during the years 1966 through 1981 were fixed pursuant to an agreement forbidden by the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 1 et seq. The question presented is whether the carriers are subject to treble-damages liability in a private antitrust action if the allegation is true. The question requires us to give careful consideration to the way in which Congress has accommodated the sometimes conflicting policies of the antitrust laws and the Interstate Commerce Act, 49 U.S.C. 10101 et seq. (1982 ed. and Supp. II). Our analysis of the question will include three components: (1) the sufficiency of the complaint allegations in light of the bare language of the relevant statutes; (2) the impact of the Court's decision of an analogous question in 1922 in Keogh v. Chicago & Northwestern R. Co., ; and (3) the extent to which the rule of the Keogh case remains part of our law today.ITwo class-action complaints making parallel allegations against the same six defendants were filed in the United States District Court for the District of Columbia and then transferred to Buffalo, New York, where a similar action brought by the United States was pending. The Government case was ultimately settled by the entry of a consent decree;1 after the two private actions had been consolidated, the District Court granted a motion to dismiss the complaints. We therefore take the well-pleaded facts as true.2 Five of the respondents are Canadian motor carriers engaged in the transportation of freight between the United States and Canada. They are subject to regulation by the Ontario Highway Transport Board, and by the Interstate Commerce Commission (ICC). They are all members of the Niagara Frontier Tariff Bureau, Inc. (NFTB), which is also a defendant. NFTB is a nonprofit corporation organized to engage in collective ratemaking activities pursuant to an agreement filed with and approved by the ICC.3 Petitioners are corporations that have utilized respondents' services to ship goods between the United States and Canada for many years. In their complaints, they allege that, at least as early as 1966 and continuing at least into 1981, respondents engaged in a conspiracy "to fix, raise and maintain prices and to inhibit or eliminate competition for the transportation of freight by motor carrier between the United States and the Province of Ontario, Canada without complying with the terms of the NFTB agreement and by otherwise engaging in conduct that either was not or could not be approved by the ICC."4 The complaints allege five specific actions in furtherance of this conspiracy. First, senior management officials of the NFTB used a "Principals Committee," which was not authorized by the NFTB agreement, to set rates and to inhibit competition.5 Second, respondents set and controlled NFTB rate levels without complying with the notice, publication, public hearing, and recordkeeping requirements of the NFTB agreement and ICC regulations.6 Third, respondents planned threats, retaliation, and coercion against NFTB members to inhibit independent actions.7 Fourth, respondents actually used pressures, threats, and retaliation to interfere with independent actions.8 Finally, still in furtherance of the conspiracy, respondents filed tariffs with the ICC.9 Because of respondents' unlawful conduct, the complaints continue, petitioners and the members of the large class of shippers that they represent have paid higher rates for motor carrier freight transport than they would have paid in a freely competitive market.10 They seek treble damages measured by that difference, as well as declaratory and injunctive relief.The legal theory of the complaints is that respondents' conspiracy is not exempted from a private antitrust, treble-damages action even though the rates that respondents charged were filed with the ICC, as required by law. The complaints note that the ICC requires motor carriers to file tariffs containing all their rates, to make the tariffs available for public inspection, and to give advance notice of any changes in the filed rates.11 Although the ICC has the power to determine those rates, the rates are set by the carriers, not the ICC, in the first instance.12 The Reed-Bulwinkle Act, enacted in 1948, expressly authorizes the ICC to grant approval to agreements establishing rate bureaus for the purpose of setting rates collectively.13 The joint setting of rates pursuant to such agreements is exempted from the antitrust laws, but the statute strictly limits the exemption to actions that conform to the terms of the agreement approved by the ICC.14 In this case, according to the theory of the complaints, the activities of respondents were not authorized by the NFTB agreement; hence the alleged conspiracy was not exempt from the antitrust laws, and, indeed, blatantly violated those laws.Under the plain language of the relevant statutes, it would appear that petitioners have alleged a valid antitrust action. The stated activities are clearly within the generally applicable language of the antitrust laws;15 nothing in the language of the Interstate Commerce Act, moreover, necessarily precludes a private antitrust treble-damages remedy for actions that are not specifically immunized within the terms of the Reed-Bulwinkle Act.16 The District Court nevertheless dismissed the complaints on the authority of the Keogh case. 596 F. Supp. 153 (WDNY 1984). The Court of Appeals for the Second Circuit affirmed insofar as the District Court's judgment dismissed the claims for treble damages based on respondents' filed rates, but remanded for a further hearing to determine whether petitioners are entitled to injunctive relief and to give them an opportunity to amend their complaints to state possible claims for damages not arising from the filed tariffs. 760 F.2d 1347 (1985). We granted certiorari to consider whether the rule of the Keogh case was correctly applied in barring a treble-damages action based on the filed tariffs, and, if so, whether that case should be overruled. .IIIn Keogh, as in this case, a shipper's complaint alleged that rates filed with the ICC by the defendants had been fixed pursuant to an agreement prohibited by the Sherman Act. The rates had been set by an agreement among executives of railroad companies "which would otherwise be competing carriers," 260 U.S., at 160. They were "higher than the rates would have been if competition had not been thus eliminated." Ibid. The shipper claimed treble damages measured by the difference between the rates set pursuant to agreement and those that had previously been in effect.In their special plea, defendants averred that every rate complained of had been filed with the ICC and that, after hearings in which Keogh had participated, the rates had been approved by the Commission. That approval established that the fixed rates were "reasonable and non-discriminatory," id., at 161, but it did not foreclose the possibility that slightly lower rates would also have been within the zone of reasonableness that the Commission would also have found lawful under the Interstate Commerce Act. Nor did the ICC's approval require rejection of Keogh's contention that the combination among the railroads violated the Sherman Act.17 The Court nevertheless held that Keogh, a private shipper, could not "recover damages under 7 because he lost the benefit of rates still lower, which, but for the conspiracy, he would have enjoyed." Id., at 162.The Court reasoned that the ICC's approval had, in effect, established the lawfulness of the defendant's rates,18 and that the legal right of the shippers against the carrier had to be measured by the published tariff. It therefore concluded that the shipper could not have been "injured in his business or property" within the meaning of 7 of the Sherman Act by paying the carrier the rate that had been approved by the ICC. Justice Brandeis explained: "Section 7 of the Anti-Trust Act gives a right of action to one who has been `injured in his business or property.' Injury implies violation of a legal right. The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and shipper. The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier. Texas & Pacific R. R. Co. v. Mugg, ; Louisville & Nashville R. R. Co. v. Maxwell, ; Atchison, Topeka & Santa Fe Ry. Co. v. Robinson, ; Dayton Iron Co. v. Cincinnati, New Orleans & Texas Pacific Ry. Co., ; Erie R. R. Co. v. Stone, . And they are not affected by the tort of a third party. Compare Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Fink, . This stringent rule prevails, because otherwise the paramount purpose of Congress - prevention of unjust discrimination - might be defeated." Id., at 163. In this case, unlike Keogh, respondents' rates, established in the tariffs that had been filed with the ICC, were not challenged in a formal ICC hearing before they were allowed to go into effect. They were, however, duly submitted, lawful rates under the Interstate Commerce Act in the same sense that the rates filed in Keogh were lawful. Under the Court's holding in that case, it therefore follows that petitioners may not bring a treble-damages antitrust action.19 The question, then, is whether we should continue to respect the rule of Keogh.IIIPetitioners, supported by the Solicitor General of the United States, ask us to overrule Keogh. They submit that Keogh was implicitly rejected in the Reed-Bulwinkle Act and in the Motor Carrier Act of 1980, Pub. L. 96-296, 94 Stat. 793; that Keogh in effect created an implied immunity from the antitrust laws and that its reasoning is thus inconsistent with later cases, particularly Carnation Co. v. Pacific Westbound Conference, ; and that the rationales of the Keogh decision are no longer valid.Petitioners argue that the Reed-Bulwinkle Act, by delineating an antitrust immunity for specific ratemaking activities,20 repudiated Keogh's holding that shippers may not bring treble-damages actions in connection with ICC-filed tariffs. In our view, however, it is not proper to read that statute as supplanting the Keogh rule with a narrow, express exemption from the antitrust laws.The legislative history of Reed-Bulwinkle explains that it was enacted, at least in part, in response to this Court's decision in Georgia v. Pennsylvania R. Co., .21 In that case, after restating the holding in Keogh, the Court held that, although Georgia could not maintain a suit under the antitrust laws to obtain damages, it could obtain injunctive relief against the collective ratemaking procedures employed by the railroads.22 The Reed-Bulwinkle Act thus created an absolute immunity from the antitrust laws for approved collective ratemaking activities.Nothing in the Act or in its legislative history, however, indicates that Congress intended to change or supplant the Keogh rule that other tariff-related claims, while subject to governmental and injunctive antitrust actions, did not give rise to treble-damages antitrust actions. On the contrary, the House Report expressly stated that, except for creating the new exemption, the bill left the antitrust laws applicable to carriers unchanged "so far as they are now applicable."23 Particularly because the legislative history reveals clear congressional awareness of Keogh,24 far from supporting petitioners' position, the fact that Congress specifically addressed this area and left Keogh undisturbed lends powerful support to Keogh's continued viability.Similarly, petitioners and the Solicitor General argue that private treble-damages actions would further the congressional policy of promoting competition in the transportation industry reflected in the Motor Carrier Act of 1980.25 We may assume that this is the case - indeed, we may assume that petitioners are correct in arguing that the Keogh decision was unwise as a matter of policy - but it nevertheless remains true that Congress must be presumed to have been fully cognizant of this interpretation of the statutory scheme,26 which had been a significant part of our settled law for over half a century, and that Congress did not see fit to change it when Congress carefully reexamined this area of the law in 1980. Petitioners have pointed to no specific statutory provision or legislative history indicating a specific congressional intention to overturn the longstanding Keogh construction;27 harmony with the general legislative purpose is inadequate for that formidable task.Petitioners' reliance on Carnation Co. v. Pacific Westbound Conference, , is also unavailing. In Carnation, a shipper of evaporated milk brought an antitrust treble-damages action against an association of shipping companies that had established higher rates for transportation between the west coast of the United States and the Philippine Islands. The defendants contended that the Shipping Act of 1916 had repealed all antitrust regulation of ratemaking activities in the shipping industry. Section 15 of the Shipping Act did create an express exemption for collective ratemaking pursuant to agreements that had been approved by the Federal Maritime Commission, but the defendants had not obtained any such approval. They nevertheless contended that the structure of the entire Shipping Act, read against its legislative history, demonstrated an intent to free the ratemaking activities of the shipping industry from the antitrust laws. The Court unanimously rejected the argument, explaining: "We recently said: `Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions.' United States v. Philadelphia National Bank, . We have long recognized that the antitrust laws represent a fundamental national economic policy and have therefore concluded that we cannot lightly assume that the enactment of a special regulatory scheme for particular aspects of an industry was intended to render the more general provisions of the antitrust laws wholly inapplicable to that industry. We have, therefore, declined to construe special industry regulations as an implied repeal of the antitrust laws even when the regulatory statute did not contain an accommodation provision such as the exemption provisions of the Shipping and Agricultural Acts. See, e. g., United States v. Philadelphia National Bank, supra." Id., at 217-218. Petitioners correctly point out that cases like Carnation make it clear that collective ratemaking activities are not immunized from antitrust scrutiny simply because they occur in a regulated industry, and that exemptions from the antitrust laws are strictly construed and strongly disfavored. Nevertheless, even if we agreed that Keogh should be viewed as an "antitrust immunity" case, we would not conclude that later cases emphasizing the necessity to strictly construe such immunity rendered Keogh invalid. For Keogh represents a longstanding statutory construction that Congress has consistently refused to disturb, even when revisiting this specific area of law.We disagree, however, with petitioners' view that the issue in Keogh and in this case is properly characterized as an "immunity" question. The alleged collective activities of the defendants in both cases were subject to scrutiny under the antitrust laws by the Government and to possible criminal sanctions or equitable relief. Keogh simply held that an award of treble damages is not an available remedy for a private shipper claiming that the rate submitted to, and approved by, the ICC was the product of an antitrust violation. Such a holding is far different from the creation of an antitrust immunity,28 and makes the challenge to Keogh's role in the settled law of this area still more doubtful.29 Finally, petitioners point to various developments, discussed by the Court of Appeals, that seem to undermine some of the reasoning in Justice Brandeis' Keogh opinion - the development of class actions, which might alleviate the expressed concern about unfair rebates;30 the emergence of precedents permitting treble-damages remedies even when there is a regulatory remedy available;31 the greater sophistication in evaluating damages, which might mitigate the expressed fears about the speculative nature of such damages;32 and the development of procedures in which judicial proceedings can be stayed pending regulatory proceedings.33 Even if it is true that these developments cast Justice Brandeis' reasons in a different light, however, it is also true that the Keogh rule has been an established guidepost at the intersection of the antitrust and interstate commerce statutory regimes for some 6 1/2 decades. The emergence of subsequent procedural and judicial developments does not minimize Keogh's role as an essential element of the settled legal context in which Congress has repeatedly acted in this area.IVThe Court of Appeals, in Judge Friendly's characteristically thoughtful and incisive opinion, suggested that, in view of subsequent developments, this Court might be prepared to overrule Keogh. We conclude, however, that the developments in the six decades since Keogh was decided are insufficient to overcome the strong presumption of continued validity that adheres in the judicial interpretation of a statute.34 As Justice Brandeis himself observed, a decade after his Keogh decision, in commenting on the presumption of stability in statutory interpretation: "Stare decisis is usually the wise policy because in most matters, it is more important that the applicable rule of law be settled than that it be settled right... . This is commonly true, even where the error is a matter of serious concern, provided correction can be had by legislation."35 We are especially reluctant to reject this presumption in an area that has seen careful, intense, and sustained congressional attention. If there is to be an overruling of the Keogh rule, it must come from Congress, rather than from this Court.The judgment of the Court of Appeals is affirmed. It is so ordered.

Respondent Ice twice entered an 11-year-old girl's residence and sexually assaulted her. For each of the incidents, an Oregon jury found Ice guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim's vagina; and first-degree sexual assault for touching her breasts. Ice was sentenced under a state statute providing, generally, for concurrent sentences, Ore. Rev. Stat. §137.123(1), but allowing the judge to impose consecutive sentences in these circumstances: (1) when "a defendant is simultaneously sentenced for ... offenses that do not arise from the same ... course of conduct," §137.123(2), and (2) when offenses arise from the same course of conduct, if the judge finds either "(a) [t]hat the ... offense ... was an indication of defendant's willingness to commit more than one criminal offense; or ... "(b) [t]he ... offense ... caused or created a risk of causing greater or qualitatively different ... harm to the victim," §137.123(5). The trial judge first found that the two burglaries constituted separate incidents and exercised his discretion to impose consecutive sentences for those crimes under §137.123(2). The court then found that each offense of touching the victim's vagina met §137.123(5)'s two criteria, giving the judge discretion to impose the sentences for those offenses consecutive to the two associated burglary sentences. The court elected to do so, but ordered that the sentences for touching the victim's breasts run concurrently with the other sentences. On appeal, Ice argued, inter alia, that the sentencing statute was unconstitutional under Apprendi v. New Jersey, 530 U. S. 466, 490, and Blakely v. Washington, 542 U. S. 296, holding that the Sixth Amendment's jury-trial guarantee requires that the jury, rather than the judge, determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular crime. The appellate court affirmed, but the Oregon Supreme Court reversed, holding that the Apprendi rule applied because the imposition of consecutive sentences increased Ice's quantum of punishment. Held: In light of historical practice and the States' authority over administration of their criminal justice systems, the Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses. Pp. 5-11. (a) The Court declines to extend the Apprendi and Blakely line of decisions beyond the offense-specific context that supplied the historic grounding for the decisions. The Court's application of Apprendi's rule must honor the "longstanding common-law practice" in which the rule is rooted. Cunningham v. California, 549 U. S. 270, 281. The rule's animating principle is the preservation of the jury's historic role as a bulwark between the State and the accused at the trial for an alleged offense. See Apprendi, 530 U. S., at 477. Because the Sixth Amendment does not countenance legislative encroachment on the jury's traditional domain, see id., at 497, the Court considers whether the finding of a particular fact was understood as within the jury's domain by the Bill of Rights' framers, Harris v. United States, 536 U. S. 545, 557. In so doing, the Court is also cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. See, e.g., Patterson v. New York, 432 U. S. 197, 201. These twin considerations — historical practice and respect for state sovereignty — counsel against extending Apprendi to the imposition of sentences for discrete crimes. P. 6. (b) The historical record demonstrates that both in England before this Nation's founding and in the early American States, the common law generally entrusted the decision whether sentences for discrete offenses should be served consecutively or concurrently to judges' unfettered discretion, assigning no role in the determination to the jury. Thus, legislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted the Court's decision in Apprendi. There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury's domain as a bulwark at trial between the State and the accused. Instead, the defendant — who historically may have faced consecutive sentences by default — has been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice. Ice's argument that he is "entitled" to concurrent sentences absent the factfindings Oregon law requires is rejected. Because the scope of the federal constitutional jury right must be informed by the jury's historical common-law role, that right does not attach to every contemporary state-law "entitlement" to predicate findings. For similar reasons, Cunningham, upon which Ice heavily relies, does not control here. In holding that the facts permitting imposition of an elevated "upper term" sentence for a particular crime fell within the jury's province rather than the sentencing judge's, 549 U. S., at 274, Cunningham had no occasion to consider the appropriate inquiry when no erosion of the jury's traditional role was at stake. Pp. 7-8. (c) States' interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that Ice requests. This Court should not diminish the States' sovereign authority over the administration of their criminal justice systems absent impelling reason to do so. Limiting judicial discretion to impose consecutive sentences serves the "salutary objectives" of promoting sentences proportionate to "the gravity of the offense," Blakely, 542 U. S., at 308, and of reducing disparities in sentence length. All agree that a scheme making consecutive sentences the rule, and concurrent sentences the exception, encounters no Sixth Amendment shoal. To hem in States by holding that they may not choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense. Neither Apprendi nor the Court's Sixth Amendment traditions compel straitjacketing the States in that manner. Further, the potential intrusion of Apprendi's rule into other state initiatives on sentencing choices or accoutrements — for example, permitting trial judges to find facts about the offense's nature or the defendant's character in determining the length of supervised release, required attendance at drug rehabilitation programs or terms of community service, and the imposition of fines and restitution — would cut the rule loose from its moorings. Moreover, the expansion Ice seeks would be difficult for States to administer, as the predicate facts for consecutive sentences could substantially prejudice the defense at the trial's guilt phase, potentially necessitating bifurcated or trifurcated trials. Pp. 9-10. 343 Ore. 248, 170 P. 3d 1049, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Stevens, Kennedy, Breyer, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Souter and Thomas, JJ., joined.OREGON, PETITIONER v. THOMAS EUGENE ICEon writ of certiorari to the supreme court of oregon[January 14, 2009] Justice Ginsburg delivered the opinion of the Court. This case concerns the scope of the Sixth Amendment's jury-trial guarantee, as construed in Apprendi v. New Jersey, 530 U. S. 466 (2000), and Blakely v. Washington, 542 U. S. 296 (2004). Those decisions are rooted in the historic jury function — determining whether the prosecution has proved each element of an offense beyond a reasonable doubt. They hold that it is within the jury's province to determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular offense. Thus far, the Court has not extended the Apprendi and Blakely line of decisions beyond the offense-specific context that supplied the historic grounding for the decisions. The question here presented concerns a sentencing function in which the jury traditionally played no part: When a defendant has been tried and convicted of multiple offenses, each involving discrete sentencing prescriptions, does the Sixth Amendment mandate jury determination of any fact declared necessary to the imposition of consecutive, in lieu of concurrent, sentences? Most States continue the common-law tradition: They entrust to judges' unfettered discretion the decision whether sentences for discrete offenses shall be served consecutively or concurrently. In some States, sentences for multiple offenses are presumed to run consecutively, but sentencing judges may order concurrent sentences upon finding cause therefor. Other States, including Oregon, constrain judges' discretion by requiring them to find certain facts before imposing consecutive, rather than concurrent, sentences. It is undisputed that States may proceed on the first two tracks without transgressing the Sixth Amendment. The sole issue in dispute, then, is whether the Sixth Amendment, as construed in Apprendi and Blakely, precludes the mode of proceeding chosen by Oregon and several of her sister States. We hold, in light of historical practice and the authority of States over administration of their criminal justice systems, that the Sixth Amendment does not exclude Oregon's choice. IA State laws, as just observed, prescribe a variety of approaches to the decision whether a defendant's sentences for distinct offenses shall run concurrently or consecutively. Oregon might have followed the prevailing pattern by placing the decision within the trial court's discretion in all,1 or almost all,2 circumstances. Instead, Oregon and several other States have adopted a more restrained approach: they provide for judicial discretion, but constrain its exercise. In these States, to impose consecutive sentences, judges must make certain predicate fact findings.3 The controlling statute in Oregon provides that sentences shall run concurrently unless the judge finds statutorily described facts. Ore. Rev. Stat. §137.123(1) (2007). In most cases, finding such facts permits — but does not require — the judge to order consecutive sentences.4 Specifically, an Oregon judge may order consecutive sentences "[i]f a defendant is simultaneously sentenced for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct." §137.123(2). If the offenses do arise from the same course of conduct, the judge may still impose consecutive sentences if she finds either: "(a) That the criminal offense ... was an indication of defendant's willingness to commit more than one criminal offense; or"(b) The criminal offense ... caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or ... to a different victim ... ." §137.123(5).B On two occasions between December 1996 and July 1997, respondent Thomas Eugene Ice entered an apartment in the complex he managed and sexually assaulted an 11-year-old girl. 343 Ore. 248, 250, 170 P. 3d 1049, 1050 (2007). An Oregon jury convicted Ice of six crimes. For each of the two incidents, the jury found him guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim's vagina; and first-degree sexual assault for touching the victim's breasts. Ibid. At sentencing, the judge made findings, pursuant to §137.123, that permitted the imposition of consecutive sentences. First, the judge found that the two burglaries constituted "separate incident[s]." Id., at 255, 170 P. 3d, at 1053 (internal quotation marks omitted). Based on that finding, the judge had, and exercised, discretion to impose the two burglary sentences consecutively. Ibid.; see §137.123(2). Second, the court found that each offense of touching the victim's vagina met the statutory criteria set forth in §137.123(5): Ice displayed a "willingness to commit more than one ... offense" during each criminal episode, and his conduct "caused or created a risk of causing greater, qualitatively different loss, injury, or harm to the victim." Id., at 253, 170 P. 3d, at 1051 (internal quotation marks omitted). These findings gave the judge discretion to impose the sentence for each of those sexual assault offenses consecutive to the associated burglary sentence. The court elected to do so. Ibid. The court ordered, however, that the sentences for touching the victim's breasts run concurrently with the other sentences. Ibid. In total, the court sentenced Ice to 340 months' imprisonment. App. 46-87.5 Ice appealed his sentences. In relevant part, he argued that he had a Sixth Amendment right to have the jury, not the sentencing judge, find the facts that permitted the imposition of consecutive sentences. The appellate court affirmed the trial court's judgment without opinion. 178 Ore. App. 415, 39 P. 3d 291 (2001). The Oregon Supreme Court granted Ice's petition for review and reversed, 4 to 2. 343 Ore., at 250, 170 P. 3d, at 1050.6 In the majority's view, the rule of Apprendi applied, because the imposition of consecutive sentences increased "the quantum of punishment" imposed. 343 Ore., at 265, 170 P. 3d, at 1058. The dissenting justices concluded that "[n]either the holding in Apprendi nor its reasoning support[ed] extending that decision to the question of consecutive sentencing." Id., at 267, 170 P. 3d, at 1059 (opinion of Kistler, J.). State high courts have divided over whether the rule of Apprendi governs consecutive sentencing decisions.7 We granted review to resolve the question. 552 U. S. __ (2008).II The Federal Constitution's jury-trial guarantee assigns the determination of certain facts to the jury's exclusive province. Under that guarantee, this Court held in Apprendi, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U. S., at 490. We have applied Apprendi's rule to facts subjecting a defendant to the death penalty, Ring v. Arizona, 536 U. S. 584, 602, 609 (2002), facts allowing a sentence exceeding the "standard" range in Washington's sentencing system, Blakely, 542 U. S., at 304-305, and facts prompting an elevated sentence under then-mandatory Federal Sentencing Guidelines, United States v. Booker, 543 U. S. 220, 244 (2005). Most recently, in Cunningham v. California, 549 U. S. 270 (2007), we applied Apprendi's rule to facts permitting imposition of an "upper term" sentence under California's determinate sentencing law. All of these decisions involved sentencing for a discrete crime, not — as here — for multiple offenses different in character or committed at different times. Our application of Apprendi's rule must honor the "longstanding common-law practice" in which the rule is rooted. Cunningham, 549 U. S., at 281. The rule's animating principle is the preservation of the jury's historic role as a bulwark between the State and the accused at the trial for an alleged offense. See Apprendi, 530 U. S., at 477. Guided by that principle, our opinions make clear that the Sixth Amendment does not countenance legislative encroachment on the jury's traditional domain. See id., at 497. We accordingly considered whether the finding of a particular fact was understood as within "the domain of the jury ... by those who framed the Bill of Rights." Harris v. United States, 536 U. S. 545, 557 (2002) (plurality opinion). In undertaking this inquiry, we remain cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. See, e.g., Patterson v. New York, 432 U. S. 197, 201 (1977). These twin considerations — historical practice and respect for state sovereignty — counsel against extending Apprendi's rule to the imposition of sentences for discrete crimes. The decision to impose sentences consecutively is not within the jury function that "extends down centuries into the common law." Apprendi, 530 U. S., at 477. Instead, specification of the regime for administering multiple sentences has long been considered the prerogative of state legislatures. A The historical record demonstrates that the jury played no role in the decision to impose sentences consecutively or concurrently. Rather, the choice rested exclusively with the judge. See, e.g., 1 J. Bishop, Criminal Law §636, pp. 649-650 (2d ed. 1858) ("[W]hen there are two or more convictions, on which sentence remains to be pronounced; the judgment may direct, that each succeeding period of imprisonment shall commence on the termination of the period next preceding."); A. Campbell, Law of Sentencing §9:22, p. 425 (3d ed. 2004) ("Firmly rooted in common law is the principle that the selection of either concurrent or consecutive sentences rests within the discretion of sentencing judges."). This was so in England before the founding of our Nation,8 and in the early American States.9 Ice "has no quarrel with [this account] of consecutive sentencing practices through the ages." Brief for Respondent 32. The historical record further indicates that a judge's imposition of consecutive, rather than concurrent, sentences was the prevailing practice.10 In light of this history, legislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted our decision in Apprendi. There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury's domain as a bulwark at trial between the State and the accused. Instead, the defendant — who historically may have faced consecutive sentences by default — has been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice. It is no answer that, as Ice argues, "he was 'entitled' to" concurrent sentences absent the fact findings Oregon law requires. Brief for Respondent 43. In Ice's view, because "the Oregon Legislature deviated from tradition" and enacted a statute that hinges consecutive sentences on fact findings, Apprendi's rule must be imported. Brief for Respondent 33. As we have described, the scope of the constitutional jury right must be informed by the historical role of the jury at common law. See, e.g., Williams v. Florida, 399 U. S. 78, 98-100 (1970). It is therefore not the case that, as Ice suggests, the federal constitutional right attaches to every contemporary state-law "entitlement" to predicate findings. For similar reasons, Cunningham, upon which Ice heavily relies, does not control his case. As stated earlier, we held in Cunningham that the facts permitting imposition of an elevated "upper term" sentence for a particular crime fell within the jury's province. 549 U. S., at 274 (internal quotation marks omitted). The assignment of such a finding to the sentencing judge implicates Apprendi's core concern: a legislative attempt to "remove from the [province of the] jury" the determination of facts that warrant punishment for a specific statutory offense. Apprendi, 530 U. S., at 490 (internal quotation marks omitted). We had no occasion to consider the appropriate inquiry when no erosion of the jury's traditional role was at stake. Cunningham thus does not impede our conclusion that, as Apprendi's core concern is inapplicable to the issue at hand, so too is the Sixth Amendment's restriction on judge-found facts. B States' interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that Ice requests. Beyond question, the authority of States over the administration of their criminal justice systems lies at the core of their sovereign status. See, e.g., Patterson, 432 U. S., at 201 ("It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government."). We have long recognized the role of the States as laboratories for devising solutions to difficult legal problems. See New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). This Court should not diminish that role absent impelling reason to do so. It bears emphasis that state legislative innovations like Oregon's seek to rein in the discretion judges possessed at common law to impose consecutive sentences at will. Limiting judicial discretion to impose consecutive sentences serves the "salutary objectives" of promoting sentences proportionate to "the gravity of the offense," Blakely, 542 U. S., at 308, and of reducing disparities in sentence length, see 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.3(f) (3d ed 2007). All agree that a scheme making consecutive sentences the rule, and concurrent sentences the exception, encounters no Sixth Amendment shoal. To hem in States by holding that they may not equally choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense. Neither Apprendi nor our Sixth Amendment traditions compel straitjacketing the States in that manner. Further, it is unclear how many other state initiatives would fall under Ice's proposed expansion of Apprendi. As 17 States have observed in an amici brief supporting Oregon, States currently permit judges to make a variety of sentencing determinations other than the length of incarceration. Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution. See Brief for State of Indiana et al. as Amici Curiae 11. Intruding Apprendi's rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings. Moreover, the expansion that Ice seeks would be difficult for States to administer. The predicate facts for consecutive sentences could substantially prejudice the defense at the guilt phase of a trial. As a result, bifurcated or trifurcated trials might often prove necessary. Brief for State of Indiana et al. as Amici Curiae 14-15. We will not so burden the Nation's trial courts absent any genuine affront to Apprendi's instruction. We recognize that not every state initiative will be in harmony with Sixth Amendment ideals. But as we have previously emphasized, "structural democratic constraints exist to discourage legislatures from" pernicious manipulation of the rules we articulate. Apprendi, 530 U. S., at 490, n. 16. In any event, if confronted with such a manipulation, "we would be required to question whether the [legislative measure] was constitutional under this Court's prior decisions." Id., at 491, n. 16. The Oregon statute before us today raises no such concern.III Members of this Court have warned against "wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries." Cunningham, 549 U. S., at 295 (Kennedy, J., dissenting). The jury-trial right is best honored through a "principled rationale" that applies the rule of the Apprendi cases "within the central sphere of their concern." 549 U. S., at 295. Our disposition today — upholding an Oregon statute that assigns to judges a decision that has not traditionally belonged to the jury — is faithful to that aim. * * * For the reasons stated, the judgment of the Oregon Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.OREGON, PETITIONER v. THOMAS EUGENE ICEon writ of certiorari to the supreme court of oregon[January 14, 2009] Justice Scalia, with whom The Chief Justice, Justice Souter, and Justice Thomas join, dissenting. The rule of Apprendi v. New Jersey, 530 U. S. 466 (2000), is clear: Any fact — other than that of a prior conviction — that increases the maximum punishment to which a defendant may be sentenced must be admitted by the defendant or proved beyond a reasonable doubt to a jury. Oregon's sentencing scheme allows judges rather than juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since. The Court's justification of Oregon's scheme is a virtual copy of the dissents in those cases. The judge in this case could not have imposed a sentence of consecutive prison terms without making the factual finding that the defendant caused "separate harms" to the victim by the acts that produced two convictions. See 343 Ore. 248, 268, 170 P. 3d 1049, 1060 (2007) (Kistler, J., dissenting). There can thus be no doubt that the judge's factual finding was "essential to" the punishment he imposed. United States v. Booker, 543 U. S. 220, 232 (2005). That "should be the end of the matter." Blakely v. Washington, 542 U. S. 296, 313 (2004). Instead, the Court attempts to distinguish Oregon's sentencing scheme by reasoning that the rule of Apprendi applies only to the length of a sentence for an individual crime and not to the total sentence for a defendant. I cannot understand why we would make such a strange exception to the treasured right of trial by jury. Neither the reasoning of the Apprendi line of cases, nor any distinctive history of the factfinding necessary to imposition of consecutive sentences, nor (of course) logic supports such an odd rule. We have taken pains to reject artificial limitations upon the facts subject to the jury-trial guarantee. We long ago made clear that the guarantee turns upon the penal consequences attached to the fact, and not to its formal definition as an element of the crime. Mullaney v. Wilbur, 421 U. S. 684, 698 (1975). More recently, we rejected the contention that the "aggravating circumstances" that qualify a defendant for the death penalty did not have to be found by the jury. "If," we said, "a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt." Ring v. Arizona, 536 U. S. 584, 602 (2002). A bare three years ago, in rejecting the contention that the facts determining application of the Federal Sentencing Guidelines did not have to be found by the jury, we again set forth the pragmatic, practical, nonformalistic rule in terms that cannot be mistaken: The jury must "find the existence of ' "any particular fact" ' that the law makes essential to [a defendant's] punishment." Booker, supra, at 232 (quoting Blakely, supra, at 301). This rule leaves no room for a formalistic distinction between facts bearing on the number of years of imprisonment that a defendant will serve for one count (subject to the rule of Apprendi) and facts bearing on how many years will be served in total (now not subject to Apprendi). There is no doubt that consecutive sentences are a "greater punishment" than concurrent sentences, Apprendi, supra, at 494. We have hitherto taken note of the reality that "a concurrent sentence is traditionally imposed as a less severe sanction than a consecutive sentence." Ralston v. Robinson, 454 U. S. 201, 216, n. 9 (1981) (emphasis deleted). The decision to impose consecutive sentences alters the single consequence most important to convicted noncapital defendants: their date of release from prison. For many defendants, the difference between consecutive and concurrent sentences is more important than a jury verdict of innocence on any single count: Two consecutive 10-year sentences are in most circumstances a more severe punishment than any number of concurrent 10-year sentences. To support its distinction-without-a-difference, the Court puts forward the same (the very same) arguments regarding the history of sentencing that were rejected by Apprendi. Here, it is entirely irrelevant that common-law judges had discretion to impose either consecutive or concurrent sentences, ante, at 7; just as there it was entirely irrelevant that common-law judges had discretion to impose greater or lesser sentences (within the prescribed statutory maximum) for individual convictions. There is no Sixth Amendment problem with a system that exposes defendants to a known range of sentences after a guilty verdict: "In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail." Blakely, supra, at 309. The same analysis applies to a system where both consecutive and concurrent sentences are authorized after only a jury verdict of guilt; the burglar-rapist knows he is risking consecutive sentences. Our concern here is precisely the same as our concern in Apprendi: What happens when a State breaks from the common-law practice of discretionary sentences and permits the imposition of an elevated sentence only upon the showing of extraordinary facts? In such a system, the defendant "is entitled to" the lighter sentence "and by reason of the Sixth Amendment[,] the facts bearing upon that entitlement must be found by a jury." Blakely, 542 U. S., at 309. The Court protests that in this case there is no "encroachment" on or "erosion" of the jury's role because traditionally it was for the judge to determine whether there would be concurrent terms. Ante, at 8-9. Alas, this argument too was made and rejected in Apprendi. The jury's role was not diminished, the Apprendi dissent contended, because it was traditionally up to judges, not juries, to determine what the sentence would be. 530 U. S., at 556, 559 (opinion of Breyer, J.). The Court's opinion acknowledged that in the 19th century it was the practice to leave sentencing up to the judges, within limits fixed by law. But, it said, that practice had no bearing upon whether the jury must find the fact where a law conditions the higher sentence upon the fact. The jury's role is diminished when the length of a sentence is made to depend upon a fact removed from its determination. Id., at 482-483. The same is true here. The Court then observes that the results of the Oregon system could readily be achieved, instead, by a system in which consecutive sentences are the default rule but judges are permitted to impose concurrent sentences when they find certain facts. Ante, at 9-10. Undoubtedly the Sixth Amendment permits a system in which judges are authorized (or even required) to impose consecutive sentences unless the defendant proves additional facts to the Court's satisfaction. See ibid. But the permissibility of that alternative means of achieving the same end obviously does not distinguish Apprendi, because the same argument (the very same argument) was raised and squarely rejected in that case:"If the defendant can escape the statutory maximum by showing, for example, that he is a war veteran, then a judge that finds the fact of veteran status is neither exposing the defendant to a deprivation of liberty greater than that authorized by the verdict according to statute, nor is the judge imposing upon the defendant a greater stigma than that accompanying the jury verdict alone. Core concerns animating the jury and burden-of-proof requirements are thus absent from such a scheme." 530 U. S., at 491, n. 16. Ultimately, the Court abandons its effort to provide analytic support for its decision, and turns to what it thinks to be the " 'salutary objectives' " of Oregon's scheme. Ante, at 9. "Limiting judicial discretion," we are told, promotes sentences proportionate to the gravity of the offense, and reduces disparities in sentence length. Ibid. The same argument (the very same argument) was made and rejected in Booker, see 543 U. S., at 244, and Blakely, see 542 U. S., at 313. The protection of the Sixth Amendment does not turn on this Court's opinion of whether an alternative scheme is good policy, or whether the legislature had a compassionate heart in adopting it. The right to trial by jury and proof beyond a reasonable doubt is a given, and all legislative policymaking — good and bad, heartless and compassionate — must work within the confines of that reality. Of course the Court probably exaggerates the benign effect of Oregon's scheme, as is suggested by the defense bar's vigorous objection, evidenced by the participation of the National Association of Criminal Defense Lawyers as amicus in favor of respondent. Even that exaggeration is a replay of the rejected dissent in one of our prior cases. There the Court responded: "It is hard to believe that the National Association of Criminal Defense Lawyers was somehow duped into arguing for the wrong side." Blakely, supra, at 312. Finally, the Court summons up the parade of horribles assembled by the amicus brief of 17 States supporting Oregon. It notes that "[t]rial judges often find facts" in connection with "a variety of sentencing determinations other than the length of incarceration," and worries that even their ability to set the length of supervised release, impose community service, or order entry into a drug rehabilitation program, may be called into question. Ante, at 10. But if these courses reduce rather than augment the punishment that the jury verdict imposes, there is no problem. The last horrible the Court invokes is the prospect of bifurcated or even trifurcated trials in order to have the jury find the facts essential to consecutive sentencing without prejudicing the defendant's merits case. Ibid. That is another déjÀ vu and déjÀ rejeté; we have watched it parade past before, in several of our Apprendi-related opinions, and have not saluted. See Blakely, supra, at 336-337 (Breyer, J., dissenting); Apprendi, supra, at 557 (same).* * * The Court's peroration says that "[t]he jury-trial right is best honored through a 'principled rationale' that applies the rule of the Apprendi cases 'within the central sphere of their concern.' " Ante, at 11 (quoting Cunningham v. California, 549 U. S. 270, 295 (2007) (Kennedy, J., dissenting)). Undoubtedly so. But we have hitherto considered "the central sphere of their concern" to be facts necessary to the increase of the defendant's sentence beyond what the jury verdict alone justifies. "If the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied." Id., at 290 (opinion of the Court). If the doubling or tripling of a defendant's jail time through fact-dependent consecutive sentencing does not meet this description, nothing does. And as for a "principled rationale": The Court's reliance upon a distinction without a difference, and its repeated exhumation of arguments dead and buried by prior cases, seems to me the epitome of the opposite. Today's opinion muddies the waters, and gives cause to doubt whether the Court is willing to stand by Apprendi's interpretation of the Sixth Amendment's jury-trial guarantee.FOOTNOTESFootnote 1 E.g., Connecticut (Conn. Gen. Stat. §53a-37 (2005)); Idaho (Idaho Code §18-308 (Lexis 2004)); Nebraska (Neb. Rev. Stat. §29-2204 (1995)). See generally Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 9, n. 6 (listing laws of nine other States).Footnote 2 E.g., Florida (Fla. Stat. §921.16 (2007)); Kansas (Kan. Stat. Ann. §21-4608 (2007)); Mississippi (Miss. Code Ann. §99-19-21 (2007)).Footnote 3 E.g., Maine (Me. Rev. Stat. Ann., Tit. 17-A, §1256 (2006); State v. Keene, 2007 ME 84, 927 A. 2d 398); Tennessee (Tenn. Code Ann. §40-35-115(b) (2006); State v. Allen, 259 S. W. 3d 671 (Tenn. 2008)); Oregon (Ore. Rev. Stat. §137.123 (2007)).Footnote 4 Sentences must run consecutively, however, "[w]hen a defendant is sentenced for a crime committed while the defendant was incarcerated." Ore. Rev. Stat. §137.123(3).Footnote 5 Had the judge ordered concurrent service of all sentences, Ice's time in prison would have been 90 months. App. 68, 75.Footnote 6 Preliminarily, the Oregon Supreme Court ruled unanimously that the consecutive-sentencing findings did not constitute elements of any specific crime, and therefore the jury-trial right safeguarded by the Oregon Constitution was not violated. 343 Ore. 248, 261-262, 170 P. 3d 1049, 1056 (2007). Footnote 7 Compare, e.g., People v. Wagener, 196 Ill. 2d 269, 283-286, 752 N. E. 2d 430, 440-442 (2001) (holding that Apprendi does not apply); Keene, 927 A. 2d, 405-408 (same); with State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N. E. 2d 470 (holding Apprendi applicable).Footnote 8 E.g., King v. Wilkes, 19 How. St. Tr. 1075, 1132-1136 (K. B. 1769); see also Lee v. Walker, [1985] 1 Q. B. 1191, 1201 (1984) ("[T]he High Court has always had inherent jurisdiction to impose consecutive sentences of imprisonment in any appropriate case where the court had power to imprison.").Footnote 9 E.g., Russell v. Commonwealth, 7 Serg. & Rawle 489, 490 (Pa. 1822) (Judicial imposition of consecutive sentences has been "the common practice in the Courts of this State," and it is "warranted by principle, practice, and authority."); In re Walsh, 37 Neb. 454, 456, 55 N. W. 1075, 1076 (1893) ("[T]he great weight of authority is in favor of the proposition that ... the court has power to impose cumulative sentences."); In re Breton, 93 Me. 39, 42, 44 A. 125, 126 (1899) (same); Howard v. United States, 75 F. 986, 993 (CA6 1896) ("[A] rule which denies the court the power to impose cumulative sentences turns the trial and conviction on all the indictments except one into an idle ceremony.").Footnote 10 E.g., Queen v. Cutbush, 2 L. R. Q. B. 379, 382, 10 Cox Crim. Cas. 489, 492 (1867) ("[R]ight and justice require [that] when a man has been guilty of separate offences, ... that he should not escape from the punishment due to the additional offence, merely because he is already sentenced to be imprisoned for another offence."); ibid. (noting that it had been the practice to impose consecutive sentences "so far as living judicial memory goes back").

Per Curiam. Petitioner, William Fiore, was convicted of violating a Pennsylvania statute prohibiting the operation of a hazardous waste facility without a permit. After Fiore's conviction became final, the Pennsylvania Supreme Court interpreted the statute for the first time, and made clear that Fiore's conduct was not within its scope. However, the Pennsylvania courts refused to grant Fiore collateral relief. We granted certiorari in part to decide when, or whether, the Federal Due Process Clause requires a State to apply a new interpretation of a state criminal statute retroactively to cases on collateral review. In order to determine if that question was in fact presented, we asked the Pennsylvania Supreme Court whether its decision interpreting the statute not to apply to conduct like Fiore's was a new interpretation, or whether it was, instead, a correct statement of the law when Fiore's conviction became final. The Pennsylvania Supreme Court, responding to our certified question, has now made clear that retroactivity is not at issue. At the same time, that court's interpretation of its statute makes clear that Fiore did not violate the statute. We consequently find that his conviction is not consistent with the demands of the Federal Due Process Clause. See Jackson v. Virginia, 443 U. S. 307, 316 (1979).I This case, previously described in greater detail in our opinion certifying the state-law question to the Pennsylvania Supreme Court, 528 U. S. 23 (1999), arises out of William Fiore's conviction under a Pennsylvania statute that prohibits "operat[ing] a hazardous waste" facility without a "permit." Pa. Stat. Ann., Tit. 35, §6018.401(a) (Purdon 1993); see Commonwealth v. Fiore, CC No. 8508740 (Ct. Common Pleas, Allegheny Cty., Pa., Jan. 19, 1988), App. 6. The Commonwealth conceded that Fiore in fact had a permit, but argued that Fiore had deviated so dramatically from the permit's terms that he nonetheless had violated the statute. And the Commonwealth's lower courts agreed. See id., at App. 43-44; Commonwealth v. Fiore, No. 00485 PGH 1988 (May 12, 1989), App. 99-100 (affirming Fiore's conviction on the trial court's reasoning). The Pennsylvania Supreme Court declined to review Fiore's case, Commonwealth v. Fiore, 525 Pa. 577, 575 A. 2d 109 (1990), and his conviction became final. Thereafter, the Pennsylvania Supreme Court agreed to review the conviction of Fiore's co-defendant, David Scarpone, convicted of the same crime at the same time. The Supreme Court reversed Scarpone's conviction on the ground that the statute meant what it said: The statute made it unlawful to operate a facility without a permit; one who deviated from his permit's terms was not a person without a permit; hence, a person who deviated from his permit's terms did not violate the statute. Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112 (1993) (describing the Commonwealth's interpretation as "a bald fiction we cannot endorse"). Fiore, unsuccessful in his subsequent state-court attempts to have his own conviction set aside, see Commonwealth v. Fiore, 445 Pa. Super. 401, 665 A. 2d 1185 (1995), appeal denied, Commonwealth v. Fiore, 544 Pa. 623, 675 A. 2d 1243 (1996), brought a federal habeas corpus action. The District Court granted the writ, but the Court of Appeals for the Third Circuit reversed. 149 F. 3d 221 (1998). The Court of Appeals believed that the Pennsylvania Supreme Court, in Scarpone's case, had announced a new rule of law, inapplicable to Fiore's already final conviction. Id., at 227. And, the Court of Appeals said, "state courts are under no [federal] constitutional obligation to apply their decisions retroactively." Id., at 222. We granted certiorari to determine whether Fiore's conviction was inconsistent with the Due Process Clause.II Because we were uncertain whether the Pennsylvania Supreme Court's decision in Scarpone's case represented a change in the law of Pennsylvania, we certified the following question to that court: "Does the interpretation of Pa. Stat. Ann., Tit. 35, §6018.401(a) (Purdon 1993), set forth in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112 (1993), state the correct interpretation of the law of Pennsylvania at the date Fiore's conviction became final?" 528 U. S., at 29. We received the following reply:"Scarpone did not announce a new rule of law. Our ruling merely clarified the plain language of the statute... . Our interpretation of [§6018.401(a)] in Scarpone furnishes the proper statement of law at the date Fiore's conviction became final." Fiore v. White, 562 Pa. 634, 646, 757 A. 2d 842, 848-849 (2000) (citation omitted). The Pennsylvania Supreme Court's reply specifies that the interpretation of §6018.401(a) set out in Scarpone "merely clarified" the statute and was the law of Pennsylvania — as properly interpreted — at the time of Fiore's conviction. Because Scarpone was not new law, this case presents no issue of retroactivity. Rather, the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit. This Court's precedents make clear that Fiore's conviction and continued incarceration on this charge violate due process. We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. See Jackson, supra, at 316; In re Winship, 397 U. S. 358, 364 (1970). In this case, failure to possess a permit is a basic element of the crime of which Fiore was convicted. Scarpone, supra, at 279, 634 A. 2d, at 1112. And the parties agree that the Commonwealth presented no evidence whatsoever to prove that basic element. To the contrary, the Commonwealth, conceding that Fiore did possess a permit, see Brief for Respondents 1, necessarily concedes that it did not prove he failed to possess one. The simple, inevitable conclusion is that Fiore's conviction fails to satisfy the Federal Constitution's demands. We therefore reverse the contrary judgment of the Third Circuit and remand this case for proceedings consistent with this opinion. So ordered.

The Federal Power Act (FPA) authorizes the Federal Energy Regulatory Commission (FERC) to regulate "the sale of electric energy at wholesale in interstate commerce," including both wholesale electricity rates and any rule or practice "affecting" such rates. 16 U. S. C. §§824(b), 824d(a), 824e(a). But it places beyond FERC's power, leaving to the States alone, the regulation of "any other sale"--i.e., any retail sale — of electricity. §824(b). In an increasingly competitive interstate electricity market, FERC has undertaken to ensure "just and reasonable" wholesale rates, §824d(a), by encouraging the creation of nonprofit entities to manage regions of the nationwide electricity grid. These wholesale market operators administer their portions of the grid to ensure that the network conducts electricity reliably, and each holds competitive auctions to set wholesale prices. These auctions balance supply and demand continuously by matching bids to provide electricity from generators with orders from utilities and other "load-serving entities" (LSEs) that buy power at wholesale for resale to users. All bids to supply electricity are stacked from lowest to highest, and accepted in that order until all requests for power have been met. Every electricity supplier is paid the price of the highest-accepted bid, known as the locational marginal price (LMP). In periods of high electricity demand, prices can reach extremely high levels as the least efficient generators have their supply bids accepted in the wholesale market auctions. Not only do rates rise dramatically during these peak periods, but the increased flow of electricity threatens to overload the grid and cause substantial service problems. Faced with these challenges, wholesale market operators devised wholesale demand response programs, which pay consumers for commitments to reduce their use of power during these peak periods. Just like bids to supply electricity, offers from aggregators of multiple users of electricity or large individual consumers to reduce consumption can be bid into the wholesale market auctions. When it costs less to pay consumers to refrain from using power than it does to pay producers to supply more of it, demand response can lower these wholesale prices and increase grid reliability. Wholesale operators began integrating these programs into their markets some 15 years ago and FERC authorized their use. Congress subsequently encouraged further development of demand response. Spurred on by Congress, FERC issued Order No. 719, which, among other things, requires wholesale market operators to receive demand response bids from aggregators of electricity consumers, except when the state regulatory authority overseeing those users' retail purchases bars demand response participation. 18 CFR §35.28(g)(1). Concerned that the order had not gone far enough, FERC then issued the rule under review here, Order No. 745. §35.28(g)(1)(v) (Rule). It requires market operators to pay the same price to demand response providers for conserving energy as to generators for producing it, so long as a "net benefits test," which ensures that accepted bids actually save consumers money, is met. The Rule rejected an alternative compensation scheme that would have subtracted from LMP the savings consumers receive from not buying electricity in the retail market, a formula known as LMP-G. The Rule also rejected claims that FERC lacked statutory authority to regulate the compensation operators pay for demand response bids. The Court of Appeals for the District of Columbia Circuit vacated the Rule, holding that FERC lacked authority to issue the order because it directly regulates the retail electricity market, and holding in the alternative that the Rule's compensation scheme is arbitrary and capricious under the Administrative Procedure Act. Held: 1. The FPA provides FERC with the authority to regulate wholesale market operators' compensation of demand response bids. The Court's analysis proceeds in three parts. First, the practices at issue directly affect wholesale rates. Second, FERC has not regulated retail sales. Taken together, these conclusions establish that the Rule complies with the FPA's plain terms. Third, the contrary view would conflict with the FPA's core purposes. Pp. 14-29. (a) The practices at issue directly affect wholesale rates. The FPA has delegated to FERC the authority — and, indeed, the duty — to ensure that rules or practices "affecting" wholesale rates are just and reasonable. §§824d(a), 824e(a). To prevent the statute from assuming near-infinite breadth, see e.g., New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655, this Court adopts the D. C. Circuit's common-sense construction limiting FERC's "affecting" jurisdiction to rules or practices that "directly affect the [wholesale] rate," California Independent System Operator Corp. v. FERC, 372 F. 3d 395, 403 (emphasis added). That standard is easily met here. Wholesale demand response is all about reducing wholesale rates; so too the rules and practices that determine how those programs operate. That is particularly true here, as the formula for compensating demand response necessarily lowers wholesale electricity prices by displacing higher-priced generation bids. Pp. 14-17. (b) The Rule also does not regulate retail electricity sales in violation of §824(b). A FERC regulation does not run afoul of §824(b)'s proscription just because it affects the quantity or terms of retail sales. Transactions occurring on the wholesale market have natural consequences at the retail level, and so too, of necessity, will FERC's regulation of those wholesale matters. That is of no legal consequence. See, e.g., Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 365, 370-373. When FERC regulates what takes place on the wholesale market, as part of carrying out its charge to improve how that market runs, then no matter the effect on retail rates, §824(b) imposes no bar. Here, every aspect of FERC's regulatory plan happens exclusively on the wholesale market and governs exclusively that market's rules. The Commission's justifications for regulating demand response are likewise only about improving the wholesale market. Cf. Oneok, Inc. v. Learjet, Inc., 575 U. S. ___, ___. Pp. 17-25. (c) In addition, EPSA's position would subvert the FPA. EPSA's arguments suggest that the entire practice of wholesale demand response falls outside what FERC can regulate, and EPSA concedes that States also lack that authority. But under the FPA, wholesale demand response programs could not go forward if no entity had jurisdiction to regulate them. That outcome would flout the FPA's core purposes of protecting "against excessive prices" and ensuring effective transmission of electric power. Pennsylvania Water & Power Co. v. FPC, 343 U. S. 414, 418; see Gulf States Util. Co. v. FPC, 411 U. S. 747, 758. The FPA should not be read, against its clear terms, to halt a practice that so evidently enables FERC to fulfill its statutory duties of holding down prices and enhancing reliability in the wholesale energy market. Pp. 25-29. 2. FERC's decision to compensate demand response providers at LMP — the same price paid to generators — instead of at LMP-G, is not arbitrary and capricious. Under the narrow scope of review in Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43, this Court's important but limited role is to ensure that FERC engaged in reasoned decisionmaking — that it weighed competing views, selected a compensation formula with adequate support in the record, and intelligibly explained the reasons for making that decision. Here, FERC provided a detailed explanation of its choice of LMP and responded at length to contrary views. FERC's serious and careful discussion of the issue satisfies the arbitrary and capricious standard. Pp. 29-33.753 F. 3d 216, reversed and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Scalia, J. filed a dissenting opinion, in which Thomas, J., joined. Alito, J., took no part in the consideration or decision of the cases.Opinion of the Court 577 U. S. ____ (2016)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.Nos. 14-840 and 14-841FEDERAL ENERGY REGULATORY COMMISSION, PETITIONER 14-840 v. ELECTRIC POWER SUPPLY ASSOCIATION, et al. ENERNOC, INC., et al., PETITIONERS 14-841 v. ELECTRIC POWER SUPPLY ASSOCIATION, et al.on writs of certiorari to the united states court of appeals for the district of columbia circuit[January 25, 2016] Justice Kagan delivered the opinion of the Court. The Federal Power Act (FPA or Act), 41 Stat. 1063, as amended, 16 U. S. C. §791a et seq., authorizes the Federal Energy Regulatory Commission (FERC or Commission) to regulate "the sale of electric energy at wholesale in interstate commerce," including both wholesale electricity rates and any rule or practice "affecting" such rates. §§824(b), 824e(a). But the law places beyond FERC's power, and leaves to the States alone, the regulation of "any other sale"--most notably, any retail sale — of electricity. §824(b). That statutory division generates a steady flow of jurisdictional disputes because — in point of fact if not of law — the wholesale and retail markets in electricity are inextricably linked. These cases concern a practice called "demand response," in which operators of wholesale markets pay electricity consumers for commitments not to use power at certain times. That practice arose because wholesale market operators can sometimes — say, on a muggy August day — offer electricity both more cheaply and more reliably by paying users to dial down their consumption than by paying power plants to ramp up their production. In the regulation challenged here, FERC required those market operators, in specified circumstances, to compensate the two services equivalently — that is, to pay the same price to demand response providers for conserving energy as to generators for making more of it. Two issues are presented here. First, and fundamen-tally, does the FPA permit FERC to regulate these demand response transactions at all, or does any such rule impinge on the States' authority? Second, even if FERC has the requisite statutory power, did the Commission fail to justify adequately why demand response providers and electricity producers should receive the same compensation? The court below ruled against FERC on both scores. We disagree. IA Federal regulation of electricity owes its beginnings to one of this Court's decisions. In the early 20th century, state and local agencies oversaw nearly all generation, transmission, and distribution of electricity. But this Court held in Public Util. Comm'n of R. I. v. Attleboro Steam & Elec. Co., 273 U. S. 83, 89-90 (1927), that the Commerce Clause bars the States from regulating certain interstate electricity transactions, including wholesale sales (i.e., sales for resale) across state lines. That ruling created what became known as the "Attleboro gap"--a regulatory void which, the Court pointedly noted, only Congress could fill. See id., at 90. Congress responded to that invitation by passing the FPA in 1935. The Act charged FERC's predecessor agency with undertaking "effective federal regulation of the expanding business of transmitting and selling electric power in interstate commerce." New York v. FERC, 535 U. S. 1, 6 (2002) (quoting Gulf States Util. Co. v. FPC, 411 U. S. 747, 758 (1973)). Under the statute, the Commission has authority to regulate "the transmission of electric energy in interstate commerce" and "the sale of electric energy at wholesale in interstate commerce." 16 U. S. C. §824(b)(1). In particular, the FPA obligates FERC to oversee all prices for those interstate transactions and all rules and practices affecting such prices. The statute provides that "[a]ll rates and charges made, demanded, or received by any public utility for or in connection with" interstate transmissions or wholesale sales — as well as "all rules and regulations affecting or pertaining to such rates or charges"--must be "just and reasonable." §824d(a). And if "any rate [or] charge," or "any rule, regulation, practice, or contract affecting such rate [or] charge[,]" falls short of that standard, the Commission must rectify the problem: It then shall determine what is "just and reasonable" and impose "the same by order." §824e(a). Alongside those grants of power, however, the Act also limits FERC's regulatory reach, and thereby maintains a zone of exclusive state jurisdiction. As pertinent here, §824(b)(1)--the same provision that gives FERC authority over wholesale sales — states that "this subchapter," including its delegation to FERC, "shall not apply to any other sale of electric energy." Accordingly, the Commission may not regulate either within-state wholesale sales or, more pertinent here, retail sales of electricity (i.e., sales directly to users). See New York, 535 U. S., at 17, 23. State utility commissions continue to oversee those transactions. Since the FPA's passage, electricity has increasingly become a competitive interstate business, and FERC's role has evolved accordingly. Decades ago, state or local utilities controlled their own power plants, transmission lines, and delivery systems, operating as vertically integrated monopolies in confined geographic areas. That is no longer so. Independent power plants now abound, and almost all electricity flows not through "the local power networks of the past," but instead through an interconnected "grid" of near-nationwide scope. See id., at 7 ("electricity that enters the grid immediately becomes a part of a vast pool of energy that is constantly moving in interstate commerce," linking producers and users across the country). In this new world, FERC often forgoes the cost-based rate-setting traditionally used to prevent monopolistic pricing. The Commission instead undertakes to ensure "just and reasonable" wholesale rates by enhancing competition — attempting, as we recently explained, "to break down regulatory and economic barriers that hinder a free market in wholesale electricity." Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U. S. 527, 536 (2008). As part of that effort, FERC encouraged the creation of nonprofit entities to manage wholesale markets on a regional basis. Seven such wholesale market operators now serve areas with roughly two-thirds of the country's electricity "load" (an industry term for the amount of electricity used). See FERC, Energy Primer: A Handbook of Energy Market Basics 58-59 (Nov. 2015) (Energy Primer). Each administers a portion of the grid, providing generators with access to transmission lines and ensuring that the network conducts electricity reliably. See ibid. And still more important for present purposes, each operator conducts a competitive auction to set wholesale prices for electricity. These wholesale auctions serve to balance supply and demand on a continuous basis, producing prices for electricity that reflect its value at given locations and times throughout each day. Such a real-time mechanism is needed because, unlike most products, electricity cannot be stored effectively. Suppliers must generate — every day, hour, and minute — the exact amount of power necessary to meet demand from the utilities and other "load-serving entities" (LSEs) that buy power at wholesale for resale to users. To ensure that happens, wholesale market operators obtain (1) orders from LSEs indicating how much electricity they need at various times and (2) bids from generators specifying how much electricity they can produce at those times and how much they will charge for it. Operators accept the generators' bids in order of cost (least expensive first) until they satisfy the LSEs' total demand. The price of the last unit of electricity purchased is then paid to every supplier whose bid was accepted, regardless of its actual offer; and the total cost is split among the LSEs in proportion to how much energy they have ordered. So, for example, suppose that at 9 a.m. on August 15 four plants serving Washington, D. C. can each produce some amount of electricity for, respectively, $10/unit, $20/unit, $30/unit, and $40/unit. And suppose that LSEs' demand at that time and place is met after the operator accepts the three cheapest bids. The first three generators would then all receive $30/unit. That amount is (think back to Econ 101) the marginal cost — i.e., the added cost of meeting another unit of demand — which is the price an efficient market would produce. See 1 A. Kahn, The Economics of Regulation: Principles and Institutions 65-67 (1988). FERC calls that cost (in jargon that will soon become oddly familiar) the locational marginal price, or LMP.1 As in any market, when wholesale buyers' demand for electricity increases, the price they must pay rises correspondingly; and in those times of peak load, the grid's reliability may also falter. Suppose that by 2 p.m. on August 15, it is 98 degrees in D. C. In every home, store, or office, people are turning the air conditioning up. To keep providing power to their customers, utilities and other LSEs must ask their market operator for more electricity. To meet that spike in demand, the operator will have to accept more expensive bids from suppliers. The operator, that is, will have to agree to the $40 bid that it spurned before — and maybe, beyond that, to bids of $50 or $60 or $70. In such periods, operators often must call on extremely inefficient generators whose high costs of production cause them to sit idle most of the time. See Energy Primer 41-42. As that happens, LMP — the price paid by all LSEs to all suppliers — climbs ever higher. And meanwhile, the increased flow of electricity through the grid threatens to overload transmission lines. See id., at 44. As every consumer knows, it is just when the weather is hottest and the need for air conditioning most acute that blackouts, brownouts, and other service problems tend to occur. Making matters worse, the wholesale electricity market lacks the self-correcting mechanism of other markets. Usually, when the price of a product rises, buyers naturally adjust by reducing how much they purchase. But consumers of electricity — and therefore the utilities and other LSEs buying power for them at wholesale — do not respond to price signals in that way. To use the economic term, demand for electricity is inelastic. That is in part because electricity is a necessity with few ready substitutes: When the temperature reaches 98 degrees, many people see no option but to switch on the AC. And still more: Many State regulators insulate consumers from short-term fluctuations in wholesale prices by insisting that LSEs set stable retail rates. See id., at 41, 43-44. That, one might say, short-circuits the normal rules of economic behavior. Even in peak periods, as costs surge in the wholesale market, consumers feel no pinch, and so keep running the AC as before. That means, in turn, that LSEs must keep buying power to send to those users — no matter that wholesale prices spiral out of control and increased usage risks overtaxing the grid. But what if there were an alternative to that scenario? Consider what would happen if wholesale market operators could induce consumers to refrain from using (and so LSEs from buying) electricity during peak periods. Whenever doing that costs less than adding more power, an operator could bring electricity supply and demand into balance at a lower price. And simultaneously, the operator could ease pressure on the grid, thus protecting against system failures. That is the idea behind the practice at issue here: Wholesale demand response, as it is called, pays consumers for commitments to curtail their use of power, so as to curb wholesale rates and prevent grid breakdowns. See id., at 44-46.2 These demand response programs work through the operators' regular auctions. Aggregators of multiple users of electricity, as well as large-scale individual users like factories or big-box stores, submit bids to decrease electricity consumption by a set amount at a set time for a set price. The wholesale market operators treat those offers just like bids from generators to increase supply. The operators, that is, rank order all the bids — both to produce and to refrain from consuming electricity — from least to most expensive, and then accept the lowest bids until supply and demand come into equipoise. And, once again, the LSEs pick up the cost of all those payments. So, to return to our prior example, if a store submitted an offer not to use a unit of electricity at 2 p.m. on August 15 for $35, the operator would accept that bid before calling on the generator that offered to produce a unit of power for $40. That would result in a lower LMP — again, wholesale market price — than if the market operator could not avail itself of demand response pledges. See ISO/RTO Council, Harnessing the Power of Demand: How ISOs and RTOs Are Integrating Demand Response Into Wholesale Electricity Markets 40-43 (2007) (estimating that, in one market, a demand response program reducing electricity usage by 3% in peak hours would lead to price declines of 6% to 12%). And it would decrease the risk of blackouts and other service problems. Wholesale market operators began using demand response some 15 years ago, soon after they assumed the role of overseeing wholesale electricity sales. Recognizing the value of demand response for both system reliability and efficient pricing, they urged FERC to allow them to implement such programs. See, e.g., PJM Interconnection, L. L. C., Order Accepting Tariff Sheets as Modified, 95 FERC ¶61,306 (2001); California Independent System Operator Corp., Order Conditionally Accepting for Filing Tariff Revisions, 91 FERC ¶61,256 (2000). And as demand response went into effect, market participants of many kinds came to view it — in the words of respondent Electric Power Supply Association (EPSA)--as an "important element[ ] of robust, competitive wholesale electricity markets." App. 94, EPSA, Comments on Proposed Rule on Demand Response Compensation in Organized Wholesale Energy Markets (May 12, 2010). Congress added to the chorus of voices praising wholesale demand response. In the Energy Policy Act of 2005, 119 Stat. 594 (EPAct), it declared as "the policy of the United States" that such demand response "shall be encouraged." §1252(f), 119 Stat. 966, 16 U. S. C. §2642 note. In particular, Congress directed, the deployment of "technology and devices that enable electricity customers to participate in . . . demand response systems shall be facilitated, and unnecessary barriers to demand response participation in energy . . . markets shall be eliminated." Ibid.3B Spurred on by Congress, the Commission determined to take a more active role in promoting wholesale demand response programs. In 2008, FERC issued Order No. 719, which (among other things) requires wholesale market operators to receive demand response bids from aggregators of electricity consumers, except when the state regulatory authority overseeing those users' retail purchases bars such demand response participation. See 73 Fed. Reg. 64119, ¶154 (codified 18 CFR §35.28(g)(1) (2015)). That original order allowed operators to compensate demand response providers differently from generators if they so chose. No party sought judicial review. Concerned that Order No. 719 had not gone far enough, FERC issued the rule under review here in 2011, with one commissioner dissenting. See Demand Response Competition in Organized Wholesale Energy Markets, Order No. 745, 76 Fed. Reg. 16658 (Rule) (codified 18 CFR §35.28(g)(1)(v)). The Rule attempts to ensure "just and reasonable" wholesale rates by requiring market operators to appropriately compensate demand response providers and thus bring about "meaningful demand-side participation" in the wholesale markets. 76 Fed. Reg. 16658, ¶1, 16660, ¶10; 16 U. S. C. §824d(a). The Rule's most significant provision directs operators, under two specified conditions, to pay LMP for any accepted demand response bid, just as they do for successful supply bids. See 76 Fed. Reg. 16666-16669, ¶¶45-67. In other words, the Rule requires that demand response providers in those circumstances receive as much for conserving electricity as generators do for producing it. The two specified conditions ensure that a bid to use less electricity provides the same value to the wholesale market as a bid to make more. First, a demand response bidder must have "the capability to provide the service" offered; it must, that is, actually be able to reduce electricity use and thereby obviate the operator's need to secure additional power. Id., at 16666, ¶¶48-49. Second, paying LMP for a demand response bid "must be cost-effective," as measured by a standard called "the net benefits test." Ibid., ¶48. That test makes certain that accepting a lower-priced demand response bid over a higher-priced supply bid will actually save LSEs (i.e., wholesale purchasers) money. In some situations it will not, even though accepting a lower-priced bid (by definition) reduces LMP. That is because (to oversimplify a bit) LSEs share the cost of paying successful bidders, and reduced electricity use makes some LSEs drop out of the market, placing a proportionally greater burden on those that are left. Each remaining LSE may thus wind up paying more even though the total bill is lower; or said otherwise, the costs associated with an LSE's increased share of compensating bids may exceed the savings that the LSE obtains from a lower wholesale price.4 The net benefits test screens out such counterproductive demand response bids, exempting them from the Rule's compensation requirement. See id., at 16659, 16666-16667, ¶¶3, 50-53. What remains are only those offers whose acceptance will result in actual savings to wholesale purchasers (along with more reliable service to end users). See id., at 16671, ¶¶78-80. The Rule rejected an alternative scheme for compensating demand response bids. Several commenters had urged that, in paying a demand response provider, an operator should subtract from the ordinary wholesale price the savings that the provider nets by not buying electricity on the retail market. Otherwise, the commenters claimed, demand response providers would receive a kind of "double-payment" relative to generators. See id., at 16663, ¶24. That proposal, which the dissenting commissioner largely accepted, became known as LMP minus G, or more simply LMP-G, where "G" stands for the retail price of electricity. See id., at 16668, ¶60, 16680 (Moeller, dissenting). But FERC explained that, under the conditions it had specified, the value of an accepted demand response bid to the wholesale market is identical to that of an accepted supply bid because each succeeds in cost-effectively "balanc[ing] supply and demand." Id., at 16667, ¶55. And, the Commission reasoned, that comparable value is what ought to matter given FERC's goal of strengthening competition in the wholesale market: Rates should reflect not the costs that each market participant incurs, but instead the services it provides. See id., at 16668, ¶62. Moreover, the Rule stated, compensating demand response bids at their actual value — i.e., LMP — will help overcome various technological barriers, including a lack of needed infrastructure, that impede aggregators and large-scale users of electricity from fully participating in demand response programs. See id., at 16667-16668, ¶¶57-58. The Rule also responded to comments challenging FERC's statutory authority to regulate the compensation operators pay for demand response bids. Pointing to the Commission's analysis in Order No. 719, the Rule explained that the FPA gives FERC jurisdiction over such bids because they "directly affect[ ] wholesale rates." Id., at 16676, ¶112 (citing 74 id., at 37783, ¶47, and 18 U. S. C. §824d). Nonetheless, the Rule noted, FERC would continue Order No. 719's policy of allowing any state regulatory body to prohibit consumers in its retail market from taking part in wholesale demand response programs. See 76 Fed. Reg. 16676, ¶114; 73 id., at 64119, ¶154. Accordingly, the Rule does not require any "action[ ] that would violate State laws or regulations." 76 id., at 16676, ¶114.C A divided panel of the Court of Appeals for the District of Columbia Circuit vacated the Rule as "ultra vires agency action." 753 F. 3d 216, 225 (2014). The court held that FERC lacked authority to issue the Rule even though "demand response compensation affects the wholesale market." Id., at 221. The Commission's "jurisdiction to regulate practices 'affecting' rates," the court stated, "does not erase the specific limit[ ]" that the FPA imposes on FERC's regulation of retail sales. Id., at 222. And the Rule, the court concluded, exceeds that limit: In "luring . . . retail customers" into the wholesale market, and causing them to decrease "levels of retail electricity consumption," the Rule engages in "direct regulation of the retail market." Id., at 223-224. The Court of Appeals held, alternatively, that the Rule is arbitrary and capricious under the Administrative Procedure Act, 5 U. S. C. §706(2)(A), because FERC failed to "adequately explain[ ]" why paying LMP to demand response providers "results in just compensation." 753 F. 3d, at 225. According to the court, FERC did not "properly consider" the view that such a payment would give those providers a windfall by leaving them with "the full LMP plus . . . the savings associated with" reduced consumption. Ibid. (quoting Demand Response Competition in Organized Wholesale Energy Markets: Order on Rehearing and Clarification, Order No. 745-A (Rehearing Order), 137 FERC ¶61,215, p. 62,316 (2011) (Moeller, dissenting)). The court dismissed out of hand the idea that "comparable contributions [could] be the reason for equal compensation." 753 F. 3d, at 225. Judge Edwards dissented. He explained that the rules governing wholesale demand response have a "direct effect . . . on wholesale electricity rates squarely within FERC's jurisdiction." Id., at 227. And in setting those rules, he argued, FERC did not engage in "direct regulation of the retail market"; rather, "[a]uthority over retail rates . . . remains vested solely in the States." Id., at 234 (internal quotation marks omitted). Finally, Judge Edwards rejected the majority's view that the Rule is arbitrary and capricious. He noted the substantial deference due to the Commission in cases involving ratemaking, and concluded that FERC provided a "thorough" and "reasonable" explanation for choosing LMP as the appropriate compensation formula. Id., at 236-238. We granted certiorari, 575 U. S. ___ (2015), to decide whether the Commission has statutory authority to regulate wholesale market operators' compensation of demand response bids and, if so, whether the Rule challenged here is arbitrary and capricious. We now hold that the Commission has such power and that the Rule is adequately reasoned. We accordingly reverse.II Our analysis of FERC's regulatory authority proceeds in three parts. First, the practices at issue in the Rule — market operators' payments for demand response commitments — directly affect wholesale rates. Second, in addressing those practices, the Commission has not regulated retail sales. Taken together, those conclusions establish that the Rule complies with the FPA's plain terms. And third, the contrary view would conflict with the Act's core purposes by preventing all use of a tool that no one (not even EPSA) disputes will curb prices and enhance reliability in the wholesale electricity market.5A The FPA delegates responsibility to FERC to regulate the interstate wholesale market for electricity — both wholesale rates and the panoply of rules and practices affecting them. As noted earlier, the Act establishes a scheme for federal regulation of "the sale of electric energy at wholesale in interstate commerce." 16 U. S. C. §824(b)(1); see supra, at 3. Under the statute, "[a]ll rates and charges made, demanded, or received by any public utility for or in connection with" interstate wholesale sales "shall be just and reasonable"; so too shall "all rules and regulations affecting or pertaining to such rates or charges." §824d(a). And if FERC sees a violation of that standard, it must take remedial action. More specifically, whenever the Commission "shall find that any rate [or] charge"--or "any rule, regulation, practice, or contract affecting such rate [or] charge"--is "unjust [or] unreasonable," then the Commission "shall determine the just and reasonable rate, charge[,] rule, regulation, practice or contract" and impose "the same by order." §824e(a). That means FERC has the authority — and, indeed, the duty — to ensure that rules or practices "affecting" wholesale rates are just and reasonable. Taken for all it is worth, that statutory grant could extend FERC's power to some surprising places. As the court below noted, markets in all electricity's inputs — steel, fuel, and labor most prominent among them — might affect generators' supply of power. See 753 F. 3d, at 221; id., at 235 (Edwards, J., dissenting). And for that matter, markets in just about everything — the whole economy, as it were — might influence LSEs' demand. So if indirect or tangential impacts on wholesale electricity rates sufficed, FERC could regulate now in one industry, now in another, changing a vast array of rules and practices to implement its vision of reasonableness and justice. We cannot imagine that was what Congress had in mind. For that reason, an earlier D. C. Circuit decision adopted, and we now approve, a common-sense construction of the FPA's language, limiting FERC's "affecting" jurisdiction to rules or practices that "directly affect the [wholesale] rate." California Independent System Operator Corp. v. FERC, 372 F. 3d 395, 403 (2004) (emphasis added); see 753 F. 3d, at 235 (Edwards, J., dissenting). As we have explained in addressing similar terms like "relating to" or "in connection with," a non-hyperliteral reading is needed to prevent the statute from assuming near-infinite breadth. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995) ("If 'relate to' were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes [the statute] would never run its course"); Maracich v. Spears, 570 U. S. ___, ___ (2013) (slip op., at 9) ("The phrase 'in connection with' is essentially indeterminat[e] because connections, like relations, stop nowhere" (internal quotation marks omitted)). The Commission itself incorporated the D. C. Circuit's standard in addressing its authority to issue the Rule. See 76 Fed. Reg. 16676, ¶112 (stating that FERC has jurisdiction because wholesale demand response "directly affects wholesale rates"). We think it right to do the same. Still, the rules governing wholesale demand response programs meet that standard with room to spare. In general (and as earlier described), wholesale market operators employ demand response bids in competitive auctions that balance wholesale supply and demand and thereby set wholesale prices. See supra, at 7-8. The operators accept such bids if and only if they bring down the wholesale rate by displacing higher-priced generation. And when that occurs (most often in peak periods), the easing of pressure on the grid, and the avoidance of service problems, further contributes to lower charges. See Brief for Grid Engineers et al. as Amici Curiae 26-27. Wholesale demand response, in short, is all about reducing wholesale rates; so too, then, the rules and practices that determine how those programs operate. And that is particularly true of the formula that operators use to compensate demand response providers. As in other areas of life, greater pay leads to greater participation. If rewarded at LMP, rather than at some lesser amount, more demand response providers will enter more bids capable of displacing generation, thus necessarily lowering wholesale electricity prices. Further, the Commission found, heightened demand response participation will put "downward pressure" on generators' own bids, encouraging power plants to offer their product at reduced prices lest they come away empty-handed from the bidding process. 76 Fed. Reg. 16660, ¶10. That, too, ratchets down the rates wholesale purchasers pay. Compensation for demand response thus directly affects wholesale prices. Indeed, it is hard to think of a practice that does so more.B The above conclusion does not end our inquiry into the Commission's statutory authority; to uphold the Rule, we also must determine that it does not regulate retail electricity sales. That is because, as earlier described, §824(b) "limit[s] FERC's sale jurisdiction to that at wholesale," reserving regulatory authority over retail sales (as well as intrastate wholesale sales) to the States. New York, 535 U. S., at 17 (emphasis deleted); see 16 U. S. C. §824(b); supra, at 3.6 FERC cannot take an action transgressing that limit no matter how direct, or dramatic, its impact on wholesale rates. Suppose, to take a far-fetched example, that the Commission issued a regulation compelling every consumer to buy a certain amount of electricity on the retail market. Such a rule would necessarily determine the load purchased on the wholesale market too, and thus would alter wholesale prices. But even given that ineluctable consequence, the regulation would exceed FERC's authority, as defined in §824(b), because it specifies terms of sale at retail — which is a job for the States alone.7 Yet a FERC regulation does not run afoul of §824(b)'s proscription just because it affects — even substantially — the quantity or terms of retail sales. It is a fact of economic life that the wholesale and retail markets in electricity, as in every other known product, are not hermetically sealed from each other. To the contrary, transactions that occur on the wholesale market have natural consequences at the retail level. And so too, of necessity, will FERC's regulation of those wholesale matters. Cf. Oneok, Inc. v. Learjet, Inc., 575 U. S. ___, ___ (2015) (slip op., at 13) (noting that in the similarly structured world of natural gas regulation, a "Platonic ideal" of strict separation between federal and state realms cannot exist). When FERC sets a wholesale rate, when it changes wholesale market rules, when it allocates electricity as between wholesale purchasers — in short, when it takes virtually any action respecting wholesale transactions — it has some effect, in either the short or the long term, on retail rates. That is of no legal consequence. See, e.g., Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 365, 370-373 (1988) (holding that an order regulating wholesale purchases fell within FERC's jurisdiction, and preempted contrary state action, even though it clearly affected retail prices); Nantahala Power & Light Co. v. Thornburg, 476 U. S. 953, 959-961, 970 (1986) (same); FPC v. Louisiana Power & Light Co., 406 U. S. 621, 636-641 (1972) (holding similarly in the natural gas context). When FERC regulates what takes place on the wholesale market, as part of carrying out its charge to improve how that market runs, then no matter the effect on retail rates, §824(b) imposes no bar. And in setting rules for demand response, that is all FERC has done. The Commission's Rule addresses — and addresses only — transactions occurring on the wholesale market. Recall once again how demand response works — and forgive the coming italics. See supra, at 7-8. Wholesale market operators administer the entire program, receiving every demand response bid made. Those operators accept such a bid at the mandated price when (and only when) the bid provides value to the wholesale market by balancing supply and demand more "cost-effective[ly]"--i.e., at a lower cost to wholesale purchasers — than a bid to generate power. 76 Fed. Reg. 16659, 16666, ¶2, 48. The compensation paid for a successful bid (LMP) is whatever the operator's auction has determined is the marginal price of wholesale electricity at a particular location and time. See id., at 16659, ¶2. And those footing the bill are the same wholesale purchasers that have benefited from the lower wholesale price demand response participation has produced. See id., at 16674, ¶¶99-100. In sum, whatever the effects at the retail level, every aspect of the regulatory plan happens exclusively on the wholesale market and governs exclusively that market's rules. What is more, the Commission's justifications for regulating demand response are all about, and only about, improving the wholesale market. Cf. Oneok, 575 U. S., at ___ (slip op., at 11) (considering "the target at which [a] law aims" in determining whether a State is properly regulating retail or, instead, improperly regulating wholesale sales). In Order No. 719, FERC explained that demand response participation could help create a "well-functioning competitive wholesale electric energy market" with "reduce[d] wholesale power prices" and "enhance[d] reliability." 73 Fed. Reg. 64103, ¶16. And in the Rule under review, FERC expanded on that theme. It listed the several ways in which "demand response in organized wholesale energy markets can help improve the functioning and competitiveness of those markets": by replacing high-priced, inefficient generation; exerting "downward pressure" on "generator bidding strategies"; and "support[ing] system reliability." 76 id., at 16660, ¶10; see Notice of Proposed Rulemaking for Order No. 745, 75 id., at 15363-15364, ¶4 (2010) (noting similar aims); supra, at 7-8. FERC, that is, focused wholly on the benefits that demand response participation (in the wholesale market) could bring to the wholesale market. The retail market figures no more in the Rule's goals than in the mechanism through which the Rule operates. EPSA's primary argument that FERC has usurped state power (echoed in the dissent) maintains that the Rule "effectively," even though not "nominal[ly]," regulates retail prices. See, e.g., Brief for Respondents 1, 10, 23-27, 35-39; Tr. of Oral Arg. 26, 30; post, at 4-6. The argument begins on universally accepted ground: Under §824(b), only the States, not FERC, can set retail rates. See, e.g., FPC v. Conway Corp., 426 U. S. 271, 276 (1976). But as EPSA concedes, that tenet alone cannot make its case, because FERC's Rule does not set actual rates: States continue to make or approve all retail rates, and in doing so may insulate them from price fluctuations in the wholesale market. See Brief for Respondents 39. Still, EPSA contends, rudimentary economic analysis shows that the Rule does the "functional equivalen[t]" of setting — more particularly, of raising — retail rates. Id., at 36. That is because the opportunity to make demand response bids in the wholesale market changes consumers' calculations. In deciding whether to buy electricity at retail, economically-minded consumers now consider both the cost of making such a purchase and the cost of forgoing a possible demand response payment. So, EPSA explains, if a factory can buy electricity for $10/unit, but can earn $5/unit for not buying power at peak times, then the effective retail rate at those times is $15/unit: the $10 the factory paid at retail plus the $5 it passed up. See id., at 10. And by thus increasing effective retail rates, EPSA concludes, FERC trespasses on the States' ground. The modifier "effective" is doing quite a lot of work in that argument — more work than any conventional understanding of rate-setting allows. The standard dictionary definition of the term "rate" (as used with reference to prices) is "[a]n amount paid or charged for a good or service." Black's Law Dictionary 1452 (10th ed. 2014); see, e.g., 13 Oxford English Dictionary 208-209 (2d ed. 1989) ("rate" means "price," "cost," or "sum paid or asked for a . . . thing"). To set a retail electricity rate is thus to establish the amount of money a consumer will hand over in exchange for power. Nothing in §824(b) or any other part of the FPA suggests a more expansive notion, in which FERC sets a rate for electricity merely by altering consumers' incentives to purchase that product.8 And neither does anything in this Court's caselaw. Our decisions uniformly speak about rates, for electricity and all else, in only their most prosaic, garden-variety sense. As the Solicitor General summarized that view, "the rate is what it is." Tr. of Oral Arg. 7. It is the price paid, not the price paid plus the cost of a forgone economic opportunity. Consider a familiar scenario to see what is odd about EPSA's theory. Imagine that a flight is overbooked. The airline offers passengers $300 to move to a later plane that has extra seats. On EPSA's view, that offer adds $300 — the cost of not accepting the airline's proffered payment — to the price of every continuing passenger's ticket. So a person who originally spent $400 for his ticket, and decides to reject the airline's proposal, paid an "effective" price of $700. But would any passenger getting off the plane say he had paid $700 to fly? That is highly unlikely. And airline lawyers and regulators (including many, we are sure, with economics Ph. D.'s) appear to share that common-sensical view. It is in fact illegal to "increase the price" of "air transportation . . . after [such] air transportation has been purchased by the consumer." 14 CFR §399.88(a) (2015). But it is a safe bet that no airline has ever gotten into trouble by offering a payment not to fly.9 And EPSA's "effective price increase" claim fares even worse when it comes to payments not to use electricity. In EPSA's universe, a wholesale demand response program raises retail rates by compelling consumers to "pay" the price of forgoing demand response compensation. But such a consumer would be even more surprised than our air traveler to learn of that price hike, because the natural consequence of wholesale demand response programs is to bring down retail rates. Once again, wholesale market operators accept demand response bids only if those offers lower the wholesale price. See supra, at 7-8. And when wholesale prices go down, retail prices tend to follow, because state regulators can, and mostly do, insist that wholesale buyers eventually pass on their savings to consumers. EPSA's theoretical construct thus runs headlong into the real world of electricity sales — where the Rule does anything but increase retail prices. EPSA's second argument that FERC intruded into the States' sphere is more historical and purposive in nature. According to EPSA, FERC deliberately "lured [retail customers] into the[ ] wholesale markets"--and, more, FERC did so "only because [it was] dissatisfied with the States' exercise of their undoubted authority" under §824(b) to regulate retail sales. Brief for Respondents 23; see id., at 2-3, 31, 34. In particular, EPSA asserts, FERC disapproved of "many States' continued preference" for stable pricing — that is, for insulating retail rates from short-term fluctuations in wholesale costs. Id., at 28. In promoting demand response programs — or, in EPSA's somewhat less neutral language, in "forc[ing] retail customers to respond to wholesale price signals"--FERC acted "for the express purpose of overriding" that state policy. Id., at 29, 49. That claim initially founders on the true facts of how wholesale demand response came about. Contra EPSA, the Commission did not invent the practice. Rather, and as described earlier, the impetus came from wholesale market operators. See supra, at 8. In designing their newly organized markets, those operators recognized almost at once that demand response would lower wholesale electricity prices and improve the grid's reliability. So they quickly sought, and obtained, FERC's approval to institute such programs. Demand response, then, emerged not as a Commission power grab, but instead as a market-generated innovation for more optimally balancing wholesale electricity supply and demand. And when, years later (after Congress, too, endorsed the practice), FERC began to play a more proactive role, it did so for the identical reason: to enhance the wholesale, not retail, electricity market. Like the market operators, FERC saw that sky-high demand in peak periods threatened network breakdowns, compelled purchases from inefficient generators, and consequently drove up wholesale prices. See, e.g., 73 Fed. Reg. 64103, ¶16; 76 id., at 16660, ¶10; see supra, at 6-7. Addressing those problems — which demand response does — falls within the sweet spot of FERC's statutory charge. So FERC took action promoting the practice. No doubt FERC recognized connections, running in both directions, between the States' policies and its own. The Commission understood that by insulating consumers from price fluctuations, States contributed to the wholesale market's difficulties in optimally balancing supply and demand. See 76 Fed. Reg. 16667-16668, ¶¶57, 59; supra, at 6-7. And FERC realized that increased use of demand response in that market would (by definition) inhibit retail sales otherwise subject to State control. See 73 Fed. Reg. 64167. But nothing supports EPSA's more feverish idea that the Commission's interest in wholesale demand response emerged from a yen to usurp State authority over, or impose its own regulatory agenda on, retail sales. In promoting demand response, FERC did no more than follow the dictates of its regulatory mission to improve the competitiveness, efficiency, and reliability of the wholesale market. Indeed, the finishing blow to both of EPSA's arguments comes from FERC's notable solicitude toward the States. As explained earlier, the Rule allows any State regulator to prohibit its consumers from making demand response bids in the wholesale market. See 76 id., at 16676, ¶114; 73 id., at 64119, ¶154; supra, at 12. Although claiming the ability to negate such state decisions, the Commission chose not to do so in recognition of the linkage between wholesale and retail markets and the States' role in overseeing retail sales. See 76 Fed. Reg. 16676, ¶¶112-114. The veto power thus granted to the States belies EPSA's view that FERC aimed to "obliterate[ ]" their regulatory authority or "override" their pricing policies. Brief for Respondents 29, 33. And that veto gives States the means to block whatever "effective" increases in retail rates demand response programs might be thought to produce. Wholesale demand response as implemented in the Rule is a program of cooperative federalism, in which the States retain the last word. That feature of the Rule removes any conceivable doubt as to its compliance with §824(b)'s allocation of federal and state authority.C One last point, about how EPSA's position would subvert the FPA. EPSA's jurisdictional claim, as may be clear by now, stretches very far. Its point is not that this single Rule, relating to compensation levels, exceeds FERC's power. Instead, EPSA's arguments — that rewarding energy conservation raises effective retail rates and that "luring" consumers onto wholesale markets aims to disrupt state policies — suggest that the entire practice of wholesale demand response falls outside what FERC can regulate. EPSA proudly embraces that point: FERC, it declares, "has no business regulating 'demand response' at all." Id., at 24. Under EPSA's theory, FERC's earlier Order No. 719, although never challenged, would also be ultra vires because it requires operators to open their markets to demand response bids. And more: FERC could not even approve an operator's voluntary plan to administer a demand response program. See Tr. of Oral Arg. 44. That too would improperly allow a retail customer to participate in a wholesale market. Yet state commissions could not regulate demand response bids either. EPSA essentially concedes this point. See Brief for Respondents 46 ("That may well be true"). And so it must. The FPA "leaves no room either for direct state regulation of the prices of interstate wholesales" or for regulation that "would indirectly achieve the same result." Northern Natural Gas Co. v. State Corporation Comm'n of Kan., 372 U. S. 84, 91 (1963). A State could not oversee offers, made in a wholesale market operator's auction, that help to set wholesale prices. Any effort of that kind would be preempted. And all of that creates a problem. If neither FERC nor the States can regulate wholesale demand response, then by definition no one can. But under the Act, no electricity transaction can proceed unless it is regulable by someone. As earlier described, Congress passed the FPA precisely to eliminate vacuums of authority over the electricity markets. See supra, at 2-3. The Act makes federal and state powers "complementary" and "comprehensive," so that "there [will] be no 'gaps' for private interests to subvert the public welfare." Louisiana Power & Light Co., 406 U. S., at 631. Or said otherwise, the statute prevents the creation of any regulatory "no man's land." FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1, 19 (1961); see id., at 28. Some entity must have jurisdiction to regulate each and every practice that takes place in the electricity markets, demand response no less than any other.10 For that reason, the upshot of EPSA's view would be to extinguish the wholesale demand response program in its entirety. Under the FPA, each market operator must submit to FERC all its proposed rules and procedures. See 16 U. S. C. §§824d(c)-(d); 18 CFR §§35.28(c)(4), 35.3(a)(1). Assume that, as EPSA argues, FERC could not authorize any demand response program as part of that package. Nor could FERC simply allow such plans to go into effect without its consideration and approval. There are no "off the books" programs in the wholesale electricity markets — because, once again, there is no regulatory "no man's land." Transcontinental, 365 U. S., at 19. The FPA mandates that FERC review, and ensure the reasonableness of, every wholesale rule and practice. See 16 U. S. C. §§824d(a), 824e(a); supra, at 3, 14-15. If FERC could not carry out that duty for demand response, then those programs could not go forward. And that outcome would flout the FPA's core objects. The statute aims to protect "against excessive prices" and ensure effective transmission of electric power. Pennsylvania Water & Power Co. v. FPC, 343 U. S. 414, 418 (1952); see Gulf States Util. Co. v. FPC, 411 U. S. 747, 758 (1973). As shown above, FERC has amply explained how wholesale demand response helps to achieve those ends, by bringing down costs and preventing service interruptions in peak periods. See supra, at 20. No one taking part in the rulemaking process — not even EPSA — seriously challenged that account. Even as he objected to FERC's compensation formula, Commissioner Moeller noted the unanimity of opinion as to demand response's value: "[N]owhere did I review any comment or hear any testimony that questioned the benefit of having demand response resources participate in the organized wholesale energy markets. On this point, there is no debate." 76 Fed. Reg. 16679; see also App. 82, EPSA, Comments on Proposed Rule (avowing "full[ ] support" for demand response participation in wholesale markets because of its "economic and operational" benefits).11 Congress itself agreed, "encourag[ing]" greater use of demand response participation at the wholesale level. EPAct §1252(f ), 119 Stat. 966. That undisputed judgment extinguishes any last flicker of life in EPSA's argument. We will not read the FPA, against its clear terms, to halt a practice that so evidently enables the Commission to fulfill its statutory duties of holding down prices and enhancing reliability in the wholesale energy market.III These cases present a second, narrower question: Is FERC's decision to compensate demand response providers at LMP — the same price paid to generators — arbitrary and capricious? Recall here the basic issue. See supra, at 9-12. Wholesale market operators pay a single price — LMP — for all successful bids to supply electricity at a given time and place. The Rule orders operators to pay the identical price for a successful bid to conserve electricity so long as that bid can satisfy a "net benefits test"--meaning that it is sure to bring down costs for wholesale purchasers. In mandating that payment, FERC rejected an alternative proposal under which demand response providers would receive LMP minus G (LMP-G), where G is the retail rate for electricity. According to EPSA and others favoring that approach, demand response providers get a windfall — a kind of "double-payment"--unless market operators subtract the savings associated with conserving electricity from the ordinary compensation level. 76 Fed. Reg. 16663, ¶24. EPSA now claims that FERC failed to adequately justify its choice of LMP rather than LMP-G. In reviewing that decision, we may not substitute our own judgment for that of the Commission. The "scope of review under the 'arbitrary and capricious' standard is narrow." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). A court is not to ask whether a regulatory decision is the best one possible or even whether it is better than the alternatives. Rather, the court must uphold a rule if the agency has "examine[d] the relevant [considerations] and articulate[d] a satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made." Ibid. (internal quotation marks omitted). And nowhere is that more true than in a technical area like electricity rate design: "[W]e afford great deference to the Commission in its rate decisions." Morgan Stanley, 554 U. S., at 532. Here, the Commission gave a detailed explanation of its choice of LMP. See 76 Fed. Reg. 16661-16669, ¶¶18-67. Relying on an eminent regulatory economist's views, FERC chiefly reasoned that demand response bids should get the same compensation as generators' bids because both provide the same value to a wholesale market. See id., at 16662-16664, 16667-16668, ¶¶20, 31, 57, 61; see also App. 829-851, Reply Affidavit of Dr. Alfred E. Kahn (Aug. 30, 2010) (Kahn Affidavit). FERC noted that a market operator needs to constantly balance supply and demand, and that either kind of bid can perform that service cost-effectively — i.e., in a way that lowers costs for wholesale purchasers. See 76 Fed. Reg. 16667-16668, ¶¶56, 61. A compensation system, FERC concluded, therefore should place the two kinds of bids "on a competitive par." Id., at 16668, ¶61 (quoting Kahn Affidavit); see also App. 830, Kahn Affidavit (stating that "economic efficiency requires" compensating the two equally given their equivalent function in a "competitive power market[ ]"). With both supply and demand response available on equal terms, the operator will select whichever bids, of whichever kind, provide the needed electricity at the lowest possible cost. See Rehearing Order, 137 FERC, at 62,301-62,302, ¶68 ("By ensuring that both . . . receive the same compensation for the same service, we expect the Final Rule to enhance the competitiveness" of wholesale markets and "result in just and reasonable rates"). That rationale received added support from FERC's adoption of the net benefits test. The Commission realized during its rulemaking that in some circumstances a demand response bid — despite reducing the wholesale rate — does not provide the same value as generation. See 76 Fed. Reg. 16664-16665, ¶38. As described earlier, that happens when the distinctive costs associated with compensating a demand response bid exceed the savings from a lower wholesale rate: The purchaser then winds up paying more than if the operator had accepted the best (even though higher priced) supply bid available. See supra, at 10-11. And so FERC developed the net benefits test to filter out such cases. See 76 Fed. Reg. 16666-16667, ¶¶50-53. With that standard in place, LMP is paid only to demand response bids that benefit wholesale purchasers — in other words, to those that function as "cost-effective alternative[s] to the next highest-bid generation." Id., at 16667, ¶54. Thus, under the Commission's approach, a demand response provider will receive the same compensation as a generator only when it is in fact providing the same service to the wholesale market. See ibid., ¶53. The Commission responded at length to EPSA's contrary view that paying LMP, even in that situation, will overcompensate demand response providers because they are also "effectively receiv[ing] 'G,' the retail rate that they do not need to pay." Id., at 16668, ¶60. FERC explained that compensation ordinarily reflects only the value of the service an entity provides — not the costs it incurs, or benefits it obtains, in the process. So when a generator presents a bid, "the Commission does not inquire into the costs or benefits of production." Ibid., ¶62. Different power plants have different cost structures. And, indeed, some plants receive tax credits and similar incentive payments for their activities, while others do not. See Rehearing Order, 137 FERC, at 62,301, ¶65, and n. 122. But the Commission had long since decided that such matters are irrelevant: Paying LMP to all generators — although some then walk away with more profit and some with less--"encourages more efficient supply and demand decisions." 76 Fed. Reg. 16668, ¶62 (internal quotation marks omitted). And the Commission could see no economic reason to treat demand response providers any differently. Like generators, they too experience a range of benefits and costs — both the benefits of not paying for electricity and the costs of not using it at a certain time. But, FERC again concluded, that is immaterial: To increase competition and optimally balance supply and demand, market operators should compensate demand response providers, like generators, based on their contribution to the wholesale system. See ibid.; 137 FERC, at 62,300, ¶60. Moreover, FERC found, paying LMP will help demand response providers overcome certain barriers to participation in the wholesale market. See 76 Fed. Reg. 16667-16668, ¶¶57-59. Commenters had detailed significant start-up expenses associated with demand response, including the cost of installing necessary metering technology and energy management systems. See id., at 16661, ¶18, 16667-16668, ¶57; see also, e.g., App. 356, Viridity Energy, Inc., Comments on Proposed Rule on Demand Response Compensation in Organized Wholesale Energy Markets (May 13, 2010) (noting the "capital investments and operational changes needed" for demand response participation). The Commission agreed that such factors inhibit potential demand responders from competing with generators in the wholesale markets. See 76 Fed. Reg. 16668, ¶59. It concluded that rewarding demand response at LMP (which is, in any event, the price reflecting its value to the market) will encourage that competition and, in turn, bring down wholesale prices. See ibid. Finally, the Commission noted that determining the "G" in the formula LMP-G is easier proposed than accomplished. See ibid., ¶63. Retail rates vary across and even within States, and change over time as well. Accordingly, FERC concluded, requiring market operators to incorporate G into their prices, "even though perhaps feasible," would "create practical difficulties." Ibid. Better, then, not to impose that administrative burden. All of that together is enough. The Commission, not this or any other court, regulates electricity rates. The disputed question here involves both technical understanding and policy judgment. The Commission addressed that issue seriously and carefully, providing reasons in support of its position and responding to the principal alternative advanced. In upholding that action, we do not discount the cogency of EPSA's arguments in favor of LMP-G. Nor do we say that in opting for LMP instead, FERC made the better call. It is not our job to render that judgment, on which reasonable minds can differ. Our important but limited role is to ensure that the Commission engaged in reasoned decisionmaking — that it weighed competing views, selected a compensation formula with adequate support in the record, and intelligibly explained the reasons for making that choice. FERC satisfied that standard.IV FERC's statutory authority extends to the Rule at issue here addressing wholesale demand response. The Rule governs a practice directly affecting wholesale electricity rates. And although (inevitably) influencing the retail market too, the Rule does not intrude on the States' power to regulate retail sales. FERC set the terms of transactions occurring in the organized wholesale markets, so as to ensure the reasonableness of wholesale prices and the reliability of the interstate grid — just as the FPA contemplates. And in choosing a compensation formula, the Commission met its duty of reasoned judgment. FERC took full account of the alternative policies proposed, and adequately supported and explained its decision. Accordingly, we reverse the judgment of the Court of Appeals for the District of Columbia Circuit and remand the cases for further proceedings consistent with this opinion.It is so ordered. Justice Alito took no part in the consideration or decision of these cases.Scalia, J., dissenting 577 U. S. ____ (2016)Nos. 14-840 and 14-841FEDERAL ENERGY REGULATORY COMMISSION, PETITIONER 14-840 v. ELECTRIC POWER SUPPLY ASSOCIATION, et al. ENERNOC, INC., et al., PETITIONERS 14-841 v. ELECTRIC POWER SUPPLY ASSOCIATION, et al.on writs of certiorari to the united states court of appeals for the district of columbia circuit[January 25, 2016] Justice Scalia, with whom Justice Thomas joins, dissenting. I believe the Federal Power Act (FPA or Act), 16 U. S. C. §791a et seq., prohibits the Federal Energy Regulatory Commission (FERC) from regulating the demand response of retail purchasers of power. I respectfully dissent from the Court's holding to the contrary.IA I agree with the majority that FERC has the authority to regulate practices "affecting" wholesale rates. §§824d(a), 824e(a); Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 371 (1988). I also agree that this so-called "affecting" jurisdiction cannot be limitless. And I suppose I could even live with the Court's "direct effect" test as a reasonable limit. Ante, at 15. But as the majority recognizes, ante, at 17, that extratextual limit on the "affecting" jurisdiction merely supplements, not supplants, limits that are already contained in the statutory text and structure. I believe the Court misconstrues the primary statutory limit. (Like the majority, I think that deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), is unwarranted because the statute is clear.) The Act grants FERC authority to regulate the "generation . . . [and] transmission of electric energy in interstate commerce and the sale of such energy at wholesale." §824(a). Yet the majority frames the issue thusly: "[T]o uphold the [r]ule, we also must determine that it does not regulate retail electricity sales." Ante, at 17. That formulation inverts the proper inquiry. The pertinent question under the Act is whether the rule regulates sales "at wholesale." If so, it falls within FERC's regulatory authority. If not, the rule is unauthorized whether or not it happens to regulate "retail electricity sales"; for, with exceptions not material here, the FPA prohibits FERC from regulating "any other sale of electric energy" that is not at wholesale. §824(b)(1) (emphasis added). (The majority wisely ignores FERC's specious argument that the demand-response rule does not regulate any sale, wholesale or retail. See Brief for Petitioner in No. 14-840, p. 39. Paying someone not to conclude a transaction that otherwise would without a doubt have been concluded is most assuredly a regulation of that transaction. Cf. Gonzales v. Raich, 545 U. S. 1, 39-40 (2005) (Scalia, J., concurring in judgment).) Properly framing the inquiry matters not because I think there exists "some undefined category of . . . electricity sales" that is "non-retail [and] non-wholesale," ante, at 18, n. 7,1 but because a proper framing of the inquiry is important to establish the default presumption regarding the scope of FERC's authority. While the majority would find every sale of electric energy to be within FERC's authority to regulate unless the transaction is demonstrably a retail sale, the statute actually excludes from FERC's jurisdiction all sales of electric energy except those that are demonstrably sales at wholesale. So what, exactly, is a "sale of electric energy at wholesale"? We need not guess, for the Act provides a definition: "a sale of electric energy to any person for resale." §824(d) (emphasis added). No matter how many times the majority incants and italicizes the word "wholesale," ante, at 19-20, nothing can change the fact that the vast majority of (and likely all) demand-response participants--"[a]ggregators of multiple users of electricity, as well as large-scale individual users like factories or big-box stores," ante, at 7 — do not resell electric energy; they consume it themselves. FERC's own definition of demand response is aimed at energy consumers, not resellers. 18 CFR §35.28(b)(4) (2015). It is therefore quite beside the point that the challenged "[r]ule addresses — and addresses only — transactions occurring on the wholesale market," ante, at 19. For FERC's regulatory authority over electric-energy sales depends not on which "market" the "transactions occu[r] on" (whatever that means), but rather on the identity of the putative purchaser. If the purchaser is one who resells electric energy to other customers, the transaction is one "at wholesale" and thus within FERC's authority. If not, then not. Or so, at least, says the statute. As we long ago said of the parallel provision in the Natural Gas Act, 15 U. S. C. §717, "[t]he line of the statute [i]s thus clear and complete. It cut[s] sharply and cleanly between sales for resale and direct sales for consumptive uses. No exceptions [a]re made in either category for particular uses, quantities, or otherwise." Panhandle Eastern Pipe Line Co. v. Public Serv. Comm'n of Ind., 332 U. S. 507, 517 (1947). The majority makes no textual response to this plain reading of the statute. The demand-response bidders here indisputably do not resell energy to other customers. It follows that the rule does not regulate electric-energy sales "at wholesale," and 16 U. S. C. §824(b)(1) therefore forbids FERC to regulate these demand-response transactions. See New York v. FERC, 535 U. S. 1, 17 (2002). That is so whether or not those transactions "directly affect" wholesale rates; as we recently said in another context, we will not adopt a construction that "needlessly produces a contradiction in the statutory text." Shapiro v. McManus, 577 U. S. ___, ___ (2015) (slip op., at 4). A faithful application of that principle would compel the conclusion that FERC may not "do under [§§824d(a) and 824e(a)] what [it] is forbidden to do under [§824(b)(1)]." Id., at ___ (slip op., at 5).B The analysis could stop there. But the majority is wrong even on its own terms, for the rule at issue here does in fact regulate "retail electricity sales," which are indisputably "matters . . . subject to regulation by the States" and therefore off-limits to FERC. §824(a); see FPC v. Conway Corp., 426 U. S. 271, 276 (1976); Panhandle Eastern Pipe Line Co., supra, at 517-518. The demand-response participants are retail customers — they purchase electric energy solely for their own consumption. And FERC's demand-response scheme is intentionally "designed to induce lower consumption of electric energy"--in other words, to induce a reduction in "retail electricity sales"--by offering "incentive payments" to those customers. 18 CFR §35.28(b)(4). The incentive payments effectively increase the retail price of electric energy for participating customers because they must now account for the opportunity cost of using, as opposed to abstaining from using, more energy. In other words, it literally costs them more to buy energy on the retail market. In the court below, FERC conceded that offering credits to retail customers to reduce their electricity consumption "would be an impermissible intrusion into the retail market" because it would in effect regulate retail rates. 753 F. 3d 216, 223 (CADC 2014). Demand-response incentive payments are identical in substance. The majority resists this elementary economic conclusion (notwithstanding its own exhortation to "think back to Econ 101," ante, at 5). Why? Because its self-proclaimed "common-sensical" view dictates otherwise. Ante, at 22. Maybe the easiest way to see the majority's error is to take its own example: an airline passenger who rejects a $300 voucher for taking a later flight. Consider the following formulation of that example, indistinguish-able in substance from the majority's formulation. (Indis-tinguishable because the hypothetical passenger has exactly the same options and outcomes available to him.) Suppose the airline said to the passenger: "We have proactively canceled your ticket and refunded $400 to your account; and because we have inconvenienced you, we have also deposited an extra $300. The money is yours to use as you like. But if you insist on repurchasing a ticket on the same flight, you must not only pay us $400, but return the $300 too." Now what is the effective price of the ticket? Sometimes an allegedly commonsensical intuition is just that — an intuition, often mistaken. Moving closer to home, recall that demand-response participants must choose either to purchase a unit of energy at the prevailing retail price (say $10) or to withhold from purchasing that unit and receive instead an incentive payment (of say $5). The two options thus present a choice between having a unit of energy, on the one hand, and having $15 more in the bank, on the other. To repeat: take the energy, be $15 poorer; forgo the energy, be $15 richer. Is that not the very definition of price? See Black's Law Dictionary 1380 (10th ed. 2014) ("[t]he amount of money or other consideration asked for or given in exchange for something else"). In fact, is that not the majority's definition of price? Ante, at 21 ("the amount of money a consumer will hand over in exchange for power"). In any event, the majority appears to recognize that the effective price is indeed $15 — just as the effective price of the airline ticket in the hypothetical is $700. Ante, at 22-23, n. 9. That recognition gives away the game. For FERC is prohibited not just from directly setting or modifying retail prices; it is prohibited from regulating retail sales, no matter the means. Panhandle Eastern Pipe Line Co., supra, at 517. Whether FERC sets the "real" retail price (to use the majority's idiosyncratic terminology, ante, at 23, n. 9) or the "effective" retail price is immaterial; either way, the rule — by design — induces demand-response participants to forgo retail electric-energy purchases they otherwise would have made. As noted, even FERC conceded that offering credits to retail customers would impermissibly regulate retail sales. The majority blithely overlooks this concession in favor of its own my-opic view of retail pricing — all the while evading the incon-venient fact that fiddling with the effective retail price of electric energy, be it through incentive payments or hypothetical credits, regulates retail sales of electric energy no less than does direct ratesetting.C The majority cites dicta in several of our opinions expressing the assumption that state jurisdiction and federal jurisdiction under FERC cover the field, so that there is no regulatory "gap"; one entity or the other "must have jurisdiction to regulate each and every practice that takes place in the electricity markets." Ante, at 27. The cases that express such a principle, with respect to the Federal Power Act and its predecessor the Natural Gas Act, base it (no surprise) on legislative history. See, e.g., FPC v. Louisiana Power & Light Co., 406 U. S. 621, 631 (1972); FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1, 19 (1961); Panhandle Eastern Pipe Line Co., 332 U. S., at 517-518, and n. 13. One would expect the congressional proponents of legislation to assert that it is "comprehensive" and leaves no stone unturned. But even if one is a fan of legislative history, surely one cannot rely upon such generalities in determining what a statute actually does. Whether it is "comprehensive" and leaves not even the most minor regulatory "gap" surely depends on what it says and not on what its proponents hoped to achieve. I cannot imagine a more irrational interpretive principle than the following, upon which the majority evidently relies:"[W]hen a dispute arises over whether a given transaction is within the scope of federal or state regulatory authority, we are not inclined to approach the problem negatively, thus raising the possibility that a 'no man's land' will be created. That is to say, in a borderline case where congressional authority is not explicit we must ask whether state authority can practicably regulate a given area and, if we find that it cannot, then we are impelled to decide that federal authority governs." Transcontinental Gas Pipe Line Corp., supra, at 19-20 (citation omitted).That extravagant and otherwise-unheard-of method of establishing regulatory jurisdiction was not necessary to the judgments that invoked it, and should disappear in the Court's memory hole. Suppose FERC decides that eliminating the middleman would benefit the public, and therefore promulgates a rule allowing electric-energy generators to sell directly to retail consumers across state lines and fixing generation, transmission, and retail rates for such sales. I think it obvious this hypothetical scheme would be forbidden to FERC. Yet just as surely the States could not enact it either, for only FERC has authority to regulate "the transmission of electric energy in interstate commerce." 16 U. S. C. §824(b)(1); see also New York, 535 U. S., at 19-20. Is this a regulatory "gap"? Has the generator-to-consumer sales scheme fallen into a regulatory "no man's land"? Must FERC therefore be allowed to implement this scheme on its own? Applying the majority's logic would yield nothing but "yesses." Yet the majority acknowledges that neither FERC nor the States have regulatory jurisdiction over this scheme. Ante, at 27, n. 10. Such sales transactions, involving a mix of retail and wholesale players — as the demand-response scheme does — can be regulated (if at all) only by joint action. I would not call that a "problem," ante, at 26; I would call it an inevitable consequence of the federal-state division created by the FPA. The majority is evidently distraught that affirming the decision below "would . . . extinguish the wholesale demand response program in its entirety." Ante, at 27. Alarmist hyperbole. Excluding FERC jurisdiction would at most eliminate this particular flavor of FERC-regulated demand response. Nothing prevents FERC from tweaking its demand-response scheme by requiring incentive payments to be offered to wholesale customers, rather than retail ones. Brief for Respondent Electric Power Supply Assn. (EPSA) et al. 47-48; Brief for Respondents Midwest Load-Serving Entities 10-11. And retail-level demand-response programs, run by the States, do and would continue to exist. See Brief for Respondent EPSA et al. 46-47; Brief for Respondents Midwest Load-Serving Entities 6-11. In fact Congress seemed to presuppose that States, not FERC, would run such programs: The relevant provisions of the Energy Policy Act of 2005, 119 Stat. 594 et seq., are intended "to encourage States to coordinate, on a regional basis, State energy policies to provide reliable and affordable demand response services." §1252(e)(1), id., at 965, codified at 16 U. S. C. §2642 note (emphasis added). That statute also imposes several duties on the Secretary of Energy to assist States in implementing demand-response programs. §§1252(e)(2), (e)(3), 119 Stat. 965-966. In context, §1252(f) of the 2005 Act is therefore best read as directing the Secretary to eliminate "unnecessary barriers" to States' adopting and implementing demand-response systems — and not, as the majority contends, as "praising wholesale demand response" systems to be deployed and regulated by FERC, ante, at 9 (emphasis added). Moreover, the rule itself allows States to forbid their retail customers to participate in the existing demand-response scheme. 18 CFR §35.28(g)(1)(i)(A); see Brief for Petitioner in No. 14-840, at 43. The majority accepts FERC's argument that this is merely a matter of grace, and claims that it puts the "finishing blow" to respondents' argument that 16 U. S. C. §824(b)(1) prohibits the scheme. Ante, at 25. Quite the contrary. Remember that the majority believes FERC's authority derives from 16 U. S. C. §§824d(a) and 824e(a), the grants of "affecting" jurisdiction. Yet those provisions impose a duty on FERC to ensure that "all rules and regulations affecting or pertaining to [wholesale] rates or charges shall be just and reasonable." §824d(a) (emphasis added); see §824e(a) (similar); Conway Corp., 426 U. S., at 277-279. If inducing retail customers to participate in wholesale demand-response transactions is necessary to render wholesale rates "just and reasonable," how can FERC, consistent with its statutory mandate, permit States to thwart such participation? See Brief for United States as Amicus Curiae 20-21, in Hughes v. Talen Energy Marketing, LLC, No. 14-614 etc., now pending before the Court (making an argument similar to ours); cf. New England Power Co. v. New Hampshire, 455 U. S. 331, 339-341 (1982). Although not legally relevant, the fact that FERC — ordinarily so jealous of its regulatory authority, see Brief for United States as Amicus Curiae in No. 14-614 etc.--is willing to let States opt out of its demand-response scheme serves to highlight just how far the rule intrudes into the retail electricity market.II Having found the rule to be within FERC's authority, the Court goes on to hold that FERC's choice of compensating demand-response bidders with the "locational marginal price" is not arbitrary and capricious. There are strong arguments that it is. Brief for Robert L. Borlick et al. as Amici Curiae 5-34. Since, however, I believe FERC's rule is ultra vires I have neither need nor desire to analyze whether, if it were not ultra vires, it would be reasonable.* * * For the foregoing reasons, I respectfully dissent.FOOTNOTESFootnote 1 Together with No. 14-841, EnerNOC, Inc., et al. v. Electric Power Supply Association et al., also on certiorari to the same court.FOOTNOTESFootnote 1 To be more precise, LMP generally includes, in addition to the price of the highest-accepted bid, certain costs of moving power through the grid. But those costs are not relevant here, and we therefore disregard them.Footnote 2 Differently designed demand response programs can operate in retail markets. Some States, for example, either encourage or require utilities to offer "critical-peak rebates" to customers for curtailing electricity use at times of high load. See Energy Primer 45.Footnote 3 The dissent misreads this subsection of the EPAct in suggesting that it encourages States' use of retail demand response, rather than the wholesale programs at issue here. See post, at 8-9 (opinion of Scalia, J.); n. 2, supra. The prior subsection, §1252(e), as the dissent notes, promotes demand response in the States — but then the EPAct switches gears. Subsection (f) expressly addresses the programs of "regional electricity entit[ies]"--that is, wholesale market operators. Indeed, the provision lists all the markets those operators run: not just the electricity market involved here, but also the "capacity and ancillary service markets." Those are established components of the wholesale system with no counterparts at the state level. See Energy Primer 59.Footnote 4 The explanation is a stylized version of the actual phenomenon. In reality, LSEs rarely drop out of the market entirely because of demand response; instead, they will merely order less electricity. But the effect is the same as in the text, because the total cost of accepted bids is spread among LSEs in proportion to the units of electricity they purchase; and as those units decline, each remaining one bears a greater share of the bill.Footnote 5 Because we think FERC's authority clear, we need not address the Government's alternative contention that FERC's interpretation of the statute is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Footnote 6 EPSA additionally cites §824(a) as constraining the Commission's authority, see Brief for Respondent EPSA et al. 25, 31, 43 (Brief for Respondents), but that provision adds nothing to the analysis. Section 824(a), the FPA's "declaration of policy," states that federal regulation of electricity is to "extend only to those matters which are not subject to regulation by the States." We have often explained that this declaration serves only to frame the Act's basic structure and purpose. See, e.g., New York, 535 U. S., at 22 (Section 824(a) "broadly expresse[s] [the Act's] purpose" (quoting FPC v. Southern Cal. Edison Co., 376 U. S. 205, 215 (1964)); id., at 215 (Section 824(a) is "merely a 'policy declaration . . . of great generality' " (quoting Connecticut Light & Power Co. v. FPC, 324 U. S. 515, 527 (1945))). That means, as applied to the issue here, that §824(a) merely points toward the division of regulatory authority that §824(b) carries out. The operative provision is what counts.Footnote 7 The dissent disputes this framing of the issue, but its criticism (made by neither EPSA nor its amici) is irrelevant to deciding this case. According to the dissent, the FPA prohibits FERC from regulating not only retail sales of electricity (as we agree) but also any other sales of electricity aside from wholesale sales. See post, at 2-4. But the dissent turns out not to argue that the Rule regulates some kind of non-retail, non-wholesale sale of electric energy (whatever that might be). Rather, the dissent claims that the Rule regulates retail sales, see post, at 4-6 — exactly the point that we address, and reject, in the following pages. And in any event, the dissent's framing of the issue is wrong if and to the extent it posits some undefined category of other electricity sales falling within neither FERC's nor the States' regulatory authority. Sales of electric energy come in two varieties: wholesale and retail. The very case the dissent relies on recognizes that fact by referring to "other sales, that is, to direct sales for consumptive use." Panhandle Eastern Pipe Line Co. v. Public Serv. Comm'n of Ind., 332 U. S. 507, 516 (1947). FERC regulates interstate wholesale sales of electricity; the States regulate retail sales of electricity. And FERC may also regulate, as it did here, practices and rules affecting wholesale prices — that is, matters beyond wholesale sales themselves — so long as, in doing so, it does not trespass on the States' authority to regulate retail sales of electric power. See supra, at 3.Footnote 8 The dissent offers, alternatively, a definition of "price," but that only further proves our point. "Price," says the dissent, is "[t]he amount of money or other consideration asked for or given in exchange for something else." Post, at 6 (quoting Black's Law Dictionary 1380). But the "effective" rates posited by EPSA and the dissent do not meet that test. If $10 is the actual rate for a unit of retail electricity, that is the only amount either "asked for" or "given" in exchange for power. A retail customer is asked to pay $10 by its LSE, and if it buys that electricity, it gives the LSE that same $10. By contrast, the $15 "effective" rate is neither asked for nor given by anyone.Footnote 9 The dissent replaces our simple, real-world example with a convoluted, fictitious one — but once again merely confirms our point. Suppose, the dissent says, that an airline cancels a passenger's $400 ticket; gives him a refund plus an extra $300; and then tells him that if he wants to repurchase the ticket, he must pay $700. Aha!, says the dissent — isn't the price now $700? See post, at 5-6. Well, yes it is, because that is now the actual amount the passenger will have to hand over to the airline to receive a ticket in exchange (or in the dissent's definition of price, the amount "asked for" and "given," see n. 8, supra). In other words, in search of an intuitive way to explain its "effective rate" theory, the dissent must rely on an "actual rate" hypothetical. But all that does is highlight the distance, captured in the law, between real prices (reflecting amounts paid) and effective ones (reflecting opportunity costs).Footnote 10 The dissent contests this point (complaining that our decades' worth of precedents affirming it partly rely on legislative history), but the example the dissent offers in response misses the mark. See post, at 7-8. The dissent hypothesizes a rule enabling generators to sell directly to consumers and fixing all generation, transmission, and retail rates. But of course neither FERC nor the States could issue such a rule: If FERC did so, it would interfere with the States' authority over retail sales and rates as well as (most) generation; if a State did so, it would interfere with FERC's power over transmission. Thus, to implement such a scheme, the States would need to do some things and FERC to do others. And if the one or the other declined to cooperate, then the full scheme could not proceed. But that just goes to show that the FPA divides regulatory power over electricity matters between FERC and the States. The example does nothing to demonstrate that some electricity transactions can proceed outside any regulator's authority. Footnote 11 EPSA now contends that wholesale demand response is unnecessary because state regulators can adopt programs to reduce demand at the retail level. See Brief for Respondents 46-47. For example, States can insist that utilities give rebates to customers for not using energy at certain times. See n. 2, supra. But according to both the Commission and market participants, state-level programs cannot offer nearly the same benefits as wholesale demand response because individual utilities lack the regional scope and real-time information needed to identify when demand response will lower prices and ensure reliability system-wide. See 73 Fed. Reg. 64103, ¶18; Energy Primer 45-46; Brief for NRG Energy, Inc., as Amicus Curiae 20-22. Similarly, FERC addressed and rejected the dissent's suggestion that wholesale market operators could pay LSEs to reduce their electricity purchases: Because LSEs lose revenues whenever demand goes down, any demand response programs targeting those actors would be highly inefficient. See FERC, Assessment of Demand Response and Advanced Metering 72 (2006); Tr. of Oral Arg. 56 (Solicitor General noting that LSEs engaged in demand response would be "cannibaliz[ing] their own profits").FOOTNOTESFootnote 1 Although the majority dismisses this possibility, in fact it appears to think that demand response is in that category: It rejects the conclusion that the demand-response rule regulates retail sales, ante, at 17-23, yet also implicitly rejects the conclusion that it regulates wholesale sales — otherwise why rely on FERC's "affecting" jurisdiction to rescue the rule's legitimacy?

Appellants, to protest racial voting discrimination and encourage Negro registration, picketed the Forrest County, Mississippi, voting registration office in the county courthouse each weekday from January 23 to May 18, 1964, walking in a "march route" set off by the sheriff with barricades to facilitate access to the courthouse. On April 8 the legislature enacted the Mississippi Anti-Picketing Law, which, as amended, prohibits "picketing ... in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any county ... courthouses ... ." On April 9 the sheriff read the new law to the pickets, ordered them to disperse, and removed the barricades. When the pickets the next morning resumed marching along the now unmarked route they were arrested for violating the Anti-Picketing statute. Other arrests were made that afternoon, on April 11, and on May 18. On April 13 appellants brought this action seeking a judgment declaring that the Anti-Picketing Law is an invalid regulation of expression because of overbreadth and vagueness and an injunction against its enforcement in the prosecutions against them or otherwise, contending that the prosecutions were solely to discourage their freedom of expression. Following initial dismissal of the complaint and this Court's remand () for reconsideration in the light of the intervening decision in Dombrowski v. Pfister, , an evidentiary hearing was held and the three-judge District Court again dismissed the complaint, holding that the statute was not void on its face and that appellants had failed to show sufficient irreparable injury to warrant injunctive relief. Held: 1. The Mississippi Anti-Picketing Law is a valid regulatory statute; it is clear and precise and is not overly broad since it does not prohibit picketing unless it obstructs or unreasonably interferes with ingress and egress to or from the courthouse. Pp. 615-617. 2. This Court's independent examination of the record does not disclose that the officials acted in bad faith to harass appellants' exercise of the right to free expression; that the statute was adopted to halt appellants' picketing; or that the State had no expectation of securing valid convictions. This is therefore not a case where a federal equity court "by withdrawing the determination of guilt from state courts could rightly afford [appellants] any protection which they could not secure by prompt trial and appeal pursued to this Court." Douglas v. City of Jeannette, . Dombrowski, supra, distinguished. Pp. 617-622. 262 F. Supp. 873, affirmed.Benjamin E. Smith and Arthur Kinoy argued the cause for appellants. With them on the brief were William M. Kunstler, Morton Stavis and Bruce C. Waltzer.Will S. Wells, Assistant Attorney General of Mississippi, argued the cause for appellees. With him on the brief were Joe T. Patterson, Attorney General, and William A. Allain, Assistant Attorney General.MR. JUSTICE BRENNAN delivered the opinion of the Court.Appellants brought this action for declaratory and injunctive relief in the District Court for the Southern District of Mississippi. They sought a judgment declaring that the Mississippi Anti-Picketing Law1 is an overly broad and vague regulation of expression, and therefore void on its face. They also sought a permanent injunction restraining appellees - the Governor and other Mississippi officials - from enforcing the statute in pending or future criminal prosecutions or otherwise, alleging that the then pending prosecutions against them for violating the statute2 were part of a plan of selective enforcement engaged in by appellees with no expectation of securing convictions, but solely to discourage appellants from picketing to protest racial discrimination in voter registration and to encourage Negro citizens to attempt to register to vote.A three-judge court initially considered the issues on the amended complaint and answers, and dismissed the complaint "in the exercise of its sound judicial discretion" and "in furtherance of the doctrine of abstention," having concluded "that such extraordinary relief is not due or suggested in this case... ." 244 F. Supp. 846, 849. We vacated the dismissal, , and remanded for reconsideration in light of our intervening decision in Dombrowski v. Pfister, .3 On remand the three-judge court4 conducted an evidentiary hearing and again dismissed, this time with prejudice. 262 F. Supp. 873. We noted probable jurisdiction. . We affirm. I. The Mississippi Anti-Picketing Law was enacted by the Mississippi Legislature and signed by the Governor on April 8, 1964, and became effective immediately. The Forrest County voting registration office is housed in the county courthouse in Hattiesburg. The courthouse is set back a distance from the street and is reached by several paved walks surrounding grass plots and a monument. On January 22, 1964, civil rights organizations fostering increased voter registration of Negro citizens staged a large demonstration on the courthouse site. Thereafter they maintained a picket line on the grounds every day except Sunday from January 23 until May 18, 1964. To facilitate access to the courthouse the sheriff at the outset blocked off with barricades a small "march route" area within the grounds to the right of the main entrance to the courthouse, where the pickets, usually few in number, were allowed to picket until April 9. On April 9, the day following the enactment of the Anti-Picketing Law, the sheriff accompanied by other county officials, read the new law to the pickets at the "march route" and directed them to disperse, which they did. The sheriff also removed the barricades marking the "march route." On the morning of April 10, the pickets, now increased to 35 or 40 persons, appeared at the courthouse and resumed picketing along the now unmarked "march route." The pickets were arrested and formally charged with violation of the Anti-Picketing statute. Others were arrested that afternoon. Seven more pickets were arrested and charged on the morning of April 11. The complaint in this action was filed April 13. Picketing nonetheless continued on the "march route" every day until May 18, but no further arrests were made until May 18, when nine pickets were arrested and charged. All picketing stopped thereafter. II. The District Court's response on the remand to reconsider the case in light of Dombrowski was first to render a declaratory judgment, cf. Zwickler v. Koota, ,5 that the statute was not void on its face, rejecting appellants' contention that it is so broad, vague, indefinite, and lacking in definitely ascertainable standards as to be unconstitutional on its face. We agree with the District Court.Appellants advance a two-pronged argument. First, they argue that the statute forbids picketing in terms "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application ... ." Connally v. General Construction Co., .6 But the statute prohibits only "picketing ... in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any ... county ... courthouses ... ." The terms "obstruct" and "unreasonably interfere" plainly require no "guess[ing] at [their] meaning." Appellants focus on the word "unreasonably."7 It is a widely used and well understood word and clearly so when juxtaposed with "obstruct" and "interfere." We conclude that the statute clearly and precisely delineates its reach in words of common understanding.8 It is "a precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be ... proscribed." Edwards v. South Carolina, .The second prong of appellants' argument is that the statute, even assuming that it is "lacking neither clarity nor precision, is void for `overbreadth,' that is, that it offends the constitutional principle that `a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.'" Zwickler v. Koota, supra, at 250.9 The argument centers on the fact that the proscription of the statute embraces picketing employed as a vehicle for constitutionally protected protest. But "picketing and parading [are] subject to regulation even though intertwined with expression and association," Cox v. Louisiana, ,10 and this statute does not prohibit picketing so intertwined unless engaged in in a manner which obstructs or unreasonably interferes with ingress or egress to or from the courthouse. Prohibition of conduct which has this effect does not abridge constitutional liberty "since such activity bears no necessary relationship to the freedom to ... distribute information or opinion." Schneider v. State, . The statute is therefore "a valid law dealing with conduct subject to regulation so as to vindicate important interests of society and ... the fact that free speech is intermingled with such conduct does not bring with it constitutional protection." Cox v. Louisiana, supra, at 564. III. The District Court's further response on remand to reconsider the case in light of Dombrowski was to deny injunctive relief, after an evidentiary hearing, on findings that appellants failed to show sufficient irreparable injury to justify such relief. Appellants argue in this Court that the record discloses sufficient irreparable injury to entitle them to the injunction sought, even if the statute is constitutional on its face.Dombrowski recognized, 380 U.S., at 483-485, the continuing validity of the maxim that a federal district court should be slow to act "where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court," Douglas v. City of Jeannette, ; see Zwickler v. Koota, supra, at 253. Federal interference with a State's good-faith administration of its criminal laws "is peculiarly inconsistent with our federal framework" and a showing of "special circumstances" beyond the injury incidental to every proceeding brought lawfully and in good faith is requisite to a finding of irreparable injury sufficient to justify the extraordinary remedy of an injunction. 380 U.S., at 484. We found such "special circumstances" in Dombrowski. The prosecutions there begun and threatened were not, as here, for violation of a statute narrowly regulating conduct which is intertwined with expression, but for alleged violations of various sections of excessively broad Louisiana statutes regulating expression itself - the Louisiana Subversive Activities and Communist Control Law and the Communist Propaganda Control Law. These statutes were challenged as overly broad and vague regulations of expression. Despite state court actions quashing arrest warrants and suppressing evidence purportedly seized in enforcing them, Louisiana officials continued to threaten prosecutions of Dombrowski and his co-appellants under them. In that context, we held that a case of "the threat of irreparable injury required by traditional doctrines of equity" was made out. 380 U.S., at 490. We held further that the sections of the Subversive Activities and Communist Control Law (for alleged violations of which indictments had been obtained while the case was pending in the federal court) were patently unconstitutional on their face, and remanded with direction to frame an appropriate injunction restraining prosecution of the indictments.In short, we viewed Dombrowski to be a case presenting a situation of the "impropriety of [state officials] invoking the statute in bad faith to impose continuing harassment in order to discourage appellants' activities ... ." 380 U.S., at 490. In contrast, the District Court expressly found in this case "that there was no harassment, intimidation, or oppression of these complainants in their efforts to exercise their constitutional rights, but they were arrested and they are being prosecuted in good faith for their deliberate violation of that part of the statute which denounces interference with the orderly use of courthouse facilities by all citizens alike." 262 F. Supp., at 876, see also 244 F. Supp., at 848-849. We cannot say from our independent examination of the record that the District Court erred in denying injunctive relief.Any chilling effect on the picketing as a form of protest and expression that flows from good-faith enforcement of this valid statute would not, of course, constitute that enforcement an impermissible invasion of protected freedoms. Cox v. Louisiana, supra, at 564. Appellants' case that there are "special circumstances" establishing irreparable injury sufficient to justify federal intervention must therefore come down to the proposition that the statute was enforced against them, not because the Mississippi officials in good faith regarded the picketing as violating the statute, but in bad faith as harassing appellants' exercise of protected expression with no intention of pressing the charges or with no expectation of obtaining convictions, knowing that appellants' conduct did not violate the statute. We agree with the District Court that the record does not establish the bad faith charged. This is therefore not a case in which "... a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford [appellants] any protection which they could not secure by prompt trial and appeal pursued to this Court." Douglas v. City of Jeannette, supra, at 164. We have not hesitated on direct review to strike down applications of constitutional statutes which we have found to be unconstitutionally applied to suppress protected freedoms. See Cox v. Louisiana, supra; Wright v. Georgia, ; Edwards v. South Carolina, supra.Appellants argue that the adoption of the statute in the context of the picketing at the courthouse, and its immediate enforcement by the arrests on April 10 and 11, provide compelling evidence that the statute was conceived and enforced solely to bring a halt to the picketing. Appellants buttress their argument by characterizing as "indefensible entrapment" the enforcement of the statute on April 10 against picketing conduct which county officials had permitted for almost three months along the "march route" marked out by the officials themselves. This argument necessarily implies the suggestion that had the statute been law when the picketing started in January it would not have been enforced. There is no support whatever in the record for that proposition. The more reasonable inference is that the authorities believed that until enactment of the statute on April 8 they had no choice but to allow the picketing. In any event, upon the adoption of the law, it became the duty of the authorities in good faith to enforce it, and to prosecute for picketing that violated that law. Similarly, insofar as appellants argue that selective enforcement was shown by the failure to arrest those who were picketing from April 11 to May 18, the short answer is that it is at least as reasonable to infer from the record that the authorities did not regard their conduct in that period as violating the statute. Indeed, the fact that no arrests were made over that five-week period is itself some support for the District Court's rejection of appellants' primary contention that appellees used the statute in bad faith to discourage the pickets from picketing to foster increased voter registration of Negro citizens.Nor are we persuaded by the argument that, because the evidence adduced at the hearing of the pickets' conduct throughout the period would not be sufficient, in the view of appellants, to sustain convictions on a criminal trial, it was demonstrated that the State had no expectation of securing valid convictions. Dombrowski v. Pfister, supra, at 490. This argument mistakenly supposes that "special circumstances" justifying injunctive relief appear if it is not shown that the statute was in fact violated. But the question for the District Court was not the guilt or innocence of the persons charged; the question was whether the statute was enforced against them with no expectation of convictions but only to discourage exercise of protected rights. The mere possibility of erroneous application of the statute does not amount "to the irreparable injury necessary to justify a disruption of orderly state proceedings." Dombrowski v. Pfister, supra, at 485. The issue of guilt or innocence is for the state court at the criminal trial; the State was not required to prove appellants guilty in the federal proceeding to escape the finding that the State had no expectation of securing valid convictions.11 Appellants say that the picketing was non-obstructive, but the State claims quite the contrary, and the record is not totally devoid of support for the State's claim.Appellants argue that selective enforcement was shown by the evidence that subsequent to the arrests of the pickets parades were held in Hattiesburg during which the streets of the downtown area, including the locale of the courthouse, were cordoned off during daytime business hours and the sidewalks were obstructed by crowds of spectators during the parades. But this statute is not aimed at obstructions resulting from parades on the city streets. All that it prohibits is the obstruction of or unreasonable interference with ingress and egress to and from public buildings, including court-houses, and with traffic on the streets or sidewalks adjacent to those buildings. There was no evidence of conduct of that nature at any other place which would have brought the statute into play, let alone evidence that the authorities allowed such conduct without enforcing the statute. Affirmed.

[Footnote *] Together with No. 75-109, Hunerwadel v. Baird et al., also on appeal from the same court. A 1974 Massachusetts statute governs the type of consent, including parental consent, required before an abortion may be performed on an unmarried woman under the age of 18. Appellees, an abortion counseling organization, its president and its medical director, and several unmarried women who were pregnant at the time, brought a class action against appellant Attorney General and District Attorneys, claiming that the statute violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. A temporary restraining order was entered prior to the effective date of the statute. Thereafter, a three-judge District Court held the statute unconstitutional as creating a "parental veto" over the performance of abortions on minor children in that it applied even to those minors capable of giving informed consent, and permanently enjoined its operation, denying by implication appellants' motion that the court abstain from deciding the issue pending authoritative construction of the statute by the Massachusetts Supreme Judicial Court. In 1975, after the District Court's decision Massachusetts enacted a statute dealing with consent by minors to medical procedures other than abortion and sterilization, and in this Court appellees raised an additional claim of impermissible distinction between the consent procedures applicable to minors in the area of abortion under the 1974 statute and the consent required by the 1975 statute in regard to other medical procedures. Held: The District Court should have abstained from deciding the constitutional issue and should have certified to the Massachusetts Supreme Judicial Court appropriate questions concerning the meaning of the 1974 statute and the procedure it imposes. Pp. 143-152. (a) Abstention is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary that "might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem." Harrison v. NAACP, . Pp. 146-147. (b) Here the 1974 statute is susceptible of appellants' interpretation that while it prefers parental consultation and consent it permits a minor capable of giving informed consent to obtain a court order allowing abortion without parental consultation and further permits even a minor incapable of giving informed consent to obtain an abortion order without parental consultation where it is shown that abortion would be in her best interests, and such an interpretation would avoid or substantially modify the federal constitutional challenge to the statute. Pp. 147-148. (c) In regard to the claim of impermissible discrimination due to the 1975 statute, it would be appropriate for the District Court also to certify a question concerning this statute, and the extent to which its procedures differ from the procedures required under the 1974 statute. Pp. 151-152. 393 F. Supp. 847, vacated and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court.S. Stephen Rosenfeld, Assistant Attorney General of Massachusetts, argued the cause for appellants in No. 75-73. With him on the brief were Francis X. Bellotti, Attorney General, pro se, and Michael Eby and Garrick F. Cole, Assistant Attorneys General. Brian A. Riley argued the cause pro hac vice for appellant in No. 75-109. With him on the brief were Thomas P. McMahon and Thomas P. Russell.Roy Lucas argued the cause and filed a brief for appellees in both cases.MR. JUSTICE BLACKMUN delivered the opinion of the Court.In this litigation, a three-judge District Court for the District of Massachusetts enjoined the operation of certain provisions of a 1974 Massachusetts statute that govern the type of consent required before an abortion may be performed on an unmarried woman under the age of 18. In so acting, the court denied by implication a motion by appellants that the court abstain from deciding the issue pending authoritative construction of the statute by the Supreme Judicial Court of Massachusetts. We hold that the court should have abstained, and we vacate the judgment and remand the cases for certification of relevant issues of state law to the Supreme Judicial Court, and for abstention pending the decision of that tribunal.IOn August 2, 1974, the General Court of Massachusetts (Legislature), over the Governor's veto, enacted legislation entitled "An Act to protect unborn children and maternal health within present constitutional limits." The Act, Mass. Acts and Resolves 1974, c. 706, 1, amended Mass. Gen. Laws Ann., c. 112 (Registration of Certain Professions and Occupations), by adding 12H through 12R.1 Section 12P provides:"(1) If the mother is less than eighteen years of age and has not married, the consent of both the mother and her parents is required. If one or both of the mother's parents refuse such consent, consent may be obtained by order of a judge of the superior court for good cause shown, after such hearing as he deems necessary. Such a hearing will not require the appointment of a guardian for the mother. "If one of the parents has died or has deserted his or her family, consent by the remaining parent is sufficient. If both parents have died or have deserted their family, consent of the mother's guardian or other person having duties similar to a guardian, or any person who had assumed the care and custody of the mother is sufficient. "(2) The commissioner of public health shall prescribe a written form for such consent. Such form shall be signed by the proper person or persons and given to the physician performing the abortion who shall maintain it in his permanent files. "Nothing in this section shall be construed as abolishing or limiting any common law rights of any other person or persons relative to consent to the performance of an abortion for purposes of any civil action or any injunctive relief under section twelve R." All nonemergency abortions are made subject to the provisions of 12P by 12N.2 Violations of 12N are punishable under 12Q by a fine of not less than $100 nor more than $2,000.3 Section 12R provides that the Attorney General or any person whose consent is required may petition the superior court for an order enjoining the performance of any abortion.4 IIOn October 30, 1974, one day prior to the effective date of the Act,5 plaintiffs, who are appellees here, filed this action in the United States District Court for the District of Massachusetts, asserting jurisdiction under 28 U.S.C. 1343 (3), 1331, and 2201, and 42 U.S.C. 1983, and claiming that 12P violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. They sought injunctive and declaratory relief, and requested the empaneling of a three-judge court pursuant to 28 U.S.C. 2281 and 2284.On October 31, the single District Judge issued an order temporarily restraining the enforcement of the parental-consent requirement of 12P, and accepting the request for a three-judge court.6 Record Doc. 2. The plaintiffs, and the classes they purported to represent, are:1. William Baird, a citizen of New York.2. Parents Aid Society, Inc., a Massachusetts not-for-profit corporation. Baird is president of the corporation and is director and chief counselor of the center it operates in Boston for the purpose of providing, inter alia, abortion and counseling services. Baird and Parents Aid claim to represent all abortion centers and their administrators in Massachusetts who, on a regular and recurring basis, deal with pregnant minors. App. 13, 43.3. Mary Moes I, II, III, and IV, four minors under the age of 18, pregnant at the time of the filing of the suit, and residing in Massachusetts. Each alleged that she wished to terminate her pregnancy and did not wish to inform either of her parents.7 Id., at 16-18, 19-22. The Moes claimed to represent all pregnant minors capable of, and willing to give, informed consent to an abortion, but who decline to seek the consent of both parents, as required by 12P. App. 13, 43.4. Gerald Zupnick, M. D., a physician licensed to practice in Massachusetts. He is the medical director of the center operated by Parents Aid. He claims to represent all physicians in Massachusetts who, without parental consent, see minor patients seeking abortions. Ibid.The defendants in the action, who are the appellants in No. 75-73 (and who are hereinafter referred to as the appellants), are the Attorney General of Massachusetts, and the District Attorneys of all the counties in the Commonwealth.Appellant in No. 75-109 (hereinafter referred to as the intervenor-appellant) is Jane Hunerwadel, a resident and citizen of Massachusetts, and parent of an unmarried minor female of childbearing age. Hunerwadel was permitted by the District Court to intervene as a defendant on behalf of herself and all others similarly situated.8 App. 24.On November 13, appellants filed a "Motion to dismiss and/or for summary judgment," arguing, inter alia, that the District Court "should abstain from deciding any issue in this case." Id., at 23. In their memorandum to the court in support of that motion, appellants, in addition to other arguments, urged that 12P, particularly in view of its judicial-review provision, "was susceptible of a construction by state courts that would avoid or modify any alleged federal constitutional question." Record Doc. 5, p. 12. They cited Railroad Comm'n v. Pullman Co., , and Lake Carriers' Assn. v. MacMullan, , for the proposition that where an unconstrued state statute is susceptible of a constitutional construction, a federal court should abstain from deciding a constitutional challenge to the statute until a definitive state construction has been obtained.The District Court held hearings on the motion for a preliminary injunction; these were later merged into the trial on the merits. It received testimony from various experts and from parties to the case, including Mary Moe I. On April 28, 1975, the three-judge District Court, by a divided vote, handed down a decision holding 12P unconstitutional and void. 393 F. Supp. 847. An order was entered declaring 12P "and such other portions of the chapter 112. insofar as they make specific reference thereto" void, and enjoining the defendants from enforcing them. App. 45-46; Jurisdictional Statement in No. 75-73, pp. A-33, A-34.The majority held, inter alia, that appellees Mary Moe I, Doctor Zupnick, and Parents Aid had standing to challenge the operation of the statute, individually and as representatives of their proposed classes, 393 F. Supp., at 850-852,9 and that the intervenor-appellant had standing to represent the interests of parents of unmarried minor women of childbearing age, id., at 849-850. It found that "a substantial number of females under the age of 18 are capable of forming a valid consent," and viewed the overall question as "whether the state can be permitted to restrain the free exercise of that consent, to the extent that it has endeavored to do so." Id., at 855.In regard to the meaning of 12P, the majority made the following comments: "1. The statute does not purport to require simply that parents be notified and given an opportunity to communicate with the minor, her chosen physician, or others. We mention this obvious fact because of the persistence of defendants and intervenor in arguing that the legislature could properly enact such a statute. Whether it could is not before us, and there is no reason for our considering it. "2. The statute does not exclude those capable of forming an intelligent consent, but applies to all minors. The statute's provision calling for the minor's own consent recognizes that at least some minors can consent, but the minor's consent must be supplemented in every case, either by the consent of both parents, or by a court order. ... . . "4. The statute does not purport simply to provide a check on the validity of the minor's consent and the wisdom of her decision from the standpoint of her interests alone. Rather, it recognizes and provides rights in both parents, independent of, and hence potentially at variance with, her own personal interests." 393 F. Supp., at 855. "The dissent is seemingly of the opinion that a reviewing Superior Court Judge would consider only the interests of the minor. We find no room in the statute for so limited an interpretation." Id., at 855 n. 10. "The parents not only must be consulted, they are given a veto." Id., at 856. The majority observed that "`neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,' In re Gault, 1967, ," ibid., and, accordingly, held that the State cannot control a minor's abortion in the first trimester any more than it can control that of an adult. Re-emphasizing that "the statute is cast not in terms of protecting the minor ... but in recognizing independent rights of parents," the majority concluded that "[t]he question comes, accordingly, do parents possess, apart from right to counsel and guide, competing rights of their own?" Ibid.The majority found that in the instant situation, unlike others, the parents' interests often are adverse to those of the minor and, specifically rejecting the contrary result in Planned Parenthood of Central Missouri v. Danforth, 392 F. Supp. 1362 (ED Mo. 1975), see ante, p. 52, concluded:"But even if it should be found that parents may have rights of a Constitutional dimension vis-a-vis their child that are separate from the child's, we would find that in the present area the individual rights of the minor outweigh the rights of the parents, and must be protected." 393 F. Supp., at 857. The dissent argued that the parents of Mary Moe I, by not being informed of the action or joined as parties, "have been deprived of their legal rights without due process of law," ibid., that the majority erred in refusing to appoint a guardian ad litem for Moe I, and that it erred in finding that she had the capacity to give a valid and informed consent to an abortion. The dissent further argued that parents possess constitutionally cognizable rights in guiding the upbringing of their children, and that the statute is a proper exercise of state power in protection of those parental rights. Id., at 857-865.Most important, however, the dissent's view of the statute differed markedly from the interpretation adopted by the majority. The dissent stated: "I find, therefore, no conceivable constitutional objection to legislation providing in the case of a pregnant minor an additional condition designed to make certain that she receive parental or judicial guidance and counselling before having the abortion. The requirement of consent of both parents[[*]] ensures that both parents will provide counselling and guidance, each according to his or her best judgment. The statute expressly provides that the parents' refusal to consent is not final. The statute expressly gives the state courts the right to make a final determination. If the state courts find that the minor is mature enough to give an informed consent to the abortion and that she has been adequately informed about the nature of an abortion and its probable consequences to her, then we must assume that the courts will enter the necessary order permitting her to exercise her constitutional right to the abortion." Id., at 864. The indicated footnote reads: "The majority speculate concerning possible interpretations of the `for good cause shown' language. There is also some doubt whether the statute requires consent of one or both parents. The construction of the statute is a matter of state law. If the majority believe the only constitutional infirmities arise from their interpretation of the statute, the majority should certify questions of state law to the Supreme Judicial Court of Massachusetts pursuant to Rule 3:21 of that court in order to receive a definitive interpretation of the statute." Id., at 864 n. 15. Both appellants and intervenor-appellant appealed. We noted probable jurisdiction of each appeal and set the cases for oral argument with Planned Parenthood of Central Missouri v. Danforth, ante, p. 52, and its companion cross-appeal. .IIIAppellants and intervenor-appellant attack the District Court's majority decision on a number of grounds. They argue, inter alia, and each in their or her own way, that 12P properly preserves the primacy of the family unit by reinforcing the role of parents in fundamental decisions affecting family members; that the District Court erred in failing to join Moe I's parents; that it abused its discretion by failing to appoint a guardian ad litem; and that it erred in finding the statute facially invalid when it was capable of a construction that would withstand constitutional analysis.The interpretation placed on the statute by appellants in this Court is of some importance and merits attention, for they are the officials charged with enforcement of the statute.10 Appellants assert, first, that under the statute parental consent may not be refused on the basis of concerns exclusively of the parent. Indeed, "the `competing' parental right consists exclusively of the right to assess independently, for their minor child, what will serve that child's best interest... . [I]n operation, the parents' actual deliberation must range no further than would that of a pregnant adult making her own abortion decision." Brief for Appellants 23. And the superior court's review will ensure that parental objection based upon other considerations will not operate to bar the minor's abortion. Id., at 22-23. See also Brief for Intervenor-Appellant 26.Second, appellants argue that the last paragraph of 12P11 preserves the "mature minor" rule in Massachusetts, under which a child determined by a court to be capable of giving informed consent will be allowed to do so. Appellants argue that under this rule a pregnant minor could file a complaint in superior court seeking authorization for an abortion, and, "[i]mportantly, such a complaint could be filed regardless of whether the parents had been consulted or had withheld their consent." Brief for Appellants 37-38 (emphasis in original); Tr. of Oral Arg. 17. Appellants and the intervenor-appellant assert that the procedure employed would be structured so as to be speedy and nonburdensome, and would ensure anonymity. Brief for Appellants 38 n. 30; Brief for Intervenor-Appellant 26; Tr. of Oral Arg. 24-26.Finally, appellants argue that under 12P, a judge of the superior court may permit an abortion without parental consent for a minor incapable of rendering informed consent, provided that there is "good cause shown." Brief for Appellants 38. "Good cause" includes a showing that the abortion is in the minor's best interests. Id., at 39.The picture thus painted by the respective appellants is of a statute that prefers parental consultation and consent, but that permits a mature minor capable of giving informed consent to obtain, without undue burden, an order permitting the abortion without parental consultation, and, further, permits even a minor incapable of giving informed consent to obtain an order without parental consultation where there is a showing that the abortion would be in her best interests. The statute, as thus read, would be fundamentally different from a statute that creates a "parental veto."12 Appellees, however, on their part, take an entirely different view of the statute. They argue that the statute creates a right to a parental veto,13 that it creates an irrebuttable presumption that a minor is incapable of informed consent,14 and that the statute does not permit abortion without parental consent in the case of a mature minor or, in the case of a minor incapable of giving consent, where the parents are irrationally opposed to abortion.15 Appellees specifically object to abstention. Their objection is based upon their opinion that "the statute gives to parents of minors an unbridled veto," Brief for Appellees 49, and that once that veto is exercised, the minor has the burden of proving to the superior court judge that "good cause" exists. Ibid. They view the "good cause" hearing as forcing the judge to choose "between the privacy rights of the young woman and the rights of the parents as established by the statute." Ibid. Assuming that "good cause" has a broader meaning, appellees argue that the hearing itself makes the statute unconstitutional, because of the burden it imposes and the delay it entails. Ibid.IVIn deciding this case, we need go no further than the claim that the District Court should have abstained pending construction of the statute by the Massachusetts courts. As we have held on numerous occasions, abstention is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary "which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem." Harrison v. NAACP, . See also Colorado River Cons. Dist. v. United States, ; Carey v. Sugar, ; Kusper v. Pontikes, ; Lake Carriers' Assn. v. MacMullan, 406 U.S., at 510-511; Zwickler v. Koota, ; Railroad Comm'n v. Pullman Co., .We do not accept appellees' assertion that the Supreme Judicial Court of Massachusetts inevitably will interpret the statute so as to create a "parental veto," require the superior court to act other than in the best interests of the minor, or impose undue burdens upon a minor capable of giving an informed consent.In Planned Parenthood of Central Missouri v. Danforth, we today struck down a statute that created a parental veto. Ante, at 72-75. At the same time, however, we held that a requirement of written consent on the part of a pregnant adult is not unconstitutional unless it unduly burdens the right to seek an abortion. In this case, we are concerned with a statute directed toward minors, as to whom there are unquestionably greater risks of inability to give an informed consent. Without holding that a requirement of a court hearing would not unduly burden the rights of a mature adult, cf. Doe v. Rampton, 366 F. Supp. 189 (Utah 1973), we think it clear that in the instant litigation adoption of appellants' interpretation would "at least materially change the nature of the problem" that appellants claim is presented. Harrison v. NAACP, 360 U.S., at 177.Whether the Supreme Judicial Court will so interpret the statute, or whether it will interpret the statute to require consideration of factors not mentioned above, impose burdens more serious than those suggested, or create some unanticipated interference with the doctor-patient relationship, we cannot now determine.16 Nor need we determine what factors are impermissible or at what point review of consent and good cause in the case of a minor becomes unduly burdensome. It is sufficient that the statute is susceptible of the interpretation offered by appellants, and we so find, and that such an interpretation would avoid or substantially modify the federal constitutional challenge to the statute, as it clearly would. Indeed, in the absence of an authoritative construction, it is impossible to define precisely the constitutional question presented.Appellees also raise, however, a claim of impermissible distinction between the consent procedures applicable to minors in the area of abortion, and the consent required in regard to other medical procedures. This issue has come to the fore through the advent of a Massachusetts statute, enacted subsequent to the decision of the District Court, dealing with consent by minors to medical procedures other than abortion and sterilization.17 As we hold today in Planned Parenthood, however, not all distinction between abortion and other procedures is forbidden. Ante, at 80-81. The constitutionality of such distinction will depend upon its degree and the justification for it. The constitutional issue cannot now be defined, however, for the degree of distinction between the consent procedure for abortions and the consent procedures for other medical procedures cannot be established until the nature of the consent required for abortions is established. In these circumstances, the federal court should stay its hand to the same extent as in a challenge directly to the burdens created by the statute.Finally, we note that the Supreme Judicial Court of Massachusetts has adopted a Rule of Court under which an issue of interpretation of Massachusetts law may be certified directly to that court for prompt resolution. Mass. Rules of Court, Sup. Jud. Ct. Rule 3:21 (1976). This Court often has remarked that the equitable practice of abstention is limited by considerations of "`the delay and expense to which application of the abstention doctrine inevitably gives rise.'" Lake Carriers' Assn. v. MacMullan, 406 U.S., at 509, quoting England v. Medical Examiners, . See Kusper v. Pontikes, 414 U.S., at 54. As we have also noted, however, the availability of an adequate certification procedure18 "does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism." Lehman Brothers v. Schein, . This Court has utilized certification procedures in the past, as have courts of appeals. Ibid. and cases cited therein at 390 nn. 5 and 6.The importance of speed in resolution of the instant litigation is manifest. Each day the statute is in effect, irretrievable events, with substantial personal consequences, occur. Although we do not mean to intimate that abstention would be improper in this case were certification not possible, the availability of certification greatly simplifies the analysis. Further, in light of our disapproval of a "parental veto" today in Planned Parenthood, we must assume that the lower Massachusetts courts, if called upon to enforce the statute pending interpretation by the Supreme Judicial Court, will not impose this most serious barrier. Insofar as the issue thus ceases to become one of total denial of access and becomes one rather of relative burden, the cost of abstention is reduced and the desirability of that equitable remedy accordingly increased.VWe therefore hold that the District Court should have certified to the Supreme Judicial Court of Massachusetts appropriate questions concerning the meaning of 12P and the procedure it imposes. In regard to the claim of impermissible discrimination due to the 1975 statute, a claim not raised in the District Court but subject to inquiry through an amended complaint, or perhaps by other means, we believe that it would not be inappropriate for the District Court, when any procedural requirement has been complied with, also to certify a question concerning the meaning of the new statute, and the extent to which its procedures differ from the procedures that must be followed under 12P.The judgment of the District Court is vacated, and the cases are remanded to that court for proceedings consistent with this opinion. It is so ordered.

This Court granted certiorari to consider petitioner's claim that his organization had been denied federal constitutional rights and that the New York State courts had ruled adversely on this claim in sustaining dismissal of his suit. Upon reargument, it appeared that petitioner's pleadings had failed to lay a sufficient foundation for a decision on a claim of denial of federal constitutional rights and that dismissal of his suit by the New York courts might have rested upon this adequate nonfederal ground. Held: The writ of certiorari is dismissed as improvidently granted. Pp. 459-464. (a) It will not be assumed on this record that, in denying, without opinion, petitioner's application for leave to appeal, the New York Court of Appeals desired to thwart a review of petitioner's claim of denial of federal constitutional rights. Pp. 462-463. (b) If the insufficiency of petitioner's pleading to assert a federal right was the reason for the Court of Appeals' denial of leave to appeal, that determination would not conclude this Court. P. 463. (c) The record in this case is inadequate as a basis for a decision by this Court on the constitutional issues sought to be presented. Pp. 462, 464. (d) In the circumstances of this case, dismissal of the writ of certiorari is based on lack of jurisdiction, since the Court of Appeals' denial of leave to appeal might have rested on an adequate nonfederal ground. P. 464. Writ of certiorari dismissed.Emanuel Redfield argued the cause and filed the briefs for petitioner.J. Raymond Hannon argued the cause for respondents. With him on the brief was John Preston Phillips. Daniel T. Scannell argued the cause for the City of New York, as amicus curiae, urging affirmance. With him on the briefs were Peter Campbell Brown, Seymour B. Quel and Helen R. Cassidy.MR. JUSTICE HARLAN delivered the opinion of the Court.Upon reargument the Court has come to the conclusion that the writ of certiorari1 should be dismissed as improvidently granted.The New York Court of Appeals denied petitioner's motion for leave to appeal without stating any ground for its decision. 306 N. Y. 981. In these circumstances we must ascertain whether that court's decision "might" have rested on a nonfederal ground, for if it did we must decline to take jurisdiction. Stembridge v. Georgia, ; see also Lynch v. New York ex rel. Pierson, . We approach the matter first by considering what the petitioner has alleged as a basis for the constitutional issues which he asks us to review on the merits.The constitutional questions involved are whether respondents, members of the Yonkers Board of Education, in refusing the use of any of the Yonkers public school buildings to the Yonkers Committee for Peace for a forum on "peace and war," discriminated against the Committee, so as to deprive the Committee's members of their rights of freedom of speech, assembly, and equal protection of the laws, under the First and Fourteenth Amendments.Petitioner concedes that a State may withhold its school facilities altogether from use by nonscholastic groups. It is implicit in this concession that petitioner also recognizes that a State may make reasonable classifications in determining the extent to which its schools shall be available for nonscholastic uses, and petitioner has not attacked on this score the classifications made by the applicable New York statute and respondents' regulations.2 The question of whether the regulations are unconstitutionally vague was not raised below, and hence is not open here. Therefore the burden of petitioner's grievance would seem to be that respondents have applied the statute and regulations to similar groups differently than they have to the Committee for Peace. And yet petitioner has failed to allege in his pleading, which upon respondents' motion was dismissed prior to answer, that other organizations of a similar character to the Committee for Peace have been allowed use of the Yonkers schools. The allegations of that pleading simply are that unnamed and undescribed "organizations" have been allowed to use Yonkers school buildings in the past "for the purpose of public assembly and discussion."3 Whether such organizations are in any way comparable to the Committee for Peace nowhere appears in the pleading.4 And what the practice of the Board of Education has been in permitting the nonscholastic use of school buildings is not shown. What has been alleged is entirely too amorphous to permit adjudication of the constitutional issues asserted. And we think the most reasonable inference from this record is that the Court of Appeals' denial of petitioner's motion for leave to appeal went on that ground, rather than on the ground, suggested on behalf of respondents, that in proceeding by way of leave to appeal rather than by an appeal as of right the petitioner had followed the wrong appellate route.5 This conclusion is fortified by two additional circumstances. If the Court of Appeals had considered the constitutional issues adequately presented, it presumably would have saved petitioner's right to appeal as of right by putting its denial of leave to appeal on the ground that an appeal lay as of right. See N. Y. Civ. Prac. Act, 592 (5) (a).6 Otherwise we would have to assume that the Court of Appeals desired to thwart review of the constitutional questions, an assumption wholly unjustified by this record. Furthermore, the decision of New York's intermediate appellate court against the petitioner was because of the insufficiency of his pleading.7 If the insufficiency of petitioner's pleading was the reason for the Court of Appeals' denial of leave to appeal, the past decisions of this Court still leave room for argument as to whether we should dismiss for lack of jurisdiction because the state court's decision rested on an adequate nonfederal ground. It is established law that this Court is not finally concluded by the state court's determination as to the sufficiency of pleadings asserting a federal right. Some of the cases seem to suggest that the scope of our review is limited to determining whether the state court has by-passed the federal right under forms of local procedure, from which it would seem to follow that if we find that such is not the case we should dismiss for want of jurisdiction. Cf. American Railway Express Co. v. Levee, ; Davis v. Wechsler, . There can be no suggestion of by-passing in this instance. Other cases, however, indicate that we should accept jurisdiction and decide the sufficiency of the pleadings de novo for ourselves. See Boyd v. Nebraska ex rel. Thayer, ; Carter v. Texas, ; First National Bank v. Anderson, ; Brown v. Western Railway of Alabama, . In the present case, the route which we travel would make no difference in the result. Even if we were to look at the matter ourselves de novo, we could not on this vague and empty record decide the constitutional issues sought to be presented. This Court has often refused to decide constitutional questions on an inadequate record. See, e. g., International Brotherhood of Teamsters v. Denver Milk Producers, Inc., ; Rescue Army v. Municipal Court, ; Aircraft & Diesel Equipment Corp. v. Hirsch, ; Alabama State Federation of Labor v. McAdory, . In the circumstances of this case, we prefer to rest our decision on the ground that we lack jurisdiction. For if we could not ourselves decide on this record the constitutional issues tendered, we consider that by the same token the New York Court of Appeals was entirely justified in refusing to pass on them, and that we should therefore regard its denial of leave to appeal as resting on an adequate nonfederal ground. See Vandalia R. Co. v. Indiana ex rel. South Bend, ; Brinkmeier v. Missouri P. R. Co., .We conclude that the writ of certiorari must be dismissed as improvidently granted. Dismissed. THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK dissent, believing that the allegations of the petition are sufficient to state a case of discrimination under the Equal Protection Clause.

Petitioner, an aerospace engineer employed at the George C. Marshall Space Flight Center, a facility operated by the National Aeronautics and Space Administration (NASA), made a number of public statements to the news media highly critical of the Center. Subsequently, respondent Director of the Center demoted petitioner for making the public statements on the ground that they were false and misleading. The Federal Employee Appeals Authority upheld the demotion, but the Civil Service Commission's Appeals Review Board, upon reopening the proceeding at petitioner's request, found that the demotion had violated his First Amendment rights. NASA accepted the Board's recommendation that petitioner be restored to his former position retroactively and that he receive backpay. While his administrative appeal from the demotion was pending, petitioner filed an action against respondent in an Alabama state court, seeking to recover damages for violation of his First Amendment rights. Respondent removed the action to Federal District Court, which granted summary judgment for respondent. The Court of Appeals affirmed, holding that petitioner had no cause of action for damages under the First Amendment for retaliatory demotion in view of the available remedies under the Civil Service Commission regulations.Held: Because petitioner's claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, it would be inappropriate for this Court to supplement that regulatory scheme with a new nonstatutory damages remedy. Pp. 374-390. (a) The federal courts' statutory jurisdiction to decide federal questions confers adequate power to award damages to the victim of a constitutional violation even if Congress has not expressly authorized such a remedy. When Congress provides an alternative remedy, it may indicate its intent that this power should not be exercised. In the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation. Pp. 374-380. (b) The Government's comprehensive scheme protecting civil servants against arbitrary action by supervisors provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies. Given the history of the development of civil service remedies and the comprehensive nature of the remedies currently available, the question in this case is not what remedy the court should provide for a wrong that would otherwise go unredressed, but whether an elaborate remedial system that has been constructed step by step, with careful attention to policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. This Court declines to create such a remedy because Congress is in a better position to decide whether or not the public interest would be served by creating it. Pp. 380-390. 647 F.2d 573, affirmed.STEVENS, J., delivered the opinion for a unanimous Court. MARSHALL, J., filed a concurring opinion, in which BLACKMUN, J., joined, post, p. 390.William Harvey Elrod, Jr., argued the cause and filed briefs for petitioner.Deputy Solicitor General Geller argued the cause for respondent. With him on the brief were Solicitor General Lee, Assistant Attorney General McGrath, David A. Strauss, Barbara L. Herwig, and Wendy M. Keats.* [Footnote *] Briefs of amici curiae urging reversal were filed by Charles B. Wayne and Mark H. Lynch for the American Civil Liberties Union; by J. Albert Woll, Marsha Berzon, Laurence Gold, Edward J. Hickey, Erick Genser, James Rosa, and David Barr for the American Federation of Labor and Congress of Industrial Organizations et al.; by John F. Bufe, Lois G. Williams, and Michael David Fox for the National Treasury Employees Union; and by John C. Keeney, Jr., Joseph M. Hassett, and Peter Raven-Hansen for Representative Schroeder et al.JUSTICE STEVENS delivered the opinion of the Court.Petitioner asks us to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors. Because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy. Petitioner Bush is an aerospace engineer employed at the George C. Marshall Space Flight Center, a major facility operated by the National Aeronautics and Space Administration in Alabama. Respondent Lucas is the Director of the Center. In 1974 the facility was reorganized and petitioner was twice reassigned to new positions. He objected to both reassignments and sought formal review by the Civil Service Commission.1 In May and June 1975, while some of his administrative appeals were pending, he made a number of public statements, including two televised interviews, that were highly critical of the agency. The news media quoted him as saying that he did not have enough meaningful work to keep him busy, that his job was "a travesty and worthless," and that the taxpayers' money was being spent fraudulently and wastefully at the Center. His statements were reported on local television, in the local newspaper, and in a national press release that appeared in newspapers in at least three other States.2 In June 1975 respondent, in response to a reporter's inquiry, stated that he had conducted an investigation and that petitioner's statements regarding his job had "no basis in fact." App. 15. In August 1975 an adverse personnel action was initiated to remove petitioner from his position. Petitioner was charged with "publicly mak[ing] intemperate remarks which were misleading and often false, evidencing a malicious attitude towards Management and generating an environment of sensationalism demeaning to the Government, the National Aeronautics and Space Administration and the personnel of the George C. Marshall Space Flight Center, thereby impeding Government efficiency and economy and adversely affecting public confidence in the Government service." He was also informed that his conduct had undermined morale at the Center and caused disharmony and disaffection among his fellow employees.3 Petitioner had the opportunity to file a written response and to make an oral presentation to agency officials. Respondent then determined that petitioner's statements were false and misleading and that his conduct would justify removal, but that the lesser penalty of demotion was appropriate for a "first offense." Ibid. He approved a reduction in grade from GS-14 to GS-12, which decreased petitioner's annual salary by approximately $9,716.Petitioner exercised his right to appeal to the Federal Employee Appeals Authority. After a 3-day public hearing, the Authority upheld some of the charges and concluded that the demotion was justified. It specifically determined that a number of petitioner's public statements were misleading and that, for three reasons, they "exceeded the bounds of expression protected by the First Amendment." First, petitioner's statements did not stem from public interest, but from his desire to have his position abolished so that he could take early retirement and go to law school. Second, the statements conveyed the erroneous impression that the agency was deliberately wasting public funds, thus discrediting the agency and its employees. Third, there was no legitimate public interest to be served by abolishing petitioner's position.4 Two years after the Appeals Authority's decision, petitioner requested the Civil Service Commission's Appeals Review Board to reopen the proceeding. The Board reexamined petitioner's First Amendment claim and, after making a detailed review of the record and the applicable authorities, applied the balancing test articulated in Pickering v. Board of Education, . On the one hand, it acknowledged the evidence tending to show that petitioner's motive might have been personal gain, and the evidence that his statements caused some disruption of the agency's day-to-day routine. On the other hand, it noted that society as well as the individual had an interest in free speech, including "a right to disclosure of information about how tax dollars are spent and about the functioning of government apparatus, an interest in the promotion of the efficiency of the government, and in the maintenance of an atmosphere of freedom of expression by the scientists and engineers who are responsible for the planning and implementation of the nation's space program." Because petitioner's statements, though somewhat exaggerated, "were not wholly without truth, they properly stimulated public debate." Thus the nature and extent of proven disruption to the agency's operations did not "justify abrogation of the exercise of free speech."5 The Board recommended that petitioner be restored to his former position, retroactively to November 30, 1975, and that he receive backpay. That recommendation was accepted. Petitioner received approximately $30,000 in backpay.While his administrative appeal was pending, petitioner filed an action against respondent in state court in Alabama seeking to recover damages for defamation and violation of his constitutional rights. Respondent removed the lawsuit to the United States District Court for the Northern District of Alabama, which granted respondent's motion for summary judgment. It held, first, that the defamation claim could not be maintained because, under Barr v. Matteo, , respondent was absolutely immune from liability for damages for defamation; and second, that petitioner's demotion was not a constitutional deprivation for which a damages action could be maintained.6 The United States Court of Appeals for the Fifth Circuit affirmed. 598 F.2d 958 (1979). We vacated that court's judgment, , and directed that it reconsider the case in the light of our intervening decision in Carlson v. Green, . The Court of Appeals again affirmed the judgment against petitioner. It adhered to its previous conclusion that "plaintiff had no cause of action for damages under the First Amendment for retaliatory demotion in view of the available remedies under the Civil Service Commission regulations." 647 F.2d 573, 574 (1981). It explained that the relationship between the Federal Government and its civil service employees was a special factor counselling against the judicial recognition of a damages remedy under the Constitution in this context.We assume for purposes of decision that petitioner's First Amendment rights were violated by the adverse personnel action.7 We also assume that, as petitioner asserts, civil service remedies were not as effective as an individual damages remedy8 and did not fully compensate him for the harm he suffered.9 Two further propositions are undisputed. Congress has not expressly authorized the damages remedy that petitioner asks us to provide. On the other hand, Congress has not expressly precluded the creation of such a remedy by declaring that existing statutes provide the exclusive mode of redress.Thus, we assume, a federal right has been violated and Congress has provided a less than complete remedy for the wrong. If we were writing on a clean slate, we might answer the question whether to supplement the statutory scheme in either of two quite simple ways. We might adopt the common-law approach to the judicial recognition of new causes of action and hold that it is the province of the judiciary to fashion an adequate remedy for every wrong that can be proved in a case over which a court has jurisdiction.10 Or we might start from the premise that federal courts are courts of limited jurisdiction whose remedial powers do not extend beyond the granting of relief expressly authorized by Congress.11 Under the former approach, petitioner would obviously prevail; under the latter, it would be equally clear that he would lose.Our prior cases, although sometimes emphasizing one approach and sometimes the other, have unequivocally rejected both extremes. They establish our power to grant relief that is not expressly authorized by statute, but they also remind us that such power is to be exercised in the light of relevant policy determinations made by the Congress. We therefore first review some of the cases establishing our power to remedy violations of the Constitution and then consider the bearing of the existing statutory scheme on the precise issue presented by this case.IThe federal courts' power to grant relief not expressly authorized by Congress is firmly established. Under 28 U.S.C. 1331, the federal courts have jurisdiction to decide all cases "aris[ing] under the Constitution, laws, or treaties of the United States." This jurisdictional grant provides not only the authority to decide whether a cause of action is stated by a plaintiff's claim that he has been injured by a violation of the Constitution, Bell v. Hood, , but also the authority to choose among available judicial remedies in order to vindicate constitutional rights. This Court has fashioned a wide variety of nonstatutory remedies for violations of the Constitution by federal and state officials.12 The cases most relevant to the problem before us are those in which the Court has held that the Constitution itself supports a private cause of action for damages against a federal official. Bivens v. Six Unknown Fed. Narcotics Agents, ; Davis v. Passman, ; Carlson v. Green, supra. In Bivens the plaintiff alleged that federal agents, without a warrant or probable cause, had arrested him and searched his home in a manner causing him great humiliation, embarrassment, and mental suffering. He claimed damages on the theory that the alleged violation of the Fourth Amendment provided an independent basis for relief. The Court upheld the sufficiency of his complaint, rejecting the argument that a state tort action in trespass provided the only appropriate judicial remedy. The Court explained why the absence of a federal statutory basis for the cause of action was not an obstacle to the award of damages: "That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. See Nixon v. Condon, ; Nixon v. Herndon, ; Swafford v. Templeton, ; Wiley v. Sinkler, ; J. Landynski, Search and Seizure and the Supreme Court 28 et seq. (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 1, 8-33 (1968); cf. West v. Cabell, ; Lammon v. Feusier, . Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But `it is ... well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.' Bell v. Hood, 327 U.S., at 684 (footnote omitted). The present case involves no special factors counselling hesitation in the absence of affirmative action by Congress. We are not dealing with a question of `federal fiscal policy,' as in United States v. Standard Oil Co., ." 403 U.S., at 395-396. The Court further noted that there was "no explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress." Id., at 397.In his separate opinion concurring in the judgment, Justice Harlan also thought it clear that the power to authorize damages as a remedy for the vindication of a federal constitutional right had not been placed by the Constitution itself exclusively in Congress' hands. Id., at 401-402. Instead, he reasoned, the real question did not relate to "whether the federal courts have the power to afford one type of remedy as opposed to the other, but rather to the criteria which should govern the exercise of our power." Id., at 406. In resolving that question he suggested that "the range of policy considerations we may take into account is at least as broad as the range of those a legislature would consider with respect to an express[ed] statutory authorization of a traditional remedy." Id., at 407. After weighing the relevant policies he agreed with the Court's conclusion that the Government had not advanced any substantial policy consideration against recognizing a federal cause of action for violation of Fourth Amendment rights by federal officials.In Davis v. Passman, supra, the petitioner, former deputy administrative assistant to a Member of Congress, alleged that she had been discharged because of her sex, in violation of her constitutional right to the equal protection of the laws. We held that the Due Process Clause of the Fifth Amendment gave her a federal constitutional right to be free from official discrimination and that she had alleged a federal cause of action. In reaching the conclusion that an award of damages would be an appropriate remedy, we emphasized the fact that no other alternative form of judicial relief was available.13 The Court also was persuaded that the special concerns which would ordinarily militate against allowing recovery from a legislator were fully reflected in respondent's affirmative defense based on the Speech or Debate Clause of the Constitution. Id., at 246. We noted the absence of any explicit congressional declaration that persons in petitioner's position may not recover damages from those responsible for their injury. Id., at 246-247.Carlson v. Green, , involved a claim that a federal prisoner's Eighth Amendment rights had been violated. The prisoner's mother brought suit on behalf of her son's estate, alleging that federal prison officials were responsible for his death because they had violated their constitutional duty to provide him with proper medical care after he suffered a severe asthmatic attack. Unlike Bivens and Davis, the Green case was one in which Congress had provided a remedy, under the Federal Tort Claims Act, against the United States for the alleged wrong. 28 U.S.C. 2671 et seq. As is true in this case, that remedy was not as completely effective as a Bivens-type action based directly on the Constitution.The Court acknowledged that a Bivens action could be defeated in two situations, but found that neither was present. First, the Court could discern "`no special factors counselling hesitation in the absence of affirmative action by Congress.'" 446 U.S., at 18-19, citing Bivens, 403 U.S., at 396, and Davis, supra, at 245. Second, there was no congressional determination foreclosing the damages claim and making the Federal Tort Claims Act exclusive. 446 U.S., at 19, and n. 5. No statute expressly declared the FTCA remedy to be a substitute for a Bivens action; indeed, the legislative history of the 1974 amendments to the FTCA "made it crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action." 446 U.S., at 19-20.This much is established by our prior cases. The federal courts' statutory jurisdiction to decide federal questions confers adequate power to award damages to the victim of a constitutional violation. When Congress provides an alternative remedy, it may, of course, indicate its intent, by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself, that the courts' power should not be exercised. In the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.Congress has not resolved the question presented by this case by expressly denying petitioner the judicial remedy he seeks or by providing him with an equally effective substitute.14 There is, however, a good deal of history that is relevant to the question whether a federal employee's attempt to recover damages from his superior for violation of his First Amendment rights involves any "special factors counselling hesitation." When those words were first used in Bivens, supra, at 396, we illustrated our meaning by referring to United States v. Standard Oil Co., , 316 (1947), and United States v. Gilman, .In the Standard Oil case the Court had been asked to authorize a new damages remedy for the Government against a tortfeasor who had injured a soldier, imposing hospital expenses on the Government and depriving it of his services. Although, as Justice Jackson properly noted in dissent, the allowance of recovery would not have involved any usurpation of legislative power, 332 U.S., at 318, the Court nevertheless concluded that Congress as "the custodian of the national purse" should make the necessary determination of federal fiscal policy.15 The Court refused to create a damages remedy, which would be "the instrument for determining and establishing the federal fiscal and regulatory policies which the Government's executive arm thinks should prevail in a situation not covered by traditionally established liabilities." Id., at 314.Similarly, in Gilman, the Court applied the Standard Oil rationale to reject the Government's attempt to recover indemnity from one of its employees after having been held liable under the FTCA for the employee's negligence. As the Court noted: "The relations between the United States and its employees have presented a myriad of problems with which the Congress over the years has dealt... . Government employment gives rise to policy questions of great import, both to the employees and to the Executive and Legislative Branches." 347 U.S., at 509. The decision regarding indemnity involved questions of employee discipline and morale, fiscal policy, and the efficiency of the federal service. Hence, the Court wrote, the reasons for deferring to congressional policy determinations were even more compelling than in Standard Oil."Here a complex of relations between federal agencies and their staffs is involved. Moreover, the claim now asserted, though the product of a law Congress passed, is a matter on which Congress has not taken a position. It presents questions of policy on which Congress has not spoken. The selection of that policy which is most advantageous to the whole involves a host of considerations that must be weighed and appraised. That function is more appropriately for those who write the laws, rather than for those who interpret them." 347 U.S., at 511-513. The special factors counselling hesitation in the creation of a new remedy in Standard Oil and Gilman did not concern the merits of the particular remedy that was sought. Rather, they related to the question of who should decide whether such a remedy should be provided. We should therefore begin by considering whether there are reasons for allowing Congress to prescribe the scope of relief that is made available to federal employees whose First Amendment rights have been violated by their supervisors.IIUnlike Standard Oil and Gilman, this case concerns a claim that a constitutional right has been violated. Nevertheless, just as those cases involved "federal fiscal policy" and the relations between the Government and its employees, the ultimate question on the merits in this case may appropriately be characterized as one of "federal personnel policy." When a federal civil servant is the victim of a retaliatory demotion or discharge because he has exercised his First Amendment rights, what legal remedies are available to him?The answer to that question has changed dramatically over the years. Originally the answer was entirely a matter of Executive discretion. During the era of the patronage system that prevailed in the Federal Government prior to the enactment of the Pendleton Act in 1883, 22 Stat. 403, the federal employee had no legal protection against political retaliation. Indeed, the exercise of the First Amendment right to support a political candidate opposing the party in office would routinely have provided an accepted basis for discharge.16 During the past century, however, the job security of federal employees has steadily increased.In the Pendleton Act Congress created the Civil Service Commission and provided for the selection of federal civil servants on a merit basis by competitive examination. Although the statute did not address the question of removals in general,17 it provided that no employee in the public service could be required to contribute to any political fund or fired for refusing to do so, and it prohibited officers from attempting to influence or coerce the political actions of others.18 Congressional attention to the problem of politically motivated removals was again prompted by the issuance of Executive Orders by Presidents Roosevelt and Taft that forbade federal employees to communicate directly with Congress without the permission of their supervisors.19 These "gag orders," enforced by dismissal, were cited by several legislators as the reason for enacting the Lloyd-La Follette Act in 1912, 37 Stat. 539, 555, 6.20 That statute provided that "no person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing ... ."21 Moreover, it explicitly guaranteed that the right of civil servants "to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with."22 As the House Report explained, this legislation was intended "to protect employees against oppression and in the right of free speech and the right to consult their representatives."23 In enacting the Lloyd-La Follette Act, Congress weighed the competing policy considerations and concluded that efficient management of Government operations did not preclude the extension of free speech rights to Government employees.24 In the ensuing years, repeated consideration of the conflicting interests involved in providing job security, protecting the right to speak freely, and maintaining discipline and efficiency in the federal work force gave rise to additional legislation,25 various Executive Orders,26 and the promulgation of detailed regulations by the Civil Service Commission.27 Federal civil servants are now protected by an elaborate, comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures - administrative and judicial - by which improper action may be redressed. They apply to a multitude of personnel decisions that are made daily by federal agencies.28 Constitutional challenges to agency action, such as the First Amendment claims raised by petitioner, are fully cognizable within this system. As the record in this case demonstrates, the Government's comprehensive scheme is costly to administer, but it provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies.29 A federal employee in the competitive service may be removed or demoted "only for such cause as will promote the efficiency of the service."30 The regulations applicable at the time of petitioner's demotion in 1975,31 which are substantially similar to those now in effect, required that an employee be given 30 days' written notice of a proposed discharge, suspension, or demotion, accompanied by the agency's reasons and a copy of the charges. The employee then had the right to examine all disclosable materials that formed the basis of the proposed action, 5 CFR 752.202(a) (1975), the right to answer the charges with a statement and supporting affidavits, and the right to make an oral nonevidentiary presentation to an agency official. 752.202(b).32 The regulations required that the final agency decision be made by an official higher in rank than the official who proposed the adverse action, 752.202(f). The employee was entitled to notification in writing stating which of the initial reasons had been sustained. Ibid.; 5 U.S.C. 7501(b)(4).The next step was a right to appeal to the Civil Service Commission's Federal Employee Appeals Authority. 5 CFR 752.203, 772.101 (1975).33 The Appeals Authority was required to hold a trial-type hearing at which the employee could present witnesses, cross-examine the agency's witnesses, and secure the attendance of agency officials, 772.307(c),34 and then to render a written decision, 772.309(a). An adverse decision by the FEAA was judicially reviewable in either federal district court or the Court of Claims.35 In addition, the employee had the right to ask the Commission's Appeals Review Board to reopen an adverse decision by the FEAA. 772.310.If the employee prevailed in the administrative process or upon judicial review, he was entitled to reinstatement with retroactive seniority. 752.402. He also had a right to full backpay, including credit for periodic within-grade or step increases and general pay raises during the relevant period, allowances, differentials, and accumulated leave. 550.803. Congress intended that these remedies would put the employee "in the same position he would have been in had the unjustified or erroneous personnel action not taken place."36 Given the history of the development of civil service remedies and the comprehensive nature of the remedies currently available, it is clear that the question we confront today is quite different from the typical remedial issue confronted by a common-law court. The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. That question obviously cannot be answered simply by noting that existing remedies do not provide complete relief for the plaintiff. The policy judgment should be informed by a thorough understanding of the existing regulatory structure and the respective costs and benefits that would result from the addition of another remedy for violations of employees' First Amendment rights.The costs associated with the review of disciplinary decisions are already significant - not only in monetary terms, but also in the time and energy of managerial personnel who must defend their decisions. Respondent argues that supervisory personnel are already more hesitant than they should be in administering discipline, because the review that ensues inevitably makes the performance of their regular duties more difficult. Brief for Respondent 37-41. Whether or not this assessment is accurate, it is quite probable that if management personnel face the added risk of personal liability for decisions that they believe to be a correct response to improper criticism of the agency, they would be deterred from imposing discipline in future cases. In all events, Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service. Not only has Congress developed considerable familiarity with balancing governmental efficiency and the rights of employees, but it also may inform itself through factfinding procedures such as hearings that are not available to the courts.Nor is there any reason to discount Congress' ability to make an evenhanded assessment of the desirability of creating a new remedy for federal employees who have been demoted or discharged for expressing controversial views. Congress has a special interest in informing itself about the efficiency and morale of the Executive Branch. In the past it has demonstrated its awareness that lower-level Government employees are a valuable source of information, and that supervisors might improperly attempt to curtail their subordinates' freedom of expression.37 Thus, we do not decide whether or not it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights. As we did in Standard Oil, we decline "to create a new substantive legal liability without legislative aid and as at the common law," 332 U.S., at 302, because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it.The judgment of the Court of Appeals is Affirmed.

Section 13a (1) of the Interstate Commerce Act does not require a railroad seeking to discontinue its segment of a through passenger train that is operated in conjunction with another railroad to give notice of the proposed discontinuance in States served only by the connecting line. Nos. 386, 387, 396, and 410, 312 F. Supp. 442, reversed and remanded.[Footnote *] Together with No. 387, United States et al. v. Tennessee Public Service Commission et al., No. 396, Louisville & Nashville Railroad Co. v. Tennessee Public Service Commission et al., and No. 410, Chicago & Eastern Illinois Railroad et al. v. City of Chicago et al., also on appeal from the same court.PER CURIAM.These cases are a sequel to our decision in City of Chicago v. United States, , last Term. The Chicago & Eastern Illinois Railroad (C&EI) filed a notice under 13a (1) of the Interstate Commerce Act, 72 Stat. 571, 49 U.S.C. 13a (1), proposing to discontinue a pair of trains known as the "Georgian," operated by it between Chicago, Illinois, and Evansville, Indiana, and operated in conjunction with trains of the Louisville & Nashville Railroad (L&N) between Evansville, Indiana, and Atlanta, Georgia, crossing Kentucky and Tennessee en route. Part of this litigation grows out of the ICC's approval of the C&EI's discontinuance of the Chicago-Evansville segment of the "Georgian," evidenced by its termination of its investigation.The L&N also operates the "Hummingbird" between Cincinnati, Ohio, and New Orleans, Louisiana. The "Hummingbird" connects with the "Georgian" at Nashville, Tennessee, where coaches and sleepers are transferred between the two trains. Following the ICC's approval of C&EI's discontinuance, the L&N served notice of discontinuance of the "Hummingbird"1 which the ICC also approved.In City of Chicago v. United States, supra, we held that ICC decisions to discontinue such an investigation were reviewable and remanded the cases back to the District Court. That court then ordered consolidation and remanded back to the ICC for further hearings, holding that the notice served by the C&EI on the Governors of Illinois and Indiana and at every station along the Chicago-Evansville run was inadequate because the people of Kentucky, Tennessee, and Georgia, and the Governors of those States were not notified. The "Hummingbird" discontinuance was also remanded to the ICC because of its close relationship with the "Georgian." These appeals followed.We note jurisdiction and reverse. Section 13a (1) provides: "A carrier or carriers subject to this part, if their rights with respect to the discontinuance or change ... of the operation or service of any train ... are subject to any provision of the constitution or statutes of any State ... shall mail to the Governor of each State in which such train ... operated, and post in every station, depot or other facility served thereby, notice ... of any such proposed discontinuance or change." This section, as we read it, required C&EI to give notice in Illinois and Indiana, the only States in which the line now in controversy has operated. No provision is made in 13a (1) for notice to States served by connecting railroads which might be affected by a discontinuance.The dissent finds ambiguity in the phrase "such train" in 13a (1). It is argued that two interpretations of "such train" are possible: either the train of the C&EI between Chicago and Evansville or the "Georgian" between Chicago and Atlanta. By allowing discontinuance under 13a (1), however, the ICC must have interpreted "such train" to refer to a train operated by one railroad only; and it was only the Chicago-Evansville discontinuance that was before it at the time. The Commission ruled that: "Copies of the notices were duly served and posted in the manner required by section 13a (1) and our rules and regulations thereunder."2 331 I. C. C. 447, 448. We defer on this issue to the definition of "train" given by the administrative agency which has oversight of the problem. See, e. g., Udall v. Tallman, ; Bowles v. Seminole Rock Co., .It is true that the C&EI and the L&N functioned in close harmony. Discontinuance of service on one line might have a substantial effect on the other. But this relationship is not unique in railroading. Congress is not unaware of the mutual interdependence of railroads. It designed a federal regulatory system that displaced a state regulatory system when the state system could defeat a carrier's attempt to discontinue a train. Hence we think it distorts 13a (1) to treat it so as to require the giving of notice to States which had no regulatory power over the carrier.3 Accordingly, the decisions in Nos. 386 and 410 are reversed. Since Nos. 387 and 396 were remanded to the Commission solely because of their relation to Nos. 386 and 410, those decisions are also reversed. The causes are remanded to the District Court for review of any questions on the merits which may remain unresolved. It is so ordered.

Larry Collins, an employee in respondent city's sanitation department, died of asphyxia after entering a manhole to unstop a sewer line. Petitioner, his widow, brought this action under 42 U.S.C. 1983, alleging, inter alia, that Collins had a right under the Due Process Clause of the Fourteenth Amendment "to be free from unreasonable risks of harm ... and ... to be protected from the [city's] custom and policy of deliberate indifference toward [its employees'] safety;" that the city had violated that right by following a custom and policy of not training its employees about the dangers of working in sewers and not providing safety equipment and warnings; and that the city had systematically and intentionally failed to provide the equipment and training required by a Texas statute. The District Court dismissed the complaint on the ground that it did not allege a constitutional violation. Without reaching the question whether the city had violated Collins' constitutional rights, the Court of Appeals affirmed on the theory that there had been no "abuse of governmental power," which the court found to be a necessary element of a 1983 action.Held: Because a city's customary failure to train or warn its employees about known hazards in the workplace does not violate the Due Process Clause, 1983 does not provide a remedy for a municipal employee who is fatally injured in the course of his employment as a result of the city's failure. Pp. 119-130. (a) This Court's cases do not support the Court of Appeals' reading of 1983 as requiring an abuse of governmental power separate and apart from the proof of a constitutional violation. Contrary to that court's analysis, neither the fact that Collins was a government employee nor the characterization of the city's deliberate indifference to his safety as something other than an "abuse of governmental power" is a sufficient reason for refusing to entertain petitioner's federal claim under 1983. Proper analysis requires that two issues be separated when a 1983 claim is asserted against a municipality: (1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation. Pp. 119-120. (b) It is assumed for the purpose of decision that the complaint's use of the term "deliberate indifference" to characterize the city's failure to train its sanitation department employees is sufficient to hold the city responsible if the complaint has also alleged a constitutional violation. See Canton v. Harris, . Pp. 120-124. (c) The complaint has not alleged a constitutional violation. Neither the Due Process Clause's text - which, inter alia, guarantees due process in connection with any deprivation of liberty by a State - nor its history supports petitioner's unprecedented claim that the Clause imposes an independent substantive duty upon municipalities to provide certain minimal levels of safety and security in the workplace. Although the "process" that the Clause guarantees includes a continuing obligation to satisfy certain minimal custodial standards for those who have already been deprived of their liberty, petitioner cannot maintain that the city deprived Collins of his liberty when it made, and he voluntarily accepted, an employment offer. Also unpersuasive is petitioner's claim that the city's alleged failure to train its employees, or to warn them about known risks of harm, was an omission that can properly be characterized as arbitrary, or conscience-shocking, in a constitutional sense. Petitioner's claim is analogous to a fairly typical tort claim under state law, which is not supplanted by the Due Process Clause, see e.g., Daniels v. Williams, , particularly in the area of public employment, see, e.g., Bishop v. Wood, . In light of the presumption that the administration of Government programs is based on a rational decisionmaking process that takes account of competing forces, decisions concerning the allocation of resources to individual programs, such as sewer maintenance, and to particular aspects of those programs, such as employee training, involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the country's basic charter of Government. For the same reasons, petitioner's suggestion that the Texas Hazard Communication Act supports her substantive due process claim is rejected. Pp. 125-130. 916 F.2d 284 (CA5 1990), affirmed. STEVENS, J., delivered the opinion for a unanimous Court.Sanford Jay Rosen argued the cause for petitioner. With him on the briefs were Don Busby and Andrea G. Asaro. Lucas A. Powe, Jr., argued the cause for respondent. With him on the brief was Roy L. Barrett and Stuart Smith.* [Footnote *] Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Edward Tuddenham, J. Patrick Wiseman, Steven R. Shapiro, John A. Powell, and Helen Hershkoff; for the Association of Trial Lawyers of America by Jeffrey L. Needle; and for the National Education Association by Robert H. Chanin and Jeremiah A. Collins.Richard Ruda, Carter G. Phillips, and Mark D. Hopson filed a brief for the National League of Cities et al. as amici curiae urging affirmance.JUSTICE STEVENS delivered the opinion of the Court.The question presented is whether 1 of the Civil Rights Act of 1871, 42 U.S.C. 1983, provides a remedy for a municipal employee who is fatally injured in the course of his employment because the city customarily failed to train or warn its employees about known hazards in the workplace. Even though the city's conduct may be actionable under state law, we hold that 1983 does not apply, because such conduct does not violate the Due Process Clause.On October 21, 1988, Larry Michael Collins, an employee in the sanitation department of the city of Harker Heights, Texas, died of asphyxia after entering a manhole to unstop a sewer line. Petitioner, his widow, brought this action alleging that Collins "had a constitutional right to be free from unreasonable risks of harm to his body, mind and emotions and a constitutional right to be protected from the city of Harker Heights' custom and policy of deliberate indifference toward the safety of its employees." App. 7. Her complaint alleged that the city violated that right by following a custom and policy of not training its employees about the dangers of working in sewer lines and manholes, not providing safety equipment at job sites, and not providing safety warnings. The complaint also alleged that a prior incident had given the city notice of the risks of entering the sewer lines,1 and that the city had systematically and intentionally failed to provide the equipment and training required by a Texas statute. Ibid. The District Court dismissed the complaint on the ground that a constitutional violation had not been alleged. No. W-89-CA-168 (W.D.Tex., Oct. 30, 1988), App. 20. The Court of Appeals for the Fifth Circuit affirmed on a different theory. 916 F.2d 284 (CA5 1990). It did not reach the question whether the city had violated Collins' constitutional rights, because it denied recovery on the ground that there had been no "abuse of governmental power," which the Fifth Circuit had found to be a necessary element of a 1983 action.2 Id., at 287-288, and n. 3. The contrary decision in Ruge v. City of Bellevue, 892 F.2d 738 (CA8 1989), together with our concern about the Court of Appeals' interpretation of the statute, prompted our grant of certiorari, .IOur cases do not support the Court of Appeals' reading of 1983 as requiring proof of an abuse of governmental power separate and apart from the proof of a constitutional violation. Although the statute provides the citizen with an effective remedy against those abuses of state power that violate federal law, it does not provide a remedy for abuses that do not violate federal law, see, e.g., Martinez v. California, ; DeShaney v. Winnebago County Department of Social Services, . More importantly, the statute does not draw any distinction between abusive and nonabusive federal violations.The Court of Appeals' analysis rests largely on the fact that the city had, through allegedly tortious conduct, harmed one of its employees, rather than an ordinary citizen over whom it exercised governmental power. The employment relationship, however, is not of controlling significance. On the one hand, if the city had pursued a policy of equally deliberate indifference to the safety of pedestrians that resulted in a fatal injury to one who inadvertently stepped into an open manhole, the Court of Appeals' holding would not speak to this situation at all, although it would seem that a claim by such a pedestrian should be analyzed in a similar manner as the claim by this petitioner. On the other hand, a logical application of the holding might also bar potentially meritorious claims by employees if, for example, the city had given an employee a particularly dangerous assignment in retaliation for a political speech, cf. St. Louis v. Praprotnik, , or because of his or her gender, cf. Monell v. New York City Dept. of Social Services, . The First Amendment, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and other provisions of the Federal Constitution afford protection to employees who serve the government as well as to those who are served by them, and 1983 provides a cause of action for all citizens injured by an abridgement of those protections. Neither the fact that petitioner's decedent was a government employee nor the characterization of the city's deliberate indifference to his safety as something other than an "abuse of governmental power" is a sufficient reason for refusing to entertain petitioner's federal claim under 1983.Nevertheless, proper analysis requires us to separate two different issues when a 1983 claim is asserted against a municipality: (1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation. See Oklahoma City v. Tuttle, (opinion of REHNQUIST, J.); id., at 828-829 (opinion of Brennan, J., concurring in part and concurring in judgment). Because most of our opinions discussing municipal policy have involved the latter issue, it is appropriate to discuss it before considering the question whether petitioner's complaint has alleged a constitutional violation.IISection 1983 provides a remedy against "any person" who, under color of state law, deprives another of rights protected by the Constitution.3 In Monell, the Court held that Congress intended municipalities and other local government entities to be included among those persons to whom 1983 applies. 436 U.S., at 690. At the same time, the Court made it clear that municipalities may not be held liable "unless action pursuant to official municipal policy of some nature caused a constitutional tort." Id., at 691.4 The Court emphasized that"a municipality cannot be held liable solely because it employs a tortfeasor - or, in other words, a municipality cannot be held liable under 1983 on a respondeat superior theory." * * * *"[T]herefore, ... a local government may not be sued under 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under 1983." Id., at 691 (emphasis in original). In a series of later cases, the Court has considered whether an alleged injury caused by municipal employees acting under color of state law provided a proper basis for imposing liability on a city. In each of those cases, the Court assumed that a constitutional violation had been adequately alleged or proved, and focused its attention on the separate issue of municipal liability. Thus, for example, in Oklahoma City v. Tuttle, supra, it was assumed that the police officer had violated the decedent's constitutional rights, but we held that the wrongful conduct of a single officer without any policymaking authority did not establish municipal policy. And in St. Louis v. Praprotnik, , without reaching the question whether the adverse employment action taken against the plaintiff violated his First Amendment rights, the Court concluded that decisions by subordinate employees did not necessarily reflect official policy. On the other hand, in Pembaur v. Cincinnati, , the Court held that the County was responsible for unconstitutional actions taken pursuant to decisions made by the County Prosecutor and the County Sheriff because they were the "officials responsible for establishing final policy with respect to the subject matter in question," id., at 483-484.Our purpose in citing these cases is to emphasize the separate character of the inquiry into the question of municipal responsibility and the question whether a constitutional violation occurred. It was necessary to analyze whether execution of a municipal policy inflicted the injury in these cases because, unlike ordinary tort litigation, the doctrine of respondeat superior was inapplicable. The city is not vicariously liable under 1983 for the constitutional torts of its agents: it is only liable when it can be fairly said that the city itself is the wrongdoer. Because petitioner in this case relies so heavily on our reasoning in Canton v. Harris, - and in doing so, seems to assume that the case dealt with the constitutional issue - it is appropriate to comment specifically on that case.In Canton, we held that a municipality can, in some circumstances, be held liable under 1983 "for constitutional violations resulting from its failure to train municipal employees." Id., at 380. Among the claims advanced by the plaintiff in that case was a violation of the "right, under the Due Process Clause of the Fourteenth Amendment, to receive necessary medical attention while in police custody." Id., at 381.5 Because we assumed arguendo that the plaintiff's constitutional right to receive medical care had been denied, id., at 388-389, n. 8, our opinion addressed only the question whether the constitutional deprivation was attributable to a municipal policy or custom.We began our analysis by plainly indicating that we were not deciding the constitutional issue."In Monell v. New York City Dept. of Social Services, , we decided that a municipality can be found liable under 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under 1983. Id. at 694-695. `It is only when the "execution of the government's policy or custom ... inflicts the injury" that the municipality may be held liable under 1983.' Springfield v. Kibbe, (O'CONNOR, J., dissenting) (quoting Monell, supra, [436 U.S.] at 694). "Thus, our first inquiry in any case alleging municipal liability under 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." Id. at 385. We did not suggest that all harm-causing municipal policies are actionable under 1983 or that all such policies are unconstitutional. Moreover, we rejected the city's argument that only unconstitutional policies can create municipal liability under the statute. Id. at 387. Instead, we concluded that, if a city employee violates another's constitutional rights, the city may be liable if it had a policy or custom of failing to train its employees, and that failure to train caused the constitutional violation. In particular, we held that the inadequate training of police officers could be characterized as the cause of the constitutional tort if - and only if - the failure to train amounted to "deliberate indifference" to the rights of persons with whom the police come into contact. Id., at 388.6 Although the term "deliberate indifference" has been used in other contexts to define the threshold for finding a violation of the Eighth Amendment, see Estelle v. Gamble, , as we have explained, that term was used in the Canton case for the quite different purpose of identifying the threshold for holding a city responsible for the constitutional torts committed by its inadequately trained agents.7 In this case, petitioner has used that term to characterize the city's failure to train the employees in its sanitation department. We assume for the purpose of decision that the allegations in the complaint are sufficient to provide a substitute for the doctrine of respondeat superior as a basis for imposing liability on the city for the tortious conduct of its agents, but that assumption does not confront the question whether the complaint has alleged a constitutional violation. To that question we now turn. IIIPetitioner's constitutional claim rests entirely on the Due Process Clause of the Fourteenth Amendment.8 The most familiar office of that Clause is to provide a guarantee of fair procedure in connection with any deprivation of life, liberty, or property by a State. Petitioner, however, does not advance a procedural due process claim in this case. Instead, she relies on the substantive component of the Clause that protects individual liberty against "certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, .As a general matter, the Court has always been reluctant to expand the concept of substantive due process, because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. Regents of University of Michigan v. Ewing, . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. It is important, therefore, to focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake and what the city allegedly did to deprive her husband of that right.A fair reading of petitioner's complaint does not charge the city with a wilful violation of Collins' rights. Petitioner does not claim that the city or any of its agents deliberately harmed her husband. In fact, she does not even allege that his supervisor instructed him to go into the sewer when the supervisor knew or should have known that there was a significant risk that he would be injured. Instead, she makes the more general allegation that the city deprived him of life and liberty by failing to provide a reasonably safe work environment.9 Fairly analyzed, her claim advances two theories: that the Federal Constitution imposes a duty on the city to provide its employees with minimal levels of safety and security in the workplace, or that the city's "deliberate indifference" to Collins' safety was arbitrary government action that must "shock the conscience" of federal judges. Cf. Rochin v. California, .Neither the text nor the history of the Due Process Clause supports petitioner's claim that the governmental employer's duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause. "[T]he Due Process Clause of the Fourteenth Amendment was intended to prevent government "`from abusing [its] power, or employing it as an instrument of oppression.'" DeShaney v. Winnebago County Department of Social Services, 489 U.S., at 196 (quoting Davidson v. Cannon, ). As we recognized in DeShaney,"The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. 489 U.S., at 195.10 Petitioner's submission that the city violated a federal constitutional obligation to provide its employees with certain minimal levels of safety and security is unprecedented. It is quite different from the constitutional claim advanced by plaintiffs in several of our prior cases who argued that the State owes a duty to take care of those who have already been deprived of their liberty. We have held, for example, that, apart from the protection against cruel and unusual punishment provided by the Eighth Amendment, cf. Hutto v. Finney, , the Due Process Clause of its own force requires that conditions of confinement satisfy certain minimal standards for pretrial detainees, see Bell v. Wolfish, , n. 16, 545 (1979), for persons in mental institutions, Youngberg v. Romeo, , for convicted felons, Turner v. Safley, , and for persons under arrest, see Revere v. Massachusetts General Hospital, . The "process" that the Constitution guarantees in connection with any deprivation of liberty thus includes a continuing obligation to satisfy certain minimal custodial standards. See DeShaney, 489 U.S., at 200. Petitioner cannot maintain, however, that the city deprived Collins of his liberty when it made, and he voluntarily accepted, an offer of employment.We also are not persuaded that the city's alleged failure to train its employees, or to warn them about known risks of harm, was an omission that can properly be characterized as arbitrary, or conscience-shocking, in a constitutional sense. Petitioner's claim is analogous to a fairly typical state law tort claim: the city breached its duty of care to her husband by failing to provide a safe work environment. Because the Due Process Clause "does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society," Daniels v. Williams, 474 U.S., at 332, we have previously rejected claims that the Due Process Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law, see, e.g., id., at 332-333; Baker v. McCollan, ; Paul v. Davis, . The reasoning in those cases applies with special force to claims asserted against public employers, because state law, rather than the Federal Constitution, generally governs the substance of the employment relationship. See, e.g., Bishop v. Wood, ; Board of Regents of State Colleges v. Roth, .Our refusal to characterize the city's alleged omission in this case as arbitrary in a constitutional sense rests on the presumption that the administration of Government programs is based on a rational decisionmaking process that takes account of competing social, political, and economic forces. Cf. Walker v. Rowe, 791 F.2d 507, 510 (CA7 1986). Decisions concerning the allocation of resources to individual programs, such as sewer maintenance, and to particular aspects of those programs, such as the training and compensation of employees, involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country. The Due Process Clause "is not a guarantee against incorrect or ill-advised personnel decisions." Bishop v. Wood, 426 U.S., at 350. Nor does it guarantee municipal employees a workplace that is free of unreasonable risks of harm.Finally, we reject petitioner's suggestion that the Texas Hazard Communication Act11 supports her substantive due process claim. We assume that the Act imposed a duty on the city to warn its sanitation employees about the dangers of noxious gases in the sewers and to provide safety training and protective equipment to minimize those dangers.12 We also assume, as petitioner argues, that the Act created an entitlement that qualifies as a "liberty interest" protected by the Due Process Clause. But even with these assumptions, petitioner's claim must fail, for she has not alleged that the deprivation of this liberty interest was arbitrary in the constitutional sense. Cf. Harrah Independent School Dist. v. Martin, . The reasons why the city's alleged failure to train and warn did not constitute a constitutionally arbitrary deprivation of Collins' life, see supra, at 128-129, apply a fortiori to the less significant liberty interest created by the Texas statute.In sum, we conclude that the Due Process Clause does not impose an independent federal obligation upon municipalities to provide certain minimal levels of safety and security in the workplace and the city's alleged failure to train or to warn its sanitation department employees was not arbitrary in a constitutional sense. The judgment of the Court of Appeals is therefore affirmed. It is so ordered.

Petitioner was discharged from his position in the Regional Office of the Veterans' Administration in New Orleans and this action was sustained by the Civil Service Commission in Washington. He brought suit in a federal district court in Louisiana against the Manager of the Regional Office and the Civil Service Commission (eo nomine) to have these actions set aside. Held: The suit was properly dismissed. Pp. 513-516. 1. Defendants' challenges to the venue and jurisdiction of the district court were properly presented by motion and answer. Fed. Rules Civ. Proc., 12 (b). P. 514. 2. Congress has not constituted the Civil Service Commission a body corporate or authorized it to be sued eo nomine. Pp. 514-516. (a) The present suit against the Commission eo nomine is not authorized by the Hatch Act, 5 U.S.C. 118k (c). Pp. 514-515. (b) Nor was this suit authorized by the Administrative Procedure Act, 5 U.S.C. 1009, which provides for review of agency action only in a court of "competent jurisdiction." The courts of the District of Columbia are the only courts of "competent jurisdiction" to reach the members of the Civil Service Commission. Pp. 515-516. 3. The only defendant before the court was the Regional Director, and it is obvious that no relief could be granted against him in this suit. Pp. 515, 516. 190 F.2d 427, affirmed. A district court in Louisiana dismissed this suit for want of jurisdiction. The Court of Appeals affirmed. 190 F.2d 427. This Court granted certiorari. . Affirmed, p. 516.Rene R. Nicaud argued the cause for petitioner. With him on the brief was Conrad Meyer, III. Benjamin Forman argued the cause for respondents. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baldridge and Samuel D. Slade.MR. JUSTICE MINTON delivered the opinion of the Court.Petitioner, a veteran employed as authorization officer in the Regional Office of the Veterans' Administration in New Orleans, was removed from his position. He appealed under 14 of the Veterans' Preference Act of 1944 (5 U.S.C. (Supp. IV) 863) to the Tenth Regional Office of the United States Civil Service Commission in New Orleans. The Regional Board found that his discharge was not warranted and recommended that he be reinstated to his position. The Veterans' Administration appealed to the Board of Appeals and Review of the Civil Service Commission in Washington. The Commission reversed the Tenth Regional Board and so notified petitioner.Petitioner then instituted this suit in the District Court for the Eastern District of Louisiana, naming as defendants Guerre, the Regional Manager of the Veterans' Administration, who had first discharged him, and the United States Civil Service Commission. Guerre was served personally. Service on the Commission was sought through personal service on Weinstein, the United States District Attorney, and on Leach, the Regional Director of the Tenth United States Civil Service Region. Both Weinstein and Leach resided within the Eastern District of Louisiana. Service by registered mail was made in the District of Columbia upon the Attorney General of the United States and the United States Civil Service Commission.Petitioner prayed for a judgment of the District Court setting aside and annulling his discharge by Guerre and the action of the Civil Service Commission confirming Guerre's action, and declaring that "plaintiff is entitled to an order from the United States Civil Service Commission directing ... Guerre ... to restore plaintiff to his aforesaid position" with back pay. Respondents appeared and filed a motion to dismiss because of improper venue and lack of jurisdiction. After this motion was overruled, respondents filed an answer raising, among other things, the same issues. On motions of both parties for summary judgment, the court sustained that of respondents, holding that it lacked jurisdiction over the persons of the Commissioners, who were not residents of the Eastern District of Louisiana and who were indispensable parties. The Court of Appeals affirmed on the ground that there was no venue in the District Court, without prejudice to further proceedings by petitioner in the proper venue. 190 F.2d 427. We granted certiorari. .We do not reach the merits in this proceeding. We are met at the threshold with a challenge by motion and answer as to the venue and jurisdiction of the District Court of Louisiana to entertain this action. These defenses as to law and fact were properly presented in this manner. Fed. Rules Civ. Proc., 12 (b).If the Commission could be sued eo nomine, we would be confronted with the question of whether service as here made would be sufficient to bring the Commission into court; but Congress has not constituted the Commission a body corporate or authorized it to be sued eo nomine.It is suggested that such authorization is given by the Hatch Act.1 Not so. While 118k (c) of 5 U.S.C. does provide that a state officer or employee found to have violated 118k (b) may obtain review in the District Court of the district in which he resides, this is not authorization for a new proceeding against the Civil Service Commission. It is authorization only for a transfer of the case from the Commission to the District Court - a continuation of the same proceeding before another tribunal. Review is instituted by petition and notice to the Commission, which is directed by the Act to file a transcript of the record in the case in the District Court. The court reviews the case on the old record, with the right to hear further evidence. Even this limited review is not afforded federal employees found to have violated 118 (i). Thus, by no stretch of the imagination can the limited review granted state employees by the Hatch Act be deemed an authorization by Congress for the present suit against the Commission. When Congress authorizes one of its agencies to be sued eo nomine, it does so in explicit language, or impliedly because the agency is the offspring of such a suable entity. See Keifer & Keifer v. R. F. C., .Since the Civil Service Commission is not a corporate entity which Congress has authorized to be sued, a suit involving the action of the Commission generally must be brought against the individual Commissioners as members of the United States Civil Service Commission. No such suit was brought here, and no service was had upon the individuals comprising the Civil Service Commission. Therefore, neither the individuals comprising the Civil Service Commission nor the Commission as a suable entity was before the District Court.We do not have a question of venue as to defendants until we have defendants before the court. The only defendant before the court was Guerre. The venue as to him was all right, but it is obvious no relief can be granted against him.It is further suggested that judicial review is authorized by the Administrative Procedure Act, 5 U.S.C. 1001 et seq. Certainly there is no specific authorization in that Act for suit against the Commission as an entity. Still less is the Act to be deemed an implied waiver of all governmental immunity from suit. If the Commission's action is reviewable under 1009,2 it is reviewable only in a court of "competent jurisdiction." Assuming, without deciding, that Commission action is reviewable by court action under 1009, it must follow that review must be in that district where the Commissioners can be served. Since we have held that the Civil Service Commission is not an entity that may be sued anywhere it may be functioning but only the Commissioners may be sued where they can be served, 1009 does not aid petitioner in an action brought in Louisiana. The courts of the District of Columbia are the only courts of "competent jurisdiction" to reach the members of the Civil Service Commission.Since the members of the Civil Service Commission were never served, and could not be served, in the District Court for the Eastern District of Louisiana, and the Civil Service Commission is not a corporate entity, it follows that the only defendant before the court was Guerre, and, as we have pointed out, no relief could possibly be granted against him in these proceedings, the judgment is Affirmed.MR. JUSTICE BLACK dissents.

Petitioner, who had twice been warned to stop handbilling on an exterior sidewalk of a shopping center against American involvement in Vietnam and threatened with arrest by police if he failed to do so, and whose companion continued handbilling and was charged with violating the Georgia criminal trespass law, brought an action for injunctive and declaratory relief in the District Court, claiming that application to him of that law would violate his First and Fourteenth Amendment rights. The District Court dismissed the action, finding that "no meaningful contention can be made that the state has [acted] or will ... act in bad faith," and therefore "the rudiments of an active controversy between the parties ... [are] lacking." The Court of Appeals affirmed, being of the view that Younger v. Harris, , made it clear that irreparable injury must be measured by bad-faith harassment and such a test must be applied to a request for injunctive relief against threatened, as well as pending, state court criminal prosecution; and that it followed from the reasoning of Samuels v. Mackell, , that the same test of bad-faith harassment is a prerequisite for declaratory relief with respect to a threatened prosecution. Held: 1. This case presents an "actual controversy" under Art. III of the Constitution and the Federal Declaratory Judgment Act, the alleged threats of prosecution in the circumstances alleged not being "imaginary or speculative" and it being unnecessary for petitioner to expose himself to actual arrest or prosecution to make his constitutional challenge. Whether the controversy remains substantial and continuing in the light of the effect of the recent reduction of the Nation's involvement in Vietnam on petitioner's desire to engage in the handbilling at the shopping center must be resolved by the District Court on remand. Pp. 458-460. 2. Federal declaratory relief is not precluded when a prosecution based upon an assertedly unconstitutional state statute has been threatened, but is not pending, even if a showing of bad-faith enforcement or other special circumstances has not been made. Pp. 460-473. (a) When no state criminal proceeding is pending at the time the federal complaint is filed, considerations of equity, comity, and federalism on which Younger v. Harris, and Samuels v. Mackell, both supra, were based, have little vitality: federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state courts' ability to enforce constitutional principles. Pp. 460-462. (b) Even if the Court of Appeals correctly viewed injunctive relief as inappropriate (a question not reached here, petitioner having abandoned his request for that remedy), the court erred in treating the requests for injunctive and declaratory relief as a single issue and in holding that a failure to demonstrate irreparable injury precluded the granting of declaratory relief. Congress plainly intended that a declaratory judgment be available as a milder alternative than the injunction to test the constitutionality of state criminal statutes. Pp. 462-473. 3. In determining whether it is appropriate to grant declaratory relief when no state criminal proceeding is pending, it is immaterial whether the attack is made on the constitutionality of a state criminal statute on its face or as applied. Cameron v. Johnson, , distinguished. Pp. 473-475. 459 F.2d 919, reversed and remanded.BRENNAN, J., delivered the opinion for a unanimous Court. STEWART, J., filed a concurring opinion, in which BURGER, C. J., joined, post, p. 475. WHITE, J., filed a concurring opinion, post, p. 476. REHNQUIST, J., filed a concurring opinion, in which BURGER, C. J., joined, post, p. 478.Howard Moore, Jr., argued the cause for petitioner. With him on the brief were Elizabeth R. Rindskopf and William R. Gignilliat III.Lawrence M. Cohen argued the cause for respondents. With him on the brief for respondents Hudgens et al, was Dock H. Davis. MR. JUSTICE BRENNAN delivered the opinion of the Court.When a state criminal proceeding under a disputed state criminal statute is pending against a federal plaintiff at the time his federal complaint is filed, Younger v. Harris, , and Samuels v. Mackell, , held, respectively, that, unless bad-faith enforcement or other special circumstances are demonstrated, principles of equity, comity, and federalism preclude issuance of a federal injunction restraining enforcement of the criminal statute and, in all but unusual circumstances, a declaratory judgment upon the constitutionality of the statute. This case presents the important question reserved in Samuels v. Mackell, id., at 73-74, whether declaratory relief is precluded when a state prosecution has been threatened, but is not pending, and a showing of bad-faith enforcement or other special circumstances has not been made.Petitioner, and others, filed a complaint in the District Court for the Northern District of Georgia, invoking the Civil Rights Act of 1871, 42 U.S.C. 1983, and its jurisdictional implementation, 28 U.S.C. 1343. The complaint requested a declaratory judgment pursuant to 28 U.S.C. 2201-2202, that Ga. Code Ann. 26-1503 (1972)1 was being applied in violation of petitioner's First and Fourteenth Amendment rights, and an injunction restraining respondents - the solicitor of the Civil and Criminal Court of DeKalb County, the chief of the DeKalb County Police, the owner of the North DeKalb Shopping Center, and the manager of that shopping center - from enforcing the statute so as to interfere with petitioner's constitutionally protected activities.The parties stipulated to the relevant facts: On October 8, 1970, while petitioner and other individuals were distributing handbills protesting American involvement in Vietnam on an exterior sidewalk of the North DeKalb Shopping Center, shopping center employees asked them to stop handbilling and leave.2 They declined to do so, and police officers were summoned. The officers told them that they would be arrested if they did not stop handbilling. The group then left to avoid arrest. Two days later petitioner and a companion returned to the shopping center and again began handbilling. The manager of the center called the police, and petitioner and his companion were once again told that failure to stop their handbilling would result in their arrests. Petitioner left to avoid arrest. His companion stayed, however, continued handbilling, and was arrested and subsequently arraigned on a charge of criminal trespass in violation of 26-1503.3 Petitioner alleged in his complaint that, although he desired to return to the shopping center to distribute handbills, he had not done so because of his concern that he, too, would be arrested for violation of 26-1503; the parties stipulated that, if petitioner returned and refused upon request to stop handbilling, a warrant would be sworn out and he might be arrested and charged with a violation of the Georgia statute.4 After hearing, the District Court denied all relief and dismissed the action, finding that "no meaningful contention can be made that the state has [acted] or will in the future act in bad faith," and therefore "the rudiments of an active controversy between the parties ... [are] lacking." 334 F. Supp. 1386, 1389-1390 (1971). Petitioner appealed5 only from the denial of declaratory relief.6 The Court of Appeals for the Fifth Circuit, one judge concurring in the result, affirmed the District Court's judgment refusing declaratory relief.7 Becker v. Thompson, 459 F.2d 919 (1972). The court recognized that the holdings of Younger v. Harris, , and Samuels v. Mackell, , were expressly limited to situations where state prosecutions were pending when the federal action commenced, but was of the view that Younger v. Harris "made it clear beyond peradventure that irreparable injury must be measured by bad faith harassment and such test must be applied to a request for injunctive relief against threatened state court criminal prosecution" as well as against a pending prosecution; and, furthermore, since the opinion in Samuels v. Mackell reasoned that declaratory relief would normally disrupt the state criminal justice system in the manner of injunctive relief, it followed that "the same test of bad faith harassment is prerequisite ... for declaratory relief in a threatened prosecution." 459 F.2d, at 922. A petition for rehearing en banc was denied, three judges dissenting. 463 F.2d 1338 (1972).8 We granted certiorari, , and now reverse.IAt the threshold we must consider whether petitioner presents an "actual controversy," a requirement imposed by Art. III of the Constitution and the express terms of the Federal Declaratory Judgment Act, 28 U.S.C. 2201.9 Unlike three of the appellees in Younger v. Harris, 401 U.S., at 41, petitioner has alleged threats of prosecution that cannot be characterized as "imaginary or speculative," id., at 42. He has been twice warned to stop handbilling that he claims is constitutionally protected and has been told by the police that if he again handbills at the shopping center and disobeys a warning to stop he will likely be prosecuted. The prosecution of petitioner's handbilling companion is ample demonstration that petitioner's concern with arrest has not been "chimerical," Poe v. Ullman, . In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights. See, e. g., Epperson v. Arkansas, . Moreover, petitioner's challenge is to those specific provisions of state law which have provided the basis for threats of criminal prosecution against him. Cf. Boyle v. Landry, ; Watson v. Buck, .Nonetheless, there remains a question as to the continuing existence of a live and acute controversy that must be resolved on the remand we order today.10 In Golden v. Zwickler, , the appellee sought a declaratory judgment that a state criminal statute prohibiting the distribution of anonymous election-campaign literature was unconstitutional. The appellee's complaint had expressed a desire to distribute handbills during the forthcoming re-election campaign of a Congressman, but it was later learned that the Congressman had retired from the House of Representatives to become a New York Supreme Court Justice. In that circumstance, we found no extant controversy, since the record revealed that appellee's sole target of distribution had been the Congressman and there was no immediate prospect of the Congressman's again becoming a candidate for public office. Here, petitioner's complaint indicates that his handbilling activities were directed "against the War in Vietnam and the United States' foreign policy in Southeast Asia." Since we cannot ignore the recent developments reducing the Nation's involvement in that part of the world, it will be for the District Court on remand to determine if subsequent events have so altered petitioner's desire to engage in handbilling at the shopping center that it can no longer be said that this case presents "a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., ; see Zwickler v. Koota, n. 3 (1967).IIWe now turn to the question of whether the District Court and the Court of Appeals correctly found petitioner's request for declaratory relief inappropriate.Sensitive to principles of equity, comity, and federalism, we recognized in Younger v. Harris, supra, that federal courts should ordinarily refrain from enjoining ongoing state criminal prosecutions. We were cognizant that a pending state proceeding, in all but unusual cases, would provide the federal plaintiff with the necessary vehicle for vindicating his constitutional rights, and, in that circumstance, the restraining of an ongoing prosecution would entail an unseemly failure to give effect to the principle that state courts have the solemn responsibility, equally with the federal courts "to guard, enforce, and protect every right granted or secured by the Constitution of the United States ... ." Robb v. Connolly, . In Samuels v. Mackell, supra, the Court also found that the same principles ordinarily would be flouted by issuance of a federal declaratory judgment when a state proceeding was pending, since the intrusive effect of declaratory relief "will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid." 401 U.S., at 72.11 We therefore held in Samuels that, "in cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment ... ." Id., at 73.Neither Younger nor Samuels, however, decided the question whether federal intervention might be permissible in the absence of a pending state prosecution. In Younger, the Court said:"We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun." 401 U.S., at 41. See also id., at 55 (STEWART and Harlan, JJ., concurring); id., at 57 (BRENNAN, WHITE, and MARSHALL, JJ., concurring). Similarly, in Samuels v. Mackell, the Court stated:"We, of course, express no views on the propriety of declaratory relief when no state proceeding is pending at the time the federal suit is begun." 401 U.S., at 73-74. See also id., at 55 (STEWART and Harlan, JJ., concurring); id., at 75-76 (BRENNAN, WHITE, and MARSHALL, JJ., concurring).These reservations anticipated the Court's recognition that the relevant principles of equity, comity, and federalism "have little force in the absence of a pending state proceeding." Lake Carriers' Assn. v. MacMullan, . When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles. In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding. Cf. Dombrowski v. Pfister, .When no state proceeding is pending and thus considerations of equity, comity, and federalism have little vitality, the propriety of granting federal declaratory relief may properly be considered independently of a request for injunctive relief. Here, the Court of Appeals held that, because injunctive relief would not be appropriate since petitioner failed to demonstrate irreparable injury - a traditional prerequisite to injunctive relief, e. g., Dombrowski v. Pfister, supra - it followed that declaratory relief was also inappropriate. Even if the Court of Appeals correctly viewed injunctive relief as inappropriate - a question we need not reach today since petitioner has abandoned his request for that remedy, see n. 6 supra - 12 the court erred in treating the requests for injunctive and declaratory relief as a single issue. "[W]hen no state prosecution is pending and the only question is whether declaratory relief is appropriate[,] ... the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance." Perez v. Ledesma, (separate opinion of BRENNAN, J.).The subject matter jurisdiction of the lower federal courts was greatly expanded in the wake of the Civil War. A pervasive sense of nationalism led to enactment of the Civil Rights Act of 1871, 17 Stat. 13, empowering the lower federal courts to determine the constitutionality of actions, taken by persons under color of state law, allegedly depriving other individuals of rights guaranteed by the Constitution and federal law, see 42 U.S.C. 1983, 28 U.S.C. 1343 (3).13 Four years later, in the Judiciary Act of March 3, 1875, 18 Stat. 470, Congress conferred upon the lower federal courts, for but the second time in their nearly century-old history, general federal-question jurisdiction subject only to a jurisdictional-amount requirement, see 28 U.S.C. 1331.14 With this latter enactment, the lower federal courts "ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." F. Frankfurter & J. Landis, The Business of the Supreme Court 65 (1928) (emphasis added).15 These two statutes, together with the Court's decision in Ex parte Young, - holding that state officials who threaten to enforce an unconstitutional state statute may be enjoined by a federal court of equity and that a federal court may, in appropriate circumstances, enjoin future state criminal prosecutions under the unconstitutional Act - have "established the modern framework for federal protection of constitutional rights from state interference." Perez v. Ledesma, supra, at 107 (separate opinion of BRENNAN, J.).A "storm of controversy" raged in the wake of Ex parte Young, focusing principally on the power of a single federal judge to grant ex parte interlocutory injunctions against the enforcement of state statutes, H. Hart & H. Wechsler, The Federal Courts and the Federal System 967 (2d ed. 1973); see generally Goldstein v. Cox, ; Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 804-805 (1934). This uproar was only partially quelled by Congress' passage of legislation, 36 Stat. 557, requiring the convening of a three-judge district court16 before a preliminary injunction against enforcement of a state statute could issue, and providing for direct appeal to this Court from a decision granting or denying such relief.17 See 28 U.S.C. 2281, 1253. From a State's viewpoint the granting of injunctive relief - even by these courts of special dignity - "rather clumsily" crippled state enforcement of its statutes pending further review, see H. R. Rep. No. 288, 70th Cong., 1st Sess., 2 (1928); H. R. Rep. No. 94, 71st Cong., 2d Sess., 2 (1929); H. R. Rep. No. 627, 72d Cong., 1st Sess., 2 (1932). Furthermore, plaintiffs were dissatisfied with this method of testing the constitutionality of state statutes, since it placed upon them the burden of demonstrating the traditional prerequisites to equitable relief - most importantly, irreparable injury. See, e. g., Fenner v. Boykin, .To dispel these difficulties, Congress in 1934 enacted the Declaratory Judgment Act, 28 U.S.C. 2201-2202. That Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction and to be utilized to test the constitutionality of state criminal statutes in cases where injunctive relief would be unavailable is amply evidenced by the legislative history of the Act, traced in full detail in Perez v. Ledesma, supra, at 111-115 (separate opinion of BRENNAN, J.). The highlights of that history, particularly pertinent to our inquiry today, emphasize that: "[I]n 1934, without expanding or reducing the subject matter jurisdiction of the federal courts, or in any way diminishing the continuing vitality of Ex parte Young with respect to federal injunctions, Congress empowered the federal courts to grant a new remedy, the declaratory judgment... . "The express purpose of the Federal Declaratory Judgment Act was to provide a milder alternative to the injunction remedy... . Of particular significance on the question before us, the Senate report [S. Rep. No. 1005, 73d Cong., 2d Sess. (1934)] makes it even clearer that the declaratory judgment was designed to be available to test state criminal statutes in circumstances where an injunction would not be appropriate... . ... . . "Much of the hostility to federal injunctions referred to in the Senate report was hostility to their use against state officials seeking to enforce state regulatory statutes carrying criminal sanctions; this was the strong feeling that produced the Three-Judge Court Act in 1910, the Johnson Act of 1934, 28 U.S.C. 1342, and the Tax Injunction Act of 1937, 28 U.S.C. 1341. The Federal Declaratory Judgment Act was intended to provide an alternative to injunctions against state officials, except where there was a federal policy against federal adjudication of the class of litigation altogether... . Moreover, the Senate report's clear implication that declaratory relief would have been appropriate in Pierce v. Society of Sisters, , and Village of Euclid v. Ambler Realty Co., (1926), both cases involving federal adjudication of the constitutionality of a state statute carrying criminal penalties, and the report's quotation from Terrace v. Thompson, which also involved anticipatory federal adjudication of the constitutionality of a state criminal statute, make it plain that Congress anticipated that the declaratory judgment procedure would be used by the federal courts to test the constitutionality of state criminal statutes." 401 U.S., at 111-112. 115.18 It was this history that formed the backdrop to our decision in Zwickler v. Koota, , where a state criminal statute was attacked on grounds of unconstitutional overbreadth and no state prosecution was pending against the federal plaintiff. There, we found error in a three-judge district court's considering, as a single question, the propriety of granting injunctive and declaratory relief. Although we noted that injunctive relief might well be unavailable under principles of equity jurisprudence canvassed in Douglas v. City of Jeannette, , we held that "a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction." 389 U.S., at 254. Only one year ago, we reaffirmed the Zwickler v. Koota holding in Roe v. Wade, , and Doe v. Bolton, . In those two cases, we declined to decide whether the District Courts had properly denied to the federal plaintiffs, against whom no prosecutions were pending, injunctive relief restraining enforcement of the Texas and Georgia criminal abortion statutes; instead, we affirmed the issuance of declaratory judgments of unconstitutionality, anticipating that these would be given effect by state authorities. We said:"The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, ; Dombrowski v. Pfister, ." Roe v. Wade, supra, at 166 (emphasis added). See Doe v. Bolton, supra, at 201.The "different considerations" entering into a decision whether to grant declaratory relief have their origins in the preceding historical summary. First, as Congress recognized in 1934, a declaratory judgment will have a less intrusive effect on the administration of state criminal laws. As was observed in Perez v. Ledesma, 401 U.S., at 124-126 (separate opinion of BRENNAN, J.): "Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear. A state statute may be declared unconstitutional in toto - that is, incapable of having constitutional applications; or it may be declared unconstitutionally vague or overbroad - that is, incapable of being constitutionally applied to the full extent of its purport. In either case, a federal declaration of unconstitutionality reflects the opinion of the federal court that the statute cannot be fully enforced. If a declaration of total unconstitutionality is affirmed by this Court, it follows that this Court stands ready to reverse any conviction under the statute. If a declaration of partial unconstitutionality is affirmed by this Court, the implication is that this Court will overturn particular applications of the statute, but that if the statute is narrowly construed by the state courts it will not be incapable of constitutional applications. Accordingly, the declaration does not necessarily bar prosecutions under the statute, as a broad injunction would. Thus, where the highest court of a State has had an opportunity to give a statute regulating expression a narrowing or clarifying construction but has failed to do so, and later a federal court declares the statute unconstitutionally vague or overbroad, it may well be open to a state prosecutor, after the federal court decision, to bring a prosecution under the statute if he reasonably believes that the defendant's conduct is not constitutionally protected and that the state courts may give the statute a construction so as to yield a constitutionally valid conviction. Even where a declaration of unconstitutionality is not reviewed by this Court, the declaration may still be able to cut down the deterrent effect of an unconstitutional state statute. The persuasive force of the court's opinion and judgment may lead state prosecutors, courts, and legislators to reconsider their respective responsibilities toward the statute. Enforcement policies or judicial construction may be changed, or the legislature may repeal the statute and start anew. Finally, the federal court judgment may have some res judicata effect, though this point is not free from difficulty and the governing rules remain to be developed with a view to the proper workings of a federal system. What is clear, however, is that even though a declaratory judgment has `the force and effect of a final judgment,' 28 U.S.C. 2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but is not contempt."19 (Footnote omitted.) Second, engrafting upon the Declaratory Judgment Act a requirement that all of the traditional equitable prerequisites to the issuance of an injunction be satisfied before the issuance of a declaratory judgment is considered would defy Congress' intent to make declaratory relief available in cases where an injunction would be inappropriate."Were the law to be that a plaintiff could not obtain a declaratory judgment that a local ordinance was unconstitutional when no state prosecution is pending unless he could allege and prove circumstances justifying a federal injunction of an existing state prosecution, the Federal Declaratory Judgment Act would have been pro tanto repealed." Wulp v. Corcoran, 454 F.2d 826, 832 (CA1 1972) (Coffin, J.). See Perez v. Ledesma, 401 U.S., at 116 (separate opinion of BRENNAN, J.). Thus, the Court of Appeals was in error when it ruled that a failure to demonstrate irreparable injury - a traditional prerequisite to injunctive relief, having no equivalent in the law of declaratory judgments, see Aetna Life Ins. Co. v. Haworth, ; Nashville, C. & St. L. R. Co. v. Wallace, - precluded the granting of declaratory relief.The only occasions where this Court has disregarded these "different considerations" and found that a preclusion of injunctive relief inevitably led to a denial of declaratory relief have been cases in which principles of federalism militated altogether against federal intervention in a class of adjudications. See Great Lakes Co. v. Huffman, (federal policy against interfering with the enforcement of state tax laws);20 Samuels v. Mackell, . In the instant case, principles of federalism not only do not preclude federal intervention, they compel it. Requiring the federal courts totally to step aside when no state criminal prosecution is pending against the federal plaintiff would turn federalism on its head. When federal claims are premised on 42 U.S.C. 1983 and 28 U.S.C. 1343 (3) - as they are here - we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights. See, e. g., McNeese v. Board of Education, ; Monroe v. Pape, . But exhaustion of state remedies is precisely what would be required if both federal injunctive and declaratory relief were unavailable in a case where no state prosecution had been commenced.IIIRespondents, however, relying principally upon our decision in Cameron v. Johnson, , argue that, although it may be appropriate to issue a declaratory judgment when no state criminal proceeding is pending and the attack is upon the facial validity of a state criminal statute, such a step would be improper where, as here, the attack is merely upon the constitutionality of the statute as applied, since the State's interest in unencumbered enforcement of its laws outweighs the minimal federal interest in protecting the constitutional rights of only a single individual. We reject the argument.In Cameron v. Johnson, the appellants sought a declaratory judgment that a Mississippi anti-picketing law was an overly broad and vague regulation of protected expression and an injunction restraining pending prosecutions against them for violations of the statute. We agreed with the District Court that the statute was not overly broad or vague and that nothing in the record supported appellants' assertion that they were being prosecuted in bad faith. In that circumstance, we held that "[t]he mere possibility of erroneous application of the statute does not amount `to the irreparable injury necessary to justify a disruption of orderly state proceedings.' ... The issue of guilt or innocence is for the state court at the criminal trial; the State was not required to prove appellants guilty in the federal proceeding to escape the finding that the State had no expectation of securing valid convictions." Id., at 621. Our holding in Cameron was thus that the state courts in which prosecutions were already pending would have to be given the first opportunity to correct any misapplication of the state criminal laws; Cameron is plainly not authority for the proposition that, in the absence of a pending state proceeding, a federal plaintiff may not seek a declaratory judgment that the state statute is being applied in violation of his constitutional rights.Indeed, the State's concern with potential interference in the administration of its criminal laws is of lesser dimension when an attack is made upon the constitutionality of a state statute as applied. A declaratory judgment of a lower federal court that a state statute is invalid in toto - and therefore incapable of any valid application - or is overbroad or vague - and therefore no person can properly be convicted under the statute until it is given a narrowing or clarifying construction, see, e. g., United States v. Thirty-seven Photographs, ; Gooding v. Wilson, - will likely have a more significant potential for disruption of state enforcement policies than a declaration specifying a limited number of impermissible applications of the statute. While the federal interest may be greater when a state statute is attacked on its face, since there exists the potential for eliminating any broad-ranging deterrent effect on would-be actors, see Dombrowski v. Pfister, , we do not find this consideration controlling. The solitary individual who suffers a deprivation of his constitutional rights is no less deserving of redress than one who suffers together with others.21 We therefore hold that, regardless of whether injunctive relief may be appropriate, federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.22 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Respondent sued petitioners, the city of Los Angeles and its Department of Water and Power (DWP), in Federal District Court, alleging, inter alia, a violation of its rights under the First Amendment by reason of (1) the city's refusal to grant respondent a cable television franchise on the ground that respondent had failed to participate in an auction for a single franchise in the area and (2) DWP's refusal to grant access to poles or underground conduits used for power lines. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted. The Court of Appeals reversed and remanded for further proceedings.Held: The complaint should not have been dismissed. The activities in which respondent allegedly seeks to engage plainly implicate First Amendment interests. Through original programming or by exercising editorial discretion over which stations or programs to include in its repertoire, respondent seeks to communicate messages on a wide variety of topics and in a wide variety of formats. But where speech and conduct are joined in a single course of action, the First Amendment values must be balanced against competing societal interests. Thus, where the city has made factual assertions to justify restrictions on cable television franchising and these assertions are disputed by respondent, there must be a fuller development of the disputed factual issues before this Court will decide the legal issues. Accordingly, the case will be remanded to the District Court so that petitioners may file an answer and the material factual disputes may be resolved. Pp. 493-496. 754 F.2d 1396, affirmed and remanded.REHNQUIST, J., delivered the opinion for a unanimous Court. BLACKMUN, J., filed a concurring opinion, in which MARSHALL and O'CONNOR, JJ., joined, post, p. 496.Edward J. Perez argued the cause for petitioners. With him on the briefs were Thomas Bonaventura, John Haggerty, John H. Garvey, and Nicholas P. Miller. Harold R. Farrow argued the cause for respondent. With him on the brief were Sol Schildhause and Siegfried Hesse.* [Footnote *] Briefs of amici curiae urging reversal were filed for the State of Connecticut by Joseph I. Lieberman, Attorney General, Clarine N. Riddle, Deputy Attorney General, and William B. Gundling, Assistant Attorney General; for the city of Brookfield, Wisconsin, by Harold H. Fuhrman; for the city of New York by Paul S. Ryerson, Patrick J. Grant, and Hadley W. Gold; for the city of Palo Alto, California, et al. by Michael A. Small, Jerome B. Falk, Jr., Steven L. Mayer, Steven F. Nord, Donald S. Greenberg, Mary Jo Levinger, John Sanford Todd, P. Lawrence Klose, Carter J. Stroud, John W. Witt, R. R. Campagna, Jack White, R. K. Fox, Gordon Phillips, Victor Kaleta, Edward J. Cooper, George Agnost, Richard Terzian, J. Robert Flandrick, Roger Picquet, Stanley E. Remelmeyer, James Jackson, and Robin Faisant; for Mountain States Telephone and Telegraph Co. et al. by Debra T. Yarbrough, Robert W. Barker, and L. Andrew Tollin; for the National Association of Broadcasters by Michael S. Horne and Michael D. Berg; for the National Federation of Local Cable Programmers et al. by James N. Horwood, Alan J. Roth, Joseph Van Eaton, and Donald Weightman; for the National Institute of Municipal Law Officers by Roy D. Bates, William I. Thornton, Jr., John W. Witt, Roger F. Cutler, George Agnost, J. Lamar Shelley, Robert J. Alfton, James K. Baker, Frank B. Gummey III, James D. Montgomery, Clifford D. Pierce, Jr., William H. Taube, and Charles S. Rhyne; for the National League of Cities et al. by Benna Ruth Solomon and Jeffrey H. Howard; for the Office of Communication of United Church of Christ et al. by Henry Geller and Andrew J. Schwartzman; and for Wisconsin Bell, Inc., by Robert A. Christensen, Joan F. Kessler, and Floyd S. Keene.Briefs of amici curiae urging affirmance were filed for the United States et al. by Solicitor General Fried, Assistant Attorney General Ginsburg, and Jack D. Smith; for the American Cable Publishers Institute, Inc., by Peter C. Smoot; for Guam Cable TV by Richard L. Brown; for the Mid-America Legal Foundation by John M. Cannon, Susan W. Wanat, and Ann Plunkett Sheldon; for the Motion Picture Association of America, Inc., by Richard M. Cooper and Walter J. Josiah, Jr.; for the National Cable Television Association, Inc., by Brenda L. Fox, Michael S. Schooler, and H. Bartow Farr III; for the National Satellite Cable Association by Mark J. Tauber and Deborah C. Costlow; for Nor-West Cable Communications Partnership et al. by David Rosenweig and Jerome D. Krings; for Space, the Satellite Television Industry Association, Inc., by Richard L. Brown; and for Tele-Communications, Inc., et al. by Stuart W. Gold, Robert D. Joffe, and Henry J. Gerken.Briefs of amici curiae were filed for the American Civil Liberties Union et al. by Charles S. Sims, Burt Neuborne, and Paul Hoffman; for Best View Cablevision, Inc., by Lawrence S. Bader, Paul R. Grand, and Diana Parker; for UNDA-USA et al. by Robert L. Stern and Patrick F. Geary; and for Nicholas W. Carlin, pro se. JUSTICE REHNQUIST delivered the opinion of the Court.Respondent Preferred Communications, Inc., sued petitioners City of Los Angeles (City) and the Department of Water and Power (DWP) in the United States District Court for the Central District of California. The complaint alleged a violation of respondent's rights under the First and Fourteenth Amendments, and under 1 and 2 of the Sherman Act, by reason of the City's refusal to grant respondent a cable television franchise and of DWP's refusal to grant access to DWP's poles or underground conduits used for power lines. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted. See Fed. Rule Civ. Proc. 12(b)(6). The Court of Appeals for the Ninth Circuit affirmed with respect to the Sherman Act, but reversed as to the First Amendment claim. 754 F.2d 1396 (1985). We granted certiorari with respect to the latter issue, .Respondent's complaint against the City and DWP alleged, inter alia, the following facts: Respondent asked Pacific Telephone and Telegraph (PT&T) and DWP for permission to lease space on their utility poles in order to provide cable television service in the south central area of Los Angeles. App. 6a. These utilities responded that they would not lease the space unless respondent first obtained a cable television franchise from the City. Ibid. Respondent asked the City for a franchise, but the City refused to grant it one, stating that respondent had failed to participate in an action that was to award a single franchise in the area. Id., at 6a-7a.1 The complaint further alleged that cable operators are First Amendment speakers, id., at 3a, that there is sufficient excess physical capacity and economic demand in the south central area of Los Angeles to accommodate more than one cable company, id., at 4a, and that the City's auction process allowed it to discriminate among franchise applicants based on which one it deemed to be the "best." Id., at 6a. Based on these and other factual allegations, the complaint alleged that the City and DWP had violated the Free Speech Clause of the First Amendment, as made applicable to the States by the Fourteenth Amendment, 1 and 2 of the Sherman Act, the California Constitution, and certain provisions of state law. Id., at 11a-19a.The City did not deny that there was excess physical capacity to accommodate more than one cable television system. But it argued that the physical scarcity of available space on public utility structures, the limits of economic demand for the cable medium, and the practical and esthetic disruptive effect that installing and maintaining a cable system has on the public right-of-way justified its decision to restrict access to its facilities to a single cable television company. 754 F.2d, at 1401.The District Court dismissed the free speech claim without leave to amend for failure to state a claim upon which relief could be granted. See Fed. Rule Civ. Proc. 12(b)(6). It also dismissed the antitrust claims, reasoning that petitioners were immune from antitrust liability under the state-action doctrine of Parker v. Brown, . Finally, it declined to exercise pendent jurisdiction over the remaining state claims.The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. 754 F.2d 1396 (1985). It upheld the conclusion that petitioners were immune from liability under the federal antitrust laws. Id., at 1411-1415. But it reversed the District Court's dismissal of the First Amendment claim, and remanded for further proceedings. Id., at 1401-1411. It held that, taking the allegations in the complaint as true, id., at 1399, the City violated the First Amendment by refusing to issue a franchise to more than one cable television company when there was sufficient excess physical and economic capacity to accommodate more than one. Id., at 1401-1405, 1411. The Court of Appeals expressed the view that the facts alleged in the complaint brought respondent into the ambit of cases such as Miami Herald Publishing Co. v. Tornillo, , rather than of cases such as Red Lion Broadcasting Co. v. FCC, , and Members of City Council v. Taxpayers for Vincent, . 754 F.2d, at 1403-1411.We agree with the Court of Appeals that respondent's complaint should not have been dismissed, and we therefore affirm the judgment of that court; but we do so on a narrower ground than the one taken by it. The well-pleaded facts in the complaint include allegations of sufficient excess physical capacity and economic demand for cable television operators in the area which respondent sought to serve.2 The City, while admitting the existence of excess physical capacity on the utility poles, the rights-of-way, and the like, justifies the limit on franchises in terms of minimizing the demand that cable systems make for the use of public property. The City characterizes these uses as the stringing of "nearly 700 miles of hanging and buried wire and other appliances necessary for the operation of its system." Brief for Petitioners 12. The City also characterizes them as "a permanent visual blight," ibid., and adds that the process of installation and repair of such a system in effect subjects city facilities designed for other purposes to a servitude which will cause traffic delays and hazards and esthetic unsightliness. Respondent in its turn replies that the City does not "provide anything more than speculations and assumptions," and that the City's "legitimate concerns are easily satisfied without the need to limit the right to speak to a single speaker." Brief for Respondent 9.We of course take the well-pleaded allegations of the complaint as true for the purpose of a motion to dismiss, see, e. g., Kugler v. Helfant, , n. 5 (1975). Ordinarily such a motion frames a legal issue such as the one which the Court of Appeals undertook to decide in this case. But this case is different from a case between private litigants for two reasons: first, it is an action of a municipal corporation taken pursuant to a city ordinance that is challenged here, and, second, the ordinance is challenged on colorable First Amendment grounds. The City has adduced essentially factual arguments to justify the restrictions on cable franchising imposed by its ordinance, but the factual assertions of the City are disputed at least in part by respondent. We are unwilling to decide the legal questions posed by the parties without a more thoroughly developed record of proceedings in which the parties have an opportunity to prove those disputed factual assertions upon which they rely.We do think that the activities in which respondent allegedly seeks to engage plainly implicate First Amendment interests. Respondent alleges:"The business of cable television, like that of newspapers and magazines, is to provide its subscribers with a mixture of news, information and entertainment. As do newspapers, cable television companies use a portion of their available space to reprint (or retransmit) the communications of others, while at the same time providing some original content." App. 3a. Thus, through original programming or by exercising editorial discretion over which stations or programs to include in its repertoire, respondent seeks to communicate messages on a wide variety of topics and in a wide variety of formats. We recently noted that cable operators exercise "a significant amount of editorial discretion regarding what their programming will include." FCC v. Midwest Video Corp., . Cable television partakes of some of the aspects of speech and the communication of ideas as do the traditional enterprises of newspaper and book publishers, public speakers, and pamphleteers. Respondent's proposed activities would seem to implicate First Amendment interests as do the activities of wireless broadcasters, which were found to fall within the ambit of the First Amendment in Red Lion Broadcasting Co. v. FCC, supra, at 386, even though the free speech aspects of the wireless broadcasters' claim were found to be outweighed by the Government interests in regulating by reason of the scarcity of available frequencies.Of course, the conclusion that respondent's factual allegations implicate protected speech does not end the inquiry. "Even protected speech is not equally permissible in all places and at all times." Cornelius v. NAACP Legal Defense & Educational Fund, Inc., . Moreover, where speech and conduct are joined in a single course of action, the First Amendment values must be balanced against competing societal interests. See, e. g., Members of City Council v. Taxpayers for Vincent, supra, at 805-807; United States v. O'Brien, . We do not think, however, that it is desirable to express any more detailed views on the proper resolution of the First Amendment question raised by respondent's complaint and the City's responses to it without a fuller development of the disputed issues in the case. We think that we may know more than we know now about how the constitutional issues should be resolved when we know more about the present uses of the public utility poles and rights-of-way and how respondent proposes to install and maintain its facilities on them.The City claims that no such trial of the issues is required, because the City need not "generate a legislative record" in enacting ordinances which would grant one franchise for each area of the City. Brief for Petitioners 44. "Whether a limitation on the number of franchises ... is `reasonable,'" the City continues, "thus cannot turn on a review of historical facts." Id., at 45. The City supports its contention in this regard by citation to cases such as United States Railroad Retirement Board v. Fritz, , and Schweiker v. Wilson, . Brief for Petitioners 45, n. 52. The flaw in the City's argument is that both Fritz and Wilson involved Fifth Amendment equal protection challenges to legislation, rather than challenges under the First Amendment. Where a law is subjected to a colorable First Amendment challenge, the rule of rationality which will sustain legislation against other constitutional challenges typically does not have the same controlling force. But cf. Ohralik v. Ohio State Bar Assn., . This Court "may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity." Taxpayers for Vincent, 466 U.S., at 803, n. 22; Landmark Communications, Inc v. Virginia, .We affirm the judgment of the Court of Appeals reversing the dismissal of respondent's complaint by the District Court, and remand the case to the District Court so that petitioners may file an answer and the material factual disputes between the parties may be resolved. It is so ordered.

Alleging that they were defrauded by misrepresentations in a registration statement and prospectus for certain securities, purchasers of such securities brought a class action in Federal District Court against most of the participants in the offering, seeking recovery under 10(b) of the Securities Exchange Act of 1934 (1934 Act), which makes it unlawful for "any" person to use "any" manipulative or deceptive device or contrivance in the purchase or sale of "any" security. The trial judge instructed the jury to determine whether the plaintiffs had proved their cause of action by a preponderance of the evidence, and judgment was entered on the basis of a jury verdict in plaintiffs' favor. The Court of Appeals held that a cause of action may be maintained under 10(b) for fraudulent misrepresentations and omissions even when, as in this case, that conduct might also be actionable under 11 of the Securities Act of 1933 (1933 Act), which expressly allows purchasers of a registered security to sue certain enumerated parties who play a direct role in a registered offering when false or misleading information is included in a registration statement. However, the Court of Appeals concluded that a plaintiff seeking recovery under 10(b) of the 1934 Act must prove his case by "clear and convincing" evidence, and reversed and remanded on other grounds.Held: 1. The availability of an express remedy under 11 of the 1933 Act does not preclude defrauded purchasers of registered securities from maintaining an action under 10(b) of the 1934 Act. Pp. 380-387. (a) The two provisions involve distinct causes of action and were intended to address different types of wrongdoing. Under 11, a plaintiff need only show a material misstatement or omission in a registration statement to establish a prima facie case. Such an action must be brought by a purchaser of a registered security, and can only be brought against certain parties. In contrast, 10(b) is a "catchall" antifraud provision and requires a purchaser or seller of a security, in order to establish a cause of action, to prove that the defendant acted with scienter. Pp. 380-382. (b) To exempt conduct actionable under 11 from liability under 10(b) would conflict with the basic purpose of the 1933 Act: to provide greater protection to purchasers of registered securities. It is hardly a novel proposition that the two Acts prohibit some of the same conduct. Cf. Ernst & Ernst v. Hochfelder, . A cumulative construction of the remedies under the Acts is also supported by the fact that when Congress comprehensively revised the securities laws in 1975, federal courts had consistently recognized an implied private right of action under 10(b) even where express remedies under 11 or other provisions were available. A cumulative construction of the securities laws also furthers their broad remedial purposes. Pp. 382-387. 2. Persons seeking recovery under 10(b) need prove their cause of action by a preponderance of the evidence only, not by clear and convincing evidence. The preponderance standard has been consistently employed in private actions under the securities laws. Cf. SEC v. C. M. Joiner Leasing Corp., . Reference to the traditional use of a higher burden of proof in civil fraud actions at common law is unavailing here. An important purpose of the federal securities statutes was to rectify perceived deficiencies in the available common-law protections by establishing higher standards of conduct in the securities industry. The balance of the parties' interests in this case warrants use of the preponderance standard, which allows both parties to share the risk of error in roughly equal fashion. While defendants face the risk of opprobrium that may result from a finding of fraudulent conduct, defrauded investors are among the very individuals Congress sought to protect in the securities laws, and if they prove that it is more likely than not that they were defrauded, they should recover. Pp. 387-391. 640 F.2d 534, affirmed in part, reversed in part, and remanded.MARSHALL, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the decision of the cases.[Footnote *] Together with No. 81-1076, Huddleston et al. v. Herman & MacLean et al., also on certiorari to the same court.James L. Truitt argued the cause for Herman & MacLean. With him on the briefs was Jack Pew, Jr.Robert H. Jaffe argued the cause for respondents in No. 81-680 and petitioners in No. 81-1076. With him on the brief were Myer Feldman, Jonathan M. Weisgall, Robert L. Deitz, and David S. Komiss. Paul Gonson argued the cause for the Securities and Exchange Commission as amicus curiae. With him on the brief urging affirmance in part and reversal in part were Solicitor General Lee, Deputy Solicitor General Shapiro, Jacob H. Stillman, and Richard A. Kirby.Fn Fn William E. Hegarty, Victor M. Earle III, and Joseph W. Muccia filed a brief for Peat, Marwick, Mitchell & Co. as amicus curiae urging reversal.Briefs of amici curiae were filed by Edward J. Ross and Charles W. Boand for Arthur Anderson & Co.; and by John L. Warden, Philip K. Howard, and William J. Fitzpatrick for the Securities Industry Association.JUSTICE MARSHALL delivered the opinion of the Court.These consolidated cases raise two unresolved questions concerning 10(b) of the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 891, 15 U.S.C. 78j(b). The first is whether purchasers of registered securities who allege they were defrauded by misrepresentations in a registration statement may maintain an action under 10(b) notwithstanding the express remedy for misstatements and omissions in registration statements provided by 11 of the Securities Act of 1933 (1933 Act), 48 Stat. 82, as amended, 15 U.S.C. 77k. The second question is whether persons seeking recovery under 10(b) must prove their cause of action by clear and convincing evidence rather than by a preponderance of the evidence.IIn 1969 Texas International Speedway, Inc. (TIS), filed a registration statement and prospectus with the Securities and Exchange Commission offering a total of $4,398,900 in securities to the public. The proceeds of the sale were to be used to finance the construction of an automobile speedway. The entire issue was sold on the offering date, October 30, 1969. TIS did not meet with success, however, and the corporation filed a petition for bankruptcy on November 30, 1970. In 1972 plaintiffs Huddleston and Bradley instituted a class action in the United States District Court for the Southern District of Texas1 on behalf of themselves and other purchasers of TIS securities. The complaint alleged violations of 10(b) of the 1934 Act and SEC Rule 10b-5 promulgated thereunder, 17 CFR 240.10b-5 (1982).2 Plaintiffs sued most of the participants in the offering, including the accounting firm, Herman & MacLean, which had issued an opinion concerning certain financial statements and a pro forma balance sheet3 that were contained in the registration statement and prospectus. Plaintiffs claimed that the defendants had engaged in a fraudulent scheme to misrepresent or conceal material facts regarding the financial condition of TIS, including the costs incurred in building the speedway.After a 3-week trial, the District Judge submitted the case to the jury on special interrogatories relating to liability. The judge instructed the jury that liability could be found only if the defendants acted with scienter.4 The judge also instructed the jury to determine whether plaintiffs had proved their cause of action by a preponderance of the evidence. After the jury rendered a verdict in favor of the plaintiffs on the submitted issues, the judge concluded that Herman & MacLean and others had violated 10(b) and Rule 10b-5 by making fraudulent misrepresentations in the TIS registration statement.5 The court then determined the amount of damages and entered judgment for the plaintiffs.On appeal, the United States Court of Appeals for the Fifth Circuit held that a cause of action may be maintained under 10(b) of the 1934 Act for fraudulent misrepresentations and omissions even when that conduct might also be actionable under 11 of the 1933 Act. 640 F.2d 534, 540-543 (1981). However, the Court of Appeals disagreed with the District Court as to the appropriate standard of proof for an action under 10(b), concluding that a plaintiff must prove his case by "clear and convincing" evidence. Id., at 545-546. The Court of Appeals reversed the District Court's judgment on other grounds and remanded the case for a new trial. Id., at 547-550, 560.We granted certiorari to consider whether an implied cause of action under 10(b) of the 1934 Act will lie for conduct subject to an express civil remedy under the 1933 Act, an issue we have previously reserved,6 and to decide the standard of proof applicable to actions under 10(b).7 (1982). We now affirm the Court of Appeals' holding that plaintiffs could maintain an action under 10(b) of the 1934 Act, but we reverse as to the applicable standard of proof.IIThe Securities Act of 1933 and the 1934 Act "constitute interrelated components of the federal regulatory scheme governing transactions in securities." Ernst & Ernst v. Hochfelder, . The Acts created several express private rights of action,8 one of which is contained in 11 of the 1933 Act. In addition to the private actions created explicitly by the 1933 and 1934 Acts, federal courts have implied private remedies under other provisions of the two laws.9 Most significantly for present purposes, a private right of action under 10(b) of the 1934 Act and Rule 10b-5 has been consistently recognized for more than 35 years.10 The existence of this implied remedy is simply beyond peradventure. The issue in this case is whether a party should be barred from invoking this established remedy for fraud because the allegedly fraudulent conduct would apparently also provide the basis for a damages action under 11 of the 1933 Act.11 The resolution of this issue turns on the fact that the two provisions involve distinct causes of action and were intended to address different types of wrongdoing.Section 11 of the 1933 Act allows purchasers of a registered security to sue certain enumerated parties in a registered offering when false or misleading information is included in a registration statement. The section was designed to assure compliance with the disclosure provisions of the Act by imposing a stringent standard of liability12 on the parties who play a direct role in a registered offering.13 If a plaintiff purchased a security issued pursuant to a registration statement, he need only show a material misstatement or omission to establish his prima facie case. Liability against the issuer of a security is virtually absolute,14 even for innocent misstatements. Other defendants bear the burden of demonstrating due diligence. See 15 U.S.C. 77k(b).Although limited in scope, 11 places a relatively minimal burden on a plaintiff. In contrast, 10(b) is a "catchall" antifraud provision,15 but it requires a plaintiff to carry a heavier burden to establish a cause of action. While a 11 action must be brought by a purchaser of a registered security, must be based on misstatements or omissions in a registration statement, and can only be brought against certain parties, a 10(b) action can be brought by a purchaser or seller of "any security" against "any person" who has used "any manipulative or deceptive device or contrivance" in connection with the purchase or sale of a security. 15 U.S.C. 78j (emphasis added). However, a 10(b) plaintiff carries a heavier burden than a 11 plaintiff. Most significantly, he must prove that the defendant acted with scienter, i. e., with intent to deceive, manipulate, or defraud.16 Since 11 and 10(b) address different types of wrongdoing, we see no reason to carve out an exception to 10(b) for fraud occurring in a registration statement just because the same conduct may also be actionable under 11.17 Exempting such conduct from liability under 10(b) would conflict with the basic purpose of the 1933 Act: to provide greater protection to purchasers of registered securities. It would be anomalous indeed if the special protection afforded to purchasers in a registered offering by the 1933 Act were deemed to deprive such purchasers of the protections against manipulation and deception that 10(b) makes available to all persons who deal in securities.While some conduct actionable under 11 may also be actionable under 10(b), it is hardly a novel proposition that the 1934 Act and the 1933 Act "prohibit some of the same conduct." United States v. Naftalin, (applying 17(a) of the 1933 Act to conduct also prohibited by 10(b) of the 1934 Act in an action by the SEC). "`The fact that there may well be some overlap is neither unusual nor unfortunate.'" Ibid., quoting SEC v. National Securities, Inc., . In saving clauses included in the 1933 and 1934 Acts, Congress rejected the notion that the express remedies of the securities laws would pre-empt all other rights of action. Section 16 of the 1933 Act states unequivocally that "[t]he rights and remedies provided by this title shall be in addition to any and all other rights and remedies that may exist at law or in equity." 15 U.S.C. 77p. Section 28(a) of the 1934 Act contains a parallel provision. 15 U.S.C. 78bb(a). These provisions confirm that the remedies in each Act were to be supplemented by "any and all" additional remedies.This conclusion is reinforced by our reasoning in Ernst & Ernst v. Hochfelder, which held that actions under 10(b) require proof of scienter and do not encompass negligent conduct. In so holding, we noted that each of the express civil remedies in the 1933 Act allowing recovery for negligent conduct is subject to procedural restrictions not applicable to a 10(b) action.18 425 U.S., at 208-210. We emphasized that extension of 10(b) to negligent conduct would have allowed causes of action for negligence under the express remedies to be brought instead under 10(b), "thereby nullify[ing] the effectiveness of the carefully drawn procedural restrictions on these express actions." Id., at 210 (footnote omitted). In reasoning that scienter should be required in 10(b) actions in order to avoid circumvention of the procedural restrictions surrounding the express remedies, we necessarily assumed that the express remedies were not exclusive. Otherwise there would have been no danger of nullification. Conversely, because the added burden of proving scienter attaches to suits under 10(b), invocation of the 10(b) remedy will not "nullify" the procedural restrictions that apply to the express remedies.19 This cumulative construction of the remedies under the 1933 and 1934 Acts is also supported by the fact that, when Congress comprehensively revised the securities laws in 1975, a consistent line of judicial decisions had permitted plaintiffs to sue under 10(b) regardless of the availability of express remedies. In 1975 Congress enacted the "most substantial and significant revision of this country's Federal securities laws since the passage of the Securities Exchange Act in 1934."20 See Securities Acts Amendments of 1975, Pub. L. 94-29, 89 Stat. 97. When Congress acted, federal courts had consistently and routinely permitted a plaintiff to proceed under 10(b) even where express remedies under 11 or other provisions were available.21 In light of this well-established judicial interpretation, Congress' decision to leave 10(b) intact suggests that Congress ratified the cumulative nature of the 10(b) action. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, ; Lorillard v. Pons, .A cumulative construction of the securities laws also furthers their broad remedial purposes. In enacting the 1934 Act, Congress stated that its purpose was "to impose requirements necessary to make [securities] regulation and control reasonably complete and effective." 15 U.S.C. 78b. In furtherance of that objective, 10(b) makes it unlawful to use "any manipulative or deceptive device or contrivance" in connection with the purchase or sale of any security. The effectiveness of the broad proscription against fraud in 10(b) would be undermined if its scope were restricted by the existence of an express remedy under 11.22 Yet we have repeatedly recognized that securities laws combating fraud should be construed "not technically and restrictively, but flexibly to effectuate [their] remedial purposes." SEC v. Capital Gains Research Bureau, Inc., . Accord, Superintendent of Insurance v. Bankers Life & Cas. Co., ; Affiliated Ute Citizens v. United States, . We therefore reject an interpretation of the securities laws that displaces an action under 10(b).23 Accordingly, we hold that the availability of an express remedy under 11 of the 1933 Act does not preclude defrauded purchasers of registered securities from maintaining an action under 10(b) of the 1934 Act. To this extent the judgment of the Court of Appeals is affirmed.IIIIn a typical civil suit for money damages, plaintiffs must prove their case by a preponderance of the evidence.24 Similarly, in an action by the SEC to establish fraud under 17(a) of the 1933 Act, 15 U.S.C. 77q(a), we have held that proof by a preponderance of the evidence suffices to establish liability. SEC v. C. M. Joiner Leasing Corp., . "Where ... proof is offered in a civil action, as here, a preponderance of the evidence will establish the case ... ." Ibid. The same standard applies in administrative proceedings before the SEC25 and has been consistently employed by the lower courts in private actions under the securities laws.26 The Court of Appeals nonetheless held that plaintiffs in a 10(b) suit must establish their case by clear and convincing evidence. The Court of Appeals relied primarily on the traditional use of a higher burden of proof in civil fraud actions at common law. 640 F.2d, at 545-546. Reference to common-law practices can be misleading, however, since the historical considerations underlying the imposition of a higher standard of proof have questionable pertinence here.27 See Blue Chip Stamps v. Manor Drug Stores, ("[T]he typical fact situation in which the classic tort of misrepresentation and deceit evolved was light years away from the world of commercial transactions to which Rule 10b-5 is applicable"). Moreover, the antifraud provisions of the securities laws are not coextensive with common-law doctrines of fraud.28 Indeed, an important purpose of the federal securities statutes was to rectify perceived deficiencies in the available common-law protections by establishing higher standards of conduct in the securities industry. See SEC v. Capital Gains Research Bureau, Inc., supra, at 186. We therefore find reference to the common law in this instance unavailing.Where Congress has not prescribed the appropriate standard of proof and the Constitution does not dictate a particular standard, we must prescribe one. See Steadman v. SEC, . See generally Blue Chip Stamps v. Manor Drug Stores, supra, at 749 (private cause of action under 10(b) and Rule 10b-5 must be judicially delimited until Congress acts). In doing so, we are mindful that a standard of proof "serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Addington v. Texas, . See also In re Winship, (Harlan, J., concurring). Thus, we have required proof by clear and convincing evidence where particularly important individual interests or rights are at stake. See, e. g., Santosky v. Kramer, (proceeding to terminate parental rights); Addington v. Texas, supra (involuntary commitment proceeding); Woodby v. INS, (deportation).29 By contrast, imposition of even severe civil sanctions that do not implicate such interests has been permitted after proof by a preponderance of the evidence. See, e. g., United States v. Regan, (proof by a preponderance of the evidence suffices in civil suits involving proof of acts that expose a party to a criminal prosecution). Thus, in interpreting a statutory provision in Steadman v. SEC, supra, we upheld use of the preponderance standard in SEC administrative proceedings concerning alleged violations of the antifraud provisions. The sanctions imposed in the proceedings included an order permanently barring an individual from practicing his profession. And in SEC v. C. M. Joiner Leasing Corp., 320 U.S., at 355, we held that a preponderance of the evidence suffices to establish fraud under 17(a) of the 1933 Act.A preponderance-of-the-evidence standard allows both parties to "share the risk of error in roughly equal fashion." Addington v. Texas, supra, at 423. Any other standard expresses a preference for one side's interests. The balance of interests in this case warrants use of the preponderance standard. On the one hand, the defendants face the risk of opprobrium that may result from a finding of fraudulent conduct, but this risk is identical to that in an action under 17(a), which is governed by the preponderance-of-the-evidence standard. The interests of defendants in a securities case do not differ qualitatively from the interests of defendants sued for violations of other federal statutes such as the antitrust or civil rights laws, for which proof by a preponderance of the evidence suffices. On the other hand, the interests of plaintiffs in such suits are significant. Defrauded investors are among the very individuals Congress sought to protect in the securities laws. If they prove that it is more likely than not that they were defrauded, they should recover.We therefore decline to depart from the preponderance-of-the-evidence standard generally applicable in civil actions.30 Accordingly, the Court of Appeals' decision as to the appropriate standard of proof is reversed.IVThe judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are otherwise remanded for proceedings consistent with this opinion. It is so ordered. JUSTICE POWELL took no part in the decision of these cases.

Petitioner is a wholesale purchasing cooperative whose membership consists of office supply retailers in the Pacific Northwest States. Non-member retailers can purchase supplies from petitioner at the same price as members, but since petitioner annually distributes its profits to members in the form of a percentage rebate, members effectively purchase supplies at a lower price than do nonmembers. Petitioner expelled respondent from membership without any explanation, notice, or hearing. Thereafter, respondent brought suit in Federal District Court, alleging that the expulsion without procedural protections was a group boycott that limited its ability to complete and should be considered per se violative of 1 of the Sherman Act. On cross-motions for summary judgment, the District Court rejected application of the per se rule and held instead that rule-of-reason analysis should govern the case. Finding no anticompetitive effect on the basis of the record, the court granted summary judgment for petitioner. The Court of Appeals reversed, holding that although 4 of the Robinson-Patman Act expressly approves price discrimination occasioned by such an expulsion as the one in question and thus provides a mandate for self-regulation, nevertheless, because petitioner had not provided any procedural safeguards, the expulsion of respondent was not shielded by 4 and therefore constituted a per se group boycott in violation of 1 of the Sherman Act.Held: Petitioner's expulsion of respondent does not fall within the category of activity that is conclusively presumed to be anticompetitive so as to mandate per se invalidation under 1 of the Sherman Act as a group boycott or concerted refusal to deal. Pp. 289-298. (a) Section 4 of the Robinson-Patman Act, which is no more than a narrow immunity from the price discrimination prohibitions of that Act, cannot properly be construed as an exemption from or repeal of any portion of the Sherman Act or as a broad mandate for industry self-regulation. Silver v. New York Stock Exchange, , distinguished. In any event, the absence of procedural safeguards in this case can in no sense determine the antitrust analysis, since if the challenged expulsion amounted to a per se violation of 1, no amount of procedural protection would save it, whereas if the expulsion did not amount to a violation of 1, no lack of procedural protections would convert it into a per se violation. Pp. 291-293. (b) The act of expulsion from a wholesale cooperative does not necessarily imply anticompetitive animus so as to raise a probability of anticompetitive effect. Unless it is shown that the cooperative possesses market power or exclusive access to an element essential to effective competition, the conclusion that expulsion is virtually always likely to have an anticompetitive effect is not warranted. Absent such a showing with respect to a cooperative buying arrangement, courts should apply a rule-of-reason analysis. Here, respondent, focusing on the argument that the lack of procedural safeguards required per se liability, made no such showing. But because the Court of Appeals applied an erroneous per se analysis, it never evaluated the District Court's rule-of-reason analysis rejecting respondent's claim, and therefore a remand is appropriate to permit appellate review of that determination. Pp. 293-298. 715 F.2d 1393, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which all other. Members joined except MARSHALL and POWELL, JJ., who took no part in the decision of the case.David J. Sweeney argued the cause for petitioner. With him on the briefs were Douglas R. Grim and Mark B. Weintraub.Catherine G. O'Sullivan argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Rule, and Edward T. Hand.Joseph P. Bauer argued the cause for respondent. With him on the brief was Robert R. Carney.* [Footnote *] Ira S. Sacks filed a brief for Indian Head Inc. as amicus curiae urging affirmance.JUSTICE BRENNAN delivered the opinion of the Court.This case requires that we decide whether a per se violation of 1 of the Sherman Act, 15 U.S.C. 1, occurs when a cooperative buying agency comprising various retailers expels a member without providing any procedural means for challenging the expulsion.1 The case also raises broader questions as to when per se antitrust analysis is appropriately applied to joint activity that is susceptible of being characterized as a concerted refusal to deal.IBecause the District Court ruled on cross-motions for summary judgment after only limited discovery, this case comes to us on a sparse record. Certain background facts are undisputed. Petitioner Northwest Wholesale Stationers is a purchasing cooperative made up of approximately 100 office supply retailers in the Pacific Northwest States. The cooperative acts as the primary wholesaler for the retailers. Retailers that are not members of the cooperative can purchase wholesale supplies from Northwest at the same price as members. At the end of each year, however, Northwest distributes its profits to members in the form of a percentage rebate on purchases. Members therefore effectively purchase supplies at a price significantly lower than do nonmembers.2 Northwest also provides certain warehousing facilities. The cooperative arrangement thus permits the participating retailers to achieve economies of scale in purchasing and warehousing that would otherwise be unavailable to them. In fiscal 1978 Northwest had $5.8 million in sales. App. 73.Respondent Pacific Stationery & Printing Co. sells office supplies at both the retail and wholesale levels. Its total sales in fiscal 1978 were approximately $7.6 million; the record does not indicate what percentage of revenue is attributable to retail and what percentage is attributable to wholesale. Pacific became a member of Northwest in 1958. In 1974 Northwest amended its bylaws to prohibit members from engaging in both retail and wholesale operations. See id., at 50, 59. A grandfather clause preserved Pacific's membership rights. See id., at 59. In 1977 ownership of a controlling share of the stock of Pacific changed hands, id., at 70, and the new owners did not officially bring this change to the attention of the directors of Northwest. This failure to notify apparently violated another of Northwest's bylaws. See id., at 59 (Bylaws, Art. VIII, 5).In 1978 the membership of Northwest voted to expel Pacific. Most factual matters relevant to the expulsion are in dispute. No explanation for the expulsion was advanced at the time, and Pacific was given neither notice, a hearing, nor any other opportunity to challenge the decision. Pacific argues that the expulsion resulted from Pacific's decision to maintain a wholesale operation. See Brief in Opposition 11. Northwest contends that the expulsion resulted from Pacific's failure to notify the cooperative members of the change in stock ownership. See Pet. for Cert. 8. The minutes of the meeting of Northwest's directors do not definitively indicate the motive for the expulsion. App. 75-77. It is undisputed that Pacific received approximately $10,000 in rebates from Northwest in 1978, Pacific's last year of membership. Beyond a possible inference of loss from this fact, however, the record is devoid of allegations indicating the nature and extent of competitive injury the expulsion caused Pacific to suffer. Pacific brought suit in 1980 in the United States District Court for the District of Oregon alleging a violation of 1 of the Sherman Act. The gravamen of the action was that Northwest's expulsion of Pacific from the cooperative without procedural protections was a group boycott that limited Pacific's ability to compete and should be considered per se violative of 1. See Complaint § 8, App. 4-5. On cross-motions for summary judgment the District Court rejected application of the per se rule and held instead that rule-of-reason analysis should govern the case. Finding no anticompetitive effect on the basis of the record as presented, the court granted summary judgment for Northwest. See App. to Pet. for Cert. 22-24.The Court of Appeals for the Ninth Circuit reversed, holding "that the uncontroverted facts of this case support a finding of per se liability." 715 F.2d 1393, 1395 (1983). The court reasoned that the cooperative's expulsion of Pacific was an anticompetitive concerted refusal to deal with Pacific on equal footing, which would be a per se violation of 1 in the absence of any specific legislative mandate for self-regulation sanctioning the expulsion. The court noted that 4 of the Robinson-Patman Act, 15 U.S.C. 13b, specifically approves the price discrimination occasioned by such expulsion and concluded that 4 therefore provided a mandate for self-regulation. Such a legislative mandate, according to the court, would ordinarily result in evaluation of the challenged practice under the rule of reason. But, drawing on Silver v. New York Stock Exchange, , the court decided that rule-of-reason analysis was appropriate only on the condition that the cooperative had provided procedural safeguards sufficient to prevent arbitrary expulsion and to furnish a basis for judicial review. Because Northwest had not provided any procedural safeguards, the court held that the expulsion of Pacific was not shielded by Robinson-Patman immunity and therefore constituted a per se group boycott in violation of 1 of the Sherman Act. 715 F.2d, at 1395-1398.We granted certiorari to examine this application of Silver v. New York Stock Exchange, supra, in an area of antitrust law that has not been free of confusion.3 . We reverse.IIThe decision of the cooperative members to expel Pacific was certainly a restraint of trade in the sense that every commercial agreement restrains trade. Chicago Board of Trade v. United States, . Whether this action violates 1 of the Sherman Act depends on whether it is adjudged an unreasonable restraint. Ibid. Rule-of-reason analysis guides the inquiry, see Standard Oil Co. v. United States, , unless the challenged action falls into the category of "agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use." Northern Pacific R. Co. v. United States, .This per se approach permits categorical judgments with respect to certain business practices that have proved to be predominantly anticompetitive. Courts can thereby avoid the "significant costs" in "business certainty and litigation efficiency" that a full-fledged rule-of-reason inquiry entails. Arizona v. Maricopa County Medical Society, . See also United States v. Topco Associates, Inc., . The decision to apply the per se rule turns on "whether the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output ... or instead one designed to `increase economic efficiency and render markets more, rather than less, competitive.'" Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., (citations omitted). See also National Collegiate Athletic Assn. v. Board of Regents of University of Oklahoma, ("Per se rules are invoked when surrounding circumstances make the likelihood of anticompetitive conduct so great as to render unjustified further examination of the challenged conduct").This Court has long held that certain concerted refusals to deal or group boycotts are so likely to restrict competition without any offsetting efficiency gains that they should be condemned as per se violations of 1 of the Sherman Act. See Klor's Inc. v. Broadway-Hale Stores, Inc., ; United States v. General Motors Corp., ; Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., ; Associated Press v. United States, ; Fashion Originators' Guild of America, Inc. v. FTC, ; Eastern States Retail Lumber Dealers' Assn. v. United States, . The question presented in this case is whether Northwest's decision to expel Pacific should fall within this category of activity that is conclusively presumed to be anticompetitive.4 The Court of Appeals held that the exclusion of Pacific from the cooperative should conclusively be presumed unreasonable on the ground that Northwest provided no procedural protections to Pacific. Even if the lack of procedural protections does not justify a conclusive presumption of predominantly anticompetitive effect, the mere act of expulsion of a competitor from a wholesale cooperative might be argued to be sufficiently likely to have such effects under the present circumstances and therefore to justify application of the per se rule. These possibilities will be analyzed separately.AThe Court of Appeals drew from Silver v. New York Stock Exchange, , a broad rule that the conduct of a cooperative venture - including a concerted refusal to deal - undertaken pursuant to a legislative mandate for self-regulation is immune from per se scrutiny and subject to rule-of-reason analysis only if adequate procedural safeguards accompany self-regulation. We disagree and conclude that the approach of the Court in Silver has no proper application to the present controversy.The Court in Silver framed the issue as follows:"[W]hether the New York Stock Exchange is to be held liable to a nonmember broker-dealer under the antitrust laws or regarded as impliedly immune therefrom when, pursuant to rules the Exchange has adopted under the Securities Exchange Act of 1934, it orders a number of its members to remove private direct telephone wire connections previously in operation between their offices and those of the nonmember, without giving the nonmember notice, assigning him any reason for the action, or affording him an opportunity to be heard." Id., at 343. Because the New York Stock Exchange occupied such a dominant position in the securities trading markets that the boycott would devastate the nonmember, the Court concluded that the refusal to deal with the nonmember would amount to a per se violation of 1 unless the Securities Exchange Act provided an immunity. Id., at 347-348. The question for the Court thus was whether effectuation of the policies of the Securities Exchange Act required partial repeal of the Sherman Act insofar as it proscribed this aspect of exchange self-regulation. Finding exchange self-regulation - including the power to expel members and limit dealings with nonmembers - to be an essential policy of the Securities Exchange Act, the Court held that the Sherman Act should be construed as having been partially repealed to permit the type of exchange activity at issue. But the interpretive maxim disfavoring repeals by implication led the Court to narrow permissible self-policing to situations in which adequate procedural safeguards had been provided."Congress ... cannot be thought to have sanctioned and protected self-regulative activity when carried out in a fundamentally unfair manner. The point is not that the antitrust laws impose the requirement of notice and a hearing here, but rather that, in acting without according petitioners these safeguards in response to their request, the Exchange has plainly exceeded the scope of its authority under the Securities Exchange Act to engage in self-regulation." Id., at 364 (footnote omitted). Thus it was the specific need to accommodate the important national policy of promoting effective exchange self-regulation, tempered by the principle that the Sherman Act should be narrowed only to the extent necessary to effectuate that policy, that dictated the result in Silver.Section 4 of the Robinson-Patman Act is not comparable to the self-policing provisions of the Securities Exchange Act. That section is no more than a narrow immunity from the price discrimination prohibitions of the Robinson-Patman Act itself. The Conference Report makes clear that the exception was intended solely to "safeguard producer and consumer cooperatives against any charge of violation of the act based on their distribution of earnings or surplus among their members on a patronage basis." H. R. Conf. Rep. No. 2951, 74th Cong., 2d Sess., 9 (1936) (emphasis added). This section has never been construed as granting cooperatives a blanket exception from the Robinson-Patman Act and cannot plausibly be construed as an exemption to or repeal of any portion of the Sherman Act.5 "There is nothing in the last section of the bill [containing 4] that distinguishes cooperatives, either favorably or unfavorably, from other agencies in the streams of production and trade, so far as concerns their dealings with others." 80 Cong. Rec. 9419 (1936) (remarks of Rep. Utterback).In light of this circumscribed congressional intent, there can be no argument that 4 of the Robinson-Patman Act should be viewed as a broad mandate for industry self-regulation. No need exists, therefore, to narrow the Sherman Act in order to accommodate any competing congressional policy requiring discretionary self-policing. Indeed, Congress would appear to have taken some care to make clear that no constriction of the Sherman Act was intended. In any event, the absence of procedural safeguards can in no sense determine the antitrust analysis. If the challenged concerted activity of Northwest's members would amount to a per se violation of 1 of the Sherman Act, no amount of procedural protection would save it. If the challenged action would not amount to a violation of 1, no lack of procedural protections would convert it into a per se violation because the antitrust laws do not themselves impose on joint ventures a requirement of process.BThis case therefore turns not on the lack of procedural protections but on whether the decision to expel Pacific is properly viewed as a group boycott or concerted refusal to deal mandating per se invalidation. "Group boycotts" are often listed among the classes of economic activity that merit per se invalidation under 1. See Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S., at 212; Northern Pacific R. Co. v. United States, 356 U.S., at 5; Silver v. New York Stock Exchange, 373 U.S., at 348; White Motor Co. v. United States, . Exactly what types of activity fall within the forbidden category is, however, far from certain. "[T]here is more confusion about the scope and operation of the per se rule against group boycotts than in reference to any other aspect of the per se doctrine." L. Sullivan, Law of Antitrust 229-230 (1977). Some care is therefore necessary in defining the category of concerted refusals to deal that mandate per se condemnation. See St. Paul Fire & Marine Ins. Co. v. Barry, (concerted refusals to deal "are not a unitary phenomenon"). Cf. Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S., at 9.Cases to which this Court has applied the per se approach have generally involved joint efforts by a firm or firms to disadvantage competitors by "either directly denying or persuading or coercing suppliers or customers to deny relationships the competitors need in the competitive struggle." Sullivan, supra, at 261-262. See, e. g., Silver, supra (denial of necessary access to exchange members); Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., (denial of necessary certification of product); Associated Press v. United States, (denial of important sources of news); Klor's, Inc., supra (denial of wholesale supplies). In these cases, the boycott often cut off access to a supply, facility, or market necessary to enable the boycotted firm to compete, Silver, supra; Radiant Burners, Inc., supra, and frequently the boycotting firms possessed a dominant position in the relevant market. E. g., Silver, supra; Associated Press, supra; Fashion Originators' Guild of America, Inc. v. FTC, . See generally Brodley, Joint Ventures and Antitrust Policy, 95 Harv. L. Rev. 1523, 1533, 1563-1565 (1982). In addition, the practices were generally not justified by plausible arguments that they were intended to enhance overall efficiency and make markets more competitive. Under such circumstances the likelihood of anticompetitive effects is clear and the possibility of countervailing procompetitive effects is remote. Although a concerted refusal to deal need not necessarily possess all of these traits to merit per se treatment, not every cooperative activity involving a restraint or exclusion will share with the per se forbidden boycotts the likelihood of predominantly anticompetitive consequences. For example, we recognized last Term in National Collegiate Athletic Assn. v. Board of Regents of University of Oklahoma that per se treatment of the NCAA's restrictions on the marketing of televised college football was inappropriate - despite the obvious restraint on output - because the "case involves an industry in which horizontal restraints on competition are essential if the product is to be available at all." 468 U.S., at 101.Wholesale purchasing cooperatives such as Northwest are not a form of concerted activity characteristically likely to result in predominantly anticompetitive effects. Rather, such cooperative arrangements would seem to be "designed to increase economic efficiency and render markets more, rather than less, competitive." Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., supra, at 20. The arrangement permits the participating retailers to achieve economies of scale in both the purchase and warehousing of wholesale supplies, and also ensures ready access to a stock of goods that might otherwise be unavailable on short notice. The cost savings and order-filling guarantees enable smaller retailers to reduce prices and maintain their retail stock so as to compete more effectively with larger retailers.Pacific, of course, does not object to the existence of the cooperative arrangement, but rather raises an antitrust challenge to Northwest's decision to bar Pacific from continued membership.6 It is therefore the action of expulsion that must be evaluated to determine whether per se treatment is appropriate. The act of expulsion from a wholesale cooperative does not necessarily imply anticompetitive animus and thereby raise a probability of anticompetitive effect. See Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., supra, at 9. Wholesale purchasing cooperative must establish and enforce reasonable rules in order to function effectively. Disclosure rules, such as the one on which Northwest relies, may well provide the cooperative with a needed means for monitoring the creditworthiness of its members.7 Nor would the expulsion characteristically be likely to result in predominantly anticompetitive effects, at least in the type of situation this case presents. Unless the cooperative possesses market power or exclusive access to an element essential to effective competition, the conclusion that expulsion is virtually always likely to have an anticompetitive effect is not warranted. See L. Sullivan, Law of Antitrust 292-293 (1977); Brodley, 95 Harv. L. Rev., at 1563-1565. Cf. Jefferson Parish Hospital Dist. v. Hyde, (absent indication of market power, tying arrangement does not warrant per se invalidation). See generally National Collegiate Athletic Assn. v. Board of Regents of University of Oklahoma, 468 U.S., at 104, n. 26 ("Per se rules may require considerable inquiry into market conditions before the evidence justifies a presumption of anticompetitive conduct"). Absent such a showing with respect to a cooperative buying arrangement, courts should apply a rule-of-reason analysis. At no time has Pacific made a threshold showing that these structural characteristics are present in this case. See Complaint, App. 2; Motion for Partial Summary Judgment, App. 9.8 The District Court appears to have followed the correct path of analysis - recognizing that not all concerted refusals to deal should be accorded per se treatment and deciding this one should not.9 The foregoing discussion suggests, however, that a satisfactory threshold determination whether anticompetitive effects would be likely might require a more detailed factual picture of market structure than the District Court had before it. Nonetheless, in our judgment the District Court's rejection of per se analysis in this case was correct. A plaintiff seeking application of the per se rule must present a threshold case that the challenged activity falls into a category likely to have predominantly anticompetitive effects. The mere allegation of a concerted refusal to deal does not suffice because not all concerted refusals to deal are predominantly anticompetitive. When the plaintiff challenges expulsion from a joint buying cooperative, some showing must be made that the cooperative possesses market power or unique access to a business element necessary for effective competition. Focusing on the argument that the lack of procedural safeguards required per se liability, Pacific did not allege any such facts. Because the Court of Appeals applied an erroneous per se analysis in this case, the court never evaluated the District Court's rule-of-reason analysis rejecting Pacific's claim. A remand is therefore appropriate for the limited purpose of permitting appellate review of that determination.III"The per se rule is a valid and useful tool of antitrust policy and enforcement." Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S., at 8. It does not denigrate the per se approach to suggest care in application. In this case, the Court of Appeals failed to exercise the requisite care and applied per se analysis inappropriately. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE MARSHALL and JUSTICE POWELL took no part in the decision of this case.

In 1980, appellant Hillsborough County adopted ordinances and promulgated implementing regulations governing blood plasma centers within the county. One ordinance requires that blood donors be tested for hepatitis, that they donate at only one center, and that they be given a breath-analysis test for alcohol content before each donation. Pursuant to 351 of the Public Health Service Act, the Food and Drug Administration (FDA) has promulgated federal regulations establishing minimum standards for the collection of blood plasma. Appellee operator of a blood plasma center located in appellant county filed suit in Federal District Court, challenging the constitutionality of the ordinances and implementing regulations on the ground, inter alia, that they violated the Supremacy Clause, and seeking declaratory and injunctive relief. The District Court upheld the ordinances and regulations, except the requirement that the donor be subject to a breath-analysis test. The Court of Appeals affirmed in part and reversed in part, holding that the FDA's regulations pre-empted all provisions of the ordinances and implementing regulations.Held: Appellant county's ordinances and implementing regulations are not pre-empted by the federal regulations. Pp. 712-723. (a) No intent to pre-empt may be inferred from the comprehensiveness of the federal regulations. While the regulations when issued in 1973 covered only plasma to be used in injections, the FDA has not indicated that regulations issued since that time expanding coverage to other uses have affected its express disavowal in 1973 of any intent to pre-empt state and local regulation, and such expansion of coverage does not cast doubt on the continued validity of that disavowal. Even in the absence of the disavowal, the comprehensiveness of the FDA's regulations would not justify pre-emption. To infer pre-emption whenever a federal agency deals with a problem comprehensively would be tantamount to saying that whenever the agency decides to step into a field, its regulations will be exclusive. Such a rule would be inconsistent with the federal-state balance embodied in this Court's Supremacy Clause jurisprudence. The adoption of the National Blood Policy in 1974, which sets forth a broad statement of goals with respect to blood collection and distribution and calls for cooperation between the Federal Government and the private sector, does not support the claim that the federal regulations have grown so comprehensive since 1973 as to justify the inference of complete pre-emption. Pp. 716-719. (b) Nor can an intent to pre-empt be inferred from the purported dominant federal interest in the field of blood plasma regulation. The factors indicating federal dominance are absent here. The regulation of health and safety matters is primarily and historically a matter of local concern, and the National Blood Policy is not a sufficient indication of federal dominance. Pp. 719-720. (c) Any concern that the challenged ordinances impose on plasma centers and donors requirements more stringent than those imposed by the federal regulations and therefore present a serious obstacle to the federal goal of ensuring an "adequate supply of plasma" is too speculative to support pre-emption. The District Court's findings rejecting appellee's factual assertions with respect to this concern, the lack of evidence of a threat to the "adequacy" of the plasma supply, and the lack of any statement by the FDA on the subject of "adequacy," all lead to the conclusion that appellant county's requirements do not imperil the federal goal. And where the record does not indicate that appellee has received the necessary federal exemption from the good-health requirement needed to collect plasma from individuals with hepatitis, appellee lacks standing to challenge the ordinances on the ground that they conflict with the federal regulations because they prevent individuals with hepatitis from donating their plasma. Pp. 720-722. 722 F.2d 1526, reversed and remanded.MARSHALL, J., delivered the opinion for a unanimous Court.Emeline C. Acton argued the cause for appellants. With her on the briefs was Joe Horn Mount.Paul J. Larkin, Jr., argued the cause pro hac vice for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and Margaret E. Clark.Larry A. Stumpf argued the cause for appellee. With him on the brief was Victoria L. Baden. Richard Landfield argued the cause for the American Blood Resources Association et al. as amici curiae urging affirmance. With him on the brief was William W. Becker.* [Footnote *] Benjamin W. Heineman, Jr., filed a brief for the National Association of Counties et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the American Blood Commission by Michael H. Cardozo; and for Grocery Manufacturers of America, Inc., by Peter Barton Hutt.JUSTICE MARSHALL delivered the opinion of the Court.The question presented is whether the federal regulations governing the collection of blood plasma from paid donors pre-empt certain local ordinances.IAppellee Automated Medical Laboratories, Inc., is a Florida corporation that operates, through subsidiaries, eight blood plasma centers in the United States. One of the centers, Tampa Plasma Corporation (TPC), is located in Hillsborough County, Florida. Appellee's plasma centers collect blood plasma from donors by employing a procedure called plasmapheresis. Under this procedure, whole blood removed from the donor is separated into plasma and other components, and "at least the red blood cells are returned to the donor," 21 CFR 606.3(e) (1984). Appellee sells the plasma to pharmaceutical manufacturers.Vendors of blood products, such as TPC, are subject to federal supervision. Under 351(a) of the Public Health Service Act, 58 Stat. 702, as amended, 42 U.S.C. 262(a), such vendors must be licensed by the Secretary of Health and Human Services (HHS). Licenses are issued only on a showing that the vendor's establishment and blood products meet certain safety, purity, and potency standards established by the Secretary. 42 U.S.C. 262(d). HHS is authorized to inspect such establishments for compliance. 262(c). Pursuant to 351 of the Act, the Food and Drug Administration (FDA), as the designee of the Secretary, has established standards for the collection of plasma. 21 CFR 640.60-640.76 (1984). The regulations require that a licensed physician determine the suitability of a donor before the first donation and thereafter at subsequent intervals of no longer than one year. 640.63(b)(1). A physician must also inform the donor of the hazards of the procedure and obtain the donor's consent, 640.61, and must be on the premises when the procedure is performed, 640.62. In addition, the regulations establish minimum standards for donor eligibility, 640.63(c)-(d), specify procedures that must be followed in performing plasmapheresis, 640.65, and impose labeling requirements, 640.70.In 1980, Hillsborough County adopted Ordinances 80-11 and 80-12. Ordinance 80-11 imposes a $225 license fee on plasmapheresis centers within the county. It also requires such centers to allow the County Health Department "reasonable and continuing access" to their premises for inspection purposes, and to furnish information deemed relevant by the Department. See App. 21-23.Ordinance 80-12 establishes a countywide identification system, which requires all potential donors to obtain from the County Health Department an identification card, valid for six months, that may be used only at the plasmapheresis center specified on the card. The ordinance incorporates by reference the FDA's blood plasma regulations, but also imposes donor testing and recordkeeping requirements beyond those contained in the federal regulations. Specifically, the ordinance requires that donors be tested for hepatitis prior to registration, that they donate at only one center, and that they be given a breath analysis for alcohol content before each plasma donation. See id., at 24-31.The county has promulgated regulations to implement Ordinance 80-12. The regulations set the fee for the issuance of an identification card to a blood donor at $2. They also establish that plasma centers must pay the county a fee of $1 for each plasmapheresis procedure performed. See id., at 32-34.In December 1981, appellee filed suit in the United States District Court for the Middle District of Florida, challenging the constitutionality of the ordinances and their implementing regulations. Appellee argued primarily that the ordinances violated the Supremacy Clause, the Commerce Clause, and the Fourteenth Amendment's Equal Protection Clause. Appellee sought a declaration that the ordinances were unlawful and a permanent injunction against their enforcement. Id., at 5-20.In November 1982, following a bench trial, the District Court upheld all portions of the local ordinances and regulations except the requirement that donors be subject to a breath-analysis test. Id., at 40-46. The court rejected the Supremacy Clause challenge, discerning no evidence of federal intent to pre-empt the whole field of plasmapheresis regulation and finding no conflict between the Hillsborough County ordinances and the federal regulations.In addition, the District Court rejected the claim that the ordinances violate the Equal Protection Clause because they regulate only centers that pay donors for plasma, and not centers in which volunteers donate whole blood. The court identified a rational basis for the distinction: paid donors sell plasma more frequently than volunteers donate whole blood, and paid donors have a higher rate of hepatitis than do volunteer donors.Finally, the District Court found that, with one exception, the ordinances do not impermissibly burden interstate commerce. It concluded that the breath-analysis requirement would impose a large burden on plasma centers by forcing them to purchase fairly expensive testing equipment, and was not shown to achieve any purpose not adequately served by the subjective evaluations of sobriety already required by the federal regulations. Automated Medical Laboratories appealed to the Court of Appeals for the Eleventh Circuit, which affirmed in part and reversed in part. 722 F.2d 1526 (1984). The Court of Appeals held that the FDA's blood plasma regulations pre-empt all provisions of the county's ordinances and regulations. The court acknowledged the absence of an express indication of congressional intent to pre-empt. Relying on the pervasiveness of the FDA's regulations and on the dominance of the federal interest in plasma regulation, however, it found an implicit intent to pre-empt state and local laws on that subject. In addition, the court found a serious danger of conflict between the FDA regulations and the Hillsborough County ordinances, reasoning that "[i]f the County scheme remains in effect, the national blood policy of promoting uniformity and guaranteeing a continued supply of healthy donors will be adversely affected." Id., at 1533.The Court of Appeals thus affirmed, albeit on other grounds, the District Court's invalidation of the breath-analysis requirement. It reversed the District Court's judgment upholding the remaining requirements of the Hillsborough County ordinances and regulations. In view of its decision, the court did not reach the Commerce Clause and Equal Protection challenges to the county's scheme. Ibid.Hillsborough County and the County Health Department appealed to this Court pursuant to 28 U.S.C. 1254(2).1 We noted probable jurisdiction, , and we now reverse.IIIt is a familiar and well-established principle that the Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates state laws that "interfere with, or are contrary to," federal law. Gibbons v. Ogden, 9 Wheat. 1, 211 (1824) (Marshall, C. J.). Under the Supremacy Clause, federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. Jones v. Rath Packing Co., . In the absence of express pre-emptive language, Congress' intent to preempt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation. Rice v. Santa Fe Elevator Corp., . Pre-emption of a whole field also will be inferred where the field is one in which "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Ibid.; see Hines v. Davidowitz, .Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, , or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, supra, at 67. See generally Capital Cities Cable, Inc. v. Crisp, .We have held repeatedly that state laws can be pre-empted by federal regulations as well as by federal statutes. See, e. g., Capital Cities Cable, Inc. v. Crisp, supra, at 699; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, ; United States v. Shimer, . Also, for the purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws. See, e. g., City of Burbank v. Lockheed Air Terminal, Inc., . IIIIn arguing that the Hillsborough County ordinances and regulations are pre-empted, appellee faces an uphill battle. The first hurdle that appellee must overcome is the FDA's statement, when it promulgated the plasmapheresis regulations in 1973, that it did not intend its regulations to be exclusive. In response to comments expressing concern that the regulations governing the licensing of plasmapheresis facilities "would pre-empt State and local laws governing plasmapheresis," the FDA explained in a statement accompanying the regulations that "[t]hese regulations are not intended to usurp the powers of State or local authorities to regulate plasmapheresis procedures in their localities." 38 Fed. Reg. 19365 (1973).The question whether the regulation of an entire field has been reserved by the Federal Government is, essentially, a question of ascertaining the intent underlying the federal scheme. See supra, at 712-713. In this case, appellee concedes that neither Congress nor the FDA expressly pre-empted state and local regulation of plasmapheresis. Thus, if the county ordinances challenged here are to fail they must do so either because Congress or the FDA implicitly pre-empted the whole field of plasmapheresis regulation, or because particular provisions in the local ordinances conflict with the federal scheme. According to appellee, two separate factors support the inference of a federal intent to pre-empt the whole field: the pervasiveness of the FDA's regulations and the dominance of the federal interest in this area. Appellee also argues that the challenged ordinances reduce the number of plasma donors, and that this effect conflicts with the congressional goal of ensuring an adequate supply of plasma.The FDA's statement is dispositive on the question of implicit intent to pre-empt unless either the agency's position is inconsistent with clearly expressed congressional intent, see Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., , or subsequent developments reveal a change in that position. Given appellee's first argument for implicit pre-emption - that the comprehensiveness of the FDA's regulations evinces an intent to pre-empt - any pre-emptive effect must result from the change since 1973 in the comprehensiveness of the federal regulations.2 To prevail on its second argument for implicit pre-emption - the dominance of the federal interest in plasmapheresis regulation - appellee must show either that this interest became more compelling since 1973, or that, in 1973, the FDA seriously underestimated the federal interest in plasmapheresis regulation.The second obstacle in appellee's path is the presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause. Through the challenged ordinances, Hillsborough County has attempted to protect the health of its plasma donors by preventing them from donating too frequently. See Brief for Appellants 12. It also has attempted to ensure the quality of the plasma collected so as to protect, in turn, the recipients of such plasma. "Where ... the field that Congress is said to have pre-empted has been traditionally occupied by the States `we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" Jones v. Rath Packing Co., 430 U.S., at 525 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S., at 230) (citations omitted). Cf. Kassel v. Consolidated Freightways Corp., (deference to state regulation of safety under the dormant Commerce Clause); id., at 681, n. 1 (BRENNAN, J., concurring in judgment) (same); id., at 691 (REHNQUIST, J., dissenting) (same). Of course, the same principles apply where, as here, the field is said to have been pre-empted by an agency, acting pursuant to congressional delegation. Appellee must thus present a showing of implicit pre-emption of the whole field, or of a conflict between a particular local provision and the federal scheme, that is strong enough to overcome the presumption that state and local regulation of health and safety matters can constitutionally coexist with federal regulation.IVGiven the clear indication of the FDA's intention not to pre-empt and the deference with which we must review the challenged ordinances, we conclude that these ordinances are not pre-empted by the federal scheme.AWe reject the argument that an intent to pre-empt may be inferred from the comprehensiveness of the FDA's regulations at issue here. As we have pointed out, given the FDA's 1973 statement, the relevant inquiry is whether a finding of pre-emption is justified by the increase, since 1973, in the comprehensiveness of the federal regulations. Admittedly, these regulations have been broadened over the years. When they were adopted in 1973, these regulations covered only plasma to be used in injections. In 1976, the regulations were expanded to cover also plasma to be used for the manufacture of "noninjectable" products. 41 Fed. Reg. 10762 (1976). The original regulations also were amended to "clarify and strengthen the existing Source Plasma (Human) regulations in light of FDA inspectional and other regulatory experience." Ibid.; see also 39 Fed. Reg. 26161 (1974) (first proposing the amendments).The FDA has not indicated that the new regulations affected its disavowal in 1973 of any intent to pre-empt state and local regulation, and the fact that the federal scheme was expanded to reach other uses of plasma does not cast doubt on the continued validity of that disavowal.3 Indeed, even in the absence of the 1973 statement, the comprehensiveness of the FDA's regulations would not justify pre-emption. In New York Dept. of Social Services v. Dublino, , the Court stated that "[t]he subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem." Id., at 415. There, in upholding state work-incentive provisions against a pre-emption challenge, the Court noted that the federal provisions "had to be sufficiently comprehensive to authorize and govern programs in States which had no ... requirements of their own as well as cooperatively in States with such requirements." Ibid. But merely because the federal provisions were sufficiently comprehensive to meet the need identified by Congress did not mean that States and localities were barred from identifying additional needs or imposing further requirements in the field. See also De Canas v. Bica, .We are even more reluctant to infer pre-emption from the comprehensiveness of regulations than from the comprehensiveness of statutes. As a result of their specialized functions, agencies normally deal with problems in far more detail than does Congress. To infer pre-emption whenever an agency deals with a problem comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a rule, of course, would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence. See Jones v. Rath Packing Co., 430 U.S., at 525. Moreover, because agencies normally address problems in a detailed manner and can speak through a variety of means, including regulations, preambles, interpretive statements, and responses to comments, we can expect that they will make their intentions clear if they intend for their regulations to be exclusive. Thus, if an agency does not speak to the question of pre-emption, we will pause before saying that the mere volume and complexity of its regulations indicate that the agency did in fact intend to pre-empt. Given the presumption that state and local regulation related to matters of health and safety can normally coexist with federal regulations, we will seldom infer, solely from the comprehensiveness of federal regulations, an intent to pre-empt in its entirety a field related to health and safety.Appellee also relies on the promulgation of the National Blood Policy by the Department of Health, Education, and Welfare (HEW), as an indication that the federal regulatory scheme is now comprehensive enough to justify complete pre-emption. See Brief for Appellee 25-26. Such reliance is misplaced.The National Blood Policy was established in 1974 as "a pluralistic and evolutionary approach to the solution of blood collection and distribution problems." 39 Fed. Reg. 32702 (1974). The policy contains no regulations; instead, it is a broad statement of goals and a call for cooperation between the Federal Government and the private sector: "These policies are intended to achieve certain goals but do not detail methods of implementation. In developing the most effective and suitable means of reaching these goals, the Secretary will involve, as appropriate, all relevant public and private sectors and Federal Government agencies in a cooperative effort to provide the best attainable blood services." Id., at 32703. The National Blood Policy indicates that federal regulation will be employed only as a last resort: "[I]f the private sector is unable to make satisfactory progress toward implementing these policies, a legislative and/or regulatory approach would have to be considered." Ibid. The adoption of this policy simply does not support the claim that the federal regulations have grown so comprehensive since 1973 as to justify the inference of complete pre-emption.BAppellee's second argument for pre-emption of the whole field of plasmapheresis regulation is that an intent to pre-empt can be inferred from the dominant federal interest in this field. We are unpersuaded by the argument. Undoubtedly, every subject that merits congressional legislation is, by definition, a subject of national concern. That cannot mean, however, that every federal statute ousts all related state law. Neither does the Supremacy Clause require us to rank congressional enactments in order of "importance" and hold that, for those at the top of the scale, federal regulation must be exclusive.Instead, we must look for special features warranting pre-emption. Our case law provides us with clear standards to guide our inquiry in this area. For example, in the seminal case of Hines v. Davidowitz, , the Court inferred an intent to pre-empt from the dominance of the federal interest in foreign affairs because "the supremacy of the national power in the general field of foreign affairs ... is made clear by the Constitution," id., at 62, and the regulation of that field is "intimately blended and intertwined with responsibilities of the national government," id., at 66; see also Zschernig v. Miller, . Needless to say, those factors are absent here. Rather, as we have stated, the regulation of health and safety matters is primarily, and historically, a matter of local concern. See Rice v. Santa Fe Elevator Corp., 331 U.S., at 230.4 There is also no merit in appellee's reliance on the National Blood Policy as an indication of the dominance of the federal interest in this area. Nothing in that policy takes plasma regulation out of the health-and-safety category and converts it into an area of overriding national concern.CAppellee's final argument is that even if the regulations are not comprehensive enough and the federal interest is not dominant enough to pre-empt the entire field of plasmapheresis regulation, the Hillsborough County ordinances must be struck down because they conflict with the federal scheme. Appellee argues principally that the challenged ordinances impose on plasma centers and donors requirements more stringent than those imposed by the federal regulations, and therefore that they present a serious obstacle to the federal goal of ensuring an "adequate supply of plasma." Tr. of Oral Arg. 24; see Brief for Appellee 30;37 Fed. Reg. 17420 (1972). We find this concern too speculative to support pre-emption.Appellee claims that "[t]he evidence at trial indicated that enforcement of the County ordinances would result in an increase in direct costs of plasma production by $1.50 per litre, and a total increase in production costs (including direct and indirect costs) of $7 per litre of plasma, an increase of approximately 15% in the total cost of production." Brief for Appellee 30. Appellee argues that these increased financial burdens would reduce the number of plasma centers. In addition, appellee claims, the county requirements would reduce the number of donors who only occasionally sell their plasma because such donors would be deterred by the identification-card requirement. Id., at 30-31.On the basis of the record before it, the District Court rejected each of appellee's factual assertions. The District Court found that appellee's cost-of-compliance estimates "were clouded with speculation." App. 42. It also found that appellee had presented no facts to support its conclusion that "the vendor population would decrease by twenty-five percent." Ibid. These findings of fact can be set aside only if they are clearly erroneous, Fed. Rule Civ. Proc. 52(a); see Anderson v. Bessemer City, , and hence come to us with a strong presumption of validity.More importantly, even if the Hillsborough County ordinances had, in fact, reduced the supply of plasma in that county, it would not necessarily follow that they interfere with the federal goal of maintaining an adequate supply of plasma. Undoubtedly, overly restrictive local legislation could threaten the national plasma supply. Neither Congress nor the FDA, however, has struck a particular balance between safety and quantity; as we have noted, the regulations, which contemplated additional state and local requirements, merely establish minimum safety standards. See 38 Fed. Reg. 19365 (1973); supra, at 710-711. Moreover, the record in this case does not indicate what supply the Federal Government considers "adequate," and we have no reason to believe that any reduction in the quantity of plasma donated would make that supply "inadequate."Finally, the FDA possesses the authority to promulgate regulations pre-empting local legislation that imperils the supply of plasma and can do so with relative ease. See supra, at 713. Moreover, the agency can be expected to monitor, on a continuing basis, the effects on the federal program of local requirements. Thus, since the agency has not suggested that the county ordinances interfere with federal goals, we are reluctant in the absence of strong evidence to find a threat to the federal goal of ensuring sufficient plasma.Our analysis would be somewhat different had Congress not delegated to the FDA the administration of the federal program. Congress, unlike an agency, normally does not follow, years after the enactment of federal legislation, the effects of external factors on the goals that the federal legislation sought to promote. Moreover, it is more difficult for Congress to make its intentions known - for example by amending a statute - than it is for an agency to amend its regulations or to otherwise indicate its position. In summary, given the findings of the District Court, the lack of any evidence in the record of a threat to the "adequacy" of the plasma supply, and the significance that we attach to the lack of a statement by the FDA, we conclude that the Hillsborough County requirements do not imperil the federal goal of ensuring sufficient plasma.5 Appellee also argues that the county ordinances conflict with the federal regulations because they prevent individuals with hepatitis from donating their plasma. See supra, at 710. Such plasma is used for the production of hepatitis vaccines, and the federal regulations provide for its collection pursuant to special authorization and under carefully controlled conditions. 21 CFR 610.41 (1984). To the extent that the Hillsborough County ordinances preclude individuals with hepatitis from donating their plasma, the ordinances are said to stand in the way of the accomplishment of the federal goal of combating hepatitis.In order to collect plasma from individuals with hepatitis, however, a plasma center must obtain from the FDA, pursuant to 640.75, an exemption from the good-health requirements of 640.63(c). The record does not indicate that appellee has received the required exemption. As a result, appellee could not collect plasma from individuals with hepatitis even in the absence of the county ordinances. Thus, appellee lacks standing to challenge the ordinances on this ground.6 VWe hold that Hillsborough County Ordinances 80-11 and 80-12, and their implementing regulations, are not pre-empted by the scheme for federal regulation of plasmapheresis. The judgment of the Court of Appeals for the Eleventh Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Florida's Unemployment Compensation Law, as applied by the State Industrial Commission's holding that petitioner was disqualified for unemployment compensation solely because she filed an unfair labor practice charge with the National Labor Relations Board, held invalid as violating the Supremacy Clause of the Constitution because it frustrates enforcement of the National Labor Relations Act. Pp. 238-240. 191 So.2d 99, reversed.Michael H. Gottesman argued the cause for petitioner. With him on the briefs were Bernard Kleiman, Elliot Bredhoff, George H. Cohen, Jerome Cooper and Neal Rutledge.Glenn L. Greene, Jr., argued the cause and filed a brief for respondents Stanley Works et al.Solicitor General Marshall, Robert S. Rifkind, Arnold Ordman, Dominick L. Manoli and Norton J. Come filed a memorandum for the National Labor Relations Board, as amicus curiae, urging reversal.MR. JUSTICE BLACK delivered the opinion of the Court.Section 10 of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U.S.C. 160, authorizes the National Labor Relations Board to initiate unfair labor practice proceedings whenever some person charges that another person has committed such practices. The Board cannot start a proceeding without such a charge being filed with it. See, e. g., National Labor Relations Board v. National Licorice Co., 104 F.2d 655 (C. A. 2d Cir.), modified on other grounds, ; Local 138, Operating Engineers (Skura), 148 N. L. R. B. 679, 681. The crucial question presented here is whether a State can refuse to pay its unemployment insurance to persons solely because they have preferred unfair labor practice charges against their former employer.The facts are stipulated and need not be stated at length. The petitioner, Mrs. Nash, who previously had been out on strike against her employer, the Stanley Works and Stanley Building Specialties, was, pursuant to union-management agreement, reinstated to her former job on April 14, 1965. Approximately five weeks later, on May 16, 1965, she was laid off by the company because of alleged "slow production," meaning that the company had insufficient work to warrant her retention. Mrs. Nash was unemployed from this time until October 5, 1965, when the company voluntarily called her back to work. She has been allowed unemployment compensation, under Florida Statutes, chapter 443, from the time of her discharge on May 16, up to June 17, but denied any compensation from June 17 to October 5. The reason given for this denial was that on June 17 she filed an unfair labor practice charge against her employer seeking reinstatement and back pay on the ground that the employer had actually laid her off because of her union activities in violation of the National Labor Relations Act, and that this charge was still pending on October 5 when she resumed work. In making this ruling the Florida Industrial Commission relied on 443.06 of the Florida Unemployment Compensation Law which provides: "An individual shall be disqualified for [unemployment] benefits ... . (4) For any week with respect to which the commission finds that his total or partial unemployment is due to a labor dispute in active progress which exists at the factory, establishment or other premises at which he is or was last employed ... ." The Commission held that the filing of the unfair labor practice charge brought petitioner within the wording of the Act in that her "unemployment" then became "due to a labor dispute." Thus the sole reason that petitioner was disqualified from compensation was that she filed an unfair labor practice charge. According to the Commission, the act of filing was the determinative factor under Florida law which rendered petitioner ineligible for unemployment compensation. The District Court of Appeal of Florida, Third District, denied per curiam petitioner's application for writ of certiorari to review the determinations of the Florida Industrial Commission Unemployment Compensation Board of Review. Since such denial by the Florida District Court of Appeal apparently precludes further state review,1 we granted certiorari because of the important constitutional question involved, specifically whether the Commission's ruling violates the Supremacy Clause of the Constitution (Art. VI, cl. 2) because it allegedly "frustrates" enforcement of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. 151 et seq.2 The National Labor Relations Act is a comprehensive code passed by Congress to regulate labor relations in activities affecting interstate and foreign commerce. As such it is of course the law of the land which no state law can modify or repeal. Implementation of the Act is dependent upon the initiative of individual persons who must, as petitioner has done here, invoke its sanctions through filing an unfair labor practice charge.3 Congress has made it clear that it wishes all persons with information about such practices to be completely free from coercion against reporting them to the Board. This is shown by its adoption of 8 (a) (4) which makes it an unfair labor practice for an employer to discriminate against an employee because he has filed charges. See John Hancock Mutual Life Insurance Co. v. National Labor Relations BoardApp. D.C. 261, 263-264, 191 F.2d 483, 485-486; National Labor Relations Board v. Lamar Creamery Co., 246 F.2d 8, 9-10 (C. A. 5th Cir.); National Labor Relations Board v. Syracuse Stamping Co., 208 F.2d 77, 80 (C. A. 2d Cir.). And it has been held that it is unlawful for an employer to seek to restrain an employee in the exercise of his right to file charges. National Labor Relations Board v. Clearfield Cheese Co., 213 F.2d 70 (C. A. 3d Cir.); National Labor Relations Board v. Gibbs Corp., 308 F.2d 247 (C. A. 5th Cir.); Roberts v. National Labor Relations BoardApp. D.C. 297, 350 F.2d 427. We have no doubt that coercive actions which the Act forbids employers and unions to take against persons making charges are likewise prohibited from being taken by the States. The action of Florida here, like the coercive actions which employers and unions are forbidden to engage in, has a direct tendency to frustrate the purpose of Congress to leave people free to make charges of unfair labor practices to the Board. Florida has applied its Unemployment Compensation Law so that an employee who believes he has been wrongly discharged has two choices: (1) he may keep quiet and receive unemployment compensation until he finds a new job or (2) he may file an unfair labor practice charge, thus under Florida procedure surrendering his right to unemployment compensation, and risk financial ruin if the litigation is protracted. Even the hope of a future award of back pay may mean little to a man of modest means and heavy responsibilities faced with the immediate severance of sustaining funds. It appears obvious to us that this financial burden which Florida imposes will impede resort to the Act and thwart congressional reliance on individual action. A national system for the implementation of this country's labor policies is not so dependent on state law. Florida should not be permitted to defeat or handicap a valid national objective by threatening to withdraw state benefits from persons simply because they cooperate with the Government's constitutional plan.4 In holding that this Florida law as applied in this case conflicts with the Supremacy Clause of the Constitution we but follow the unbroken rule that has come down through the years.In McCulloch v. Maryland, 4 Wheat. 316, 436, decided in 1819, this Court declared the States devoid of power "to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government." In Davis v. Elmira Savings Bank, , decided in 1896, this Court declared that a state law cannot stand that "either frustrates the purpose of the national legislation or impairs the efficiency of those agencies of the Federal government to discharge the duties, for the performance of which they were created." Id., at 283. And again in Hill v. Florida, , decided in 1945, this Court struck down a labor regulation saying it stood "`as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress... .'" Id., at 542.All of the cases just cited and many more support our invalidation under the Supremacy Clause of the Florida Unemployment Compensation Law as here applied. Reversed.MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

While petitioner Milkovich was a high school wrestling coach, his team was involved in an altercation at a match with another high school's team. Both he and School Superintendent Scott testified at an investigatory hearing before the Ohio High School Athletic Association (OHSAA), which placed the team on probation. They testified again during a suit by several parents, in which a county court overturned OHSAA's ruling. The day after the court's decision, respondent Lorain Journal Company's newspaper published a column authored by respondent Diadiun, which implied that Milkovich lied under oath in the judicial proceeding. Milkovich commenced a defamation action against respondents in the county court, alleging that the column accused him of committing the crime of perjury, damaged him in his occupation of teacher and coach, and constituted libel per se. Ultimately, the trial court granted summary judgment for respondents. The Ohio Court of Appeals affirmed, considering itself bound by the State Supreme Court's determination in Superintendent Scott's separate action against respondents that, as a matter law, the article was constitutionally protected opinion.Held: 1. The First Amendment does not require a separate "opinion" privilege limiting the application of state defamation laws. While the Amendment does limit such application, New York Times Co. v. Sullivan, , the breathing space that freedoms of expression require to survive is adequately secured by existing constitutional doctrine. Foremost, where a media defendant is involved, a statement on matters of public concern must be provable as false before liability can be assessed, Philadelphia Newspapers, Inc. v. Hepps, , thus ensuring full constitutional protection for a statement of opinion having no provably false factual connotation. Next, statements that cannot reasonably be interpreted as stating actual facts about an individual are protected, see, e.g., Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, , thus assuring that public debate will not suffer for lack of "imaginative expression" or the "rhetorical hyperbole" which has traditionally added much to the discourse of this Nation. The reference to "opinion" in dictum in Gertz v. Robert Welch, Inc., , was not intended to create a wholesale defamation exemption for "opinion." Read in context, the Gertz dictum is merely a reiteration of Justice Holmes' "marketplace of ideas" concept, see Abrams v. United States, . Simply couching a statement - "Jones is a liar" - in terms of opinion - "In my opinion, Jones is a liar" - does not dispel the factual implications contained in the statement. Pp. 11-21. 2. A reasonable factfinder could conclude that the statements in the Diadiun column imply an assertion that Milkovich perjured himself in a judicial proceeding. The article did not use the sort of loose, figurative, or hyperbolic language that would negate the impression that Diadiun was seriously maintaining Milkovich committed perjury. Nor does the article's general tenor negate this impression. In addition, the connotation that Milkovich committed perjury is sufficiently factual that it is susceptible of being proved true or false by comparing, inter alia, his testimony before the OHSAA board with his subsequent testimony before the trial court. Pp. 21-22. 3. This decision balances the First Amendment's vital guarantee of free and uninhibited discussion of public issues with the important social values that underlie defamation law and society's pervasive and strong interest in preventing and redressing attacks upon reputation. Pp. 22-23. 46 Ohio App. 3d 20, 545 N.E.2d 1320, reversed and remanded.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 23.Brent L. English argued the cause for petitioner. With him on the brief was John D. Brown. Richard D. Panza argued the cause for respondents. With him on the brief were William G. Wickens, David L. Herzer, Richard A. Naegele, P. Cameron DeVore, and Marshall J. Nelson.* [Footnote *] Briefs of amici curiae urging affirmance were filed for Dow Jones & Co. et al. by Robert D. Sack, Richard J. Tofel, Richard M. Schmidt, Jr., Devereux Chatillon, Douglas P. Jacobs, Barbara L. Wartelle, Harvey L. Lipton, Laura R. Handman, Slade R. Metcalf, Richard J. Ovelmen, Deborah R. Linfield, Jane E. Kirtley, and Bruce W. Sanford; and for the American Civil Liberties Union et al. by Henry R. Kaufman.Louis A. Colombo and David L. Marburger filed a brief for the Ohio Newspaper Association et al. as amici curiae.Chief JUSTICE REHNQUIST delivered the opinion of the Court.Respondent J. Theodore Diadiun authored an article in an Ohio newspaper implying that petitioner Michael Milkovich, a local high school wrestling coach, lied under oath in a judicial proceeding about an incident involving petitioner and his team which occurred at a wrestling match. Petitioner sued Diadiun and the newspaper for libel, and the Ohio Court of Appeals affirmed a lower court entry of summary judgment against petitioner. This judgment was based in part on the grounds that the article constituted an "opinion" protected from the reach of state defamation law by the First Amendment to the United States Constitution. We hold that the First Amendment does not prohibit the application of Ohio's libel laws to the alleged defamations contained in the article.This case is before us for the third time in an odyssey of litigation spanning nearly 15 years.1 Petitioner Milkovich, now retired, was the wrestling coach at Maple Heights High School in Maple Heights, Ohio. In 1974, his team was involved in an altercation at a home wrestling match with a team from Mentor High School. Several people were injured. In response to the incident, the Ohio High School Athletic Association (OHSAA) held a hearing at which Milkovich and H. Don Scott, the Superintendent of Maple Heights Public Schools, testified. Following the hearing, OHSAA placed the Maple Heights team on probation for a year and declared the team ineligible for the 1975 state tournament. OHSAA also censored Milkovich for his actions during the altercation. Thereafter, several parents and wrestlers sued OHSAA in the Court of Common Pleas of Franklin County, Ohio, seeking a restraining order against OHSAA's ruling on the grounds that they had been denied due process in the OHSAA proceeding. Both Milkovich and Scott testified in that proceeding. The court overturned OHSAA's probation and ineligibility orders on due process grounds.The day after the court rendered its decision, respondent Diadiun's column appeared in the News-Herald, a newspaper which circulates in Lake County, Ohio, and is owned by respondent Lorain Journal Co. The column bore the heading "Maple beat the law with the `big lie,'" beneath which appeared Diadiun's photograph and the words "TD Says." The carryover page headline announced "... Diadiun says Maple told a lie." The column contained the following passages: "`... [A] lesson was learned (or relearned) yesterday by the student body of Maple Heights High School, and by anyone who attended the Maple-Mentor wrestling meet of last Feb. 8. "`A lesson which, sadly, in view of the events of the past year, is well they learned early. "`It is simply this: If you get in a jam, lie your way out. "`If you're successful enough, and powerful enough, and can sound sincere enough, you stand an excellent chance of making the lie stand up, regardless of what really happened. "`The teachers responsible were mainly Maple wrestling coach, Mike Milkovich, and former superintendent of schools, H. Donald Scott. ... . "`Anyone who attended the meet, whether he be from Maple Heights, Mentor, or impartial observer, knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth. "`But they got away with it. "`Is that the kind of lesson we want our young people learning from their high school administrators and coaches? "`I think not.'" Milkovich v. News-Herald, 46 Ohio App. 3d 20, 21, 545 N.E.2d 1320, 1321-1322 (1989).2 Petitioner commenced a defamation action against respondents in the Court of Common Pleas of Lake County, Ohio, alleging that the headline of Diadiun's article and the nine passages quoted above "accused plaintiff of committing the crime of perjury, an indictable offense in the State of Ohio, and damaged plaintiff directly in his lifetime occupation of coach and teacher, and constituted libel per se." App. 12. The action proceeded to trial, and the court granted a directed verdict to respondents on the grounds that the evidence failed to establish the article was published with "actual malice" as required by New York Times Co. v. Sullivan, . See App. 21-22. The Ohio Court of Appeals for the Eleventh Appellate District reversed and remanded, holding that there was sufficient evidence of actual malice to go to the jury. See Milkovich v. Lorain Journal, 65 Ohio App. 2d 143, 416 N.E.2d 662 (1979). The Ohio Supreme Court dismissed the ensuing appeal for want of a substantial constitutional question, and this Court denied certiorari. .On remand, relying in part on our decision in Gertz v. Robert Welch, Inc., , the trial court granted summary judgment to respondents on the grounds that the article was an opinion protected from a libel action by "constitutional law," App. 55, and alternatively, as a public figure, petitioner had failed to make out a prima facie case of actual malice. Id., at 55-59. The Ohio Court of Appeals affirmed both determinations. Id., at 62-70. On appeal, the Supreme Court of Ohio reversed and remanded. The court first decided that petitioner was neither a public figure nor a public official under the relevant decisions of this Court. See Milkovich v. News-Herald, 15 Ohio St.3d 292, 294-299, 473 N.E.2d 1191, 1193-1196 (1984). The court then found that "the statements in issue are factual assertions as a matter of law, and are not constitutionally protected as the opinions of the writer... . The plain import of the author's assertions is that Milkovich, inter alia, committed the crime of perjury in a court of law. Id., at 298-299, 473 N.E.2d, at 1196-1197. This Court again denied certiorari. .Meanwhile, Superintendent Scott had been pursuing a separate defamation action through the Ohio courts. Two years after its Milkovich decision, in considering Scott's appeal, the Ohio Supreme Court reversed its position on Diadiun's article, concluding that the column was "constitutionally protected opinion." Scott v. News-Herald, 25 Ohio St.3d 243, 254, 496 N.E.2d 699, 709 (1986). Consequently, the court upheld a lower court's grant of summary judgment against Scott.The Scott court decided that the proper analysis for determining whether utterances are fact or opinion was set forth in the decision of the United States Court of Appeals for the D.C. Circuit in Ollman v. EvansApp. D.C. 301, 750 F.2d 970 (1984), cert. denied, . See Scott, 25 Ohio St.3d at 250, 496 N.E.2d, at 706. Under that analysis, four factors are considered to ascertain whether, under the "totality of circumstances," a statement is fact or opinion. These factors are: (1) "the specific language used"; (2) "whether the statement is verifiable"; (3) "the general context of the statement"; and (4) "the broader context in which the statement appeared." Ibid. The court found that application of the first two factors to the column militated in favor of deeming the challenged passages actionable assertions of fact. Id., at 250-252, 496 N.E.2d at 706-707. That potential outcome was trumped, however, by the court's consideration of the third and fourth factors. With respect to the third factor, the general context, the court explained that "the large caption `TD Says' ... would indicate to even the most gullible reader that the article was, in fact, opinion." Id., at 252, 496 N.E.2d at 707.3 As for the fourth factor, the "broader context," the court reasoned that, because the article appeared on a sports page - "a traditional haven for cajoling, invective, and hyperbole" - the article would probably be construed as opinion. Id., at 253-254, 496 N.E.2d at 708.4 Subsequently, considering itself bound by the Ohio Supreme Court's decision in Scott, the Ohio Court of Appeals in the instant proceedings affirmed a trial court's grant of summary judgment in favor of respondents, concluding that "it has been decided, as a matter of law, that the article in question was constitutionally protected opinion." 46 Ohio App. 3d 20, at 23, 545 N.E.2d at 1324. The Supreme Court of Ohio dismissed petitioner's ensuing appeal for want of a substantial constitutional question. App. 119. We granted certiorari, , to consider the important questions raised by the Ohio courts' recognition of a constitutionally-required "opinion" exception to the application of its defamation laws. We now reverse.5 Since the latter half of the 16th century, the common law has afforded a cause of action for damage to a person's reputation by the publication of false and defamatory statements. See L. Eldredge, Law of Defamation 5 (1978). In Shakespeare's Othello, Iago says to Othello: "Good name in man and woman, dear my lord. Is the immediate jewel of their souls. Who steals my purse steals trash; `Tis something, nothing; `Twas mine, `tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed." Act III, scene 3. Defamation law developed not only as a means of allowing an individual to vindicate his good name, but also for the purpose of obtaining redress for harm caused by such statements. Eldredge, supra, at 5. As the common law developed in this country, apart from the issue of damages, one usually needed only allege an unprivileged publication of false and defamatory matter to state a cause of action for defamation. See, e.g., Restatement of Torts 558 (1938); Gertz v. Robert Welch, Inc., 418 U.S., at 370 (WHITE, J., dissenting) ("Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule"). The common law generally did not place any additional restrictions on the type of statement that could be actionable. Indeed, defamatory communications were deemed actionable regardless of whether they were deemed to be statements of fact or opinion. See, e.g., Restatement of Torts, supra, 565-567. As noted in the 1977 Restatement (Second) of Torts 566, Comment a: "Under the law of defamation, an expression of opinion could be defamatory if the expression was sufficiently derogatory of another as to cause harm to his reputation, so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him... . The expression of opinion was also actionable in a suit for defamation, despite the normal requirement that the communication be false as well as defamatory... . This position was maintained even though the truth or falsity of an opinion - as distinguished from a statement of fact - is not a matter that can be objectively determined and truth is a complete defense to a suit for defamation." However, due to concerns that unduly burdensome defamation laws could stifle valuable public debate, the privilege of "fair comment" was incorporated into the common law as an affirmative defense to an action for defamation. The principle of "fair comment" afford[ed] legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact. 1 F. Harper & F. James, Law of Torts 5.28, p. 456 (1956) (footnote omitted). As this statement implies, comment was generally privileged when it concerned a matter of public concern, was upon true or privileged facts, represented the actual opinion of the speaker, and was not made solely for the purpose of causing harm. See Restatement of Torts, supra, 606. According to the majority rule, the privilege of fair comment applied only to an expression of opinion and not to a false statement of fact, whether it was expressly stated or implied from an expression of opinion." Restatement (Second) of Torts, supra, 566 Comment a. Thus, under the common law, the privilege of "fair comment" was the device employed to strike the appropriate balance between the need for vigorous public discourse and the need to redress injury to citizens wrought by invidious or irresponsible speech.In 1964, we decided in New York Times Co. v. Sullivan, , that the First Amendment to the United States Constitution placed limits on the application of the state law of defamation. There the Court recognized the need for "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Id., at 279-280. This rule was prompted by a concern that, with respect to the criticism of public officials in their conduct of governmental affairs, a state law "`rule compelling the critic of official conduct to guarantee the truth of all his factual assertions' would deter protected speech." Gertz v. Robert Welch, Inc., supra, at 334 (quoting New York Times, supra, at 279).Three years later, in Curtis Publishing Co. v. Butts, , a majority of the Court determined "that the New York Times test should apply to criticism of `public figures' as well as `public officials.' The Court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons `who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.'" Gertz, supra, at 336-337 (quoting Butts, supra, at 164 (Warren, C.J., concurring in result)). As Chief Justice Warren noted in concurrence, "[o]ur citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of `public officials.'" Butts, supra, at 164. The Court has also determined that, both for public officials and public figures, a showing of New York Times malice is subject to a clear and convincing standard of proof. Gertz, supra, at 342.The next step in this constitutional evolution was the Court's consideration of a private individual's defamation actions involving statements of public concern. Although the issue was initially in doubt, see Rosenbloom v. Metromedia, Inc., , the Court ultimately concluded that the New York Times malice standard was inappropriate for a private person attempting to prove he was defamed on matters of public interest. Gertz v. Robert Welch, Inc., supra. As we explained:"Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. ... . "[More important,] public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual." Id., at 344-345 (footnote omitted). Nonetheless, the Court believed that certain significant constitutional protections were warranted in this area. First, we held that the States could not impose liability without requiring some showing of fault. See id., at 347-348 ("This approach ... recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation"). Second, we held that the States could not permit recovery of presumed or punitive damages on less than a showing of New York Times malice. See 418 U.S., at 350 ("Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship... .").Still later, in Philadelphia Newspapers, Inc. v. Hepps, , we held that "the common law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern. Id., at 777. In other words, the Court fashioned "a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages." Id., at 776. Although recognizing that "requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so," the Court believed that this result was justified on the grounds that "placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result." Id., at 777-778.We have also recognized constitutional limits on the type of speech which may be the subject of state defamation actions. In Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, , a real estate developer had engaged in negotiations with a local city council for a zoning variance on certain of his land, while simultaneously negotiating with the city on other land the city wished to purchase from him. A local newspaper published certain articles stating that some people had characterized the developer's negotiating position as "blackmail," and the developer sued for libel. Rejecting a contention that liability could be premised on the notion that the word "blackmail" implied the developer had committed the actual crime of blackmail, we held that the imposition of liability on such a basis was constitutionally impermissible - that as a matter of constitutional law, the word "blackmail" in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review. Id., at 13. Noting that the published reports "were accurate and full," the Court reasoned that even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's] negotiating position extremely unreasonable. Id., at 13-14. See also Hustler Magazine, Inc. v. Falwell, (First Amendment precluded recovery under state emotional distress action for ad parody which "could not reasonably have been interpreted as stating actual facts about the public figure involved"); Letter Carriers v. Austin, (use of the word "traitor" in literary definition of a union "scab" not basis for a defamation action under federal labor law, since used "in a loose, figurative sense" and was "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members").The Court has also determined that "in cases raising First Amendment issues ... an appellate court has an obligation to `make an independent examination of the whole record' in order to make sure that `the judgment does not constitute a forbidden intrusion on the field of free expression.'" Bose Corp. v. Consumers Union of United States, Inc., (quoting New York Times, 376 U.S., at 284-286). The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law." Harte-Hanks Communications, Inc. v. Connaughton, .Respondents would have us recognize, in addition to the established safeguards discussed above, still another First-Amendment-based protection for defamatory statements which are categorized as "opinion," as opposed to "fact." For this proposition, they rely principally on the following dictum from our opinion in Gertz:"Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact." 418 U.S., at 339-340 (footnote omitted). Judge Friendly appropriately observed that this passage "has become the opening salvo in all arguments for protection from defamation actions on the ground of opinion, even though the case did not remotely concern the question." Cianci v. New Times Publishing Co., 639 F.2d 54, 61 (CA2 1980). Read in context, though, the fair meaning of the passage is to equate the word "opinion" in the second sentence with the word "idea" in the first sentence. Under this view, the language was merely a reiteration of Justice Holmes' classic "marketplace of ideas" concept. See Abrams v. United States, (Holmes, J., dissenting) ("[T]he ultimate good desired is better reached by free trade in ideas - ... the best test of truth is the power of the thought to get itself accepted in the competition of the market").Thus we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled "opinion." See Cianci, supra, at 62, n. 10 (The "marketplace of ideas" origin of this passage "points strongly to the view that the `opinions' held to be constitutionally protected were the sort of thing that could be corrected by discussion"). Not only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of "opinion" may often imply an assertion of objective fact.If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, "In my opinion Jones is a liar," can cause as much damage to reputation as the statement, "Jones is a liar." As Judge Friendly aptly stated: "[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words `I think.'" See Cianci, supra, at 64. It is worthy of note that, at common law, even the privilege of fair comment did not extend to "a false statement of fact, whether it was expressly stated or implied from an expression of opinion." Restatement (Second) of Torts, 566 Comment a (1977).Apart from their reliance on the Gertz dictum, respondents do not really contend that a statement such as, "In my opinion John Jones is a liar," should be protected by a separate privilege for "opinion" under the First Amendment. But they do contend that, in every defamation case, the First Amendment mandates an inquiry into whether a statement is "opinion" or "fact," and that only the latter statements may be actionable. They propose that a number of factors developed by the lower courts (in what we hold was a mistaken reliance on the Gertz dictum) be considered in deciding which is which. But we think the "`breathing space'" which "`[f]reedoms of expression require in order to survive,'" Hepps, 475 U.S., at 772 (quoting New York Times, supra, at 272), is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between "opinion" and fact.Foremost, we think Hepps stands for the proposition that a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant is involved.6 Thus, unlike the statement, "In my opinion Mayor Jones is a liar," the statement, "In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin," would not be actionable. Hepps ensures that a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.7 Next, the Bresler-Letter Carriers-Falwell line of cases provide protection for statements that cannot "reasonably [be] interpreted as stating actual facts" about an individual. Falwell, 485 U.S., at 50. This provides assurance that public debate will not suffer for lack of "imaginative expression" or the "rhetorical hyperbole" which has traditionally added much to the discourse of our Nation. See id., at 53-55.The New York Times-Butts-Gertz culpability requirements further ensure that debate on public issues remains "uninhibited, robust, and wide-open," New York Timesat 270. Thus, where a statement of "opinion" on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth. Similarly, where such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault as required by Gertz.8 Finally, the enhanced appellate review required by Bose Corp. provides assurance that the foregoing determinations will be made in a manner so as not to "constitute a forbidden intrusion of the field of free expression." Bose Corp., 466 U.S., at 499 (quotation omitted).We are not persuaded that, in addition to these protections, an additional separate constitutional privilege for "opinion" is required to ensure the freedom of expression guaranteed by the First Amendment. The dispositive question in the present case then becomes whether or not a reasonable factfinder could conclude that the statements in the Diadiun column imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding. We think this question must be answered in the affirmative. As the Ohio Supreme Court itself observed: "[T]he clear impact in some nine sentences and a caption is that [Milkovich] "lied at the hearing after ... having given his solemn oath to tell the truth." Scott, 25 Ohio St.3d at 251, 496 N.E.2d at 707. This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression.We also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false. A determination of whether petitioner lied in this instance can be made on a core of objective evidence by comparing, inter alia, petitioner's testimony before the OHSAA board with his subsequent testimony before the trial court. As the Scott court noted regarding the plaintiff in that case: "[W]hether or not H. Don Scott did indeed perjure himself is certainly verifiable by a perjury action with evidence adduced from the transcripts and witnesses present at the hearing. Unlike a subjective assertion, the averred defamatory language is an articulation of an objectively verifiable event." Id., at 252, 496 N.E.2d at 707. So too with petitioner Milkovich.9 The numerous decisions discussed above establishing First Amendment protection for defendants in defamation actions surely demonstrate the Court's recognition of the Amendment's vital guarantee of free and uninhibited discussion of public issues. But there is also another side to the equation; we have regularly acknowledged the "important social values which underlie the law of defamation," and recognize that "[s]ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation." Rosenblatt v. Baer, . Justice Stewart in that case put it with his customary clarity:"The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being - a concept at the root of any decent system of ordered liberty. ... ."The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored." Id., at 92-93 (concurring opinion). We believe our decision in the present case holds the balance true. The judgment of the Ohio Court of Appeals is reversed, and the case remanded for further proceedings not inconsistent with this opinion. Reversed.

The appeal, involving the issue whether a Connecticut statutory requirement that tenants wishing to appeal from an eviction judgment must post a bond offends the Due Process or Equal Protection Clause if applied to foreclose appellate review for indigent tenants, is dismissed, as the record is ambiguous regarding the underlying reason appellants were denied an opportunity to appeal the eviction judgment. 5 Conn. Cir. 282, 250 A. 2d 527, dismissed.Francis X. Dineen argued the cause for appellants. With him on the brief was Joanne S. Faulkner.F. Michael Ahern, Assistant Attorney General, argued the cause for the State of Connecticut as amicus curiae in support of appellee. With him on the brief were Robert K. Killian, Attorney General, and Robert L. Hirtle, Jr., Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Joe Purcell of Arkansas, Duke W. Dunbar of Colorado, Theodore L. Sendak of Indiana, Kent Frizzell of Kansas, Jack P. F. Gremillion of Louisiana, James S. Erwin of Maine, A. F. Summer of Mississippi, Robert Morgan of North Carolina, Paul W. Brown of Ohio, George F. McCanless of Tennessee, Vernon B. Romney of Utah, and James E. Barrett of Wyoming; and by Peter J. O'Dea, Attorney General of the Virgin Islands.Briefs of amici curiae urging reversal were filed by the Center on Social Welfare Policy and Law et al. and by the National Legal Aid and Defender Association. PER CURIAM.We noted probable jurisdiction in this case to decide whether 52-542 of the Connecticut General Statutes1 requiring a bond for the protection of his landlord from a tenant who wished to appeal from a judgment in a summary eviction proceeding, offends either the Due Process or Equal Protection Clause of the Fourteenth Amendment if applied to foreclose appellate review for those too poor to post the bond, .Because of an ambiguity in the record concerning the underlying reason these appellants were denied an opportunity to appeal the trial court's judgment ordering that they be evicted, we now conclude that this appeal should be dismissed, DeBacker v. Brainard, ; Rescue Army v. Municipal Court, .After unsuccessfully litigating in the trial court a summary eviction proceeding begun by their landlords, appellants moved in the trial court for a waiver of the bond requirement so that they might appeal. The trial court, apparently of the view that it had the power to waive the statutory bond requirement in an appropriate case, denied appellants' motion on a finding that "this appeal is being taken for the purpose of delay." App. 23. Appellants sought review of the trial court's denial of their motion in the Connecticut Circuit Court, and that court denied review and dismissed appellants' appeal. It is unclear from that court's opinion, however, whether it thought the bond requirement of 52-542 left no room for a waiver,2 or instead based its refusal to hear appellants' appeal in part on the trial court's finding - cited in the Circuit Court's opinion3 - that the appeal before it was taken only for purpose of delay. 5 Conn. Cir. 282, 250 A. 2d 527 (1968). Appellants' petition to the Supreme Court of Connecticut to certify the case for review was declined.In these circumstances, we deem it inappropriate for this Court to decide the constitutional issue tendered by appellants. Dismissed.MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.

Where, prior to any declaration of guilt or innocence, the District Court dismissed an information against petitioner on the ground that it failed to state an offense, the Government's appeal from the dismissal was barred by the Double Jeopardy Clause. Certiorari granted; 548 F.2d 822, vacated and remanded.PER CURIAM.In an information filed in the United States District Court for the District of Montana, petitioner was charged with knowingly fishing on a portion of the Big Horn River in Montana reserved for use by the Crow Indians, in violation of 18 U.S.C. 1165. The case was submitted to the District Court on an agreed statement of facts, which showed that petitioner had cast his lure into the river while standing on land owned by the State of Montana within the exterior boundaries of the Crow Reservation. After considering the stipulated facts and reviewing the applicable treaties, the court dismissed the information for failure to state an offense. 395 F. Supp. 205 (1975).On the Government's appeal, the Court of Appeals for the Ninth Circuit reversed. 548 F.2d 822 (1976). The court held that the appeal was permissible under 18 U.S.C. 3731 and the Double Jeopardy Clause because, as in United States v. Wilson, , no further factual proceedings would be required in the District Court in the event that its legal conclusions were found to be erroneous:"Here, as in Wilson, it is easy to separate factual resolutions from determinations of law. No additional facts must be found to determine whether the stipulation supports the conviction of the defendant. The only determination to be made is a legal one." 548 F.2d, at 827. On the merits, the court viewed the pertinent treaties differently from the District Court and held that petitioner had violated 18 U.S.C. 1165 "by willfully and knowingly fishing without lawful authority or permission of the tribe." 548 F.2d, at 835. The court directed entry of a judgment of conviction.We think that the Court of Appeals was without jurisdiction to entertain the appeal. When the District Court dismissed the information, jeopardy had attached, see Serfass v. United States, , but no formal finding of guilt or innocence had been entered, see United States v. Jenkins, ; Lee v. United States, n. 4, 29 n. 7 (1977). In these circumstances, the holding of United States v. Wilson is inapposite. A successful Government appeal "would not justify a reversal with instructions to reinstate the general finding of guilt: there was no such finding, in form or substance, to reinstate." United States v. Jenkins, supra, at 368. Absent a plea of guilty or nolo contendere, see Fed. Rule Crim. Proc. 11, a verdict or general finding of guilt by the trial court is a necessary predicate to conviction. See Rule 23 (c). Because the dismissal was granted prior to any declaration of guilt or innocence, "on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged," Lee, supra, at 30, we hold that the Government's appeal was barred by the Double Jeopardy Clause.We grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand to that court with directions that the appeal be dismissed. It is so ordered.MR. JUSTICE STEVENS would grant certiorari and set the case for oral argument.MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.I dissent from the summary disposition of this case for two reasons. The first is that the factual assumption, made both by the Court of Appeals for the Ninth Circuit and by this Court, that petitioner and respondent had agreed to submit the issue of guilt to the District Court on the "agreed statement of facts" is by no means clear from Judge Battin's principal opinion in this case, 395 F. Supp. 205. My second reason for disagreeing with summary disposition is that this Court has never passed on any claim of double jeopardy where the issues were submitted on an agreed statement of facts, rather than to a jury for its verdict or to the court for a finding of guilt or innocence after hearing witnesses. While I am not prepared to say that the Court's decision on the legal issue involved here is wrong, I am not sufficiently convinced that it is right so as to justify summary disposition without either argument or briefing on the merits.The Court states that "[t]he case was submitted to the District Court on an agreed statement of facts," and "[a]fter considering the stipulated facts and reviewing the applicable treaties, the court dismissed the information for failure to state an offense." The Court of Appeals for the Ninth Circuit put the matter much the same way. Implicit in this statement is that the submission involved a waiver of petitioner's right to jury trial and both his and the Government's consent that the District Court decide the issue of guilt or innocence. The District Court's opinion in the case, however, is by no means clear on these points. That court put the matter this way: "On June 14, 1974, the defendant filed a motion to dismiss said information. The parties submitted extensive and well-considered memoranda of law. On September 4, 1974 an order was filed wherein I denied the motion to dismiss and noted that the information was sufficient on its face. An Agreed Statement of Facts and additional memoranda of law have been filed. Additionally, counsel for the Crow Tribe of Indians and the State of Montana, Department of Fish and Game, have appeared herein as amici curiae. "After a thorough review of the file, I am compelled to reconsider my order dated September 4, 1974, wherein I denied defendant's motion to dismiss. I conclude that the information is not sufficient on its face for several reasons." Id., at 207. While this statement is by no means inconsistent with an agreement by the parties to submit the issue of guilt or innocence to the District Court, neither is it inconsistent with an agreement by the parties to submit on an agreed statement of facts a motion for reconsideration of the motion to dismiss the information, which the District Court had previously denied. This factual uncertainty, unless somehow clarified, would lead me to deny certiorari in this case in order that this Court not render an advisory opinion on what may be an important double jeopardy question.The Court of Appeals, proceeding on the hypothesis that the case had been submitted to the District Court for a determination of guilt or innocence, as well as the sufficiency of the information, decided that jeopardy had attached. It therefore proceeded to inquire whether a reversal of the District Court's dismissal of the information would require further factual determinations, and therefore constitute double jeopardy under United States v. Jenkins, , or would instead be governed by United States v. Wilson, .I agree with the Court that the Court of Appeals' alignment of this case with Wilson rather than with Jenkins was conclusory and gave too little attention to the ways in which this case differs from Wilson. But I do not think the opposite result is so obvious as to warrant summary disposition. In deciding the question of law which this case poses, I do not think we can ignore three double jeopardy decisions which have intervened since the Jenkins-Wilson-Serfass (Serfass v. United States, ) trilogy of two years ago. United States v. Dinitz, , qualified the "manifest necessity" requirement of United States v. Perez, 9 Wheat. 579 (1824), where a mistrial was granted at the request of the defendant. Its stress on the absence of prosecutorial overreaching or misconduct, while in no way inconsistent with that trilogy, nonetheless emphasized more of a balancing and fairness test than the sort of "bright line" distinction set forth in Wilson and Jenkins. United States v. Martin Linen Supply Co., , and Lee v. United States, , likewise read more in terms of balancing and of "double jeopardy values" than in terms of the strict Wilson-Jenkins distinction.If there has been some shift in emphasis in the Court's cases this Term, it seems to me that the submission of the issue of guilt or innocence on an agreed statement of facts not only factually distinguishes this case from Jenkins, but is a factor to be weighed in any balancing test against a finding of double jeopardy. We have held that the Double Jeopardy Clause bars repeated prosecutions not only to reduce the possibility that an innocent man will finally be convicted, but to avoid subjecting defendants "to embarrassment, expense and ordeal and compelling [them] to live in a continuing state of anxiety and insecurity ... ." Green v. United States, . See United States v. Jorn, . Since if the Court's factual hypothesis is right, the facts of this case are not in issue, not only is some of the embarrassment and ordeal absent, but the expense that would normally be involved in a full-scale retrial with its calling of witnesses for both sides is likewise avoided.The factual uncertainties in this case are not entirely unrelated to the double jeopardy questions involved. Because we have never decided a case involving double jeopardy claims where the issue of guilt or innocence was submitted to the court on an agreed statement of facts without the calling of any witnesses, we have never had occasion to pass on when jeopardy attaches in such a situation. Assuming that the factual uncertainties in the procedural history of the case can be clarified, and that the issue of guilt or innocence was submitted to the trial judge, I do not believe this case is controlled by Jenkins. The double jeopardy issues which it raises are not as straightforward as suggested in the Court's summary disposition. If the Court feels this case should be decided on the merits, I would therefore grant certiorari and have it briefed and argued.

Certiorari granted; vacated and remanded.Allison W. Brown, Jr., Robert M. Alexander, Jack Greenberg, and James M. Nabrit III for petitioners.John Chas. Harris for respondents.PER CURIAM.The petition for a writ of certiorari is granted and the judgment is vacated. The case is remanded to the Supreme Court of Appeals of Virginia for further consideration in light of Jones v. Alfred H. Mayer Co., ante, p. 409.MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissent for the reasons stated in MR. JUSTICE HARLAN'S dissenting opinion in Jones v. Alfred H. Mayer Co., ante, p. 449.

After petitioner was convicted of two capital murders and other crimes, he was sentenced to death. The Supreme Court of Virginia affirmed on direct appeal and later dismissed petitioner's state habeas corpus petition. He then sought federal habeas relief, requesting, among other things, an evidentiary hearing on three constitutional claims, which he had been unable to develop in the state-court proceedings. Those claims were that (1) the prosecution had violated Brady v. Maryland, 373 U. S. 83, in failing to disclose a report of a pretrial psychiatric examination of Jeffrey Cruse, petitioner's accomplice and the Commonwealth's main witness against petitioner; (2) the trial was rendered unfair by the seating of a juror who at voir dire had not revealed possible sources of bias; and (3) a prosecutor committed misconduct in failing to reveal his knowledge of the juror's possible bias. The District Court granted an evidentiary hearing on, inter alia, the latter two claims, but denied a hearing on the Brady claim. Before any hearing could be held, however, the Fourth Circuit granted the Commonwealth's requests for an emergency stay and for a writ of mandamus and prohibition, which were based on the argument that an evidentiary hearing was prohibited by 28 U. S. C. §2254(e)(2), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). On remand, the District Court vacated its order granting an evidentiary hearing and dismissed the petition, having determined petitioner could not satisfy §2254(e)(2)'s requirements. In affirming, the Fourth Circuit agreed with petitioner's argument that the statute would not apply if he had exercised diligence in state court, but held, among other things, that he had not been diligent and so had "failed to develop the factual basis of [his three] claim[s] in State court," §2254(e)(2). The court concluded that petitioner could not satisfy the statute's conditions for excusing his failure to develop the facts and held him barred from receiving an evidentiary hearing.Held: Under §2254(e)(2), as amended by AEDPA, a "fail[ure] to develop" a claim's factual basis in state court proceedings is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or his counsel. The statute does not bar the evidentiary hearing petitioner seeks on his juror bias and prosecutorial misconduct claims, but bars a hearing on his Brady claim because he "failed to develop" that claim's factual basis in state court and concedes his inability to satisfy the statute's further stringent conditions for excusing the deficiency. Pp. 6-22. (a) Petitioner filed his federal habeas petition after AEDPA's effective date, so his case is controlled by §2254(e)(2)'s opening clause, which specifies that "[i]f the [federal habeas] applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim" unless the applicant makes specified showings. Pp. 6-8. (b) The analysis begins with the language of the statute. Although "fail" is sometimes used in a neutral way, not importing fault or want of diligence, this is not the sense in which the word "failed" is used in §2254(e)(2). A statute's words must be given their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import. E.g., Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207. In its customary and preferred sense, "fail" connotes some omission, fault, or negligence on the part of the person who has failed to do something. If Congress had instead intended a "no-fault" standard, it would have had to do no more than use, in lieu of the phrase "has failed to," the phrase "did not." This interpretation has support in Keeney v. Tamayo-Reyes, 504 U. S. 1, 8, whose threshold standard of diligence is codified in §2254(e)(2)'s opening clause. The Court's interpretation also avoids putting §2254(e)(2) in needless tension with §2254(d), which authorizes habeas relief if the prisoner developed his claim in state court and can prove the state court's decision was "contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." This Court rejects the Commonwealth's arguments for a "no-fault" reading: that treating the prisoner's lack of diligence in state court as a prerequisite for application of §2254(e)(2) renders a nullity of §2254(e)(2)(A)(ii)'s provision requiring the prisoner to show "a factual predicate [of his claim] could not have been previously discovered through the exercise of due diligence"; and that anything less than a no-fault understanding of §2254(e)(2) is contrary to AEDPA's purpose to further comity, finality, and federalism principles. Pp. 8-15. (c) Petitioner did not exercise the diligence required to preserve his claim that nondisclosure of Cruse's psychiatric report contravened Brady. The report, which mentioned Cruse had little recollection of the murders because he was intoxicated at the time, was prepared before petitioner was tried; yet it was not raised by petitioner until he filed his federal habeas petition. Given evidence in the record that his state habeas counsel knew of the report's existence and its potential importance, yet failed to investigate in anything but a cursory manner, this Court is not satisfied with petitioner's explanation that, although an investigator for his federal habeas counsel discovered the report in Cruse's court file, his state counsel had not seen the report when he reviewed the same file. Because this constitutes a failure to develop the factual basis of petitioner's Brady claim in state court, this Court must determine if the requirements in the balance of §2254(e)(2) are satisfied so that petitioner's failure is excused. Subparagraph (B) of §2254(e)(2) conditions a hearing upon a showing, by clear and convincing evidence, that no reasonable factfinder would have found petitioner guilty of capital murder but for the alleged constitutional error. Petitioner concedes he cannot make this showing, and the case has been presented to this Court on that premise. Accordingly, the Fourth Circuit's judgment barring an evidentiary hearing on this claim is affirmed. Pp. 15-18. (d) However, petitioner has met the burden of showing he was diligent in efforts to develop the facts supporting his juror bias and prosecutorial misconduct claims in state court. Those claims are based on two questions posed by the trial judge at voir dire. First, the judge asked prospective jurors whether any of them was related to, inter alios, Deputy Sheriff Meinhard, who investigated the crime scene, interrogated Cruse, and later became the prosecution's first witness. Venire member Stinnett, who had divorced Meinhard after a 17-year marriage and four children, remained silent, thereby indicating the answer to the question was "no." Second, the judge asked whether any prospective juror had ever been represented by any of the attorneys in the case, including prosecutor Woodson. Stinnett again said nothing, although Woodson had represented her during her divorce from Meinhard. Later, Woodson admitted he knew Stinnett and Meinhard had been married and divorced, but stated that he did not consider divorced people to be "related" and that he had no recollection of having been involved as a private attorney in the divorce. Stinnett's silence after the first question could suggest to the factfinder an unwillingness to be forthcoming; this in turn could bear on her failure to disclose that Woodson had been her attorney. Moreover, her failure to divulge material information in response to the second question was misleading as a matter of fact because Woodson was her counsel. Coupled with Woodson's own reticence, these omissions as a whole disclose the need for an evidentiary hearing. This Court disagrees with the Fourth Circuit's conclusion that petitioner's state habeas counsel should have discovered Stinnett's relationship to Meinhard and Woodson. The trial record contains no evidence which would have put a reasonable attorney on notice that Stinnett's nonresponse was a deliberate omission of material information, and counsel had no reason to believe Stinnett had been married to Meinhard or been represented by Woodson. Moreover, because state postconviction relief was no longer available at the time the facts came to light, it would have been futile for petitioner to return to the Virginia courts, so that he cannot be said to have failed to develop the facts in state court by reason of having neglected to pursue remedies available under Virginia law. The foregoing analysis establishes cause for any procedural default petitioner may have committed in not presenting these claims to the Virginia courts in the first instance. Questions regarding the standard for determining the prejudice that petitioner must establish to obtain relief on these claims can be addressed by the lower courts during further proceedings. These courts should take due account of the District Court's earlier decision to grant an evidentiary hearing based in part on its belief that Stinnett deliberately lied on voir dire. Pp. 18-22.189 F. 3d 421, affirmed in part, reversed in part, and remanded. Kennedy, J., delivered the opinion for a unanimous Court.MICHAEL WAYNE WILLIAMS, PETITIONER v. JOHN TAYLOR, WARDENon writ of certiorari to the united states court of appeals for the fourth circuit[April 18, 2000] Justice Kennedy delivered the opinion of the Court. Petitioner Michael Wayne Williams received a capital sentence for the murders of Morris Keller, Jr., and Keller's wife, Mary Elizabeth. Petitioner later sought a writ of habeas corpus in federal court. Accompanying his petition was a request for an evidentiary hearing on constitutional claims which, he alleged, he had been unable to develop in state-court proceedings. The question in this case is whether 28 U. S. C. §2254(e)(2) (1994 ed., Supp. III), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, bars the evidentiary hearing petitioner seeks. If petitioner "has failed to develop the factual basis of [his] claim[s] in State court proceedings," his case is subject to §2254(e)(2), and he may not receive a hearing because he concedes his inability to satisfy the statute's further stringent conditions for excusing the deficiency.I On the evening of February 27, 1993, Verena Lozano James dropped off petitioner and his friend Jeffrey Alan Cruse near a local store in a rural area of Cumberland County, Virginia. The pair planned to rob the store's employees and customers using a .357 revolver petitioner had stolen in the course of a quadruple murder and robbery he had committed two months earlier. Finding the store closed, petitioner and Cruse walked to the Kellers' home. Petitioner was familiar with the couple, having grown up down the road from where they lived. He told Cruse they would have "a couple thousand dollars." App. 78. Cruse, who had been holding the .357, handed the gun to petitioner and knocked on the door. When Mr. Keller opened the door, petitioner pointed the gun at him as the two intruders forced their way inside. Petitioner and Cruse forced Mr. Keller to the kitchen, where they discovered Mrs. Keller. Petitioner ordered the captives to remove their clothing. While petitioner kept guard on the Kellers, Cruse searched the house for money and other valuables. He found a .38-caliber handgun and bullets. Upon Cruse's return to the kitchen, petitioner had Cruse tie their captives with telephone cords. The Kellers were confined to separate closets while the intruders continued ransacking the house. When they gathered all they wanted, petitioner and Cruse decided to rape Mrs. Keller. With Mrs. Keller pleading with them not to hurt her or her husband, petitioner raped her. Cruse did the same. Petitioner then ordered the Kellers to shower and dress and "take a walk" with him and Cruse. Id., at 97. As they were leaving, petitioner told Mrs. Keller he and Cruse were going to burn down the house. Mrs. Keller begged to be allowed to retrieve her marriage license, which she did, guarded by petitioner. As the prosecution later presented the case, details of the murders were as follows. Petitioner, now carrying the .38, and Cruse, carrying the .357, took the Kellers to a thicket down a dirt road from the house. With petitioner standing behind Mr. Keller and Cruse behind Mrs. Keller, petitioner told Cruse, "We'll shoot at the count of three." Id., at 103. At the third count, petitioner shot Mr. Keller in the head, and Mr. Keller collapsed to the ground. Cruse did not shoot Mrs. Keller at the same moment. Saying "he didn't want to leave no witnesses," petitioner urged Cruse to shoot Mrs. Keller. Ibid. Cruse fired one shot into her head. Despite his wound, Mr. Keller stood up, but petitioner shot him a second time. To ensure the Kellers were dead, petitioner shot each of them two or three more times. After returning to the house and loading the stolen property into the Kellers' jeep, petitioner and Cruse set fire to the house and drove the jeep to Fredericksburg, Virginia, where they sold some of the property. They threw the remaining property and the .357 revolver into the Rappahannock River and set fire to the jeep. Pursuing a lead from Verena James, the police interviewed Cruse about the fire at the Kellers' home. Petitioner had fled to Florida. Cruse provided no useful information until the police discovered the bodies of the victims, at which point Cruse consulted counsel. In a plea bargain Cruse agreed to disclose the details of the crimes in exchange for the Commonwealth's promise not to seek the death penalty against him. Cruse described the murders but made no mention of his own act of rape. When the Commonwealth discovered the omission, it revoked the plea agreement and charged Cruse with capital murder. Petitioner was arrested and charged with robbery, abduction, rape, and the capital murders of the Kellers. At trial in January 1994, Cruse was the Commonwealth's main witness. He recounted the murders as we have just described. Cruse testified petitioner raped Mrs. Keller, shot Mr. Keller at least twice, and shot Mrs. Keller several times after she had been felled by Cruse's bullet. He also described petitioner as the mastermind of the murders. The circumstances of the first plea agreement between the Commonwealth and Cruse and its revocation were disclosed to the jury. App. 158-159. Testifying on his own behalf, petitioner admitted he was the first to shoot Mr. Keller and it was his idea to rob the store and set fire to the house. He denied, however, raping or shooting Mrs. Keller, and claimed to have shot Mr. Keller only once. Petitioner blamed Cruse for the remaining shots and disputed some other parts of Cruse's testimony. The jury convicted petitioner on all counts. After considering the aggravating and mitigating evidence presented during the sentencing phase, the jury found the aggravating circumstances of future dangerousness and vileness of the crimes and recommended a death sentence. The trial court imposed the recommended sentence. The Supreme Court of Virginia affirmed petitioner's convictions and sentence, Williams v. Commonwealth, 248 Va. 528, 450 S. E. 2d 365 (1994), and we denied certiorari, Williams v. Virginia, 515 U. S. 1161 (1995). In a separate proceeding, Cruse pleaded guilty to the capital murder of Mrs. Keller and the first-degree murder of Mr. Keller. After the prosecution asked the sentencing court to spare his life because of his testimony against petitioner, Cruse was sentenced to life imprisonment. Petitioner filed a habeas petition in state court alleging, in relevant part, that the Commonwealth failed to disclose a second agreement it had reached with Cruse after the first one was revoked. The new agreement, petitioner alleged, was an informal undertaking by the prosecution to recommend a life sentence in exchange for Cruse's testimony. Finding no merit to petitioner's claims, the Virginia Supreme Court dismissed the habeas petition, and we again denied certiorari. Williams v. Netherland, 519 U. S. 877 (1996). Petitioner filed a habeas petition in the United States District Court for the Eastern District of Virginia on November 20, 1996. In addition to his claim regarding the alleged undisclosed agreement between the Commonwealth and Cruse, the petition raised three claims relevant to questions now before us. First, petitioner claimed the prosecution had violated Brady v. Maryland, 373 U. S. 83 (1963), in failing to disclose a report of a confidential pre-trial psychiatric examination of Cruse. Second, petitioner alleged his trial was rendered unfair by the seating of a juror who at voir dire had not revealed possible sources of bias. Finally, petitioner alleged one of the prosecutors committed misconduct in failing to reveal his knowledge of the juror's possible bias. The District Court granted an evidentiary hearing on the undisclosed agreement and the allegations of juror bias and prosecutorial misconduct but denied a hearing on the psychiatric report. Before the evidentiary hearing could be held, the Commonwealth filed an application for an emergency stay and a petition for a writ of mandamus and prohibition in the Court of Appeals. The Commonwealth argued that petitioner's evidentiary hearing was prohibited by 28 U. S. C. §2254(e)(2) (1994 ed., Supp. III). A divided panel of the Court of Appeals granted the emergency stay and remanded for the District Court to apply the statute to petitioner's request for an evidentiary hearing. On remand, the District Court vacated its order granting an evidentiary hearing and dismissed the petition, having determined petitioner could not satisfy §2254(e)(2)'s requirements. The Court of Appeals affirmed. It first considered petitioner's argument that §2254(e)(2) did not apply to his case because he had been diligent in attempting to develop his claims in state court. Citing its decision in Cardwell v. Greene, 152 F. 3d 331 (CA4), cert. denied, 525 U. S. 1037 (1998), the Court of Appeals agreed with petitioner that §2254(e)(2) would not apply if he had exercised diligence in state court. The court held, however, that petitioner had not been diligent and so had "failed to develop" in state court the factual bases of his Brady, juror bias, and prosecutorial misconduct claims. See 189 F. 3d 421, 426 (CA4 1999). The Court of Appeals concluded petitioner could not satisfy the statute's conditions for excusing his failure to develop the facts and held him barred from receiving an evidentiary hearing. The Court of Appeals ruled in the alternative that, even if §2254(e)(2) did not apply, petitioner would be ineligible for an evidentiary hearing under the cause and prejudice standard of pre-AEDPA law. See id., at 428. Addressing petitioner's claim of an undisclosed informal agreement between the Commonwealth and Cruse, the Court of Appeals rejected it on the merits under 28 U. S. C. §2254(d)(1) and, as a result, did not consider whether §2254(e)(2) applied. See 189 F. 3d, at 429. On October 18, 1999, petitioner filed an application for stay of execution and a petition for a writ of certiorari. On October 28, we stayed petitioner's execution and granted certiorari to decide whether §2254(e)(2) precludes him from receiving an evidentiary hearing on his claims. See 528 U. S. ___ (1999). We now affirm in part and reverse in part.IIA Petitioner filed his federal habeas petition after AEDPA's effective date, so the statute applies to his case. See Lindh v. Murphy, 521 U. S. 320, 326-327 (1997). The Commonwealth argues AEDPA bars petitioner from receiving an evidentiary hearing on any claim whose factual basis was not developed in state court, absent narrow circumstances not applicable here. Petitioner did not develop, or raise, his claims of juror bias, prosecutorial misconduct, or the prosecution's alleged Brady violation regarding Cruse's psychiatric report until he filed his federal habeas petition. Petitioner explains he could not have developed the claims earlier because he was unaware, through no fault of his own, of the underlying facts. As a consequence, petitioner contends, AEDPA erects no barrier to an evidentiary hearing in federal court. Section 2254(e)(2), the provision which controls whether petitioner may receive an evidentiary hearing in federal district court on the claims that were not developed in the Virginia courts, becomes the central point of our analysis. It provides as follows:"If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-- "(A) the claim relies on-- "(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or "(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and "(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." By the terms of its opening clause the statute applies only to prisoners who have "failed to develop the factual basis of a claim in State court proceedings." If the prisoner has failed to develop the facts, an evidentiary hearing cannot be granted unless the prisoner's case meets the other conditions of §2254(e)(2). Here, petitioner concedes his case does not comply with §2254(e)(2)(B), see Brief for Petitioner 25, so he may receive an evidentiary hearing only if his claims fall outside the opening clause. There was no hearing in state court on any of the claims for which petitioner now seeks an evidentiary hearing. That, says the Commonwealth, is the end of the matter. In its view petitioner, whether or not through his own fault or neglect, still "failed to develop the factual basis of a claim in State court proceedings." Petitioner, on the other hand, says the phrase "failed to develop" means lack of diligence in developing the claims, a defalcation he contends did not occur since he made adequate efforts during state-court proceedings to discover and present the underlying facts. The Court of Appeals agreed with petitioner's interpretation of §2254(e)(2) but believed petitioner had not exercised enough diligence to avoid the statutory bar. See 189 F. 3d, at 426. We agree with petitioner and the Court of Appeals that "failed to develop" implies some lack of diligence; but, unlike the Court of Appeals, we find no lack of diligence on petitioner's part with regard to two of his three claims.B We start, as always, with the language of the statute. See United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989). Section 2254(e)(2) begins with a conditional clause, "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings," which directs attention to the prisoner's efforts in state court. We ask first whether the factual basis was indeed developed in state court, a question susceptible, in the normal course, of a simple yes or no answer. Here the answer is no. The Commonwealth would have the analysis begin and end there. Under its no-fault reading of the statute, if there is no factual development in the state court, the federal habeas court may not inquire into the reasons for the default when determining whether the opening clause of §2254(e)(2) applies. We do not agree with the Commonwealth's interpretation of the word "failed." We do not deny "fail" is sometimes used in a neutral way, not importing fault or want of diligence. So the phrase "We fail to understand his argument" can mean simply "We cannot understand his argument." This is not the sense in which the word "failed" is used here, however. We give the words of a statute their " `ordinary, contemporary, common meaning,' " absent an indication Congress intended them to bear some different import. Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207 (1997) (quoting Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993)). See also Bailey v. United States, 516 U. S. 137, 141 (1995). In its customary and preferred sense, "fail" connotes some omission, fault, or negligence on the part of the person who has failed to do something. See, e.g., Webster's New International Dictionary 910 (2d ed. 1939) (defining "fail" as "to be wanting; to fall short; to be or become deficient in any measure or degree," and "failure" as "a falling short," "a deficiency or lack," and an "[o]mission to perform"); Webster's New International Dictionary 814 (3d ed. 1993) ("to leave some possible or expected action unperformed or some condition unachieved"). See also Black's Law Dictionary 594 (6th ed. 1990) (defining "fail" as "[f]ault, negligence, or refusal"). To say a person has failed in a duty implies he did not take the necessary steps to fulfill it. He is, as a consequence, at fault and bears responsibility for the failure. In this sense, a person is not at fault when his diligent efforts to perform an act are thwarted, for example, by the conduct of another or by happenstance. Fault lies, in those circumstances, either with the person who interfered with the accomplishment of the act or with no one at all. We conclude Congress used the word "failed" in the sense just described. Had Congress intended a no-fault standard, it would have had no difficulty in making its intent plain. It would have had to do no more than use, in lieu of the phrase "has failed to," the phrase "did not." Under the opening clause of §2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel. In this we agree with the Court of Appeals and with all other courts of appeals which have addressed the issue. See, e.g., Baja v. Ducharme, 187 F. 3d 1075, 1078-1079 (CA9 1999); Miller v. Champion, 161 F. 3d 1249, 1253 (CA10 1998); Cardwell, 152 F. 3d, at 337; McDonald v. Johnson, 139 F. 3d 1056, 1059 (CA5 1998); Burris v. Parke, 116 F. 3d 256, 258 (CA7 1997); Love v. Morton, 112 F. 3d 131, 136 (CA3 1997). Our interpretation of §2254(e)(2)'s opening clause has support in Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992), a case decided four years before AEDPA's enactment. In Keeney, a prisoner with little knowledge of English sought an evidentiary hearing in federal court, alleging his nolo contendere plea to a manslaughter charge was not knowing and voluntary because of inaccuracies in the translation of the plea proceedings. The prisoner had not developed the facts of his claim in state collateral proceedings, an omission caused by the negligence of his state postconviction counsel. See id., at 4, 8-9. The Court characterized this as the "prisoner's failure to develop material facts in state court." Id., at 8. We required the prisoner to demonstrate cause and prejudice excusing the default before he could receive a hearing on his claim, ibid., unless the prisoner could "show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing," id., at 12. Section 2254(e)(2)'s initial inquiry into whether "the applicant has failed to develop the factual basis of a claim in State court proceedings" echoes Keeney's language regarding "the state prisoner's failure to develop material facts in state court." In Keeney, the Court borrowed the cause and prejudice standard applied to procedurally defaulted claims, see Wainwright v. Sykes, 433 U. S. 72, 87-88 (1977), deciding there was no reason "to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim." Keeney, supra, at 8. As is evident from the similarity between the Court's phrasing in Keeney and the opening clause of §2254(e)(2), Congress intended to preserve at least one aspect of Keeney's holding: prisoners who are at fault for the deficiency in the state-court record must satisfy a heightened standard to obtain an evidentiary hearing. To be sure, in requiring that prisoners who have not been diligent satisfy §2254(e)(2)'s provisions rather than show cause and prejudice, and in eliminating a freestanding "miscarriage of justice" exception, Congress raised the bar Keeney imposed on prisoners who were not diligent in state-court proceedings. Contrary to the Commonwealth's position, however, there is no basis in the text of §2254(e)(2) to believe Congress used "fail" in a different sense than the Court did in Keeney or otherwise intended the statute's further, more stringent requirements to control the availability of an evidentiary hearing in a broader class of cases than were covered by Keeney's cause and prejudice standard. In sum, the opening clause of §2254(e)(2) codifies Keeney's threshold standard of diligence, so that prisoners who would have had to satisfy Keeney's test for excusing the deficiency in the state-court record prior to AEDPA are now controlled by §2254(e)(2). When the words of the Court are used in a later statute governing the same subject matter, it is respectful of Congress and of the Court's own processes to give the words the same meaning in the absence of specific direction to the contrary. See Lorillard v. Pons, 434 U. S. 575, 581 (1978) ("[W]here ... Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute"). See also Cottage Savings Assn. v. Commissioner, 499 U. S. 554, 562 (1991). Interpreting §2254(e)(2) so that "failed" requires lack of diligence or some other fault avoids putting it in needless tension with §2254(d). A prisoner who developed his claim in state court and can prove the state court's decision was "contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," is not barred from obtaining relief by §2254(d)(1). See Williams v. Taylor, ante, at ___ (opinion of O'Connor, J.). If the opening clause of §2254(e)(2) covers a request for an evidentiary hearing on a claim which was pursued with diligence but remained undeveloped in state court because, for instance, the prosecution concealed the facts, a prisoner lacking clear and convincing evidence of innocence could be barred from a hearing on the claim even if he could satisfy §2254(d). See 28 U. S. C. §2254(e)(2)(B). The "failed to develop" clause does not bear this harsh reading, which would attribute to Congress a purpose or design to bar evidentiary hearings for diligent prisoners with meritorious claims just because the prosecution's conduct went undetected in state court. We see no indication that Congress by this language intended to remove the distinction between a prisoner who is at fault and one who is not. The Commonwealth argues a reading of "failed to develop" premised on fault empties §2254(e)(2)(A)(ii) of its meaning. To treat the prisoner's lack of diligence in state court as a prerequisite for application of §2254(e)(2), the Commonwealth contends, renders a nullity of the statute's own diligence provision requiring the prisoner to show "a factual predicate [of his claim] could not have been previously discovered through the exercise of due diligence." §2254(e)(2)(A)(ii). We disagree. The Commonwealth misconceives the inquiry mandated by the opening clause of §2254(e)(2). The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts. The purpose of the fault component of "failed" is to ensure the prisoner undertakes his own diligent search for evidence. Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend, as the Commonwealth would have it, upon whether those efforts could have been successful. Though lack of diligence will not bar an evidentiary hearing if efforts to discover the facts would have been in vain, see §2254(e)(2)(A)(ii), and there is a convincing claim of innocence, see §2254(e)(2)(B), only a prisoner who has neglected his rights in state court need satisfy these conditions. The statute's later reference to diligence pertains to cases in which the facts could not have been discovered, whether there was diligence or not. In this important respect §2254(e)(2)(A)(ii) bears a close resemblance to (e)(2)(A)(i), which applies to a new rule that was not available at the time of the earlier proceedings. Cf. Gutierrez v. Ada, 528 U. S. ___, ___ (2000) (slip op., at 5) ("[W]ords and people are known by their companions"). Cf. also United States v. Locke, 529 U. S. ___, ___ (2000) (slip op., at 13). In these two parallel provisions Congress has given prisoners who fall within §2254(e)(2)'s opening clause an opportunity to obtain an evidentiary hearing where the legal or factual basis of the claims did not exist at the time of state-court proceedings. We are not persuaded by the Commonwealth's further argument that anything less than a no-fault understanding of the opening clause is contrary to AEDPA's purpose to further the principles of comity, finality, and federalism. There is no doubt Congress intended AEDPA to advance these doctrines. Federal habeas corpus principles must inform and shape the historic and still vital relation of mutual respect and common purpose existing between the States and the federal courts. In keeping this delicate balance we have been careful to limit the scope of federal intrusion into state criminal adjudications and to safeguard the States' interest in the integrity of their criminal and collateral proceedings. See, e.g., Coleman v. Thompson, 501 U. S. 722, 726 (1991) ("This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in federal habeas corpus"); McCleskey v. Zant ("[T]he doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State's interest in the finality of its criminal judgments"). It is consistent with these principles to give effect to Congress' intent to avoid unneeded evidentiary hearings in federal habeas corpus, while recognizing the statute does not equate prisoners who exercise diligence in pursuing their claims with those who do not. Principles of exhaustion are premised upon recognition by Congress and the Court that state judiciaries have the duty and competence to vindicate rights secured by the Constitution in state criminal proceedings. Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. "Comity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel, 526 U. S. 838, 844 (1999). For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, §2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings. Yet comity is not served by saying a prisoner "has failed to develop the factual basis of a claim" where he was unable to develop his claim in state court despite diligent effort. In that circumstance, an evidentiary hearing is not barred by §2254(e)(2).III Now we apply the statutory test. If there has been no lack of diligence at the relevant stages in the state proceedings, the prisoner has not "failed to develop" the facts under §2254(e)(2)'s opening clause, and he will be excused from showing compliance with the balance of the subsection's requirements. We find lack of diligence as to one of the three claims but not as to the other two.A Petitioner did not exercise the diligence required to preserve the claim that nondisclosure of Cruse's psychiatric report was in contravention of Brady v. Maryland, 373 U. S. 83 (1963). The report concluded Cruse "ha[d] little recollection of the [murders of the Kellers], other than vague memories, as he was intoxicated with alcohol and marijuana at the time." App. 495. The report had been prepared in September 1993, before petitioner was tried; yet it was not mentioned by petitioner until he filed his federal habeas petition and attached a copy of the report. Petitioner explained that an investigator for his federal habeas counsel discovered the report in Cruse's court file but state habeas counsel had not seen it when he had reviewed the same file. State habeas counsel averred as follows: "Prior to filing [petitioner's] habeas corpus petition with the Virginia Supreme Court, I reviewed the Cumberland County court files of [petitioner] and of his co-defendant, Jeffrey Cruse. ... I have reviewed the attached psychiatric evaluation of Jeffrey Cruse ... . I have no recollection of seeing this report in Mr. Cruse's court file when I examined the file. Given the contents of the report, I am confident that I would remember it." Id., at 625-626.The trial court was not satisfied with this explanation for the late discovery. Nor are we. There are repeated references to a "psychiatric" or "mental health" report in a transcript of Cruse's sentencing proceeding, a copy of which petitioner's own state habeas counsel attached to the state habeas petition he filed with the Virginia Supreme Court. The transcript reveals that Cruse's attorney described the report with details that should have alerted counsel to a possible Brady claim. As Cruse's attorney said:"The psychiatric report ... point[s] out that [Cruse] is significantly depressed. He suffered from post traumatic stress. His symptoms include nightmares, sleeplessness, sobbing, reddening of the face, severe depression, flash backs ... . [T]he psychological report states he is overwhelmed by feelings of guilt and shame in his actions. He is numb. He is trying to suppress his feelings, but when he has feelings, there is only pain and sadness." Id., at 424.The description accords with the contents of the psychiatric report, which diagnosed Cruse as suffering from post-traumatic stress disorder:"[Cruse] has recurrent nightmares and visualizes the face of the woman that he killed. When attempting to describe this nightmare, he breaks openly into tears and his face reddens. ... He continues to feel worthless as a person ... . He has no hope for his future and has been thinking of suicide constantly. ... He does describe inability to sleep, often tossing and turning, waking up, and feeling fatigued during the day. ... He described neurovegetative symptoms of major depression and post-traumatic nightmares, recurrent in nature, of the [murders]." Id., at 495-499.The transcript put petitioner's state habeas counsel on notice of the report's existence and possible materiality. The sole indication that counsel made some effort to investigate the report is an October 30, 1995, letter to the prosecutor in which counsel requested "[a]ll reports of physical and mental examinations, scientific tests, or experiments conducted in connection with the investigation of the offense, including but not limited to: ... [a]ll psychological test or polygraph examinations performed upon any prosecution witness and all documents referring or relating to such tests ... ." Id., at 346-347. After the prosecution declined the requests absent a court order, id., at 353, it appears counsel made no further efforts to find the specific report mentioned by Cruse's attorney. Given knowledge of the report's existence and potential importance, a diligent attorney would have done more. Counsel's failure to investigate these references in anything but a cursory manner triggers the opening clause of §2254(e)(2). As we hold there was a failure to develop the factual basis of this Brady claim in state court, we must determine if the requirements in the balance of §2254(e)(2) are satisfied so that petitioner's failure is excused. Subparagraph (B) of §2254(e)(2) conditions a hearing upon a showing, by clear and convincing evidence, that no reasonable factfinder would have found petitioner guilty of capital murder but for the alleged constitutional error. Petitioner concedes he cannot make this showing, see Brief for Petitioner 25, and the case has been presented to us on that premise. For these reasons, we affirm the Court of Appeals' judgment barring an evidentiary hearing on this claim.B We conclude petitioner has met the burden of showing he was diligent in efforts to develop the facts supporting his juror bias and prosecutorial misconduct claims in collateral proceedings before the Virginia Supreme Court. Petitioner's claims are based on two of the questions posed to the jurors by the trial judge at voir dire. First, the judge asked prospective jurors, "Are any of you related to the following people who may be called as witnesses?" Then he read the jurors a list of names, one of which was "Deputy Sheriff Claude Meinhard." Bonnie Stinnett, who would later become the jury foreperson, had divorced Meinhard in 1979, after a 17-year marriage with four children. Stinnett remained silent, indicating the answer was "no." Meinhard, as the officer who investigated the crime scene and interrogated Cruse, would later become the prosecution's lead-off witness at trial. After reading the names of the attorneys involved in the case, including one of the prosecutors, Robert Woodson, Jr., the judge asked, "Have you or any member of your immediate family ever been represented by any of the aforementioned attorneys?" Stinnett again said nothing, despite the fact Woodson had represented her during her divorce from Meinhard. App. 483, 485. In an affidavit she provided in the federal habeas proceedings, Stinnett claimed "[she] did not respond to the judge's [first] question because [she] did not consider [herself] `related' to Claude Meinhard in 1994 [at voir dire] ... . Once our marriage ended in 1979, I was no longer related to him." Id., at 627. As for Woodson's earlier representation of her, Stinnett explained as follows:"When Claude and I divorced in 1979, the divorce was uncontested and Mr. Woodson drew up the papers so that the divorce could be completed. Since neither Claude nor I was contesting anything, I didn't think Mr. Woodson `represented' either one of us." Id., at 628.Woodson provided an affidavit in which he admitted "[he] was aware that Juror Bonnie Stinnett was the ex-wife of then Deputy Sheriff Claude Meinhard and [he] was aware that they had been divorced for some time." Id., at 629. Woodson stated, however, "[t]o [his] mind, people who are related only by marriage are no longer `related' once the marriage ends in divorce." Ibid. Woodson also "had no recollection of having been involved as a private attorney in the divorce proceedings between Claude Meinhard and Bonnie Stinnett." Id., at 629-630. He explained that "[w]hatever [his] involvement was in the 1979 divorce, by the time of trial in 1994 [he] had completely forgotten about it." Id., at 630. Even if Stinnett had been correct in her technical or literal interpretation of the question relating to Meinhard, her silence after the first question was asked could suggest to the finder of fact an unwillingness to be forthcoming; this in turn could bear on the veracity of her explanation for not disclosing that Woodson had been her attorney. Stinnett's failure to divulge material information in response to the second question was misleading as a matter of fact because, under any interpretation, Woodson had acted as counsel to her and Meinhard in their divorce. Coupled with Woodson's own reticence, these omissions as a whole disclose the need for an evidentiary hearing. It may be that petitioner could establish that Stinnett was not impartial, see Smith v. Phillips, 455 U. S. 209, 217, 219-221 (1982), or that Woodson's silence so infected the trial as to deny due process, see Donnelly v. DeChristoforo, 416 U. S. 637, 647-648 (1974). In ordering an evidentiary hearing on the juror bias and prosecutorial misconduct claims, the District Court concluded the factual basis of the claims was not reasonably available to petitioner's counsel during state habeas proceedings. After the Court of Appeals vacated this judgment, the District Court dismissed the petition and the Court of Appeals affirmed under the theory that state habeas counsel should have discovered Stinnett's relationship to Meinhard and Woodson. See 189 F. 3d, at 428. We disagree with the Court of Appeals on this point. The trial record contains no evidence which would have put a reasonable attorney on notice that Stinnett's non-response was a deliberate omission of material information. State habeas counsel did attempt to investigate petitioner's jury, though prompted by concerns about a different juror. App. 388-389. Counsel filed a motion for expert services with the Virginia Supreme Court, alleging "irregularities, improprieties and omissions exist[ed] with respect to the empaneling [sic] of the jury." Id., at 358. Based on these suspicions, counsel requested funding for an investigator "to examine all circumstances relating to the empanelment of the jury and the jury's consideration of the case." Ibid. The Commonwealth opposed the motion, and the Virginia Supreme Court denied it and dismissed the habeas petition, depriving petitioner of a further opportunity to investigate. The Virginia Supreme Court's denial of the motion is understandable in light of petitioner's vague allegations, but the vagueness was not the fault of petitioner. Counsel had no reason to believe Stinnett had been married to Meinhard or been represented by Woodson. The underdevelopment of these matters was attributable to Stinnett and Woodson, if anyone. We do not suggest the State has an obligation to pay for investigation of as yet undeveloped claims; but if the prisoner has made a reasonable effort to discover the claims to commence or continue state proceedings, §2254(e)(2) will not bar him from developing them in federal court. The Court of Appeals held state habeas counsel was not diligent because petitioner's investigator on federal habeas discovered the relationships upon interviewing two jurors who referred in passing to Stinnett as "Bonnie Meinhard." See Brief for Petitioner 35. The investigator later confirmed Stinnett's prior marriage to Meinhard by checking Cumberland County's public records. See 189 F. 3d, at 426 ("The documents supporting [petitioner's] Sixth Amendment claims have been a matter of public record since Stinnett's divorce became final in 1979. Indeed, because [petitioner's] federal habeas counsel located those documents, there is little reason to think that his state habeas counsel could not have done so as well"). We should be surprised, to say the least, if a district court familiar with the standards of trial practice were to hold that in all cases diligent counsel must check public records containing personal information pertaining to each and every juror. Because of Stinnett and Woodson's silence, there was no basis for an investigation into Stinnett's marriage history. Section 2254(e)(2) does not apply to petitioner's related claims of juror bias and prosecutorial misconduct. We further note the Commonwealth has not argued that petitioner could have sought relief in state court once he discovered the factual bases of these claims some time between appointment of federal habeas counsel on July 2, 1996, and the filing of his federal habeas petition on November 20, 1996. As an indigent, petitioner had 120 days following appointment of state habeas counsel to file a petition with the Virginia Supreme Court. Va. Code Ann. §8.01-654.1 (1999). State habeas counsel was appointed on August 10, 1995, about a year before petitioner's investigator on federal habeas uncovered the information regarding Stinnett and Woodson. As state postconviction relief was no longer available at the time the facts came to light, it would have been futile for petitioner to return to the Virginia courts. In these circumstances, though the state courts did not have an opportunity to consider the new claims, petitioner cannot be said to have failed to develop them in state court by reason of having neglected to pursue remedies available under Virginia law. Our analysis should suffice to establish cause for any procedural default petitioner may have committed in not presenting these claims to the Virginia courts in the first instance. Questions regarding the standard for determining the prejudice that petitioner must establish to obtain relief on these claims can be addressed by the Court of Appeals or the District Court in the course of further proceedings. These courts, in light of cases such as Smith, supra, at 215 ("[T]he remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias"), will take due account of the District Court's earlier decision to grant an evidentiary hearing based in part on its belief that "Juror Stinnett deliberately failed to tell the truth on voir dire." Williams v. Netherland, Civ. Action No. 3:96CV529 (ED Va., Apr. 13, 1998), App. 529, 557.IV Petitioner alleges the Commonwealth failed to disclose an informal plea agreement with Cruse. The Court of Appeals rejected this claim on the merits under §2254(d)(1), so it is unnecessary to reach the question whether §2254(e)(2) would permit a hearing on the claim. The decision of the Court of Appeals is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.It is so ordered.

Respondents, Negro and Mexican-American residents of Dallas, Tex., brought this action for injunctive and declaratory relief against petitioners, the Mayor and members of the Dallas City Council, alleging that the City Charter's at-large system of electing council members unconstitutionally diluted the vote of racial minorities. After an evidentiary hearing, the District Court orally declared that system unconstitutional and then "afforded the city an opportunity as a legislative body for the City of Dallas to prepare a plan which would be constitutional." The City Council then passed a resolution expressing its intention to enact an ordinance that would provide for eight council members to be elected from single-member districts and for the three remaining members, including the Mayor, to be elected at large. After an extensive remedy hearing, the District Court approved the plan, which the City Council thereafter formally enacted as an ordinance. The District Court later issued a memorandum opinion that sustained the plan as a valid legislative Act. The Court of Appeals reversed, holding that the District Court had erred in evaluating the plan only under constitutional standards without also applying the teaching of East Carroll Parish School Bd. v. Marshall, , which held that, absent exceptional circumstances, judicially imposed reapportionment plans should use only single-member districts. Held: The judgment is reversed and the case is remanded. Pp. 539-547; 547-549. 551 F.2d 1043, reversed and remanded. MR. JUSTICE WHITE, joined by MR. JUSTICE STEWART, concluded: 1. Federal courts, absent special circumstances, must employ single-member districts when they impose remedial reapportionment plans. That standard, however, is more stringent than the constitutional standard that is applicable when the reapportionment is accomplished by the legislature. Here, after the District Court had invalidated the Dallas at-large election scheme in the City Charter, the city discharged its duty to devise a substitute by enacting the eight/three ordinance, which the District Court reviewed as a legislatively enacted plan and held constitutional despite the use of at-large voting for three council seats. Pp. 539-543. 2. The eight/three ordinance was properly considered to be a legislative plan and the Court of Appeals erred in evaluating it under principles applicable to judicially devised reapportionment plans. Pp. 543-546. (a) No special reason for not applying the standard applicable to a legislatively devised plan can be found in the provisions of Texas law that specify that a city charter can be amended only by a vote of the people, for the City Council in enacting the plan did not purport to amend the Charter but only to exercise its legislative powers after the Charter provision had been declared unconstitutional. P. 544. (b) East Carroll Parish School Bd., supra, does not support the conclusion of the Court of Appeals that the plan presented by the city must be viewed as judicial and therefore as subject to a level of scrutiny more stringent than that required by the Constitution, rather than legislative. In reaching the conclusion that single-member districts are to be preferred, the Court emphasized that the bodies that submitted the plans did not purport to reapportion themselves and could not legally do so under federal law because state legislation providing them with such powers had been disapproved under 5 of the Voting Rights Act of 1965. On the facts of the instant case, however, unlike the situation in East Carroll Parish School Bd., the Dallas City Council validly met its responsibility of replacing the invalid apportionment provision with one that could withstand constitutional scrutiny. Pp. 545-546. 3. Though it has been urged that 5 of the Voting Rights Act of 1965, which became applicable to Texas while this case was pending on appeal, barred effectuation of the challenged ordinance absent the clearance mandated by 5, that issue was not dealt with by the Court of Appeals and should more appropriately be considered by that court on remand. Pp. 546-547. MR. JUSTICE POWELL, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST, while agreeing that the eight/three ordinance was a "legislative plan" for purposes of federal-court review, concluded that the instant case is controlled by Burns v. Richardson, . By analogy to the reasoning of that case the eight/three plan must be considered legislative, even if the Council had no power to apportion itself, a Charter amendment being necessary to that end. Under the Burns rule whereby "a State's freedom of choice to devise substitutes for an apportionment plan found unconstitutional ... should not be restricted beyond the clear commands of the Equal Protection Clause," plans proposed by the local body must be regarded as "legislative" even if, as in that case, the Court's examination of state law suggests that the local body lacks authority to reapportion itself. To the extent that East Carroll Parish School Bd. implies anything further about the principle established in Burns, the latter must be held to control. Pp. 547-549. WHITE, J., announced the Court's judgment and delivered an opinion, in which STEWART, J., joined. POWELL, J., filed an opinion concurring in part and concurring in the judgment, in which BURGER, C. J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 547. REHNQUIST, J., filed a separate opinion, in which BURGER, C. J., and STEWART and POWELL, JJ., joined, post, p. 549. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 550.Joseph G. Werner argued the cause for petitioners. With him on the brief was Lee E. Holt.James A. Johnston argued the cause for respondents. With him on the brief were Edward B. Cloutman III and Walter L. Irvin. Joaquin G. Avila, Vilma S. Martinez, and Morris J. Baller filed a brief for respondents Callejo et al.Peter Buscemi argued the cause pro hac vice for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Assistant Attorney General Days, Brian K. Landsberg, and Robert J. Reinstein.* [Footnote *] Charles A. Bane, Thomas D. Barr, Armand Derfner, Norman Redlich, Frank R. Parker, Thomas J. Ginger, Robert A. Murphy, Norman J. Chachkin, and William E. Caldwell filed a brief for the Lawyers Committee for Civil Rights Under Law as amicus curiae urging affirmance.MR. JUSTICE WHITE announced the judgment of the Court and delivered an opinion in which MR. JUSTICE STEWART joined.This case involves the recurring issue of distinguishing between legislatively enacted and judicially imposed reapportionments of state legislative bodies.IIn 1971 respondents, Negro and Mexican-American residents of Dallas, Tex., filed suit in the United States District Court for the Northern District of Texas against petitioners, the Mayor and members of the City Council of Dallas, the city's legislative body, alleging that the at-large system of electing council members unconstitutionally diluted the vote of racial minorities. They sought a declaratory judgment to this effect and an injunction requiring the election of councilmen from single-member districts. The complaint was dismissed for failure to state a claim, but the Court of Appeals for the Fifth Circuit disagreed and remanded. Lipscomb v. Jonsson, 459 F.2d 335 (1972).On January 17, 1975, after certifying a plaintiff class consisting of all Negro citizens of the city of Dallas1 and following an evidentiary hearing, the District Court orally declared that the system of at-large elections to the Dallas City Council unconstitutionally diluted the voting strength of Negro citizens.2 The District Court then "afforded the city an opportunity as a legislative body for the City of Dallas to prepare a plan which would be constitutional." App. 29.On January 20, 1975, the City Council passed a resolution which stated that the Council intended to enact an ordinance which would provide for eight Council members to be elected from single-member districts and for the three remaining members, including the Mayor, to be elected at-large. This plan was submitted to the District Court on January 24, 1975. The court then conducted a remedy hearing "to determine the constitutionality of the new proposed plan by the City of Dallas." Ibid. After an extensive hearing, the court announced in an oral opinion delivered on February 8, 1975, that the city's plan met constitutional guidelines and was acceptable and that it would issue a written opinion in the near future. Two days later, the City Council formally enacted the promised ordinance, and on March 25, the court issued a memorandum opinion containing its findings of fact and conclusions of law and again sustaining the city plan as a valid legislative Act. 399 F. Supp. 782 (1975).3 The Court of Appeals reversed. 551 F.2d 1043 (1977). It held that the District Court erred by evaluating the city's actions only under constitutional standards rather than also applying the teaching of East Carroll Parish School Bd. v. Marshall, , that, absent exceptional circumstances, judicially imposed reapportionment plans should employ only single-member districts. It concluded that no considerations existed in this case which justified a departure from this preference and remanded with instructions that the District Court require the city to reapportion itself into an appropriate number of single-member districts.4 We granted certiorari, , and reverse on the grounds that the Court of Appeals misapprehended East Carroll Parish School Bd. and its predecessors.IIThe Court has repeatedly held that redistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt. Connor v. Finch, ; Chapman v. Meier, ; Gaffney v. Cummings, ; Burns v. Richardson, (1966). When a federal court declares an existing apportionment scheme unconstitutional, it is therefore, appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan. The new legislative plan, if forthcoming, will then be the governing law unless it, too, is challenged and found to violate the Constitution. "[A] State's freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause." Id., at 85.Legislative bodies should not leave their reapportionment tasks to the federal courts; but when those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the "unwelcome obligation," Connor v. Finch, supra, at 415, of the federal court to devise and impose a reapportionment plan pending later legislative action. In discharging this duty, the district courts "will be held to stricter standards ... than will a state legislature ... ." 431 U.S., at 414. Among other requirements, a court-drawn plan should prefer single-member districts over multimember districts, absent persuasive justification to the contrary. Connor v. Johnson, . We have repeatedly reaffirmed this remedial principle. Connor v. Williams, ; Mahan v. Howell, ; Chapman v. Meier, supra, at 18; East Carroll Parish School Bd. v. Marshall, supra, at 639.The requirement that federal courts, absent special circumstances, employ single-member districts when they impose remedial plans, reflects recognition of the fact that "the practice of multimember districting can contribute to voter confusion, make legislative representatives more remote from their constituents, and tend to submerge electoral minorities and overrepresent electoral majorities ... ." Connor v. Finch, supra, at 415. See also Chapman v. Meier, supra, at 15-16. Despite these dangers, this Court has declined to hold that state multimember districts are per se unconstitutional. See, for example, Whitcomb v. Chavis, ; Fortson v. Dorsey, ; Burns v. Richardson, supra; Chapman v. Meier, supra, at 15. A more stringent standard is applied to judicial reapportionments. however, because a federal court, "lacking the political authoritativeness that the legislature can bring to the task," must act "circumspectly, and in a manner `free from any taint of arbitrariness or discrimination.'" Connor v. Finch, supra, at 415, quoting from Roman v. Sincock, .5 The foregoing principles, worked out in the course of reconciling the requirements of the Constitution with the goals of state political policy, are useful guidelines and serve to decide many cases. But, as is true in this case, their application to the facts presented is not always immediately obvious. Furthermore, the distinctive impact of 5 of the Voting Rights Act of 1965, as amended, 89 Stat. 404, 42 U.S.C. 1973c (1970 ed., Supp. V), upon the power of the States to reapportion themselves must be observed. Plans imposed by court order are not subject to the requirements of 5,6 but under that provision, a State or political subdivision subject to the Act may not "enact or seek to administer" any "different" voting qualification or procedure with respect to voting without either obtaining a declaratory judgment from the United States District Court for the District of Columbia that the proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" or submitting the change to the Attorney General and affording him an appropriate opportunity to object thereto. A new reapportionment plan enacted by a State, including one purportedly adopted in response to invalidation of the prior plan by a federal court, will not be considered "effective as law," Connor v. Finch, 431 U.S., at 412; Connor v. Waller, , until it has been submitted and has received clearance under 5. Neither, in those circumstances, until clearance has been obtained, should a court address the constitutionality of the new measure. Connor v. Finch, supra; Connor v. Waller, supra. Pending such submission and clearance, if a State's electoral processes are not to be completely frustrated, federal courts will at times necessarily be drawn further into the reapportionment process and required to devise and implement their own plans.IIITexas was not subject to the Voting Rights Act when this case was pending in the District Court. Hence, insofar as federal law was concerned, when the District Court invalidated the provisions of the Dallas City Charter mandating at-large Council elections, the city was not only free but was expected to devise a substitute rather than to leave the matter to the District Court. This duty, the District Court found, was discharged when the city enacted the eight/three plan of electing Council members. Noting that only if "the legislature failed in [its reapportionment] task, would the responsibility fall to the federal courts" and declaring that the plan adopted by the Council was not one "hastily conceived merely for the purposes of this litigation," 399 F. Supp., at 797, the District Court proceeded to declare the plan constitutional despite the use of at-large voting for three Council seats. Although there are some indications in the District Court's opinion that it was striving to satisfy those rules governing federal courts when they devise their own reapportionment plans, it seems to us that on balance, the District Court, as the United States observes in its amicus brief, reviewed the apportionment plan proposed by the Council as a legislatively enacted plan.7 The Court of Appeals was not in disagreement in this respect. It observed that "[t]he district court approved the City's plan for relief, which was enacted as a city ordinance following the court's decision that the prior system was unconstitutional." 551 F.2d, at 1045. It further noted that "the election plan [was] formally adopted by the City Council." Id., at 1046.Neither did the Court of Appeals disturb the ruling of the District Court that the ordinance was constitutional. It did, however, insist that the plan also satisfy the special preference for single-member districts applicable where district courts are themselves put to the task of devising reapportionment plans and reversed the judgment of the District Court because in its view the record did not disclose the presence of those special circumstances that would warrant departure from the rule. This was clearly error unless there was some convincing reason why the District Court was not entitled to consider the substitute plan under the principles applicable to legislatively adopted reapportionment plans. As we see it, no such reason has been presented.It is suggested that the city was without power to enact the ordinance because the at-large system declared unconstitutional was established by the City Charter and because, under the Texas Constitution, Art. XI, 5, and Texas statutory law, Tex. Rev. Civ. Stat. Ann., Art. 1170 (Vernon Supp. 1978), the Charter cannot be amended without a vote of the people. But the District Court was of a different view. Although the Council itself had no power to change the at-large system as long as the Charter provision remained intact, once the Charter provision was declared unconstitutional, and, in effect, null and void, the Council was free to exercise its legislative powers which it did by enacting the eight/three plan. 399 F. Supp., at 800; Tr. of Oral Arg. 6. When the City Council reapportioned itself by means of resolution and ordinance, it was not purporting to amend the City Charter but only to exercise its legislative powers as Dallas' governing body. The Court of Appeals did not disagree with the District Court in this respect, and we are in no position to overturn the District Court's acceptance of the city ordinance as a valid legislative response to the court's declaration of unconstitutionality.8 East Carroll Parish School Bd. v. Marshall does not support the conclusion of the Court of Appeals in this case that the plan presented by the city must be viewed as judicial rather than legislative. In that case the District Court instructed the East Carroll police jury and school boards to file reapportionment plans. They both submitted a multimember arrangement which the court adopted. We held that the District Court erred in approving a multimember plan because "when United States district courts are put to the task of fashioning reapportionment plans to supplant concededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances." 424 U.S., at 639. In reaching this conclusion, however, we emphasized that the bodies which submitted the plans did not purport to reapportion themselves and, furthermore, could not even legally do so under federal law because state legislation providing them with such powers had been disapproved by the Attorney General of the United States under 5 of the Voting Rights Act of 1965. 424 U.S., at 638 n. 6, 637 n. 2. Under these circumstances, it was concluded that the mere act of submitting a plan was not the equivalent of a legislative Act of reapportionment performed in accordance with the political processes of the community in question.Even if one disagreed with that conclusion, this case is markedly different from East Carroll Parish School Bd. After the District Court found that the existing method of electing the City Council was constitutionally defective on January 17, 1975, it "gave the City of Dallas an opportunity to perform its duty to enact a constitutionally acceptable plan." 399 F. Supp., at 792. The City Council, the legislative body governing Dallas, promptly took advantage of this opportunity and on January 24, 1975, passed a resolution which stated "that it is the intention of the majority of this City Council to pass an ordinance [enacting a plan of eight single-member districts with three individuals, including the Mayor, to be elected at-large]." App. 188. On February 8, 1975, the District Court announced in an oral opinion following a hearing held to consider the constitutionality of the city's plan that it was accepting the city's plan but retained jurisdiction. Two days later, on February 10, the City Council, as promised, enacted an ordinance incorporating the eight/three plan. Id., at 189. In a written opinion filed subsequently, the District Court specifically found "that [the city of Dallas] has met [its constitutional] duty in enacting the eight/three plan of electing council members." 399 F. Supp., at 792. Here, unlike the situation in East Carroll Parish School Bd., as the Court there viewed it, the body governing Dallas validly met its responsibility of replacing the apportionment provision invalidated by the District Court with one which could survive constitutional scrutiny. The Court of Appeals therefore erred in regarding the plan as court imposed and in subjecting it to a level of scrutiny more stringent than that required by the Constitution.9 Finally, it is urged that the Court of Appeals be affirmed because Texas became subject to 5 of the Voting Rights Act while the case was pending on appeal and because under 5, as amended, Dallas could neither enact nor seek to administer any reapportionment plan different from that in effect on November 1, 1972, without securing the clearance called for by that section. It is urged that the city ordinance of February 1975, relied upon by the District Court and validly enacted prior to 5's becoming applicable to Texas, cannot be considered as effective law until it has secured the necessary approval. The same is said with respect to the Charter amendment approved by the people of Dallas in 1976. See n. 3, supra.We think it inappropriate, however, to address the 5 issue. Respondents may, of course, seek to sustain the judgment below on grounds not employed by the Court of Appeals; but there is a preliminary question as to whether the 5 issue is open in this Court. Respondents did not cross-petition, and sustaining the 5 submission, even if it would not expand the relief in respondents' favor, would alter the nature of the judgment issued by the Court of Appeals. See United States v. New York Telephone Co., n. 8 (1977). In any event, however, we are not obligated to address the issue here, particularly where the Court of Appeals did not deal with it one way or another - apparently because it considered the plan to be a judicial product beyond the reach of the section. The impact of the Voting Rights Act on the city ordinance and on the Charter amendment approved by referendum will be open on remand, and we deem it appropriate for the Court of Appeals to deal with these questions.The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings. So ordered.

Respondent Driehaus, a former Congressman, filed a complaint with the Ohio Elections Commission alleging that petitioner Susan B. Anthony List (SBA) violated an Ohio law that criminalizes certain false statements made during the course of a political campaign. Specifically, Driehaus alleged that SBA violated the law when it stated that his vote for the Patient Protection and Affordable Care Act (ACA) was a vote in favor of "taxpayer funded abortion." After Driehaus lost his re-election bid, the complaint was dismissed, but SBA continued to pursue a separate suit in Federal District Court challenging the law on First Amendment grounds. Petitioner Coalition Opposed to Additional Spending and Taxes (COAST) also filed a First Amendment challenge to the Ohio law, alleging that it had planned to disseminate materials presenting a similar message but refrained due to the proceedings against SBA. The District Court consolidated the two lawsuits and dismissed them as nonjusticiable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds.Held: Petitioners have alleged a sufficiently imminent injury for Article III purposes. Pp. 7-18. (a) To establish Article III standing, a plaintiff must show, inter alia, an "injury in fact," which must be "concrete and particularized" and "actual or imminent, not 'conjectural' or 'hypothetical.' " Lujan v. Defenders of Wildlife, 504 U. S. 555, 560. When challenging a law prior to its enforcement, a plaintiff satisfies the injury-in-fact requirement where he alleges "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Babbitt v. Farm Workers, 442 U. S. 289, 298. Pp. 7-11. (b) Petitioners have alleged a credible threat of enforcement of the Ohio law. Pp. 11-17. (1) Petitioners have alleged "an intention to engage in a course of conduct arguably affected with a constitutional interest" by pleading specific statements they intend to make in future election cycles. Pp. 11-12. (2) Petitioners' intended future conduct is also "arguably . . . proscribed by [the] statute." The Ohio false statement statute sweeps broadly, and a panel of the Ohio Elections Commission already found probable cause to believe that SBA violated the law when it made statements similar to those petitioners plan to make in the future. Golden v. Zwickler, 394 U. S. 103, is distinguishable; the threat of prosecution under an electoral leafletting ban in that case was wholly conjectural because the plaintiff's "sole concern" related to a former Congressman who was unlikely to run for office again. Here, by contrast, petitioners' speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. Nor does SBA's insistence that its previous statements were true render its fears of enforcement misplaced. After all, that insistence did not prevent the Commission from finding probable cause for a violation the first time. Pp. 12-13. (3) Finally, the threat of future enforcement is substantial. There is a history of past enforcement against petitioners. Past enforcement against the same conduct is good evidence that the threat of enforcement is not " 'chimerical.' " Steffel v. Thompson, 415 U. S. 452, 459. The credibility of that threat is bolstered by the fact that a complaint may be filed with the State Commission by "any person," Ohio Rev. Code Ann. §3517.153(A), not just a prosecutor or agency. The threatened Commission proceedings are of particular concern because of the burden they impose on electoral speech. Moreover, the target of a complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days before an election. But this Court need not decide whether the threat of Commission proceedings standing alone is sufficient; here, those proceedings are backed by the additional threat of criminal prosecution. Pp. 14-17. (c) The Sixth Circuit separately considered two other "prudential factors": "fitness" and "hardship." This Court need not resolve the continuing vitality of the prudential ripeness doctrine in this case because those factors are easily satisfied here. See Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U. S. ___. Pp. 17-18.525 Fed. Appx. 415, reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court.Opinion of the Court 573 U. S. ____ (2014)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 13-193SUSAN B. ANTHONY LIST, et al., PETITIONERS v. STEVEN DRIEHAUS et al.on writ of certiorari to the united states court of appeals for the sixth circuit[June 16, 2014] Justice Thomas delivered the opinion of the Court. Petitioners in this case seek to challenge an Ohio statute that prohibits certain "false statements" during the course of a political campaign. The question in this case is whether their preenforcement challenge to that law is justiciable — and in particular, whether they have alleged a sufficiently imminent injury for the purposes of Article III. We conclude that they have.I The Ohio statute at issue prohibits certain "false statement[s]" "during the course of any campaign for nomination or election to public office or office of a political party." Ohio Rev. Code Ann. §3517.21(B) (Lexis 2013). As relevant here, the statute makes it a crime for any person to "[m]ake a false statement concerning the voting record of a candidate or public official," §3517.21(B)(9), or to "[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not," §3517.21(B)(10).1 "[A]ny person" acting on personal knowledge may file a complaint with the Ohio Elections Commission (or Commission) alleging a violation of the false statement statute. §3517.153(A) (Lexis Supp. 2014). If filed within 60 days of a primary election or 90 days of a general election, the complaint is referred to a panel of at least three Commission members. §§3517.156(A), (B)(1) (Lexis 2013). The panel must then hold an expedited hearing, generally within two business days, §3517.156(B)(1), to determine whether there is probable cause to believe the alleged violation occurred, §3517.156(C). Upon a finding of probable cause, the full Commission must, within 10 days, hold a hearing on the complaint. §3517.156(C)(2); see also Ohio Admin. Code §3517-1-10(E) (2008). The statute authorizes the full Commission to subpoena witnesses and compel production of documents. Ohio Rev. Code Ann. §3517.153(B) (Lexis Supp. 2014). At the full hearing, the parties may make opening and closing statements and present evidence. Ohio Admin. Code §§3517-1-11(B)(2)(c), (d), (g). If the Commission determines by "clear and convincing evidence" that a party has violated the false statement law, the Commission "shall" refer the matter to the relevant county prosecutor. Ohio Rev. Code Ann. §§3517.155(D)(1)-(2) (Lexis Supp. 2014). Alternatively, the Commission's regulations state that it may simply issue a reprimand. See Ohio Admin. Code §3517-1-14(D). Violation of the false statement statute is a first-degree misdemeanor punishable by up to six months of imprisonment, a fine up to $5,000, or both. Ohio Rev. Code Ann. §§3599.40 (Lexis 2013), 3517.992(V) (Lexis Supp. 2014). A second conviction under the false statement statute is a fourth-degree felony that carries a mandatory penalty of disfranchisement. §3599.39.II Petitioner Susan B. Anthony List (SBA) is a "pro-life advocacy organization." 525 Fed. Appx. 415, 416 (CA6 2013). During the 2010 election cycle, SBA publicly criticized various Members of Congress who voted for the Patient Protection and Affordable Care Act (ACA). In particular, it issued a press release announcing its plan to "educat[e] voters that their representative voted for a health care bill that includes taxpayer-funded abortion." App. 49-50. The press release listed then-Congressman Steve Driehaus, a respondent here, who voted for the ACA. SBA also sought to display a billboard in Driehaus' district condemning that vote. The planned billboard would have read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." Id., at 37. The advertising company that owned the billboard space refused to display that message, however, after Driehaus' counsel threatened legal action. On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission alleging, as relevant here, that SBA had violated §§3517.21(B)(9) and (10) by falsely stating that he had voted for "taxpayer-funded abortion."2 Because Driehaus filed his complaint 29 days before the general election, a Commission panel held an expedited hearing. On October 14, 2010, the panel voted 2 to 1 to find probable cause that a violation had been committed. The full Commission set a hearing date for 10 business days later, and the parties commenced discovery. Driehaus noticed depositions of three SBA employees as well as individuals affiliated with similar advocacy groups. He also issued discovery requests for all evidence that SBA would rely on at the Commission hearing, as well as SBA's communications with allied organizations, political party committees, and Members of Congress and their staffs. On October 18, 2010 — after the panel's probable-cause determination, but before the scheduled Commission hearing — SBA filed suit in Federal District Court, seeking declaratory and injunctive relief on the ground that §§3517.21(B)(9) and (10) violate the First and Fourteenth Amendments of the United States Constitution. The District Court stayed the action under Younger v. Harris, 401 U. S. 37 (1971), pending completion of the Commission proceedings. The Sixth Circuit denied SBA's motion for an injunction pending appeal. Driehaus and SBA eventually agreed to postpone the full Commission hearing until after the election. When Driehaus lost the election in November 2010, he moved to withdraw his complaint against SBA. The Commission granted the motion with SBA's consent. Once the Commission proceedings were terminated, the District Court lifted the stay and SBA amended its complaint. As relevant here, the amended complaint alleged that Ohio Rev. Code Ann. §§3517.21(B)(9) and (10) are unconstitutional both facially and as applied. Specifically, the complaint alleged that SBA's speech about Driehaus had been chilled; that SBA "intends to engage in substantially similar activity in the future"; and that it "face[d] the prospect of its speech and associational rights again being chilled and burdened," because "[a]ny complainant can hale [it] before the [Commission], forcing it to expend time and resources defending itself." App. 121-122. The District Court consolidated SBA's suit with a separate suit brought by petitioner Coalition Opposed to Additional Spending and Taxes (COAST), an advocacy organization that also alleged that the same Ohio false statement provisions are unconstitutional both facially and as applied.3 According to its amended complaint, COAST intended to disseminate a mass e-mail and other materials criticizing Driehaus' vote for the ACA as a vote "to fund abortions with tax dollars," but refrained from doing so because of the Commission proceedings against SBA. Id., at 146, 148, 162. COAST further alleged that it "desires to make the same or similar statements about other federal candidates who voted for" the ACA, but that fear "of finding itself subject to the same fate" as SBA has deterred it from doing so. Id., at 149, 157.4 The District Court dismissed both suits as non-justiciable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds. 525 Fed. Appx. 415. The Court of Appeals analyzed three factors to assess whether the case was ripe for review: (1) the likelihood that the alleged harm would come to pass; (2) whether the factual record was sufficiently developed; and (3) the hardship to the parties if judicial relief were denied. Regarding the first factor, the Sixth Circuit concluded that SBA's prior injuries — the probable-cause determination and the billboard rejection--"do not help it show an imminent threat of future prosecution," particularly where "the Commission never found that SBA ... violated Ohio's false-statement law." Id., at 420. The court further reasoned that it was speculative whether any person would file a complaint with the Commission in the future, in part because Driehaus took a 2-year assignment with the Peace Corps in Africa after losing the election. Finally, the court noted that SBA has not alleged that "it plans to lie or recklessly disregard the veracity of its speech" in the future, but rather maintains that the statements it intends to make are factually true. Id., at 422. As for the remaining factors, the court concluded that the factual record was insufficiently developed with respect to the content of SBA's future speech, and that withholding judicial relief would not result in undue hardship because, in the time period leading up to the 2010 election, SBA continued to communicate its message even after Commission proceedings were initiated. The Sixth Circuit therefore determined that SBA's suit was not ripe for review, and that its analysis as to SBA compelled the same conclusion with respect to COAST. We granted certiorari, 571 U. S. ___ (2014), and now reverse.IIIA Article III of the Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies." U. S. Const., Art. III, §2. The doctrine of standing gives meaning to these constitutional limits by "identify[ing] those disputes which are appropriately resolved through the judicial process."5 Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). "The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l USA, 568 U. S. ___, ___, (2013) (slip op., at 9). To establish Article III standing, a plaintiff must show (1) an "injury in fact," (2) a sufficient "causal connection between the injury and the conduct complained of," and (3) a "likel[ihood]" that the injury "will be redressed by a favorable decision." Lujan, supra, at 560-561 (internal quotation marks omitted). This case concerns the injury-in-fact requirement, which helps to ensure that the plaintiff has a "personal stake in the outcome of the controversy." Warth v. Seldin, 422 U. S. 490, 498 (1975) (internal quotation marks omitted). An injury sufficient to satisfy Article III must be "concrete and particularized" and "actual or imminent, not 'conjectural' or 'hypothetical.' " Lujan, supra, at 560 (some internal question marks omitted). An allegation of future injury may suffice if the threatened injury is "certainly impending," or there is a " 'substantial risk' that the harm will occur." Clapper, 568 U. S., at ___, ___, n. 5 (slip op., at 10, 15, n. 5) (emphasis deleted and internal quotation marks omitted). " ' The party invoking federal jurisdiction bears the burden of establishing' standing." Id., at ___ (slip op., at 12). "[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, supra, at 561.B One recurring issue in our cases is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. See Steffel v. Thompson, 415 U. S. 452, 459 (1974) ("[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights"); see also MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 128-129 (2007) ("[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat"). Instead, we have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979). Several of our cases illustrate the circumstances under which plaintiffs may bring a preenforcement challenge consistent with Article III. In Steffel, for example, police officers threatened to arrest petitioner and his companion for distributing handbills protesting the Vietnam War. Petitioner left to avoid arrest; his companion remained and was arrested and charged with criminal trespass. Petitioner sought a declaratory judgment that the trespass statute was unconstitutional as applied to him. We determined that petitioner had alleged a credible threat of enforcement: He had been warned to stop handbilling and threatened with prosecution if he disobeyed; he stated his desire to continue handbilling (an activity he claimed was constitutionally protected); and his companion's prosecution showed that his "concern with arrest" was not " ' chimerical.' " 415 U. S., at 459. Under those circumstances, we said, "it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Ibid. In Babbitt, we considered a preenforcement challenge to a statute that made it an unfair labor practice to encourage consumers to boycott an "agricultural product . . . by the use of dishonest, untruthful and deceptive publicity.' " 442 U. S., at 301. The plaintiffs contended that the law "unconstitutionally penalize[d] inaccuracies inadvertently uttered in the course of consumer appeals." Ibid. Building on Steffel, we explained that a plaintiff could bring a preenforcement suit when he "has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Babbit, supra, at 298. We found those circumstances present in Babbitt. In that case, the law "on its face proscribe[d] dishonest, untruthful, and deceptive publicity." 442 U. S., at 302. The plaintiffs had "actively engaged in consumer publicity campaigns in the past" and alleged "an intention to continue" those campaigns in the future. Id., at 301. And although they did not "plan to propagate untruths," they argued that " ' erroneous statement is inevitable in free debate.' " Ibid. We concluded that the plaintiffs' fear of prosecution was not "imaginary or wholly speculative," and that their challenge to the consumer publicity provision presented an Article III case or controversy. Id., at 302. Two other cases bear mention. In Virginia v. American Booksellers Assn. Inc., 484 U. S. 383 (1988), we held that booksellers could seek preenforcement review of a law making it a crime to " 'knowingly display for commercial purpose' " material that is " 'harmful to juveniles' " as defined by the statute. Id., at 386. At trial, the booksellers introduced 16 books they believed were covered by the statute and testified that costly compliance measures would be necessary to avoid prosecution for displaying such books. Just as in Babbitt and Steffel, we determined that the "pre-enforcement nature" of the suit was not "troubl[ing]" because the plaintiffs had "alleged an actual and well-founded fear that the law will be enforced against them." 484 U. S., at 393. Finally, in Holder v. Humanitarian Law Project, 561 U. S. 1 (2010), we considered a preenforcement challenge to a law that criminalized " ' knowingly provid[ing] material support or resources to a foreign terrorist organization.' " Id., at 8. The plaintiffs claimed that they had provided support to groups designated as terrorist organizations prior to the law's enactment and would provide similar support in the future. The Government had charged 150 persons with violating the law and declined to disavow prosecution if the plaintiffs resumed their support of the designated organizations. We held that the claims were justiciable: The plaintiffs faced a " 'credible threat' " of enforcement and " 'should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.' " Id., at 15.IV Here, SBA and COAST contend that the threat of enforcement of the false statement statute amounts to an Article III injury in fact. We agree: Petitioners have alleged a credible threat of enforcement. See Babbitt, 442 U. S., at 298.A First, petitioners have alleged "an intention to engage in a course of conduct arguably affected with a constitutional interest." Ibid. Both petitioners have pleaded specific statements they intend to make in future election cycles. SBA has already stated that representatives who voted for the ACA supported "taxpayer-funded abortion," and it has alleged an "inten[t] to engage in substantially similar activity in the future." App. 49-50, 122. See also Humanitarian Law Project, supra, at 15-16 (observing that plaintiffs had previously provided support to groups designated as terrorist organizations and alleged they "would provide similar support [to the same terrorist organizations] again if the statute's allegedly unconstitutional bar were lifted"). COAST has alleged that it previously intended to disseminate materials criticizing a vote for the ACA as a vote "to fund abortions with tax dollars," and that it "desires to make the same or similar statements about other federal candidates who voted for [the ACA]." App. 146, 149, 162. Because petitioners' intended future conduct concerns political speech, it is certainly "affected with a constitutional interest." Babbitt, supra, at 298; see also Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971) ("[T]he constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office").B Next, petitioners' intended future conduct is "arguably. . . proscribed by [the] statute" they wish to challenge. Babbitt, supra, at 298. The Ohio false statement law sweeps broadly, see supra, at 1-2, and n. 1., and covers the subject matter of petitioners' intended speech. Both SBA and COAST have alleged an intent to "[m]ake" statements "concerning the voting record of a candidate or public official," §3517.21(B)(9), and to "disseminate" statements "concerning a candidate . . . to promote the election, nomination, or defeat of the candidate," §3517.21(B)(10). And, a Commission panel here already found probable cause to believe that SBA violated the statute when it stated that Driehaus had supported "taxpayer-funded abortion"--the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that petitioners' intended speech is "arguably proscribed" by the law. Respondents incorrectly rely on Golden v. Zwickler. In that case, the plaintiff had previously distributed anonymous leaflets criticizing a particular Congressman who had since left office. Id., at 104-106, and n. 2. The Court dismissed the plaintiff's challenge to the electoral leafletting ban as nonjusticiable because his "sole concern was literature relating to the Congressman and his record," and "it was most unlikely that the Congressman would again be a candidate." Id., at 109 (emphasis added). Under those circumstances, any threat of future prosecution was "wholly conjectural." Ibid. Here, by contrast, petitioners' speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. See Reply Brief 4-5 (identifying other elected officials who plan to seek reelection as potential objects of SBA's criticisms). Because petitioners' alleged future speech is not directed exclusively at Driehaus, it does not matter whether he "may run for office again." Brief for Respondents 33 (internal quotation marks omitted). As long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio's false statement statute. Respondents, echoing the Sixth Circuit, contend that SBA's fears of enforcement are misplaced because SBA has not said it " 'plans to lie or recklessly disregard the veracity of its speech.' " Id., at 15 (quoting 525 Fed. Appx., at 422). The Sixth Circuit reasoned that because SBA "can only be liable for making a statement 'knowing' it is false," SBA's insistence that its speech is factually true "makes the possibility of prosecution for uttering such statements exceedingly slim." Id., at 422. The Sixth Circuit misses the point. SBA's insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA's belief in the truth of its allegations. Nothing in this Court's decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law. See, e.g., Babbitt, 442 U. S., at 301 (case was justiciable even though plaintiffs disavowed any intent to "propagate untruths").C Finally, the threat of future enforcement of the false statement statute is substantial. Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle. We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not " ' chimerical.' " Steffel, 415 U. S., at 459; cf. Clapper, 568 U. S., at ___ (slip op., at 12) (plaintiffs' theory of standing was "substantially undermine[d]" by their "fail[ure] to offer any evidence that their communications ha[d] been monitored" under the challenged statute). Here, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA's speech violated the false statement statute. Indeed future complainants may well "invoke the prior probable-cause finding to prove that SBA knowingly lied." Brief for Petitioners 32. The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows "any person" with knowledge of the purported violation to file a complaint. §3517.153(A). Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents. See Brief for Michael DeWine, Attorney General of Ohio, as Amicus Curiae 8 (hereinafter DeWine Brief); see also id., at 6 (noting that "the Commission has no system for weeding out frivolous complaints"). And petitioners, who intend to criticize candidates for political office, are easy targets. Finally, Commission proceedings are not a rare occurrence. Petitioners inform us that the Commission " 'handles about 20 to 80 false statement complaints per year,' " Brief for Petitioners 46, and respondents do not deny that the Commission frequently fields complaints alleging violations of the false statement statute. Cf. Humani- tarian Law Project, 561 U. S., at 16 (noting that there had been numerous prior prosecutions under the challenged statute). Moreover, respondents have not disavowed enforcement if petitioners make similar statements in the future. See Tr. of Oral Arg. 29-30; see also Humanitarian Law Project, supra, at 16 ("The Government has not argued to this Court that plaintiffs will not be prosecuted if they do what they say they wish to do"). In fact, the specter of enforcement is so substantial that the owner of the billboard refused to display SBA's message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from "imaginary or speculative." Babbitt, supra, at 298. We take the threatened Commission proceedings into account because administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review. See Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U. S. 619, 625-626, n. 1 (1986) ("If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not"). The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the "practical effect" of the Ohio false statement scheme is "to permit a private complainant . . . to gain a campaign advantage without ever having to prove the falsity of a statement." DeWine Brief 7. "[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election." Id., at 14-15. Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelection probable-cause finding, "such a determination itself may be viewed [by the electorate] as a sanction by the State." Id., at 13. Although the threat of Commission proceedings is a substantial one, we need not decide whether that threat standing alone gives rise to an Article III injury. The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution. We conclude that the combination of those two threats suffices to create an Article III injury under the circumstances of this case. See Babbitt, supra, at 302, n. 13 (In addition to the threat of criminal sanctions, "the prospect of issuance of an administrative cease-and-desist order or a court-ordered injunction against such prohibited conduct provides substantial additional support for the conclusion that appellees' challenge . . . is justiciable" (citations omitted)). That conclusion holds true as to both SBA and COAST. Respondents, relying on Younger v. Harris, appear to suggest that COAST lacks standing because it refrained from actually disseminating its planned speech in order to avoid Commission proceedings of its own. See Brief for Respondents 26-27, 34. In Younger, the plaintiff had been indicted for distributing leaflets in violation of the California Criminal Syndicalism Act. When he challenged the constitutionality of the law in federal court, several other plaintiffs intervened, arguing that their own speech was inhibited by Harris' prosecution. The Court concluded that only the plaintiff had standing because the intervenors "d[id] not claim that they ha[d] ever been threatened with prosecution, that a prosecution [wa]s likely, or even that a prosecution [wa]s remotely possible." 401 U. S., at 42. That is not this case. Unlike the intervenors in Younger, COAST has alleged an intent to engage in the same speech that was the subject of a prior enforcement proceeding. Also unlike the intervenors in Younger, who had never been threatened with prosecution, COAST has been the subject of Commission proceedings in the past. See, e.g., COAST Candidates PAC v. Ohio Elections Comm'n, 543 Fed. Appx. 490 (CA6 2013). COAST is far more akin to the plaintiff in Steffel, who was not arrested alongside his handbilling companion but was nevertheless threatened with prosecution for similar speech. 415 U. S., at 459. In sum, we find that both SBA and COAST have alleged a credible threat of enforcement.V In concluding that petitioners' claims were not justiciable, the Sixth Circuit separately considered two other factors: whether the factual record was sufficiently developed, and whether hardship to the parties would result if judicial relief is denied at this stage in the proceedings. 525 Fed. Appx., at 419. Respondents contend that these "prudential ripeness" factors confirm that the claims at issue are nonjusticiable. Brief for Respondents 17. But we have already concluded that petitioners have alleged a sufficient Article III injury. To the extent respondents would have us deem petitioners' claims nonjusticiable "on grounds that are 'prudential,' rather than constitutional," "[t]hat request is in some tension with our recent reaffirmation of the principle that 'a federal court's obligation to hear and decide' cases within its jurisdiction 'is virtually unflagging.' " Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U. S. ___, ___ (2014) (slip op., at 6) (quoting Sprint Communications, Inc. v. Jacobs, 571 U. S. ___, ___ (2013) (slip op., at 6); some internal quotation marks omitted). In any event, we need not resolve the continuing vitality of the prudential ripeness doctrine in this case because the "fitness" and "hardship" factors are easily satisfied here. First, petitioners' challenge to the Ohio false statement statute presents an issue that is "purely legal, and will not be clarified by further factual development." Thomas v. Union Carbide Agricultural Products Co., 473 U. S. 568, 581 (1985). And denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other.* * * Petitioners in this case have demonstrated an injury in fact sufficient for Article III standing. We accordingly reverse the judgment of the United States Court of Appeals for the Sixth Circuit and remand the case for further proceedings consistent with this opinion, including a determination whether the remaining Article III standing requirements are met.It is so ordered.FOOTNOTESFootnote 1 Section 3517.21(B) provides in relevant part:"No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:. . . . ."(9) Make a false statement concerning the voting record of a candidate or public official;"(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate."Footnote 2 The dispute about the falsity of SBA's speech concerns two different provisions of the ACA: (1) the subsidy to assist lower income individuals in paying insurance premiums, and (2) the direct appropriation of federal money for certain health programs such as community health centers. See Brief for Petitioners 4-5.Footnote 3 Petitioners also challenged a related "disclaimer provision," App. 126-127, 156-157, under Ohio Rev. Code Ann. §3517.20, and COAST raised pre-emption and due process claims. Reply Brief 21, n. 7. Petitioners do not pursue their "disclaimer," pre-emption, or due process claims before us. Ibid. We also need not address SBA's separate challenge to the Commission's investigatory procedures; petitioners have conceded that the procedures claim stands or falls with the substantive prohibition on false statements. Ibid.; see Tr. of Oral Arg. 19. Finally, the parties agree that petitioners' as-applied claims "are better read as facial objections to Ohio's law." Reply Brief 19. Accordingly, we do not separately address the as-applied claims.Footnote 4 SBA named Driehaus, the Commission's members and its staff attorney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. COAST named the Commission, the Commission's members and its staff attorney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. All named defendants are respondents here. Footnote 5 The doctrines of standing and ripeness "originate" from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 335 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case "boil down to the same question." Med- Immune, Inc. v. Genentech, Inc., 549 U. S. 118, 128, n. 8 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U. S. 289, 299, n. 11 (1979), we use the term "standing" in this opinion.

Under 8c of the Agricultural Marketing Agreement Act of 1937, the Secretary of Agriculture promulgated an order regulating the marketing of milk in the Boston area. As amended in 1941, the order provided for fixing uniform prices to be paid to all producers and required that, in computing such uniform prices, certain amounts should be deducted for special payments to cooperative marketing associations. Claiming that this deduction and these payments to cooperatives unlawfully diverted funds which belonged to producers, certain producers who were not members of any cooperative sued to enjoin the Secretary from carrying out the provisions therefor. Held: The provisions for such deduction and for such payments to cooperatives are invalid, because they are not authorized by the Act. Pp. 452-466. 1. These provisions are not specifically authorized by any part of the Act. P. 458. 2. Nor are they included within the authority granted by 8c (7) (D), which authorizes provisions "incidental to, and not inconsistent with, the terms and conditions specified in subsections (5), (6), and (7) and necessary to effectuate the other provisions of such order." Pp. 462-464. (a) They are not "incidental to" the terms and conditions specified in subsections (5), (6), and (7). Pp. 462-463. (b) They are "inconsistent with" 8c (5) (A), which provides that all handlers shall pay uniform prices for each class of milk, subject to certain adjustments not here pertinent. P. 463. (c) They are "inconsistent with" 8c (5) (B), which requires the payment of uniform prices to all producers for all milk delivered, subject to certain adjustments not here pertinent. Pp. 463-464. 3. Nor are these provisions authorized by 10 (b) (1) directing the Secretary to accord "recognition and encouragement" to cooperative marketing associations. P. 464. 4. Nor is a different result required by the legislative history or administrative construction. Pp. 465-466. App. D.C. 388, 185 F.2d 871, affirmed.[Footnote *] Together with No. 7, Dairymen's League Co-operative Association, Inc. v. Stark et al., also on certiorari to the same court. The case is stated in the opinion. The judgment below is affirmed, p. 466.Neil Brooks argued the cause for the Secretary of Agriculture. With him on the brief were Solicitor General Perlman and W. Carroll Hunter.Seward A. Miller, Frederic P. Lee and Maurice A. Gellis submitted on brief for the Dairymen's League Co-operative Association, Inc.Edward B. Hanify argued the cause for respondents. With him on the brief were Harry Polikoff and Lipman Redman.Reuben Hall and Waldo Noyes filed a brief for the New England Milk Producers' Association et al., as amici curiae, urging reversal.MR. JUSTICE CLARK delivered the opinion of the Court.This action by dairy farmers, nonmembers of cooperative associations, concerns 1941 amendments to an order of the Secretary of Agriculture dealing with the marketing of milk in the Boston area. It was previously here as Stark v. Wickard, , where it was held that the respondents had such an interest in the Order as to give them legal standing to object to those of its provisions here under attack. Upon remand the provisions were held invalid by the District Court, 82 F. Supp. 614, and that decision was affirmed in the Court of Appeals for the District of Columbia Circuit. App. D.C. 388, 185 F.2d 871. We granted certiorari. .The question now presented is whether those amendments to the Order which provide for certain payments to cooperative associations are within the authority granted the Secretary by the Agricultural Marketing Agreement Act of 1937.1 The respondents seek to enjoin the enforcement of the provisions in question.The purpose of the Act and the nature of the Secretary's Order No. 4 thereunder2 are set out in some detail in Stark v. Wickard, supra, at 291-302. It is here sufficient to note the following aspects of Order No. 4, as amended: In the Order, issued pursuant to the Act, the Secretary divided all milk marketed in the Greater Boston area into Class I, which is sold as fluid milk, and Class II, which is used for other purposes such as the manufacture of butter and cheese. The Order provides for the fixing of minimum prices to be paid by handlers for each of these classes of milk. Each handler pays for milk in accordance with the amount of each class he has purchased. Producers, however, are paid the same price for milk delivered no matter what use is made of the particular milk by the handler. The Market Administrator computes, on the basis of prices paid by handlers, the value of all milk sold in the area each month. After making certain adjustments, he divides that value, as adjusted, by the total quantity of milk sold in the area during the month, to determine the "blended price," which is the price actually paid the producer. One adjustment made in determining the blended price is the deduction providing for the disputed payments to cooperatives.3 This deduction is thus "a burden on every area sale." Stark v. Wickard, supra, at 303. "Apparently, [it] is the only deduction that is an unrecoverable charge against the producers. The other items deducted under [the Order] are for a revolving fund or to meet differentials in price because of location, seasonal delivery, et cetera." Id., at 301. The effect of the deduction and the correlative payments to cooperatives is to reduce the amount which producers, such as respondents, who are not members of cooperatives would otherwise receive for their milk, and to increase correspondingly the receipts of cooperatives.4 We must determine whether the Secretary was authorized by the statute to include the provisions requiring this deduction and these payments in the Order. No question is presented as to the adequacy of the evidence to support the findings of the Secretary, but rather, a question as to the power granted the Secretary by Congress.The disputed provisions were introduced into the Boston Order in 1941, after hearings called by the Secretary. Affidavits, filed by representatives of the Secretary in support of his motion for summary judgment in the District Court, show the following: A major issue at the hearings was the amount of a uniform allowance, previously 26 per hundredweight, which was reflected in the price paid by all handlers for Class II milk.5 This allowance resulted in a lower price to handlers for Class II milk than for Class I milk. It was intended to defray the cost of handling surplus milk. There was a considerable variance in milk plant costs which was thought to make continuance of a uniform rate undesirable. Cooperative plants showed higher costs than those of proprietary handlers. That difference was attributable not only to the cooperatives' maintenance of a reserve supply to meet irregular demands of proprietary handlers for Class I milk, but also to overcapitalization and excess capacity which had existed prior to any federal regulation. To meet these higher costs cooperatives proposed a lower uniform allowance for Class II milk, coupled with a payment to cooperatives only for market services, although they had engaged in the activities claimed to constitute market services for years without any such payment. In the amendments resulting from the hearings, the uniform allowance to handlers was reduced from 26 to 21 1/2, while at the same time the provisions here contested, requiring payments to cooperatives alone, were introduced.Section 8c (5) of the Act provides that orders relating to milk and its products shall contain one or more of certain enumerated terms and conditions, "and (except as provided in subsection (7)) no others" (emphasis added).6 It is paragraph (D) of subsection (7) upon which the Secretary relies. That paragraph authorizes provisions "incidental to, and not inconsistent with, the terms and conditions specified in subsections (5), (6), and (7) and necessary to effectuate the other provisions of such order."7 The provisions here in question are not specifically authorized by any part of the Act. Both courts below thought these provisions to be neither incidental nor necessary, and to be inconsistent with terms specified in the named subsections.8 The payments to the cooperative associations are said to be justified as remuneration for services performed for the market by the associations. To qualify for the payments, an association must meet eight requirements listed in the Order.9 But none of these shows any indication that the activity it prescribes will benefit nonmembers, with the possible exception of the seventh, which requires that the association collaborate "with similar associations in activities incident to the maintenance and strengthening of collective bargaining by producers and the operation of a plan of uniform pricing of milk to handlers."10 Even if this requirement comprehends a service to nonmember producers substantial enough to be significant in determining the validity of a mandatory contribution from them to cooperatives, it does not support the exaction in issue, which concededly is based mainly upon other services primarily performed for members.Indeed, those "services" which the Secretary principally urges as justifying the payments do not appear among the expressed prerequisites for the payments. Chief among the activities claimed to benefit all producers are those which tend to maintain an adequate supply of fluid milk at all times and to dispose of surplus supply. A principal source of the problems of milk marketing is the seasonal character of milk production. Herds sufficient to meet the demand for fluid milk during the winter months produce much more than enough to satisfy that demand during the summer months. It is contended that the cooperative associations handle a proportionately larger share of surplus milk than other handlers. It appears that they engage in the manufacture of milk products as a means of absorbing the surplus, and otherwise aid in obviating the "dumping" of surplus and discouraging the reduction of herds to a point below that necessary to supply the demand in the season of low production. It may be conceded that these activities are indirectly beneficial to the whole market, even though they are engaged in for the direct advantage of members only. However, proprietary handlers also carry on activities of this kind, and their plants handle two-thirds as much surplus milk as do those of the cooperatives.11 Prior to amendment of the Order in 1941, the cost of handling surplus milk was recognized in the uniform 26 allowance to all handlers of Class II milk, but only cooperative associations now receive the payments in issue here. It is clear that the associations are in no way required to handle any of the surplus milk of nonmembers. More significant, there is no requirement in the Order that the associations take any action directed toward solution of the problem, even with respect to surplus milk of their members.12 Other "services" of the cooperatives which are claimed to be beneficial to all producers are, as they affect the issue here, relatively insignificant. These activities are, like the others, primarily designed for the advantage of members, although they may sometimes incidentally benefit the whole market. They generally amount to no more than playing the part of an alert, intelligent, organized participant in the market. They include such functions as employing economists to study the needs of the industry, participating in hearings on orders such as that involved here, being attentive to changing factors in the market, and maintaining the cooperative organizations by promotional work to show farmers the benefits of cooperation and by educational work among members. One may observe some incongruity in requiring some producers to pay others for vigorously prosecuting their own interests, especially where their interests may sometimes conflict with those of the producers burdened with the payments.In these circumstances, we cannot say that the disputed provisions fall within the authority granted by the catch-all phrases of 8c (7) (D) of the Act. We note at the outset that 8c (5) states in specific and lengthy detail the provisions which may be included in milk marketing orders. That subsection lays down comprehensive directions for classification, pricing, and the operation of the equalization pool mechanism, particularly as to adjustments and deductions employed in determining the blended price. But 8c (5) does not authorize the provisions challenged here. Section 8c (7) authorizes a congeries of general terms which may be included in all marketing orders, including those dealing with commodities other than milk and milk products. The Secretary claims authority for the provisions in question is given by the last paragraph of this omnibus subsection, a paragraph authorizing the inclusion of auxiliary provisions "incidental to ... the terms and conditions specified in subsections (5), (6), and (7)."13 Yet it is claimed that the contested provisions are of such basic importance that their validity may be crucial to the success of the whole milk marketing program. We do not think it likely that Congress, in fashioning this intricate marketing order machinery, would thus hang one of the main gears on the tail pipe. The conclusion that these provisions are not "incidental" to the specified terms is further supported by the presence of 8c (5) (E), expressly authorizing deductions from payments to producers for other, specified services, and indicating the likelihood of similar specific authorization for the contested deductions if Congress intended that they should be made. Finally, the provisions cannot be incidental to the enumerated terms and conditions since they are inconsistent therewith.The payments to cooperatives are inconsistent with 8c (5) (A), which provides that all handlers shall pay uniform prices for each class of milk, subject to certain adjustments of no concern here. The discriminatory effect of the payments becomes the more evident when they are considered in context with the reduction in the uniform allowance to all handlers on the price of Class II milk. That reduction was simultaneous with the establishment of the system of payments to be made to cooperatives only and to be funded by deductions from prices paid all producers. The result would have been substantially similar if the allowance to proprietary handlers had been reduced while the allowance to cooperatives had been permitted to remain at its previous higher level. Such a lack of uniformity in prices paid by handlers would clearly have contravened 8c (5) (A).The deduction for payments to cooperatives is inconsistent with 8c (5) (B), which requires the payment of uniform prices to all producers for all milk delivered, subject to certain adjustments not here pertinent. It has been contended that the deduction does not affect the uniform price of milk, but represents only a reimbursement for services. The argument seems to be that all producers receive a uniform price while the deduction merely constitutes a charge to all producers for services, a charge which happens to be paid certain associations of producers because those associations perform the services. The fact remains that the receipts of nonmembers resulting from delivery of a given quantity of milk are smaller than those of the associations and their members. This is true because nonmembers are paid only the blended price while members receive, through their associations, the disputed payments in addition to the blended price. Although made to members collectively, these payments necessarily redound to members individually. Thus, if they are used to pay the costs of the associations, they reduce pro tanto the contributions which are required from individual members. But we need not go further than to hold that the argument cannot negate inconsistency with the uniform price requirement where, as here, the services for which the payment is made are performed for the direct benefit of the cooperatives' memberships, are but incidentally helpful to other producers, and are not a required condition to receipt of the payments.Since the provisions for payments to cooperatives are not incidental to 8c (5) and (7), but are inconsistent with the former subsection, we need not determine whether they are "necessary to effectuate the other provisions"14 of the Order, the third requirement of 8c (7) (D).When the directly relevant provisions of the Act thus demonstrate lack of authority for the payments to cooperatives, no power to require them can be implied from the general instruction of 10 (b) (1) to the Secretary, directing him to accord "recognition and encouragement" to cooperative associations.15 Without support in the words of the statute the challenged provisions must fall, for neither legislative history nor administrative construction offers any cogent reasons for a contrary result. Available indicia of congressional intent at the time of enactment lend weight to the contention that specific provision would have been made for this kind of payments to cooperatives if they were meant to be made.16 Attempted amendment later to provide authorization for the payments, and the accompanying discussion in Congress, are, as a whole, indecisive.17 Approval of the payments by Congress cannot be inferred from its ratification, upon passage of the Agricultural Marketing Agreement Act in 1937, of marketing orders previously issued under the Agricultural Adjustment Act.18 Even if we were to accept the proposition that Congress there intended to confer statutory authority for all future provisions like any of those then existing in any marketing order, we would reach the same conclusion because neither the provisions for these particular payments nor any closely analogous provisions were at that time present in any marketing orders. Nor have provisions bearing substantial similarity to those before us since been included in other orders so frequently as to amount to a consistent administrative interpretation of import in construing the Act.19 Many provisions for payments to cooperatives appearing in other orders have been of a kind specifically authorized by the statute. Thus, the provision of the first Boston Milk Order for a price differential as between cooperative milk and noncooperative milk was upheld in Green Valley Creamery v. United States,20 as a "market differential" authorized by 8c (5) (A) (1).We have no occasion to judge the equity or the wisdom of the payments to cooperatives involved in this case. We hold that they are not authorized by the Act. Affirmed.MR. JUSTICE JACKSON and MR. JUSTICE MINTON took no part in the consideration or decision of this case.

A Federal District Court sitting in admiralty has no power to order the taking of oral depositions for the purpose of discovery only; and Rule 32 of the Admiralty Rules of the District Court for the Northern District of Illinois, purporting to authorize the taking of such depositions, is invalid for want of authority in the District Court to promulgate it. Pp. 641-652. (a) A court of admiralty has no inherent power, independent of any statute or rule, to order the taking of depositions for the purpose of discovery. Pp. 643-644. (b) Rule 32C of this Court's General Admiralty Rules does not impliedly empower a district judge to order the taking of such depositions. Pp. 644-646. (c) Rule 32 of the District Court's Admiralty Rules is not a valid exercise of its power to regulate local practice, conferred by Rule 44 of the General Admiralty Rules. Pp. 646-652. 265 F.2d 312, affirmed.Harold A. Liebenson argued the cause for petitioners. With him on the brief were Edward G. Raszus and John E. Harris.Edward B. Hayes argued the cause and filed a brief for respondent.MR. JUSTICE HARLAN delivered the opinion of the Court.Certiorari was granted in this case, , to review the decision of the Court of Appeals holding that a District Court sitting in admiralty lacked power to order the taking of oral depositions for the purpose of discovery only, and that Rule 32 of the Admiralty Rules of the District Court for the Northern District of Illinois, purporting to authorize the taking of such depositions,1 was invalid for want of authority in the District Court to promulgate it.The issue arose in the following manner: The respondent filed a petition in admiralty seeking exoneration from or limitation of liability for the death by drowning of two seamen employed on a yacht owned by him. The representatives of the deceased seamen, having appeared as claimants, applied to the District Court for an order granting leave to take the depositions of several named persons, including respondent, for the purpose of discovery only. Respondent opposed the motion on the ground that the court had no power to order the taking of depositions in any case not meeting the conditions of R. S. 863-865, the de bene esse statute.2 After argument, petitioner Miner, D. J., granted the claimants' motion, pursuant to local Admiralty Rule 32. Respondent then sought a writ of mandamus or prohibition requiring the vacation of the order of the District Court, and prohibiting Judge Miner, or any other district judge to whom the case might be assigned, from further proceeding under it. A rule to show cause was issued by the Court of Appeals and, after a hearing, the application for extraordinary relief, whose availability in the particular circumstances involved is not challenged before us, was granted. 265 F.2d 312. For reasons presently to be stated, we have concluded that the Court of Appeals' conclusion was correct, and we affirm its judgment.Counsel for the claimants, representing the petitioners here, undertake to support the discovery-deposition order on the grounds that: (1) a court of admiralty has inherent power, not dependent on any statute or rule, to order the taking of depositions for the purpose of discovery; (2) Rule 32C of this Court's General Admiralty Rules impliedly empowers a district judge to order the taking of such depositions; (3) Rule 32 of the District Court's Admiralty Rules is a valid exercise of its power to regulate local practice, conferred by Rule 44 of the General Admiralty Rules. We consider each contention in turn.The reliance on an asserted inherent power is based almost exclusively on the decision of the Court of Appeals for the Third Circuit in Dowling v. Isthmian S. S. Corp., 184 F.2d 758. In an exhaustive discussion, Judge Fee, for that court, expressed the view that the traditionally flexible and adaptable admiralty practice empowers a court to order a party to submit to pretrial oral examination. Whether or not the decision was intended to embrace examinations solely for discovery purposes is not entirely clear. Compare Standard Steamship Co. v. United States, 126 F. Supp. 583, with Darling's Estate v. Atlantic Contracting Corp., 150 F. Supp. 578, 579; 1950 Annual Survey of American Law 523. None of the historical data adduced in the Dowling case seems to go beyond the area of testimony for use at the trial. The opinion states no more than that history discloses no overt rejection of the power to order depositions taken for discovery purposes. 184 F.2d, at 771, n. 36. There is no affirmative indication of the exercise of such a power, if any was thought to exist, and the 1940 edition of Benedict on Admiralty unequivocally asserts that "[a]n admiralty deposition may only be taken for the purpose of securing evidence; it may not be taken for the purpose of discovery." 3 Benedict, Admiralty (Knauth ed.), 34. This statement by a leading work in the field hardly bespeaks the existence of traditional inherent power, and we find none. Cf. Cary v. Curtis, 3 How. 236, 245.Neither can we find in this Court's Admiralty Rules warrant for the entry by a district judge of an order of the character granted below. The deposition practice authorized by the Civil Rules does not of its own force provide the authority sought, since those rules are expressly declared inapplicable to proceedings in admiralty. Civil Rule 81 (a) (1). Certain of the Civil Rules were adopted by this Court as part of the Admiralty Rules in the 1939 amendments, . Thus, Civil Rules 33 through 37 were made part of the Admiralty Rules as Rules 31, 32, 32A, 32B, and 32C, respectively.3 However, the remainder of the Civil Rules in Part V, dealing with "Depositions and Discovery," including Rule 26, the basic authority for discovery-deposition practice (see note 1, ante), was not adopted. We cannot of course regard this significant omission as inadvertent, cf. 76 A. B. A. Ann. Rep. 565-566; rather, it goes far to establish the lack of any provision for discovery by deposition in the General Admiralty Rules.However, petitioners contend, and some courts have agreed, that the existence of such a power is to be inferred from Rule 32C, the counterpart of Civil Rule 37, entitled, "Refusal to Make Discovery: Consequences." That rule details the procedures which are to be followed if "a party or other deponent refuses to answer any question propounded upon oral examination ... ." It has been held that the inclusion of this rule must be taken as the expression of an assumption by the Court that the discovery-deposition practice existed or was to be followed in admiralty, for the reason that "[i]t is inconceivable that the Supreme Court, by means of the elaborate and detailed terms of Rule 32C would have given a suitor in admiralty a method of enforcing a right that did not exist." Brown v. Isthmian S. S. Corp., 79 F. Supp. 701, 702 (D.C. E. D. Pa.). In accord with the Brown decision are Bunge Corp. v. The Ourania Gournaris, 1949 A. M. C. 744 (D.C. S. D. N. Y.); Galperin v. United States, 1949 A. M. C. 1907 (D.C. E. D. N. Y.); The Ballantrae, 1949 A. M. C. 1999 (D.C. N. J.).The dilemma thus suggested - either that we must regard Civil Rule 26 as inadvertently omitted from the Admiralty Rules4 or that we should consider that part of Civil Rule 37 which refers to oral examinations as inadvertently included - is more seeming than real. The reference to "discovery" in the title to Rule 32C can well have been simply to the modes of discovery authorized by those of the Civil Rules which were carried into the Admiralty Rules in the 1939 amendments, see note 3, ante, and we think it should so be taken. As to the reference to "oral examination," we are in agreement with the explanation offered by Judge Rifkind in Mulligan v. United States, 87 F. Supp. 79, 81, that it comprehends only those forms of oral examinations traditionally recognized in admiralty, primarily the deposition de bene esse (see note 2, ante).5 By this construction, both actions of this Court - the adoption of Civil Rule 37 and the omission of Civil Rule 26 - are given harmonious effect.Petitioners' third contention is that, although admiralty courts were not given authority by the General Admiralty Rules to order the taking of depositions for discovery purposes, the District Court in the present case acted pursuant to its own local Admiralty Rule 32 (see note 1, ante) granting such authority, and that such rule was a valid exercise of power conferred on the District Court by Rule 44 of the General Rules. See Ludena v. The Santa Luisa, 95 F. Supp. 790 (D.C. S. D. N. Y.); Application of A. Pellegrino & Son, 11 F. R. D. 209 (D.C. S. D. N. Y.); cf. Republic of France v. Belships Co., Ltd., 91 F. Supp. 912; Prudential Steamship Corp. v. Curtis Bay Towing Co., 20 F. R. D. 356 (D.C. Md.). Rule 44, entitled "Right of trial courts to make rules of practice," provides: "In suits in admiralty in all cases not provided for by these rules or by statute, the district courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules." (Emphasis added.) We may assume, without deciding, that, the proviso apart, the affirmative grant of authority contained in Rule 44 is sufficiently broad and unqualified, in light of the traditional liberality and flexibility of admiralty practice, to embrace the "practice" of taking depositions for discovery purposes. Cf. Galveston Dry Dock & Constr. Co. v. Standard Dredging Co., 40 F.2d 442. However, we feel constrained to hold that this particular practice is not consistent with the present General Admiralty Rules and therefore that in this respect local Rule 32 falls within the proviso.6 As we have noted, the determination of this Court in 1939 to promulgate some but not all of the Civil Rules relating to discovery must be taken as an advertent declination of the opportunity to institute the discovery-deposition procedure of Civil Rule 26 (a) throughout courts of admiralty. It may be, see 76 A. B. A. Ann. Rep. 565-566,7 that one reason for this failure was the belief that this Court could not take over into Admiralty in its entirety Civil Rule 26. The Enabling Act did not then, R. S. 913, although it does now, 28 U.S.C. 2073, authorize the Court to supersede statutes, and the limitations of the de bene esse statute would therefore have overridden Civil Rule 26 (d) to the extent the statute was more restrictive. Nevertheless it does seem clear that the part of Civil Rule 26 with which we are now concerned could have been promulgated in admiralty, cf. note 6, ante. But for whatever reason, no action was taken.It is of course true that the failure to adopt Civil Rule 26 implies no more than that this Court did not wish to impose the practice on the District Courts, and does not necessarily bespeak an intention to foreclose each District Court from exercising a "local option" under Rule 44. We do not deny the logic of this contention; neither do we hold that whenever the General Admiralty Rules deal with part, but not all, of a subject, those practices left unprovided for by the General Rules may not in any circumstances be dealt with by the District Courts under General Rule 44. Unlike many state practice statutes, this Court's rules of admiralty practice for the District Courts are not comprehensive codes regulating every detail of practice, and we would be slow to hold that the interstices may not be the subject of appropriate local regulation. For example, rules fixing the time for doing certain acts are of the essence of orderly procedure. So long as the time set be not unreasonable, it is less important what the limit be than that there be a rule whereby some timetable may be known to the profession. Thus, the failure of the General Admiralty Rules to prescribe a time within which motions for rehearing may be filed should not bar a District Court from fixing such a time limit. See Papanikolaou v. Atlantic Freighters, 232 F.2d 663, 665. Similarly, the General Admiralty Rules provide no answer to the question whether one sued for a certain sum, who contests his liability for but a portion of that sum, may be required to suffer a judgment for the remainder prior to trial on the contested portion, and there is no compelling reason why that lack should be held to prevent a District Court from supplying an answer by local rule. See Galveston Dry Dock & Constr. Co. v. Standard Dredging Co., supra.We deal here only with the procedure before us, and our decision is based on its particular nature and history. Discovery by deposition is at once more weighty and more complex a matter than either of the examples just discussed or others that might come to mind. Its introduction into federal procedure was one of the major achievements of the Civil Rules, and has been described by this Court as "one of the most significant innovations" of the rules. Hickman v. Taylor, . Moreover, the choice of procedures adopted to govern various specific problems arising under the system was in some instances hardly less significant than the initial decision to have such a system. It should be obvious that we are not here dealing either with a bare choice between an affirmative or a negative answer to a narrow question, or even less with the necessary choice of a rule to deal with a problem which must have an answer, but need not have any particular one. Rather, the matter is one which, though concededly "procedural," may be of as great importance to litigants as many a "substantive" doctrine, and which arises in a field of federal jurisdiction where nationwide uniformity has traditionally always been highly esteemed.The problem then is one which peculiarly calls for exacting observance of the statutory procedures surrounding the rule-making powers of the Court, see 28 U.S.C. 331 (advisory function of Judicial Conference), 28 U.S.C. 2073 (prior report of proposed rule to Congress), designed to insure that basic procedural innovations shall be introduced only after mature consideration of informed opinion from all relevant quarters, with all the opportunities for comprehensive and integrated treatment which such consideration affords. Having already concluded that the discovery-deposition procedure is not authorized by the General Admiralty Rules themselves, we should hesitate to construe General Rule 44 as permitting a change so basic as this to be effectuated through the local rule-making power, especially when that course was never reported to Congress8 as would now be required under 28 U.S.C. 2073.We are strongly reinforced in our conclusion by the post-1939 history of the question of adoption of discovery-deposition rules in the General Admiralty Rules. In the 1948 revision of the Judicial Code this Court was given the power to supersede statutes, which it lacked in 1939. In 1951 a joint committee representing several leading bar associations proposed the adoption of a rule permitting the taking of the deposition of a party for discovery purposes. See 76 A. B. A. Ann. Rep. 181; Maritime Law Assn., Doc. No. 348 (Sept. 1951). No action was taken. In 1953 it was recommended that Rule 26 (a) be made applicable to proceedings in admiralty, with two minor modifications; this would of course have permitted discovery by deposition of witnesses as well as parties. Maritime Law Assn., Doc. No. 369 (Apr. 1953). Again no action was taken. We do not think this failure to enact the proposed amendments can be explained away by suggesting that the widespread local adoption of rules similar to the local rule now before us9 was thought to render amendment of the General Rules unnecessary, for local rules, by virtue of the inability of the District Courts to supersede statutes, cannot deal with the matter of the taking and use of depositions as an integrated whole. See Mercado v. United States, 184 F.2d 24 (C. A. 2d Cir.).It hardly need be added that our decision here in no way implies any view as to the desirability or undesirability of having a discovery-deposition procedure in admiralty cases. Those who advise the Court with respect to the exercise of its rule-making powers - more particularly of course the Judicial Conference of the United States (28 U.S.C. 331) and the newly created Advisory Committee on the General Admiralty Rules, which it is to be hoped will give the matter their early attention - are left wholly free to approach the question of amendment of the discovery provisions of the rules in the light of whatever considerations seem relevant to them, including of course the experience gained by the District Courts which have had rules similar to the Local Rule here challenged. Nor would anything we have said prevent those bodies from recommending that the matter of discovery-depositions be left to local rule making. All we decide in the existing posture of affairs is that the matter of discovery-depositions is not presently provided for in the General Admiralty Rules or encompassed within the local rule-making power under General Rule 44. Affirmed.

Appellees, state-employed health professionals and private nonprofit corporations providing abortion services, brought suit in the District Court for declaratory and injunctive relief challenging the constitutionality of a Missouri statute regulating the performance of abortions. The statute, inter alia: (1) sets forth "findings" in its preamble that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and well-being," 1.205.1(1), (2), and requires that all state laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court's precedents, 1.205.2; (2) specifies that a physician, prior to performing an abortion on any woman whom he has reason to believe is 20 or more weeks pregnant, must ascertain whether the fetus is "viable" by performing "such medical examinations and tests as are necessary to make a finding of [the fetus'] gestational age, weight, and lung maturity," 188.029; (3) prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life, 188.210, 188.215; and (4) makes it unlawful to use public funds, employees, or facilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life, 188.205, 188.210, 188.215. The District Court struck down each of the above provisions, among others, and enjoined their enforcement. The Court of Appeals affirmed, ruling that the provisions in question violated this Court's decisions in Roe v. Wade, , and subsequent cases.Held: The judgment is reversed. 851 F.2d 1071, reversed. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, concluding that: 1. This Court need not pass on the constitutionality of the Missouri statute's preamble. In invalidating the preamble, the Court of Appeals misconceived the meaning of the dictum in Akron v. Akron Center for Reproductive Health, Inc., , that "a State may not adopt one theory of when life begins to justify its regulation of abortions." That statement means only that a State could not "justify" any abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. The preamble does not by its terms regulate abortions or any other aspect of appellees' medical practice, and 1.205.2 can be interpreted to do no more than offer protections to unborn children in tort and probate law, which is permissible under Roe v. Wade, supra, at 161-162. This Court has emphasized that Roe implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion, Maher v. Roe, , and the preamble can be read simply to express that sort of value judgment. The extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the state courts can definitively decide, and, until those courts have applied the preamble to restrict appellees' activities in some concrete way, it is inappropriate for federal courts to address its meaning. Alabama State Federation of Labor v. McAdory, . Pp. 504-507. 2. The restrictions in 188.210 and 188.215 of the Missouri statute on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions do not contravene this Court's abortion decisions. The Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government may not deprive the individual. DeShaney v. Winnebago County Dept. of Social Services, . Thus, in Maher v. Roe, supra; Poelker v. Doe, ; and Harris v. McRae, , this Court upheld governmental regulations withholding public funds for nontherapeutic abortions but allowing payments for medical services related to childbirth, recognizing that a government's decision to favor childbirth over abortion through the allocation of public funds does not violate Roe v. Wade. A State may implement that same value judgment through the allocation of other public resources, such as hospitals and medical staff. There is no merit to the claim that Maher, Poelker, and McRae must be distinguished on the grounds that preventing access to a public facility narrows or forecloses the availability of abortion. Just as in those cases, Missouri's decision to use public facilities and employees to encourage childbirth over abortion places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but leaves her with the same choices as if the State had decided not to operate any hospitals at all. The challenged provisions restrict her ability to obtain an abortion only to the extent that she chooses to use a physician affiliated with a public hospital. Also without merit is the assertion that Maher, Poelker, and McRae must be distinguished on the ground that, since the evidence shows that all of a public facility's costs in providing abortion services are recouped when the patient pays such that no public funds are expended, the Missouri statute goes beyond expressing a preference for childbirth over abortion by creating an obstacle to the right to choose abortion that cannot stand absent a compelling state interest. Nothing in the Constitution requires States to enter or remain in the abortion business or entitles private physicians and their patients access to public facilities for the performance of abortions. Indeed, if the State does recoup all of its costs in performing abortions and no state subsidy, direct or indirect, is available, it is difficult to see how any procreational choice is burdened by the State's ban on the use of its facilities or employees for performing abortions. The cases in question all support the view that the State need not commit any resources to performing abortions, even if it can turn a profit by doing so. Pp. 507-511. 3. The controversy over 188.205's prohibition on the use of public funds to encourage or counsel a woman to have a nontherapeutic abortion is moot. The Court of Appeals did not consider 188.205 separately from 188.210 and 188.215 - which respectively prohibit the use of public employees and facilities for such counseling - in holding all three sections unconstitutionally vague and violative of a woman's right to choose an abortion. Missouri has appealed only the invalidation of 188.205. In light of the State's claim, which this Court accepts for purposes of decision, that 188.205 is not directed at the primary conduct of physicians or health care providers, but is simply an instruction to the State's fiscal officers not to allocate public funds for abortion counseling, appellees contend that they are not "adversely" affected by the section and therefore that there is no longer a case or controversy before the Court on this question. Since plaintiffs are masters of their complaints even at the appellate stage, and since appellees no longer seek equitable relief on their 188.205 claim, the Court of Appeals is directed to vacate the District Court's judgment with instructions to dismiss the relevant part of the complaint with prejudice. Deakins v. Monaghan, . Pp. 511-513. THE CHIEF JUSTICE, joined by JUSTICE WHITE and JUSTICE KENNEDY, concluded in Parts II-D and III that: 1. Section 188.029 of the Missouri statute - which specifies, in its first sentence, that a physician, before performing an abortion on a woman he has reason to believe is carrying an unborn child of 20 or more weeks gestational age, shall first determine if the unborn child is viable by using that degree of care, skill, and proficiency that is commonly exercised by practitioners in the field; but which then provides, in its second sentence, that, in making the viability determination, the physician shall perform such medical examinations and tests as are necessary to make a finding of the unborn child's gestational age, weight, and lung maturity - is constitutional, since it permissibly furthers the State's interest in protecting potential human life. Pp. 513-521. (a) The Court of Appeals committed plain error in reading 188.029 as requiring that after 20 weeks the specified test must be performed. That section makes sense only if its second sentence is read to require only those tests that are useful in making subsidiary viability findings. Reading the sentence to require the tests in all circumstances, including when the physician's reasonable professional judgment indicates that they would be irrelevant to determining viability or even dangerous to the mother and the fetus, would conflict with the first sentence's requirement that the physician apply his reasonable professional skill and judgment. It would also be incongruous to read the provision, especially the word "necessary," to require tests irrelevant to the expressed statutory purpose of determining viability. Pp. 514-515. (b) Section 188.029 is reasonably designed to ensure that abortions are not performed where the fetus is viable. The section's tests are intended to determine viability, the State having chosen viability as the point at which its interest in potential human life must be safeguarded. The section creates what is essentially a presumption of viability at 20 weeks, which the physician, prior to performing an abortion, must rebut with tests - including, if feasible, those for gestational age, fetal weight, and lung capacity - indicating that the fetus is not viable. While the District Court found that uncontradicted medical evidence established that a 20-week fetus is not viable, and that 23 1/2 to 24 weeks' gestation is the earliest point at which a reasonable possibility of viability exists, it also found that there may be a 4-week error in estimating gestational age, which supports testing at 20 weeks. Pp. 515-516. (c) Section 188.029 conflicts with Roe v. Wade and cases following it. Since the section's tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were in fact second-trimester abortions. While Roe, 410 U.S., at 162, recognized the State's interest in protecting potential human life as "important and legitimate," it also limited state involvement in second-trimester abortions to protecting maternal health, id., at 164, and allowed States to regulate or proscribe abortions to protect the unborn child only after viability, id., at 165. Since the tests in question regulate the physician's discretion in determining the viability of the fetus, 188.029 conflicts with language in Colautti v. Franklin, , stating that the viability determination is, and must be, a matter for the responsible attending physician's judgment. And, in light of District Court findings that the tests increase the expenses of abortion, their validity may also be questioned under Akron, 462 U.S., at 434-435, which held that a requirement that second-trimester abortions be performed in hospitals was invalid because it substantially increased the expenses of those procedures. Pp. 516-517. (d) The doubt cast on the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that Roe's rigid trimester analysis has proved to be unsound in principle and unworkable in practice. In such circumstances, this Court does not refrain from reconsidering prior constitutional rulings, notwithstanding stare decisis. E. g., Garcia v. San Antonio Metropolitan Transit Authority, . The Roe framework is hardly consistent with the notion of a Constitution like ours that is cast in general terms and usually speaks in general principles. The framework's key elements - trimesters and viability - are not found in the Constitution's text, and, since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. There is also no reason why the State's compelling interest in protecting potential human life should not extend throughout pregnancy rather than coming into existence only at the point of viability. Thus, the Roe trimester framework should be abandoned. Pp. 517-520. (e) There is no merit to JUSTICE BLACKMUN'S contention that the Court should join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, . Unlike Roe, Griswold did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. The Roe framework sought to deal with areas of medical practice traditionally left to the States, and to balance once and for all, by reference only to the calendar, the State's interest in protecting potential human life against the claims of a pregnant woman to decide whether or not to abort. The Court's experience in applying Roe in later cases suggests that there is wisdom in not necessarily attempting to elaborate the differences between a "fundamental right" to an abortion, Akron, supra, at 420, n. 1 a "limited fundamental constitutional right," post, at 555, or a liberty interest protected by the Due Process Clause. Moreover, although this decision will undoubtedly allow more governmental regulation of abortion than was permissible before, the goal of constitutional adjudication is not to remove inexorably "politically devisive" issues from the ambit of the legislative process, but is, rather, to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. Furthermore, the suggestion that legislative bodies, in a Nation where more than half the population is female, will treat this decision as an invitation to enact abortion laws reminiscent of the dark ages misreads the decision and does scant justice to those who serve in such bodies and the people who elect them. Pp. 520-521. 2. This case affords no occasion to disturb Roe's holding that a Texas statute which criminalized all nontherapeutic abortions unconstitutionally infringed the right to an abortion derived from the Due Process Clause. Roe is distinguishable on its facts, since Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. P. 521. JUSTICE O'CONNOR, agreeing that it was plain error for the Court of Appeals to interpret the second sentence of 188.029 as meaning that doctors must perform tests to find gestational age, fetal weight, and lung maturity, concluded that the section was constitutional as properly interpreted by the plurality, and that the plurality should therefore not have proceeded to reconsider Roe v. Wade. This Court refrains from deciding constitutional questions where there is no need to do so, and generally does not formulate a constitutional rule broader than the precise facts to which it is to be applied. Ashwander v. TVA, , 347. Since appellees did not appeal the District Court's ruling that the first sentence of 188.029 is constitutional, there is no dispute between the parties over the presumption of viability at 20 weeks created by that first sentence. Moreover, as properly interpreted by the plurality, the section's second sentence does nothing more than delineate means by which the unchallenged 20-week presumption may be overcome if those means are useful in determining viability and can be prudently employed. As so interpreted, the viability testing requirements do not conflict with any of the Court's abortion decisions. As the plurality recognizes, under its interpretation of 188.029's second sentence, the viability testing requirements promote the State's interest in potential life. This Court has recognized that a State may promote that interest when viability is possible. Thornburgh v. American College of Obstetricians and Gynecologists, . Similarly, the basis for reliance by the lower courts on Colautti v. Franklin, , disappears when 188.029 is properly interpreted to require only subsidiary viability findings, since the State has not attempted to substitute its judgment for the physician's ascertainment of viability, which therefore remains "the critical point." Nor does the marginal increase in the cost of an abortion created by 188.029's viability testing provision, as interpreted, conflict with Akron v. Akron Center for Reproductive Health, , since, here, such costs do not place a "heavy, and unnecessary burden" on a woman's abortion decision, whereas the statutory requirement in Akron, which related to previability abortions, more than doubled a woman's costs. Moreover, the statutory requirement in Akron involved second-trimester abortions generally; 188.029 concerns only tests and examinations to determine viability when viability is possible. The State's compelling interest in potential life postviability renders its interest in determining the critical point of viability equally compelling. Thornburgh, supra, at 770-771. When the constitutional invalidity of a State's abortion statute actually turns upon the constitutional validity of Roe, there will be time enough to reexamine Roe, and to do so carefully. Pp. 525-531. JUSTICE SCALIA would reconsider and explicitly overrule Roe v. Wade. Avoiding the Roe question by deciding this case in as narrow a manner as possible is not required by precedent and not justified by policy. To do so is needlessly to prolong this Court's involvement in a field where the answers to the central questions are political rather than juridical, and thus to make the Court the object of the sort of organized pressure that political institutions in a democracy ought to receive. It is particularly perverse to decide this case as narrowly as possible in order to avoid reading the inexpressibly "broader-than-was-required-by-the-precise-facts" structure established by Roe v. Wade. The question of Roe's validity is presented here, inasmuch as 188.029 constitutes a legislative imposition on the judgment of the physician concerning the point of viability and increases the cost of an abortion. It does palpable harm, if the States can and would eliminate largely unrestricted abortion, skillfully to refrain from telling them so. Pp. 532-537. REHNQUIST, C. J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part II-C, the opinion of the Court with respect to Parts I, II-A, and II-B, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Parts II-D and III, in which WHITE and KENNEDY, JJ., joined. O'CONNOR, J., post, p. 522, and SCALIA, J., post, p. 532, filed opinions concurring in part and concurring in the judgment. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 537. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 560.William L. Webster, Attorney General of Missouri, pro se, argued the cause for appellants. With him on the briefs were Michael L. Boicourt and Jerry L. Short, Assistant Attorneys General.Charles Fried argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting Solicitor General Bryson, Assistant Attorney General Bolton, Deputy Solicitor General Merrill, Roger Clegg, Steven R. Valentine, and Michael K. Kellogg.Frank Susman argued the cause for appellees. With him on the brief were Roger K. Evans, Dara Klassel, Barbara E. Otten, Thomas M. Blumenthal, and Janet Benshoof.* [Footnote *] Briefs of amici curiae urging reversal were filed for Alabama Lawyers for Unborn Children, Inc., by John J. Coleman III and Thomas E. Maxwell; for the American Association of Prolife Obstetricians and Gynecologists et al. by Dolores Horan and Paige Comstock Cunningham; for the American Family Association, Inc., by Peggy M. Coleman; for the American Life League, Inc., by Marion Edwyn Harrison and John S. Baker, Jr.; for the Catholic Health Association of the United States by J. Roger Edgar, David M. Harris, Kathleen M. Boozang, J. Stuart Showalter, and Peter E. Campbell; for the Catholic Lawyers Guild of the Archdiocese of Boston, Inc., by Calum B. Anderson and Leonard F. Zandrow, Jr.; for the Center for Judicial Studies et al. by Jules B. Gerard; for Covenant House et al. by Gregory A. Loken; for Focus On The Family et al. by H. Robert Showers; for the Holy Orthodox Church by James George Jatras; for the Knights of Columbus by Robert J. Cynkar and Brendan V. Sullivan, Jr.; for the Lutheran Church-Missouri Synod et al. by Philip E. Draheim; for the Missouri Catholic Conference by David M. Harris, J. Roger Edgar, Bernard C. Huger, Kathleen M. Boozang, and Louis C. DeFeo, Jr.; for the National Legal Foundation by Douglas W. Davis and Robert K. Skolrood; for Right to Life Advocates, Inc., by Richard W. Schmude and Rory R. Olsen; for the Rutherford Institute et al. by James J. Knicely, John W. Whitehead, Thomas W. Strahan, David E. Morris, William B. Hollberg, Amy Dougherty, Randall A. Pentiuk, William Bonner, Larry L. Crain, and W. Charles Bundren; for the Southern Center for Law and Ethics by Albert L. Jordan; for the Southwest Life and Law Center, Inc., by David Burnell Smith; for the United States Catholic Conference by Mark E. Chopko and Phillip H. Harris; for 127 Members of the Missouri General Assembly by Timothy Belz, Lynn D. Wardle, and Richard G. Wilkins; and for James Joseph Lynch, Jr., by Mr. Lynch, pro se.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Burt Neuborne, Janet Benshoof, Rachael N. Pine, and Lynn M. Paltrow; for the American Jewish Congress et al. by Martha L. Minow; for the American Library Association et al. by Bruce J. Ennis and Mark D. Schneider; for the American Medical Association et al. by Jack R. Bierig, Carter G. Phillips, Elizabeth H. Esty, Stephan E. Lawton, Ann E. Allen, Laurie R. Rockett, and Joel I. Klein; for the American Psychological Association by Donald N. Bersoff; for the American Public Health Association et al. by John H. Hall and Nadine Taub; for Americans for Democratic Action et al. by Marsha S. Berzon; for Americans United for Separation of Church and State by Lee Boothby, Robert W. Nixon, and Robert J. Lipshutz; for the Association of Reproductive Health Professionals et al. by Colleen K. Connell and Dorothy B. Zimbrakos; for Bioethicists for Privacy by George J. Annas; for Catholics for a Free Choice et al. by Patricia Hennessey; for the Center for Population Options et al. by John H. Henn and Thomas Asher; for the Committee on Civil Rights of the Bar of the City of New York et al. by Jonathan Lang, Diane S. Wilner, Arthur S. Leonard, Audrey S. Feinberg, and Janice Goodman; for 22 International Women's Health Organizations by Kathryn Kolbert; for the American Nurses' Association et al. by E. Calvin Golumbic; for the National Coalition Against Domestic Violence by David A. Strauss; for the National Family Planning and Reproductive Health Association by James L. Feldesman, Jeffrey K. Stith, and Thomas E. Zemaitis; for the National Association of Public Hospitals by Alan K. Parver and Phyllis E. Bernard; for Population-Environment Balance et al. by Dina R. Lassow; for 281 American Historians by Sylvia A. Law; and for 2,887 Women Who Have Had Abortions et al. by Sarah E. Burns.Briefs of amici curiae were filed for the State of California et al. by Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solicitor General, and Suzanne M. Lynn and Marla Tepper, Assistant Attorneys General, James M. Shannon, Attorney General of Massachusetts, and Suzanne E. Durrell and Madelyn F. Wessel, Assistant Attorneys General, Elizabeth Holtzman, pro se, Barbara D. Underwood, John K. Van de Kamp, Attorney General of California, Duane Woodard, Attorney General of Colorado, Jim Mattox, Attorney General of Texas, and Jeffrey L. Amestoy, Attorney General of Vermont; for the State of Louisiana et al. by William J. Guste, Jr., Attorney General of Louisiana, Jo Ann P. Levert, Assistant Attorney General, and Thomas A. Rayer, Robert K. Corbin, Attorney General of Arizona, Jim Jones, Attorney General of Idaho, and Ernest D. Preate, Jr., Attorney General of Pennsylvania; for Agudath Israel of America by Steven D. Prager; for the American Academy of Medical Ethics by James Bopp, Jr.; for the California National Organization for Women et al. by Kathryn A. Sure; for American Collegians for Life, Inc., et al. by Robert A. Destro; for the Canadian Abortion Rights Action League et al. by Estelle Rogers; for the Association for Public Justice et al. by Joseph W. Dellapenna; for Birthright, Inc., by Joseph I. McCullough, Jr.; for Catholics United for Life et al. by Walter M. Weber, Michael J. Woodruff, Charles E. Rice, and Michael J. Laird; for Christian Advocates Serving Evangelism by Theodore H. Amshoff, Jr.; for Doctors for Life et al. by Andrew F. Puzder and Kenneth C. Jones; for Feminists For Life of America et al. by Christine Smith Torre; for Free Speech Advocates by Thomas Patrick Monaghan; for Human Life International by Robert L. Sassone; for the International Right to Life Federation by John J. Potts; for the National Association of Women Lawyers et al. by Nicholas DeB. Katzenbach, Leona Beane, and Estelle H. Rogers; for the National Council of Negro Women, Inc., et al. by Rhonda Copelon; for the National Organization for Women by John S. L. Katz; for the National Right to Life Committee, Inc., by James Bopp, Jr.; for the New England Christian Action Council, Inc., by Philip D. Moran; for the Right to Life League of Southern California, Inc., by Robert L. Sassone; for 77 Organizations Committed to Women's Equality by Judith L. Lichtman, Donna R. Lenhoff, Marcia Greenberger, Stephanie Ridder, and Wendy Webster Williams; for Certain Members of the Congress of the United States by Burke Marshall and Norman Redlich; for Congressman Christopher H. Smith et al. by Albert P. Blaustein, Edward R. Grant, and Ann-Louise Lohr; for 608 State Legislators by Herma Hill Kay, James J. Brosnahan, and Jack W. Londen; for Certain Members of the General Assembly of the Commonwealth of Pennsylvania by William Bentley Ball, Philip J. Murren, and Maura K. Quinlan; for Certain American State Legislators by Paul Benjamin Linton and Clarke D. Forsythe; for A Group of American Law Professors by Norman Redlich; for 167 Distinguished Scientists and Physicians by Jay Kelly Wright; for Edward Allen by Robert L. Sassone; for Larry Joyce by Thomas P. Joyce; for Paul Marx by Robert L. Sassone; for Bernard N. Nathanson by Mr. Sassone; and for Austin Vaughn et al. by Mr. Sassone. CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, and an opinion with respect to Parts II-D and III, in which JUSTICE WHITE and JUSTICE KENNEDY join.This appeal concerns the constitutionality of a Missouri statute regulating the performance of abortions. The United States Court of Appeals for the Eighth Circuit struck down several provisions of the statute on the ground that they violated this Court's decision in Roe v. Wade, , and cases following it. We noted probable jurisdiction, , and now reverse. IIn June 1986, the Governor of Missouri signed into law Missouri Senate Committee Substitute for House Bill No. 1596 (hereinafter Act or statute), which amended existing state law concerning unborn children and abortions.1 The Act consisted of 20 provisions, 5 of which are now before the Court. The first provision, or preamble, contains "findings" by the state legislature that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and well-being." Mo. Rev. Stat. 1.205.1(1), (2) (1986). The Act further requires that all Missouri laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court's precedents. 1.205.2. Among its other provisions, the Act requires that, prior to performing an abortion on any woman whom a physician has reason to believe is 20 or more weeks pregnant, the physician ascertain whether the fetus is viable by performing "such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child." 188.029. The Act also prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life, and it prohibits the use of public funds, employees, or facilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life. 188.205, 188.210, 188.215.In July 1986, five health professionals employed by the State and two nonprofit corporations brought this class action in the United States District Court for the Western District of Missouri to challenge the constitutionality of the Missouri statute. Plaintiffs, appellees in this Court, sought declaratory and injunctive relief on the ground that certain statutory provisions violated the First, Fourth, Ninth, and Fourteenth Amendments to the Federal Constitution. App. A9. They asserted violations of various rights, including the "privacy rights of pregnant women seeking abortions"; the "woman's right to an abortion"; the "righ[t] to privacy in the physician-patient relationship"; the physician's "righ[t] to practice medicine"; the pregnant woman's "right to life due to inherent risks involved in childbirth"; and the woman's right to "receive ... adequate medical advice and treatment" concerning abortions. Id., at A17-A19.Plaintiffs filed this suit "on their own behalf and on behalf of the entire class consisting of facilities and Missouri licensed physicians or other health care professionals offering abortion services or pregnancy counseling and on behalf of the entire class of pregnant females seeking abortion services or pregnancy counseling within the State of Missouri." Id., at A13. The two nonprofit corporations are Reproductive Health Services, which offers family planning and gynecological services to the public, including abortion services up to 22 weeks "gestational age,"2 and Planned Parenthood of Kansas City, which provides abortion services up to 14 weeks gestational age. Id., at A9-A10. The individual plaintiffs are three physicians, one nurse, and a social worker. All are "public employees" at "public facilities" in Missouri, and they are paid for their services with "public funds," as those terms are defined by 188.200. The individual plaintiffs, within the scope of their public employment, encourage and counsel pregnant women to have nontherapeutic abortions. Two of the physicians perform abortions. App. A54-A55.Several weeks after the complaint was filed, the District Court temporarily restrained enforcement of several provisions of the Act. Following a 3-day trial in December 1986, the District Court declared seven provisions of the Act unconstitutional and enjoined their enforcement. 662 F. Supp. 407 (WD Mo. 1987). These provisions included the preamble, 1.205; the "informed consent" provision, which required physicians to inform the pregnant woman of certain facts before performing an abortion, 188.039; the requirement that post-16-week abortions be performed only in hospitals, 188.025; the mandated tests to determine viability, 188.029; and the prohibition on the use of public funds, employees, and facilities to perform or assist nontherapeutic abortions, and the restrictions on the use of public funds, employees, and facilities to encourage or counsel women to have such abortions, 188.205, 188.210, 188.215. Id., at 430.The Court of Appeals for the Eighth Circuit affirmed, with one exception not relevant to this appeal. 851 F.2d 1071 (1988). The Court of Appeals determined that Missouri's declaration that life begins at conception was "simply an impermissible state adoption of a theory of when life begins to justify its abortion regulations." Id., at 1076. Relying on Colautti v. Franklin, , it further held that the requirement that physicians perform viability tests was an unconstitutional legislative intrusion on a matter of medical skill and judgment. 851 F.2d, at 1074-1075. The Court of Appeals invalidated Missouri's prohibition on the use of public facilities and employees to perform or assist abortions not necessary to save the mother's life. Id., at 1081-1083. It distinguished our decisions in Harris v. McRae, , and Maher v. Roe, , on the ground that "`[t]here is a fundamental difference between providing direct funding to effect the abortion decision and allowing staff physicians to perform abortions at an existing publicly owned hospital.'" 851 F.2d, at 1081, quoting Nyberg v. City of Virginia, 667 F.2d 754, 758 (CA8 1982), appeal dism'd, . The Court of Appeals struck down the provision prohibiting the use of public funds for "encouraging or counseling" women to have nontherapeutic abortions, for the reason that this provision was both overly vague and inconsistent with the right to an abortion enunciated in Roe v. Wade. 851 F.2d, at 1077-1080. The court also invalidated the hospitalization requirement for 16-week abortions, id., at 1073-1074, and the prohibition on the use of public employees and facilities for abortion counseling, id., at 1077-1080, but the State has not appealed those parts of the judgment below. See Juris. Statement I-II.3 IIDecision of this case requires us to address four sections of the Missouri Act: (a) the preamble; (b) the prohibition on the use of public facilities or employees to perform abortions; (c) the prohibition on public funding of abortion counseling; and (d) the requirement that physicians conduct viability tests prior to performing abortions. We address these seriatim.AThe Act's preamble, as noted, sets forth "findings" by the Missouri Legislature that "[t]he life of each human being begins at conception," and that "[u]nborn children have protectable interests in life, health, and well-being." Mo. Rev. Stat. 1.205.1(1), (2) (1986). The Act then mandates that state laws be interpreted to provide unborn children with "all the rights, privileges, and immunities available to other persons, citizens, and residents of this state," subject to the Constitution and this Court's precedents. 1.205.2.4 In invalidating the preamble, the Court of Appeals relied on this Court's dictum that "`a State may not adopt one theory of when life begins to justify its regulation of abortions.'" 851 F.2d, at 1075-1076, quoting Akron v. Akron Center for Reproductive Health, Inc., , in turn citing Roe v. Wade, 410 U.S., at 159-162. It rejected Missouri's claim that the preamble was "abortion-neutral," and "merely determine[d] when life begins in a nonabortion context, a traditional state prerogative." 851 F.2d, at 1076. The court thought that "[t]he only plausible inference" from the fact that "every remaining section of the bill save one regulates the performance of abortions" was that "the state intended its abortion regulations to be understood against the backdrop of its theory of life." Ibid.5 The State contends that the preamble itself is precatory and imposes no substantive restrictions on abortions, and that appellees therefore do not have standing to challenge it. Brief for Appellants 21-24. Appellees, on the other hand, insist that the preamble is an operative part of the Act intended to guide the interpretation of other provisions of the Act. Brief for Appellees 19-23. They maintain, for example, that the preamble's definition of life may prevent physicians in public hospitals from dispensing certain forms of contraceptives, such as the intrauterine device. Id., at 22.In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not by its terms regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U.S., at 474. The preamble can be read simply to express that sort of value judgment.We think the extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the courts of Missouri can definitively decide. State law has offered protections to unborn children in tort and probate law, see Roe v. Wade, supra, at 161-162, and 1.205.2 can be interpreted to do no more than that. What we have, then, is much the same situation that the Court confronted in Alabama State Federation of Labor v. McAdory, . As in that case:"We are thus invited to pass upon the constitutional validity of a state statute which has not yet been applied or threatened to be applied by the state courts to petitioners or others in the manner anticipated. Lacking any authoritative construction of the statute by the state courts, without which no constitutional question arises, and lacking the authority to give such a controlling construction ourselves, and with a record which presents no concrete set of facts to which the statute is to be applied, the case is plainly not one to be disposed of by the declaratory judgment procedure." Id., at 460. It will be time enough for federal courts to address the meaning of the preamble should it be applied to restrict the activities of appellees in some concrete way. Until then, this Court "is not empowered to decide ... abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it." Tyler v. Judges of Court of Registration, . See also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., .6 We therefore need not pass on the constitutionality of the Act's preamble.BSection 188.210 provides that "[i]t shall be unlawful for any public employee within the scope of his employment to perform or assist an abortion, not necessary to save the life of the mother," while 188.215 makes it "unlawful for any public facility to be used for the purpose of performing or assisting an abortion not necessary to save the life of the mother."7 The Court of Appeals held that these provisions contravened this Court's abortion decisions. 851 F.2d, at 1082-1083. We take the contrary view.As we said earlier this Term in DeShaney v. Winnebago County Dept. of Social Services, : "[O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." In Maher v. Roe, supra, the Court upheld a Connecticut welfare regulation under which Medicaid recipients received payments for medical services related to childbirth, but not for nontherapeutic abortions. The Court rejected the claim that this unequal subsidization of childbirth and abortion was impermissible under Roe v. Wade. As the Court put it: "The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortion decisions. The Connecticut regulation places no obstacles - absolute or otherwise - in the pregnant woman's path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult - and in some cases, perhaps, impossible - for some women to have abortions is neither created nor in any way affected by the Connecticut regulation." 432 U.S., at 474. Relying on Maher, the Court in Poelker v. Doe, , held that the city of St. Louis committed "no constitutional violation ... in electing, as a policy choice, to provide publicly financed hospital services for childbirth without providing corresponding services for nontherapeutic abortions."More recently, in Harris v. McRae, , the Court upheld "the most restrictive version of the Hyde Amendment," id., at 325, n. 27, which withheld from States federal funds under the Medicaid program to reimburse the costs of abortions, "`except where the life of the mother would be endangered if the fetus were carried to term.'" Ibid. (quoting Pub. L. 94-439, 209, 90 Stat. 1434). As in Maher and Poelker, the Court required only a showing that Congress' authorization of "reimbursement for medically necessary services generally, but not for certain medically necessary abortions" was rationally related to the legitimate governmental goal of encouraging childbirth. 448 U.S., at 325.The Court of Appeals distinguished these cases on the ground that "[t]o prevent access to a public facility does more than demonstrate a political choice in favor of childbirth; it clearly narrows and in some cases forecloses the availability of abortion to women." 851 F.2d, at 1081. The court reasoned that the ban on the use of public facilities "could prevent a woman's chosen doctor from performing an abortion because of his unprivileged status at other hospitals or because a private hospital adopted a similar anti-abortion stance." Ibid. It also thought that "[s]uch a rule could increase the cost of obtaining an abortion and delay the timing of it as well." Ibid.We think that this analysis is much like that which we rejected in Maher, Poelker, and McRae. As in those cases, the State's decision here to use public facilities and staff to encourage childbirth over abortion "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy." McRae, 448 U.S., at 315. Just as Congress' refusal to fund abortions in McRae left "an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all," id., at 317, Missouri's refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all. The challenged provisions only restrict a woman's ability to obtain an abortion to the extent that she chooses to use a physician affiliated with a public hospital. This circumstance is more easily remedied, and thus considerably less burdensome, than indigency, which "may make it difficult - and in some cases, perhaps, impossible - for some women to have abortions" without public funding. Maher, 432 U.S., at 474. Having held that the State's refusal to fund abortions does not violate Roe v. Wade, it strains logic to reach a contrary result for the use of public facilities and employees. If the State may "make a value judgment favoring childbirth over abortion and ... implement that judgment by the allocation of public funds," Maher, supra, at 474, surely it may do so through the allocation of other public resources, such as hospitals and medical staff.The Court of Appeals sought to distinguish our cases on the additional ground that "[t]he evidence here showed that all of the public facility's costs in providing abortion services are recouped when the patient pays." 851 F.2d, at 1083. Absent any expenditure of public funds, the court thought that Missouri was "expressing" more than "its preference for childbirth over abortions," but rather was creating an "obstacle to exercise of the right to choose an abortion [that could not] stand absent a compelling state interest." Ibid. We disagree."Constitutional concerns are greatest," we said in Maher, supra, at 476, "when the State attempts to impose its will by the force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader." Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions. Brief for Appellees 46-47. Indeed, if the State does recoup all of its costs in performing abortions, and no state subsidy, direct or indirect, is available, it is difficult to see how any procreational choice is burdened by the State's ban on the use of its facilities or employees for performing abortions.8 Maher, Poelker, and McRae all support the view that the State need not commit any resources to facilitating abortions, even if it can turn a profit by doing so. In Poelker, the suit was filed by an indigent who could not afford to pay for an abortion, but the ban on the performance of nontherapeutic abortions in city-owned hospitals applied whether or not the pregnant woman could pay. 432 U.S., at 520; id., at 524 (BRENNAN, J., dissenting).9 The Court emphasized that the mayor's decision to prohibit abortions in city hospitals was "subject to public debate and approval or disapproval at the polls," and that "the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done." Id., at 521. Thus we uphold the Act's restrictions on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions.CThe Missouri Act contains three provisions relating to "encouraging or counseling a woman to have an abortion not necessary to save her life." Section 188.205 states that no public funds can be used for this purpose; 188.210 states that public employees cannot, within the scope of their employment, engage in such speech; and 188.215 forbids such speech in public facilities. The Court of Appeals did not consider 188.205 separately from 188.210 and 188.215. It held that all three of these provisions were unconstitutionally vague, and that "the ban on using public funds, employees, and facilities to encourage or counsel a woman to have an abortion is an unacceptable infringement of the woman's fourteenth amendment right to choose an abortion after receiving the medical information necessary to exercise the right knowingly and intelligently." 851 F.2d, at 1079.10 Missouri has chosen only to appeal the Court of Appeals' invalidation of the public funding provision, 188.205. See Juris. Statement I-II. A threshold question is whether this provision reaches primary conduct, or whether it is simply an instruction to the State's fiscal officers not to allocate funds for abortion counseling. We accept, for purposes of decision, the State's claim that 188.205 "is not directed at the conduct of any physician or health care provider, private or public," but "is directed solely at those persons responsible for expending public funds." Brief for Appellants 43.11 Appellees contend that they are not "adversely" affected under the State's interpretation of 188.205, and therefore that there is no longer a case or controversy before us on this question. Brief for Appellees 31-32. Plaintiffs are masters of their complaints and remain so at the appellate stage of a litigation. See Caterpillar Inc. v. Williams, . A majority of the Court agrees with appellees that the controversy over 188.205 is now moot, because appellees' argument amounts to a decision to no longer seek a declaratory judgment that 188.205 is unconstitutional and accompanying declarative relief. See Deakins v. Monaghan, ; United States v. Munsingwear, Inc., . We accordingly direct the Court of Appeals to vacate the judgment of the District Court with instructions to dismiss the relevant part of the complaint. Deakins, 484 U.S., at 200. "Because this [dispute] was rendered moot in part by [appellees'] willingness permanently to withdraw their equitable claims from their federal action, a dismissal with prejudice is indicated." Ibid.DSection 188.029 of the Missouri Act provides: "Before a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child and shall enter such findings and determination of viability in the medical record of the mother."12 As with the preamble, the parties disagree over the meaning of this statutory provision. The State emphasizes the language of the first sentence, which speaks in terms of the physician's determination of viability being made by the standards of ordinary skill in the medical profession. Brief for Appellants 32-35. Appellees stress the language of the second sentence, which prescribes such "tests as are necessary" to make a finding of gestational age, fetal weight, and lung maturity. Brief for Appellees 26-30. The Court of Appeals read 188.029 as requiring that after 20 weeks "doctors must perform tests to find gestational age, fetal weight and lung maturity." 851 F.2d, at 1075, n. 5. The court indicated that the tests needed to determine fetal weight at 20 weeks are "unreliable and inaccurate" and would add $125 to $250 to the cost of an abortion. Ibid. It also stated that "amniocentesis, the only method available to determine lung maturity, is contrary to accepted medical practice until 28-30 weeks of gestation, expensive, and imposes significant health risks for both the pregnant woman and the fetus." Ibid.We must first determine the meaning of 188.029 under Missouri law. Our usual practice is to defer to the lower court's construction of a state statute, but we believe the Court of Appeals has "fallen into plain error" in this case. Frisby v. Schultz, ; see Brockett v. Spokane Arcades, Inc., , n. 9 (1985). "`In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.'" Philbrook v. Glodgett, , quoting United States v. Heirs of Boisdore, 8 How. 113, 122 (1849). See Chemehuevi Tribe of Indians v. FPC, ; Kokoszka v. Belford, . The Court of Appeals' interpretation also runs "afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties." Frisby, supra, at 483.We think the viability-testing provision makes sense only if the second sentence is read to require only those tests that are useful to making subsidiary findings as to viability. If we construe this provision to require a physician to perform those tests needed to make the three specified findings in all circumstances, including when the physician's reasonable professional judgment indicates that the tests would be irrelevant to determining viability or even dangerous to the mother and the fetus, the second sentence of 188.029 would conflict with the first sentence's requirement that a physician apply his reasonable professional skill and judgment. It would also be incongruous to read this provision, especially the word "necessary,"13 to require the performance of tests irrelevant to the expressed statutory purpose of determining viability. It thus seems clear to us that the Court of Appeals' construction of 188.029 violates well-accepted canons of statutory interpretation used in the Missouri courts, see State ex rel. Stern Brothers & Co. v. Stilley, 337 S. W. 2d 934, 939 (Mo. 1960) ("The basic rule of statutory construction is to first seek the legislative intention, and to effectuate it if possible, and the law favors constructions which harmonize with reason, and which tend to avoid unjust, absurd, unreasonable or confiscatory results, or oppression"); Bell v. Mid-Century Ins. Co., 750 S. W. 2d 708, 710 (Mo. App. 1988) ("Interpreting the phrase literally would produce an absurd result, which the Legislature is strongly presumed not to have intended"), which JUSTICE BLACKMUN ignores. Post, at 545-546.The viability-testing provision of the Missouri Act is concerned with promoting the State's interest in potential human life rather than in maternal health. Section 188.029 creates what is essentially a presumption of viability at 20 weeks, which the physician must rebut with tests indicating that the fetus is not viable prior to performing an abortion. It also directs the physician's determination as to viability by specifying consideration, if feasible, of gestational age, fetal weight, and lung capacity. The District Court found that "the medical evidence is uncontradicted that a 20-week fetus is not viable," and that "23 1/2 to 24 weeks gestation is the earliest point in pregnancy where a reasonable possibility of viability exists." 662 F. Supp., at 420. But it also found that there may be a 4-week error in estimating gestational age, id., at 421, which supports testing at 20 weeks.In Roe v. Wade, the Court recognized that the State has "important and legitimate" interests in protecting maternal health and in the potentiality of human life. 410 U.S., at 162. During the second trimester, the State "may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Id., at 164. After viability, when the State's interest in potential human life was held to become compelling, the State "may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id., at 165.14 In Colautti v. Franklin, , upon which appellees rely, the Court held that a Pennsylvania statute regulating the standard of care to be used by a physician performing an abortion of a possibly viable fetus was void for vagueness. Id., at 390-401. But in the course of reaching that conclusion, the Court reaffirmed its earlier statement in Planned Parenthood of Central Mo. v. Danforth, , that "`the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician.'" 439 U.S., at 396. JUSTICE BLACKMUN, post, at 545, n. 6, ignores the statement in Colautti that "neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability - be it weeks of gestation or fetal weight or any other single factor - as the determinant of when the State has a compelling interest in the life or health of the fetus." 439 U.S., at 388-389. To the extent that 188.029 regulates the method for determining viability, it undoubtedly does superimpose state regulation on the medical determination whether a particular fetus is viable. The Court of Appeals and the District Court thought it unconstitutional for this reason. 851 F.2d, at 1074-1075; 662 F. Supp., at 423. To the extent that the viability tests increase the cost of what are in fact second-trimester abortions, their validity may also be questioned under Akron, 462 U.S., at 434-435, where the Court held that a requirement that second-trimester abortions must be performed in hospitals was invalid because it substantially increased the expense of those procedures.We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed. Statutes specifying elements of informed consent to be provided abortion patients, for example, were invalidated if they were thought to "structur[e] ... the dialogue between the woman and her physician." Thornburgh v. American College of Obstetricians and Gynecologists, . As the dissenters in Thornburgh pointed out, such a statute would have been sustained under any traditional standard of judicial review, id., at 802 (WHITE, J., dissenting), or for any other surgical procedure except abortion. Id., at 783 (Burger, C. J., dissenting). Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes. See United States v. Scott, . We have not refrained from reconsideration of a prior construction of the Constitution that has proved "unsound in principle and unworkable in practice." Garcia v. San Antonio Metropolitan Transit Authority, ; see Solorio v. United States, ; Erie R. Co. v. Tompkins, . We think the Roe trimester framework falls into that category.In the first place, the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework - trimesters and viability - are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. Since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine.15 As JUSTICE WHITE has put it, the trimester framework has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States." Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 99 (opinion concurring in part and dissenting in part). Cf. Garcia, supra, at 547.In the second place, we do not see why the State's interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. The dissenters in Thornburgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the "fundamental right" recognized in Roe the State's "compelling interest" in protecting potential human life throughout pregnancy. "[T]he State's interest, if compelling after viability, is equally compelling before viability." Thornburgh, 476 U.S., at 795 (WHITE, J., dissenting); see id., at 828 (O'CONNOR, J., dissenting) ("State has compelling interests in ensuring maternal health and in protecting potential human life, and these interests exist `throughout pregnancy'") (citation omitted).The tests that 188.029 requires the physician to perform are designed to determine viability. The State here has chosen viability as the point at which its interest in potential human life must be safeguarded. See Mo. Rev. Stat. 188.030 (1986) ("No abortion of a viable unborn child shall be performed unless necessary to preserve the life or health of the woman"). It is true that the tests in question increase the expense of abortion, and regulate the discretion of the physician in determining the viability of the fetus. Since the tests will undoubtedly show in many cases that the fetus is not viable, the tests will have been performed for what were in fact second-trimester abortions. But we are satisfied that the requirement of these tests permissibly furthers the State's interest in protecting potential human life, and we therefore believe 188.029 to be constitutional.JUSTICE BLACKMUN takes us to task for our failure to join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, , and Roe. But Griswold v. Connecticut, unlike Roe, did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. As such, it was far different from the opinion, if not the holding, of Roe v. Wade, which sought to establish a constitutional framework for judging state regulation of abortion during the entire term of pregnancy. That framework sought to deal with areas of medical practice traditionally subject to state regulation, and it sought to balance once and for all by reference only to the calendar the claims of the State to protect the fetus as a form of human life against the claims of a woman to decide for herself whether or not to abort a fetus she was carrying. The experience of the Court in applying Roe v. Wade in later cases, see supra, at 518, n. 15, suggests to us that there is wisdom in not unnecessarily attempting to elaborate the abstract differences between a "fundamental right" to abortion, as the Court described it in Akronat 420, n. 1, a "limited fundamental constitutional right," which JUSTICE BLACKMUN today treats Roe as having established, post, at 555, or a liberty interest protected by the Due Process Clause, which we believe it to be. The Missouri testing requirement here is reasonably designed to ensure that abortions are not performed where the fetus is viable - an end which all concede is legitimate - and that is sufficient to sustain its constitutionality.JUSTICE BLACKMUN also accuses us, inter alia, of cowardice and illegitimacy in dealing with "the most politically divisive domestic legal issue of our time." Post, at 559. There is no doubt that our holding today will allow some governmental regulation of abortion that would have been prohibited under the language of cases such as Colautti v. Franklin, , and Akron v. Akron Center for Reproductive Health, Inc., supra. But the goal of constitutional adjudication is surely not to remove inexorably "politically divisive" issues from the ambit of the legislative process, whereby the people through their elected representatives deal with matters of concern to them. The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. We think we have done that today. JUSTICE BLACKMUN'S suggestion, post, at 538, 557-558, that legislative bodies, in a Nation where more than half of our population is women, will treat our decision today as an invitation to enact abortion regulation reminiscent of the Dark Ages not only misreads our views but does scant justice to those who serve in such bodies and the people who elect them.IIIBoth appellants and the United States as amicus curiae have urged that we overrule our decision in Roe v. Wade. Brief for Appellants 12-18; Brief for United States as Amicus Curiae 8-24. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. 410 U.S., at 117-118. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, id., at 164, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases. Because none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution, the judgment of the Court of Appeals is Reversed.

Arizona prisoners may raise claims of ineffective assistance of trial counsel only in state collateral proceedings, not on direct review. In petitioner Martinez's first state collateral proceeding, his counsel did not raise such a claim. On federal habeas review with new counsel, Martinez argued that he received ineffective assistance both at trial and in his first state collateral proceeding. He also claimed that he had a constitutional right to an effective attorney in the collateral proceeding because it was the first place to raise his claim of ineffective assistance at trial. The District Court denied the petition, finding that Arizona's preclusion rule was an adequate and independent state-law ground barring federal review, and that under Coleman v. Thompson, 501 U. S. 722, the attorney's errors in the postconviction proceeding did not qualify as cause to excuse the procedural default. The Court of Appeals for the Ninth Circuit affirmed. Held: 1. Where, under state law, ineffective-assistance-of-trial-counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Pp. 5-14. (a) Given that the precise question here is whether ineffective assistance in an initial-review collateral proceeding on an ineffective-assistance-at-trial claim may provide cause for a procedural default in a federal habeas proceeding, this is not the case to resolve the question left open in Coleman: whether a prisoner has a constitutional right to effective counsel in initial-review collateral proceedings. However, to protect prisoners with potentially legitimate ineffective-assistance claims, it is necessary to recognize a narrow exception to Coleman's unqualified statement that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default, namely, that inadequate assistance of counsel at initial-review collateral proceedings may establish cause. Pp. 5-6. (b) A federal court can hear Martinez's ineffective-assistance claim only if he can establish cause to excuse the procedural default and prejudice from a violation of federal law. Coleman held that a postconviction attorney's negligence "does not qualify as 'cause,' " because "the attorney is the prisoner's agent," and "the principal bears the risk of" his agent's negligent conduct, Maples v. Thomas, ante, at 12. However, in Coleman, counsel's alleged error was on appeal from an initial-review collateral proceeding. Thus, his claims had been addressed by the state habeas trial court. This marks a key difference between initial-review collateral proceedings and other collateral proceedings. Here, where the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise the ineffective-assistance claim, the collateral proceeding is the equivalent of a prisoner's direct appeal as to that claim because the state habeas court decides the claim's merits, no other court has addressed the claim, and defendants "are generally ill equipped to represent themselves" where they have no brief from counsel and no court opinion addressing their claim. Halbert v. Michigan, 545 U. S. 605, 617. An attorney's errors during an appeal on direct review may provide cause to excuse a procedural default; for if the attorney appointed by the State is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State's procedures and obtain an adjudication on the merits of his claim. Without adequate representation in an initial-review collateral proceeding, a prisoner will have similar difficulties vindicating a substantial ineffective-assistance-at-trial claim. The same would be true if the State did not appoint an attorney for the initial-review collateral proceeding. A prisoner's inability to present an ineffective-assistance claim is of particular concern because the right to effective trial counsel is a bedrock principle in this Nation's justice system. Allowing a federal habeas court to hear a claim of ineffective assistance at trial when an attorney's errors (or an attorney's absence) caused a procedural default in an initial-review collateral proceeding acknowledges, as an equitable matter, that a collateral proceeding, if undertaken with no counsel or ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim. It thus follows that, when a State requires a prisoner to raise a i claim of ineffective assistance at trial in a collateral proceeding, a prisoner may establish cause for a procedural default of such claim in two circumstances: where the state courts did not appoint counsel in the initial-review collateral proceeding for an ineffective-assistance-at-trial claim; and where appointed counsel in the initial-review collateral proceeding, where that claim should have been raised, was ineffective under Strickland v. Washington, 466 U. S. 668. To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-at-trial claim is substantial. Most jurisdictions have procedures to ensure counsel is appointed for substantial ineffective-assistance claims. It is likely that such attorneys are qualified to perform, and do perform, according to prevailing professional norms. And where that is so, States may enforce a procedural default in federal habeas proceedings. Pp. 6-12. (c) This limited qualification to Coleman does not implicate stare decisis concerns. Coleman's holding remains true except as to initial-review collateral proceedings for claims of ineffective assistance at trial. The holding in this case should not put a significant strain on state resources. A State facing the question of cause for an apparent default may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial. The limited circumstances recognized here also reflect the importance of the right to effective assistance at trial. Other claims may not implicate the same fundamentals of the adversary system. The Antiterrorism and Effective Death Penalty Act of 1996 does not speak to the question presented here, and thus does not bar Martinez from asserting attorney error as cause for a procedural default. Pp. 12-14. 2. Whether Martinez's attorney in his first collateral proceeding was ineffective and whether his ineffective-assistance-at-trial claim is substantial, as well as the question of prejudice, are questions that remain open for a decision on remand. P. 15.623 F. 3d 731, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined.Opinion of the Court 566 U. S. ____ (2012)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 10-1001LUIS MARIANO MARTINEZ, PETITIONER v.CHARLES L. RYAN, DIRECTOR, ARIZONADEPARTMENT OF CORRECTIONSon writ of certiorari to the united states court of appeals for the ninth circuit[March 20, 2012] Justice Kennedy delivered the opinion of the Court. The State of Arizona does not permit a convicted person alleging ineffective assistance of trial counsel to raise that claim on direct review. Instead, the prisoner must bring the claim in state collateral proceedings. In the instant case, however, petitioner's postconviction counsel did not raise the ineffective-assistance claim in the first collateral proceeding, and, indeed, filed a statement that, after reviewing the case, she found no meritorious claims helpful to petitioner. On federal habeas review, and with new counsel, petitioner sought to argue he had received ineffective assistance of counsel at trial and in the first phase of his state collateral proceeding. Because the state collateral proceeding was the first place to challenge his conviction on grounds of ineffective assistance, petitioner maintained he had a constitutional right to an effective attorney in the collateral proceeding. While petitioner frames the question in this case as a constitutional one, a more narrow, but still dispositive, formulation is whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney's errors in an initial-review collateral proceeding.I A jury convicted petitioner, Luis Mariano Martinez, of two counts of sexual conduct with a minor under the age of 15. The prosecution introduced a videotaped forensic interview with the victim, Martinez's 11-year-old stepdaughter. It also put in evidence the victim's nightgown, with traces of Martinez's DNA. As part of his defense, Martinez introduced evidence of the victim's recantations, including testimony from the victim's grandmother and mother and a second videotaped interview in which the victim denied any abuse. The victim also denied any abuse when she testified at trial. App. to Pet. for Cert. 38a-39a. To explain the inconsistencies, a prosecution expert testified that recantations of child-abuse accusations are caused often by reluctance on the part of the victim's mother to lend support to the child's claims. Pet. for Cert. 3. After considering the conflicting evidence, the jury convicted Martinez. He was sentenced to two consecutive terms of life imprisonment with no possibility of parole for 35 years. App. to Pet. for Cert. 39a. The State appointed a new attorney to represent Martinez in his direct appeal. Ibid.; Pet. for Cert. 4. She made numerous arguments on Martinez's behalf, including a claim that the evidence was insufficient and that newly discovered evidence warranted a new trial. App. to Pet. for Cert. 39a. Arizona law, however, did not permit her to argue on direct appeal that trial counsel was ineffective. State v. Spreitz, 202 Ariz. 1, 3, 39 P. 3d 525, 527 (2002). Arizona instead requires claims of ineffective assistance at trial to be reserved for state collateral proceedings. While Martinez's direct appeal was pending, the attorney began a state collateral proceeding by filing a "Notice of Post-Conviction Relief." Martinez v. Schriro, 623 F. 3d 731, 733-734 (CA9 2010); Ariz. Rule Crim. Proc. 32.4(a) (2011). Despite initiating this proceeding, counsel made no claim trial counsel was ineffective and later filed a statement asserting she could find no colorable claims at all. 623 F. 3d, at 734. Cf. State v. Smith, 184 Ariz. 456, 459, 910 P. 2d 1, 4 (1996). The state trial court hearing the collateral proceeding gave Martinez 45 days to file a pro se petition in support of postconviction relief and to raise any claims he believed his counsel overlooked. 623 F. 3d, at 734; see Smith, supra, at 459, 910 P. 2d, at 4. Martinez did not respond. He later alleged that he was unaware of the ongoing collateral proceedings and that counsel failed to advise him of the need to file a pro se petition to preserve his rights. The state trial court dismissed the action for postconviction relief, in effect affirming counsel's determination that Martinez had no meritorious claims. 623 F. 3d, at 734. The Arizona Court of Appeals affirmed Martinez's conviction, and the Arizona Supreme Court denied review. Id., at 733. About a year and a half later, Martinez, now represented by new counsel, filed a second notice of postconviction relief in the Arizona trial court. Id., at 734. Martinez claimed his trial counsel had been ineffective for failing to challenge the prosecution's evidence. He argued, for example, that his trial counsel should have objected to the expert testimony explaining the victim's recantations or should have called an expert witness in rebuttal. Martinez also faulted trial counsel for not pursuing an exculpatory explanation for the DNA on the nightgown. App. to Brief in Opposition B-6 to B-12. Martinez's petition was dismissed, in part in reliance on an Arizona Rule barring relief on a claim that could have been raised in a previous collateral proceeding. Id., at B-27; see Ariz. Rule Crim. Proc. 32.2(a)(3). Martinez, the theory went, should have asserted the claims of ineffective assistance of trial counsel in his first notice for postconviction relief. The Arizona Court of Appeals agreed. It denied Martinez relief because he failed to raise his claims in the first collateral proceeding. 623 F. 3d, at 734. The Arizona Supreme Court declined to review Martinez's appeal. Martinez then sought relief in United States District Court for the District of Arizona, where he filed a petition for a writ of habeas corpus, again raising the ineffective-assistance-of-trial-counsel claims. Martinez acknowledged the state courts denied his claims by relying on a well-established state procedural rule, which, under the doctrine of procedural default, would prohibit a federal court from reaching the merits of the claims. See, e.g., Wainwright v. Sykes, 433 U. S. 72, 84-85, 90-91 (1977). He could overcome this hurdle to federal review, Martinez argued, because he had cause for the default: His first postconviction counsel was ineffective in failing to raise any claims in the first notice of postconviction relief and in failing to notify Martinez of her actions. See id., at 84-85. On the Magistrate Judge's recommendation, the District Court denied the petition, ruling that Arizona's preclusion rule was an adequate and independent state-law ground to bar federal review. App. to Pet. for Cert. 36a. Martinez had not shown cause to excuse the procedural default, the District Court reasoned, because under Coleman v. Thompson, 501 U. S. 722, 753-754 (1991), an attorney's errors in a postconviction proceeding do not qualify as cause for a default. See id., at 754-755. The Court of Appeals for the Ninth Circuit affirmed. The Court of Appeals relied on general statements in Coleman that, absent a right to counsel in a collateral proceeding, an attorney's errors in the proceeding do not establish cause for a procedural default. Expanding on the District Court's opinion, the Court of Appeals, citing Coleman, noted the general rule that there is no constitutional right to counsel in collateral proceedings. 623 F. 3d, at 736. The Court of Appeals recognized that Coleman reserved ruling on whether there is "an exception" to this rule in those cases "where 'state collateral review is the first place a prisoner can present a challenge to his conviction.' " 623 F. 3d, at 736 (quoting Coleman, supra, at 755). It concluded, nevertheless, that the controlling cases established no basis for the exception. Certiorari was granted. 563 U. S. ___ (2011).II Coleman v. Thompson, supra, left open, and the Court of Appeals in this case addressed, a question of constitutional law: whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial. These proceedings can be called, for purposes of this opinion, "initial-review collateral proceedings." Coleman had suggested, though without holding, that the Constitution may require States to provide counsel in initial-review collateral proceedings because "in [these] cases . . . state collateral review is the first place a prisoner can present a challenge to his conviction." Id., at 755. As Coleman noted, this makes the initial-review collateral proceeding a prisoner's "one and only appeal" as to an ineffective-assistance claim, id., at 756 (emphasis deleted; internal quotation marks omitted), and this may justify an exception to the constitutional rule that there is no right to counsel in collateral proceedings. See id., at 755; Douglas v. California, 372 U. S. 353, 357 (1963) (holding States must appoint counsel on a prisoner's first appeal). This is not the case, however, to resolve whether that exception exists as a constitutional matter. The precise question here is whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding. To protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel, it is necessary to modify the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default. This opinion qualifies Coleman by recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.A Federal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism. These rules include the doctrine of procedural default, under which a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule. See, e.g., Coleman, supra, at 747-748; Sykes, supra, at 84-85. A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed. See, e.g., Walker v. Martin___, ___ (2011) (slip op., at 7-8); Beard v. Kindler, 558 U. S. ___, ___ (2009) (slip op., at 7). The doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law. See Coleman, 501 U. S., at 750. There is no dispute that Arizona's procedural bar on successive petitions is an independent and adequate state ground. Thus, a federal court can hear Martinez's ineffective-assistance claim only if he can establish cause to excuse the procedural default. Coleman held that "[n]egligence on the part of a prisoner's postconviction attorney does not qualify as 'cause.' " Maples v. Thomas, 565 U. S ___, ___ (2011) (slip op., at 12). Coleman reasoned that "because the attorney is the prisoner's agent . . . under 'well-settled principles of agency law,' the principal bears the risk of negligent conduct on the part of his agent." Maples, supra, at ___ (slip op., at 12). Coleman, however, did not present the occasion to apply this principle to determine whether attorney errors in initial-review collateral proceedings may qualify as cause for a procedural default. The alleged failure of counsel in Coleman was on appeal from an initial-review collateral proceeding, and in that proceeding the prisoner's claims had been addressed by the state habeas trial court. See 501 U. S., at 755. As Coleman recognized, this marks a key difference between initial-review collateral proceedings and other kinds of collateral proceedings. When an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner's claim. This Court on direct review of the state proceeding could not consider or adjudicate the claim. See, e.g., Fox Film Corp. v. Muller, 296 U. S. 207 (1935); Murdock v. Memphis, 20 Wall. 590 (1875); cf. Coleman, supra, at 730-731. And if counsel's errors in an initial-review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner's claims. The same is not true when counsel errs in other kinds of postconviction proceedings. While counsel's errors in these proceedings preclude any further review of the prisoner's claim, the claim will have been addressed by one court, whether it be the trial court, the appellate court on direct review, or the trial court in an initial-review collateral proceeding. See, e.g., Coleman, supra, at 756. Where, as here, the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as to the ineffective-assistance claim. This is because the state habeas court "looks to the merits of the clai[m]" of ineffective assistance, no other court has addressed the claim, and "defendants pursuing first-tier review . . . are generally ill equipped to represent themselves" because they do not have a brief from counsel or an opinion of the court addressing their claim of error. Halbert v. Michigan, 545 U. S. 605, 617 (2005); see Douglas, 372 U. S., at 357-358. As Coleman recognized, an attorney's errors during an appeal on direct review may provide cause to excuse a procedural default; for if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State's procedures and obtain an adjudication on the merits of his claims. See 501 U. S., at 754; Evitts v. Lucey, 469 U. S. 387, 396 (1985); Douglas, supra, at 357-358. Without the help of an adequate attorney, a prisoner will have similar difficulties vindicating a substantial ineffective-assistance-of-trial-counsel claim. Claims of ineffective assistance at trial often require investigative work and an understanding of trial strategy. When the issue cannot be raised on direct review, moreover, a prisoner asserting an ineffective-assistance-of-trial-counsel claim in an initial-review collateral proceeding cannot rely on a court opinion or the prior work of an attorney addressing that claim. Halbert, 545 U. S., at 619. To present a claim of ineffective assistance at trial in accordance with the State's procedures, then, a prisoner likely needs an effective attorney. The same would be true if the State did not appoint an attorney to assist the prisoner in the initial-review collateral proceeding. The prisoner, unlearned in the law, may not comply with the State's procedural rules or may misapprehend the substantive details of federal constitutional law. Cf., e.g., id., at 620-621 (describing the educational background of the prison population). While confined to prison, the prisoner is in no position to develop the evidentiary basis for a claim of ineffective assistance, which often turns on evidence outside the trial record. A prisoner's inability to present a claim of trial error is of particular concern when the claim is one of ineffective assistance of counsel. The right to the effective assistance of counsel at trial is a bedrock principle in our justice system. It is deemed as an "obvious truth" the idea that "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." Gideon v. Wainwright, 372 U. S. 335, 344 (1963). Indeed, the right to counsel is the foundation for our adversary system. Defense counsel tests the prosecution's case to ensure that the proceedings serve the function of adjudicating guilt or innocence, while protecting the rights of the person charged. See, e.g., Powell v. Alabama, 287 U. S. 45, 68-69 (1932) ("[The defendant] requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence"). Effective trial counsel preserves claims to be considered on appeal, see, e.g., Fed. Rule Crim. Proc. 52(b), and in federal habeas proceedings, Edwards v. Carpenter, 529 U. S. 446 (2000). This is not to imply the State acted with any impropriety by reserving the claim of ineffective assistance for a collateral proceeding. See Massaro v. United States, 538 U. S. 500, 505 (2003). Ineffective-assistance claims often depend on evidence outside the trial record. Direct appeals, without evidentiary hearings, may not be as effective as other proceedings for developing the factual basis for the claim. Ibid. Abbreviated deadlines to expand the record on direct appeal may not allow adequate time for an attorney to investigate the ineffective-assistance claim. See Primus, Structural Reform in Criminal Defense, 92 Cornell L. Rev. 679, 689, and n. 57 (2004) (most rules give between 5 and 30 days from the time of conviction to file a request to expand the record on appeal). Thus, there are sound reasons for deferring consideration of ineffective-assistance-of-trial-counsel claims until the collateral-review stage, but this decision is not without consequences for the State's ability to assert a procedural default in later proceedings. By deliberately choosing to move trial-ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed, the State significantly diminishes prisoners' ability to file such claims. It is within the context of this state procedural framework that counsel's ineffectiveness in an initial-review collateral proceeding qualifies as cause for a procedural default. The rules for when a prisoner may establish cause to excuse a procedural default are elaborated in the exercise of the Court's discretion. McCleskey v. Zant, 499 U. S. 467, 490 (1991); see also Coleman, supra, at 730-731; Sykes, 433 U. S., at 83; Reed v. Ross, 468 U. S. 1, 9 (1984); Fay v. Noia, 372 U. S. 391, 430 (1963), overruled in part by Sykes, supra. These rules reflect an equitable judgment that only where a prisoner is impeded or obstructed in complying with the State's established procedures will a federal habeas court excuse the prisoner from the usual sanction of default. See, e.g., Strickler v. Greene, 527 U. S. 263, 289 (1999); Reed, supra, at 16. Allowing a federal habeas court to hear a claim of ineffective assistance of trial counsel when an attorney's errors (or the absence of an attorney) caused a procedural default in an initial-review collateral proceeding acknowledges, as an equitable matter, that the initial-review collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim. From this it follows that, when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U. S. 668 (1984). To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322 (2003) (describing standards for certificates of appealability to issue). Most jurisdictions have in place procedures to ensure counsel is appointed for substantial ineffective-assistance claims. Some States, including Arizona, appoint counsel in every first collateral proceeding. See, e.g., Alaska Stat. 18.85.100(c) (2010); Ariz. Rule Crim. Proc. 32.4(c)(2) (2011); Conn. Gen. Stat. §51-296(a) (2011); Me. Rules Crim. Proc. 69, 70(c) (2010); N. C. Gen. Stat. Ann. §7A-451(a)(2) (2009); N. J. Ct. Rule 3:22-6(b) (2012); R. I. Gen. Laws §10-9.1-5 (Lexis 1997); Tenn. Code Ann. §8-14-205 (2011). Some States appoint counsel if the claims require an evidentiary hearing, as claims of ineffective assistance often do. See, e.g., Ky. Rule Crim. Proc. 11.42(5) (2011); La. Code Crim. Proc. Ann., Art. 930.7(C) (West 2008); Mich. Rule Crim. Proc. 6.505(A) (2011); S. C. Rule Civ. Proc. 71.1(d) (2011). Other States appoint counsel if the claims have some merit to them or the state habeas trial court deems the record worthy of further development. See, e.g., Ark. Rule Crim. Proc. 37.3(b) (2011); Colo. Rule Crim. Proc. 35(b) (2011); Del. Super. Ct. Rule Crim. Proc. 61(e)(1) (2011); Indiana Rule Post-Conviction Remedies Proc. 1, §9(a) (rev. 2011); Kan. Stat. Ann. §22-4506 (2007); N. M. Dist. Ct. Rule Crim. Proc. 5-802 (2011); Hust v. State, 147 Idaho 682, 683-684, 214 P. 3d 668, 669-670 (2009); Hardin v. Arkansas, 350 Ark. 299, 301, 86 S. W. 3d 384, 385 (2007) (per curiam); Jensen v. State, 2004 ND 200, ¶13, 688 N. W. 2d 374, 378; Wu v. United States, 798 A. 2d 1083, 1089 (D. C. 2002); Kostal v. People, 167 Colo. 317, 447 P. 2d 536 (1968). It is likely that most of the attorneys appointed by the courts are qualified to perform, and do perform, according to prevailing professional norms; and, where that is so, the States may enforce a procedural default in federal habeas proceedings.B This limited qualification to Coleman does not implicate the usual concerns with upsetting reliance interests protected by stare decisis principles. Cf., e.g., Montejo v. Louisiana, 556 U. S. 778, 792-793 (2009). Coleman held that an attorney's negligence in a postconviction proceeding does not establish cause, and this remains true except as to initial-review collateral proceedings for claims of ineffective assistance of counsel at trial. Coleman itself did not involve an occasion when an attorney erred in an initial-review collateral proceeding with respect to a claim of ineffective trial counsel; and in the 20 years since Coleman was decided, we have not held Coleman applies in circumstances like this one. The holding here ought not to put a significant strain on state resources. When faced with the question whether there is cause for an apparent default, a State may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards. This is but one of the differences between a constitutional ruling and the equitable ruling of this case. A constitutional ruling would provide defendants a freestanding constitutional claim to raise; it would require the appointment of counsel in initial-review collateral proceedings; it would impose the same system of appointing counsel in every State; and it would require a reversal in all state collateral cases on direct review from state courts if the States' system of appointing counsel did not conform to the constitutional rule. An equitable ruling, by contrast, permits States a variety of systems for appointing counsel in initial-review collateral proceedings. And it permits a State to elect between appointing counsel in initial-review collateral proceedings or not asserting a procedural default and raising a defense on the merits in federal habeas proceedings. In addition, state collateral cases on direct review from state courts are unaffected by the ruling in this case. The rule of Coleman governs in all but the limited circumstances recognized here. The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts. See 501 U. S., at 754; Carrier, 477 U. S., at 488. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons. In addition, the limited nature of the qualification to Coleman adopted here reflects the importance of the right to the effective assistance of trial counsel and Arizona's decision to bar defendants from raising ineffective-assistance claims on direct appeal. Our holding here addresses only the constitutional claims presented in this case, where the State barred the defendant from raising the claims on direct appeal. Arizona contends that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254, bars Martinez from asserting attorney error as cause for a procedural default. AEDPA refers to attorney error in collateral proceedings, but it does not speak to the question presented in this case. Section 2254(i) provides that "the ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief." "Cause," however, is not synonymous with "a ground for relief." A finding of cause and prejudice does not entitle the prisoner to habeas relief. It merely allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted. In this case, for example, Martinez's "ground for relief" is his ineffective-assistance-of-trial-counsel claim, a claim that AEDPA does not bar. Martinez relies on the ineffectiveness of his postconviction attorney to excuse his failure to comply with Arizona's procedural rules, not as an independent basis for overturning his conviction. In short, while §2254(i) precludes Martinez from relying on the ineffectiveness of his postconviction attorney as a "ground for relief," it does not stop Martinez from using it to establish "cause." Holland v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 18).III Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. In this case Martinez's attorney in the initial-review collateral proceeding filed a notice akin to an Anders brief, in effect conceding that Martinez lacked any meritorious claim, including his claim of ineffective assistance at trial. See Anders v. California, 386 U. S. 738 (1967). Martinez argued before the federal habeas court that filing the Anders brief constituted ineffective assistance. The Court of Appeals did not decide whether that was so. Rather, it held that because Martinez did not have a right to an attorney in the initial-review collateral proceeding, the attorney's errors in the initial-review collateral proceeding could not establish cause for the failure to comply with the State's rules. Thus, the Court of Appeals did not determine whether Martinez's attorney in his first collateral proceeding was ineffective or whether his claim of ineffective assistance of trial counsel is substantial. And the court did not address the question of prejudice. These issues remain open for a decision on remand.* * * 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.Scalia, J., dissenting 566 U. S. ____ (2012)No. 10-1001LUIS MARIANO MARTINEZ, PETITIONER v. CHARLES L. RYAN, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONSon writ of certiorari to the united states court of appeals for the ninth circuit[March 20, 2012] Justice Scalia, with whom Justice Thomas joins, dissenting.IA Let me get this straight: Out of concern for the values of federalism; to preserve the ability of our States to provide prompt justice; and in light of our longstanding juris-prudence holding that there is no constitutional right to counsel in state collateral review; the Court, in what it portrays as an admirable exercise of judicial restraint, abstains from holding that there is a constitutional right to counsel in initial-review state habeas. After all, that would have meant, in a case such as the one before us, that failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, would constitute cause for excusing procedural default. See Strickland v. Washington, 466 U. S. 668 (1984). Instead of taking that radical step, the Court holds that, for equitable reasons, in a case such as the one before us, failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, constitutes cause for excusing procedural default. The result, of course, is precisely the same. Ah, but perhaps the explanation of why the Court's action today amounts to praiseworthy self-restraint is this: It pronounces this excuse from the usual rule of proce-dural default only in initial-review state habeas raising an ineffective-assistance-of-trial-counsel claim. But it could have limited its invention of a new constitutional right to collateral-review counsel in precisely the same fashion — and with precisely the same consequences. Moreover, no one really believes that the newly announced "equitable" rule will remain limited to ineffective-assistance-of-trial-counsel cases. There is not a dime's worth of difference in principle between those cases and many other cases in which initial state habeas will be the first opportunity for a particular claim to be raised: claims of "newly discovered" prosecutorial misconduct, for example, see Brady v. Maryland, 373 U. S. 83 (1963), claims based on "newly discovered" exculpatory evidence or "newly discovered" impeachment of prosecutorial witnesses, and claims asserting ineffective assistance of appellate counsel. The Court's soothing assertion, ante, at 14, that its holding "addresses only the constitutional claims presented in this case," insults the reader's intelligence.1 Moreover, even if today's holding could (against all logic) be restricted to ineffective-assistance-of-trial-counsel claims, it would have essentially the same practical consequences as a holding that collateral-review counsel is constitutionally required. Despite the Court's suggestion to the contrary, see ante, at 13, the rule it adopts calls into question the common state practice of not appointing counsel in all first collateral proceedings, see ante, at 11-12. It does not, to be sure, call into question the lawfulness of that practice; only its sanity. For if the prisoner goes through state collateral proceedings without counsel, and fails to raise an ineffective-assistance-of-trial-counsel claim which is, because of that failure, defaulted, the default will not preclude federal habeas review of the merits of that claim. And since ineffective assistance of trial counsel is a monotonously standard claim on federal habeas (has a duly convicted defendant ever been effectively represented?), whoever advises the State would himself be guilty of ineffective assistance if he did not counsel the appointment of state-collateral-review counsel in all cases — lest the failure to raise that claim in the state pro-ceedings be excused and the State be propelled into federal habeas review of the adequacy of trial-court representation that occurred many years ago.2 Which is to say that the Court's pretended avoidance of requiring States to ap-point collateral-review counsel is a sham.3 Of course even the appointment of state-collateral-review counsel will not guarantee that the State's criminal proceeding can be concluded without years-long federal retrial. Appointment of counsel may, as I have said, avoid federal review of the adequacy of representation that occurred years ago, at the original trial. But since, under today's opinion, the condition for exclusion of federal habeas is the very same condition that would apply if appointment of state-collateral-review counsel were constitutionally required, it will remain to be determined in federal habeas review whether the state-appointed counsel was effective. Thus, as a consequence of today's decision the States will always be forced to litigate in federal habeas, for all defaulted ineffective-assistance-of-trial-counsel claims (and who knows what other claims), either (1) the validity of the defaulted claim (where collateral-review counsel was not appointed), or (2) the effectiveness of collateral-review counsel (where collateral-review counsel was appointed). The Court notes that many States already provide for the appointment of counsel in first collateral challenges — as though this proves that what the Court forces the States to do today is eminently reasonable. But what the Court fails to point out is that currently, when state-appointed counsel does not raise an ineffective-assistance-of-trial-counsel claim, that is the end of the matter: The issue has been procedurally defaulted. By virtue of today's opinion, however, all those cases can (and where capital punishment is at issue assuredly will) proceed to federal habeas on the issue of whether state-appointed counsel was ineffective in failing to raise the ineffective-assistance-of-trial-counsel issue. That is the meaning of the Court's (supposedly comforting) statement:"It is likely that most of the attorneys appointed by the courts are qualified to perform, and do perform, according to prevailing professional norms; and, where that is so, the States may enforce a procedural default in federal habeas proceedings." Ante, at 12 (emphasis added).To be more precise, the Court should have said "where that is so, and where federal habeas courts have finally rejected claims that it is not so, the States may enforce a procedural default in federal habeas proceedings." I cannot possibly imagine the basis for the Court's confidence, ante, at 12-13, that all this will not put a significant strain on state resources. The principal escape route from federal habeas — existence of an "adequate and in-dependent state ground"--has been closed.4 Whether counsel appointed for state collateral review raises the ineffective-assistance-of-trial-counsel claim or not, federal habeas review will proceed. In practical effect, that may not make much difference in noncapital cases (except for the squandering of state taxpayers' money): The defendant will stay in prison, continuing to serve his sentence, while federal habeas review grinds on. But in capital cases, it will effectively reduce the sentence, giving the defendant as many more years to live, beyond the lives of the innocent victims whose life he snuffed out, as the process of federal habeas may consume. I guarantee that an assertion of ineffective assistance of trial counsel will be made in all capital cases from this date on, causing (because of today's holding) execution of the sentence to be deferred until either that claim, or the claim that appointed counsel was ineffective in failing to make that claim, has worked its way through the federal system.B The Court would have us believe that today's holding is no more than a "limited qualification" to Coleman v. Thompson, 501 U. S. 722 (1991). Ante, at 12. It is much more than that: a repudiation of the longstanding principle governing procedural default, which Coleman and other cases consistently applied. Coleman itself involved a habeas petitioner's contention that his attorney's failure to file a timely notice of appeal in his state habeas proceeding, which resulted in procedural default of the claims raised in that proceeding, was cause to excuse that default in federal habeas. 501 U. S., at 752. The petitioner in that case contended that whether a violation of his constitutional right to effective counsel had occurred was of no consequence, so long as the attorney's conduct fell short of the effectiveness standard set forth in Strickland. See 501 U. S., at 753. Whereas Coleman flatly repudiated that claim as being inconsistent with our precedent, see ibid., today's majority wholeheartedly embraces it, ante, at 11. Rejection of the argument in Coleman was compelled by our jurisprudence pertaining to cause for excusing procedural default, and in particular Murray v. Carrier, 477 U. S. 478 (1986). See Coleman, supra, at 752-753. Car-rier involved the failure of a defendant's attorney to raise a claim on direct appeal. 477 U. S., at 482. This failure did not constitute cause, we explained, because it was not an "objective factor external to the defense." Id., at 488 (emphasis added). This external-factor requirement reflects the judgment that States should not be forced to undergo federal habeas review of a defaulted claim unless a factor not attributable to the prisoner obstructed his compliance with state procedures. See id., at 487-488. Although this externality requirement has been the North Star of our excuse-for-cause jurisprudence, today's opinion does not whisper its name — no doubt because it is impossible to say that Martinez's procedural default was caused by a factor external to his defense. Coleman and Carrier set forth in clear terms when it is that attorney error constitutes an external factor: Attorney error by it-self does not, because when an attorney acts (or fails to act) in furtherance of the litigation, he is acting as the petitioner's agent. Coleman, supra, at 753; Carrier, supra, at 492. Any other rule would be inconsistent with our system of representative litigation, under which "each party is deemed bound by the acts of his lawyer-agent." Irwin v. Department of Veterans Affairs, 498 U. S. 89, 92 (1990) (internal quotation marks omitted). But when attorney error amounts to constitutionally ineffective assistance of counsel, that error is imputed to the State (for the State has failed to comply with the constitutional requirement to provide effective counsel), rendering the error external to the petitioner. Coleman, supra, at 754; Carrier, supra, at 488. Accordingly, as Martinez himself appears to recognize, see Brief for Petitioner 22, our cases require that absent a determination that Arizona violated the Constitution by failing to provide effective counsel, attorney error cannot provide cause to excuse his procedural default. Rather than apply that rule here, the Court adopts the very approach Coleman explicitly addressed and rejected. The Court essentially disclaims any need to give full consideration to the principle of stare decisis because Coleman did not involve an initial-review collateral proceeding for a claim of ineffective assistance of trial counsel. See ante, at 12. That is rather like saying that Marbury v. Madison, 1 Cranch 137 (1803), does not establish our authority to review the constitutionality of a new federal statute because it involved a different enactment. Just as the reasoning of Marbury was categorical, so was the reasoning of Coleman and Carrier: Attorney error is not an external factor constituting cause for excusing default unless the State has a constitutional obligation to provide effective counsel. Had the majority seriously considered the relevant stare decisis factors, see, e.g., Montejo v. Louisiana, 556 U. S. 778, 792-793 (2009), it would have had difficulty justifying today's decision. Nor can it escape the demands of stare decisis by saying that our rules regarding the excuse of procedural default reflect an "equitable judgment" that is "elaborated in the exercise of the Court's discretion." Ante, at 10. Equity is not lawlessness, and discretion is not license to cast aside established jurisprudence reaffirmed this very Term. See Maples v. Thomas, 565 U. S. ___, ___ (2012) (slip op., at 12) ("Negligence on the part of a prisoner's postconviction attorney does not qualify as 'cause' " (quoting Coleman, supra, at 753)). " '[C]ourts of equity must be governed by rules and precedents no less than courts of law.' " Lonchar v. Thomas, 517 U. S. 314, 323 (1996) (quoting Missouri v. Jenkins, 515 U. S. 70, 127 (1995) (Thomas, J., concurring)). Noticeably absent from the Court's equitable analysis, moreover, is any consideration of the very reason for a procedural-default rule: the comity and respect that fed-eral courts must accord state-court judgments. See Edwards v. Carpenter, 529 U. S. 446, 451 (2000). The procedural-default doctrine reflects the understanding that federal review of defaulted claims may "circumvent the jurisdictional limits of direct review and 'undermine the State's interest in enforcing its laws.' " Lee v. Kemna, 534 U. S. 362, 388 (2002) (Kennedy, J., dissenting) (quoting Coleman, supra, at 731). Unlike today's decision, Carrier and Coleman took account of the significant costs federal habeas review imposes on States, including the "reduction in the finality of litigation and the frustration of 'both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.' " Carrier, supra, at 487 (quoting Engle v. Isaac, 456 U. S. 107, 128 (1982)). Criminal conviction ought to be final before society has forgotten the crime that justifies it. When a case arrives at federal habeas, the state conviction and sentence at issue (never mind the underlying crime) are already a dim memory, on average more than 6 years old (7 years for capital cases).5 I would adhere to the precedents that prevent a bad situation from becoming worse.II We granted certiorari on, and the parties addressed their arguments to, the following question:"Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim." Pet. for Cert. i.While the Court's decision not to answer the question did not avoid the costs a constitutional holding would have imposed on States, it did avoid the Court's need to confront the established rule that there is no right to counsel in collateral proceedings. To avoid his procedural default, Martinez advocates in favor of an exception to this rule where the prisoner seeks the right to counsel in an initial-review collateral proceeding — an argument we have previously declined to address. See Coleman, 501 U. S., at 755. The argument is quite clearly foreclosed by our precedent. In Pennsylvania v. Finley, 481 U. S. 551 (1987), and Murray v. Giarratano, 492 U. S. 1 (1989), we stated un-equivocally that prisoners do not "have a constitutional right to counsel when mounting collateral attacks upon their convictions." Finley, supra, at 555. See also Giar-ratano, 492 U. S., at 10 (plurality opinion) ("[T]he rule of Pennsylvania v. Finley should apply no differently in capital cases than in noncapital cases"); id., at 14 (Kennedy, J., concurring in judgment) (indicating that the Constitution does not categorically require States to provide counsel to death-row inmates seeking state habeas review). Though Finley may have involved only claims that could have been raised on direct review, see 481 U. S., at 553; Giarratano, supra, at 24 (Stevens, J., dissenting), the Court was no doubt aware that States often limit "the collateral review process [to] issues that have not previously been litigated or argued on the direct appeal." Brief for Respondent in Finley, O. T. 1986, No. 85-2099, p. 11, n. 5. And Giarratano, which involved a class action filed under 42 U. S. C. §1983, addressed the general assertion that the Constitution requires the appointment of counsel for collateral attacks on capital convictions. See 492 U. S., at 3-4 (plurality opinion). The Court rejected that assertion without qualification. The dissenting opinion, more-over, made the precise argument Martinez now asserts: under state law "some claims [including ineffective assistance of trial counsel] ordinarily heard on direct review will be relegated to postconviction proceedings." Id., at 24 (Stevens, J., dissenting). See also Brief for Respondents in Giarratano, O. T. 1988, No. 88-411, p. 29, n. 8 ("In [Virginia capital habeas] proceedings, Death Row inmates seek to assert claims that have not been, and could not have been addressed on direct appeal . . . "). Thus, in announcing a categorical rule in Finley, see Giarratano, supra, at 12 (plurality opinion), and then reaffirming it in Giarratano, the Court knew full well that a collateral proceeding may present the first opportunity for a prisoner to raise a constitutional claim. I would follow that rule in this case and reject Martinez's argument that there is a constitutional right to counsel in initial-review collateral proceedings.* * * Far from avoiding the consequences a constitutional holding would have imposed on the States, today's holding as a practical matter requires States to appoint counsel in initial-review collateral proceedings — and, to boot, eliminates the pre-existing assurance of escaping federal-habeas review for claims that appointed counsel fails to present. Despite the Court's protestations to the contrary, the decision is a radical alteration of our habeas jurisprudence that will impose considerable economic costs on the States and further impair their ability to provide justice in a timely fashion. The balance it strikes between the finality of criminal judgments and the need to provide for review of defaulted claims of ineffective assistance of trial counsel grossly underestimates both the frequency of such claims in federal habeas, and the incentives to argue (since it is a free pass to federal habeas) that appointed counsel was ineffective in failing to raise such claims. The balance might have been close (though it would disregard our established jurisprudence) if the Court merely held that uncounseled failure to raise ineffective assistance of trial counsel would not constitute default. But in adding to that the rule that counseled failure to raise it may also provide an excuse, the Court creates a monstrosity. For these reasons, I respectfully dissent.FOOTNOTESFootnote 1 The Court also seeks to restrict its holding to cases in which the State has "deliberately cho[sen]" to move the asserted claim "outside of the direct-appeal process," ante, at 10. That line lacks any principled basis, and will not last. Is there any relevant difference between cases in which the State says that certain claims can only be brought on collateral review and cases in which those claims by their nature can only be brought on collateral review, since they do not manifest themselves until the appellate process is complete? Our cases establish that to constitute cause for failure to raise an issue on direct review, the excuse must be "an objective factor external to the defense." See infra, at 7. That the factual basis for a claim was not available until the collateral-review stage is no less such a factor than a State's requiring that a claim be brought on collateral review. See Murray v. Carrier, 477 U. S. 478, 488 (1986). The Court's asserted limitation makes sense only if the opinion means that a State has "deliberately chos[en]" to move newly-arisen claims "outside of the direct-appeal process" if it fails to reopen the direct-appeal process in order to entertain such claims. Such a radical change in what we require of the States surely ought to be prescribed by language clearer than what today's opinion contains.Footnote 2 The Court says that to establish cause a prisoner must demonstrate that the ineffective-assistance-of-trial-counsel claim is "substantial," which apparently means the claim has at least some merit. See ante, at 11. The Court does not explain where this substantiality standard comes from, and how it differs from the normal rule that a prisoner must demonstrate actual prejudice to avoid the enforcement of a procedural default, see Coleman v. Thompson, 501 U. S. 722, 750 (1991). But whatever the standard, examination of the adequacy of years-ago representation has been substituted for summary dismissal by reason of procedural default.Footnote 3 The Court also claims, ante, at 13, that its "equitable" ruling, unlike a constitutional ruling, will not require "a reversal in all state collateral cases on direct review from state courts" where counsel has not been appointed. Surely the Court does not mean to suggest that an un-constitutional failure to appoint counsel on collateral review, like an unconstitutional failure to appoint counsel at trial, would require the entire conviction to be set aside. That is inconceivable. So either one of two things would happen: Either the reviewing state court would be able to inquire into prejudice (which is an improvement over having the federal habeas court make that inquiry, as the Court's "equitable" solution requires); or else the appellate state court will remand for a collateral proceeding with counsel (which is, as we have said, just what the Court's "equitable" ruling effectively requires anyway). So the Court's "equitable" ruling is no boon to the States.Footnote 4 See N. King, F. Cheesman, & B. Ostrom, Final Technical Report: Habeas Litigation in U. S. District Courts 45-49 (2007) (documenting the percentage of habeas petitions that included claims dismissed for various procedural reasons); Administrative Office of the United States Courts, Habeas Corpus Petitions Disposed of Procedurally During the 12-Month Period Ending September 30, 2011 (reporting that for appeals in noncapital state-prisoner habeas cases, procedural default accounted for the largest percentage of procedural dispositions, with the exception of the denial of a certificate of appealability) (available in Clerk of Court's case file).Footnote 5 See King, Cheesman, & Ostrom, Final Technical Report, at 21-22 (reporting the average interval between state judgment and federal habeas filing for a sample of federal habeas cases filed in the early-to-mid 2000's).

Held: Where the Florida Supreme Court's reversal of petitioner's murder and rape convictions at a jury trial was based on the weight of the evidence, a retrial is not barred by the Double Jeopardy Clause of the Fifth Amendment as made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Pp. 39-47. (a) A reversal of a conviction based on the weight of the evidence, unlike a reversal based on insufficient evidence where the Double Jeopardy Clause precludes a retrial, Burks v. United States, ; Greene v. Massey, , does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a "thirteenth juror" and disagrees with the jury's resolution of the conflicting testimony. Just as a deadlocked jury does not result in an acquittal barring retrial under the Double Jeopardy Clause, an appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal. Moreover, a reversal based on the weight of the evidence can occur only after the State has presented sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek an acquittal. Giving him this second chance does not amount to governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect. Pp. 39-44. (b) There is no merit to petitioner's arguments that a distinction between the weight and sufficiency of the evidence is unworkable and will undermine the Burks rule by encouraging appellate judges to base reversals on the weight, rather than the sufficiency, of the evidence. Pp. 44-45. 397 So.2d 1120, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and POWELL, REHNQUIST, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 47.Louis R. Beller, by appointment of the Court, , argued the cause and filed a brief for petitioner.Deborah A. Osmond, Assistant Attorney General of Florida, argued the cause pro hac vice for respondent. With her on the briefs were Jim Smith, Attorney General, and Michael A. Palecki, Assistant Attorney General.* [Footnote *] Solicitor General Lee, Assistant Attorney General Jensen, Samuel J. Alito, Jr., and John Fichter De Pue filed a brief for the United States as amicus curiae urging affirmance.JUSTICE O'CONNOR delivered the opinion of the Court.We granted certiorari to decide whether the Double Jeopardy Clause1 bars retrial after a state appellate court sets aside a conviction on the ground that the verdict was against "the weight of the evidence." After examining the policies supporting the Double Jeopardy Clause, we hold that a reversal based on the weight, rather than the sufficiency, of the evidence permits the State to initiate a new prosecution.IIn 1974, Florida indicted petitioner Delbert Tibbs for the first-degree murder of Terry Milroy, the felony murder of Milroy, and the rape of Cynthia Nadeau. Nadeau, the State's chief trial witness, testified that she and Milroy were hitchhiking from St. Petersburg to Marathon, Fla., on February 3, 1974. A man in a green truck picked them up near Fort Myers and, after driving a short way, turned off the highway into a field. He asked Milroy to help him siphon gas from some farm machinery, and Milroy agreed. When Nadeau stepped out of the truck a few minutes later, she discovered the driver holding a gun on Milroy. The driver told Milroy that he wished to have sex with Nadeau, and ordered her to strip. After forcing Nadeau to engage in sodomy, the driver agreed that Milroy could leave. As Milroy started to walk away, however, the assailant shot him in the shoulder. When Milroy fell to the ground, pleading for his life, the gunman walked over and taunted, "Does it hurt, boy? You in pain? Does it hurt, boy?" Tr. 508. Then, with a shot to the head, he killed Milroy.This deed finished, the killer raped Nadeau. Fearing for her life, she suggested that they should leave together and that she "would be his old lady." Id., at 510. The killer seemed to agree and they returned to the highway in the truck. After driving a short distance, he stopped the truck and ordered Nadeau to walk directly in front of it. As soon as her feet hit the ground, however, she ran in the opposite direction. The killer fled with the truck, frightened perhaps by an approaching car. When Nadeau reached a nearby house, the occupants let her in and called the police.That night, Nadeau gave the police a detailed description of the assailant and his truck. Several days later a patrolman stopped Tibbs, who was hitchhiking near Ocala, Fla., because his appearance matched Nadeau's description. The Ocala Police Department photographed Tibbs and relayed the pictures to the Fort Myers police. When Nadeau examined these photos, she identified Tibbs as the assailant.2 Nadeau subsequently picked Tibbs out of a lineup and positively identified him at trial as the man who murdered Milroy and raped her.3 Tibbs' attorney attempted to show that Nadeau was an unreliable witness. She admitted during cross-examination that she had tried "just about all" types of drugs and that she had smoked marihuana shortly before the crimes occurred. Id., at 526, 545-546. She also evidenced some confusion about the time of day that the assailant had offered her and Milroy a ride. Finally, counsel suggested through questions and closing argument that Nadeau's former boyfriend had killed Milroy and that Nadeau was lying to protect her boyfriend. Nadeau flatly denied these suggestions.4 In addition to these attempts to discredit Nadeau, Tibbs testified in his own defense. He explained that he was college educated, that he had published a story and a few poems, and that he was hitchhiking through Florida to learn more about how people live. He claimed that he was in Daytona Beach, across the State from Fort Myers, from the evening of February 1, 1974, through the morning of February 6. He also testified that he did not own a green truck, and that he had not driven any vehicle while in Florida. Finally, he denied committing any of the crimes charged against him.Two Salvation Army officers partially corroborated Tibbs' story. These officers produced a card signed by Tibbs, indicating that he had slept at the Daytona Beach Salvation Army Transit Lodge on the evening of February 1, 1974. Neither witness, however, had seen Tibbs after the morning of February 2. Tibbs' other witnesses testified to his good reputation as a law-abiding citizen and to his good reputation for veracity.On rebuttal, the State produced a card, similar to the one introduced by Tibbs, showing that Tibbs had spent the night of February 4 at the Orlando Salvation Army Transit Lodge. This evidence contradicted Tibbs' claim that he had remained in Daytona Beach until February 6, as well as his sworn statements that he had been in Orlando only once, during the early part of January 1974, and that he had not stayed in any Salvation Army lodge after February 1. After the State presented this rebuttal evidence, Tibbs took the stand to deny both that he had been in Orlando on February 4 and that the signature on the Orlando Salvation Army card was his.The jury convicted Tibbs of first-degree murder and rape. Pursuant to the jury's recommendation, the judge sentenced Tibbs to death. On appeal, the Florida Supreme Court reversed. Tibbs v. State, 337 So.2d 788 (1976) (Tibbs I). A plurality of three justices, while acknowledging that "the resolution of factual issues in a criminal trial is peculiarly within the province of a jury," id., at 791, identified six weaknesses in the State's case.5 First, except for Nadeau's testimony, the State introduced no evidence placing Tibbs in or near Fort Myers on the day of the crimes. Second, although Nadeau gave a detailed description of the assailant's truck, police never found the vehicle. Third, police discovered neither a gun nor car keys in Tibbs' possession. Fourth, Tibbs cooperated fully with the police when he was stopped and arrested. Fifth, the State introduced no evidence casting doubt on Tibbs' veracity.6 Tibbs, on the other hand, produced witnesses who attested to his good reputation. Finally, several factors undermined Nadeau's believability. Although she asserted at trial that the crimes occurred during daylight, other evidence suggested that the events occurred after nightfall when reliable identification would have been more difficult. Nadeau, furthermore, had smoked marihuana shortly before the crimes and had identified Tibbs during a suggestive photograph session.7 These weaknesses left the plurality in "considerable doubt that Delbert Tibbs [was] the man who committed the crimes for which he ha[d] been convicted." Id., at 790. Therefore, the plurality concluded that the "interests of justice" required a new trial. Ibid.8 Justice Boyd concurred specially, noting that "`[t]he test to be applied in determining the adequacy of a verdict is whether a jury of reasonable men could have returned that verdict.'" Id., at 792 (quoting Griffis v. Hill, 230 So.2d 143, 145 (Fla. 1969)). Apparently applying that standard, Justice Boyd found the State's evidence deficient. He concluded that "the weakness of the evidence presented in the trial court might well require that [Tibbs] be released from incarceration without further litigation," but "reluctantly concur[red]" in the plurality's decision to order a new trial because he understood Florida law to permit retrial. 337 So.2d, at 792.9 On remand, the trial court dismissed the indictment, concluding that retrial would violate the double jeopardy principles articulated in Burks v. United States, , and Greene v. Massey, .10 An intermediate appellate court disagreed and remanded the case for trial. 370 So.2d 386 (Fla. App. 1979). The Florida Supreme Court affirmed the latter decision, carefully elaborating the difference between a reversal stemming from insufficient evidence and one prompted by the weight of the evidence. 397 So.2d 1120 (1981) (per curiam) (Tibbs II). As the court explained, a conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. A reversal based on the weight of the evidence, on the other hand, draws the appellate court into questions of credibility. The "weight of the evidence" refers to "a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other." Id., at 1123.11 The Florida Supreme Court then classified Tibbs I as a reversal resting on the weight of the evidence. Nadeau's testimony, if believed by the jury, was itself "legally sufficient to support Tibbs' conviction under Florida law." 397 So.2d, at 1126. In deciding to upset Tibbs' conviction, the court in Tibbs I had stressed those "aspects of Nadeau's testimony which cast serious doubt on her believability," 397 So.2d, at 1126, an approach that bespoke a reweighing of the evidence. "Only by stretching the point ...," the court concluded in Tibbs II, "could we possibly use an `insufficiency' analysis to characterize our previous reversal of Tibbs' convictions." Ibid.12 Having found that it could not "fairly conclude ... that Tibbs' convictions were reversed on the grounds of evidentiary insufficiency," id., at 1127, the Florida Supreme Court held that Greene and Burks do not bar retrial. Those decisions, the court believed, as well as United States v. DiFrancesco, , interpret the Double Jeopardy Clause to preclude retrial after reversal of a conviction only when the appellate court has set the conviction aside on the ground that the evidence was legally insufficient to support conviction. Other reversals, including those based on the weight of the evidence or made in the "interests of justice," do not implicate double jeopardy principles.13 We granted certiorari to review this interpretation of the Double Jeopardy Clause. .IIIn 1896, this Court ruled that a criminal defendant who successfully appeals a judgment against him "may be tried anew ... for the same offence of which he had been convicted." United States v. Ball, . This principle, that the Double Jeopardy Clause "imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside," North Carolina v. Pearce, , has persevered to the present. See United States v. DiFrancesco, supra, at 131; United States v. Scott, . Two considerations support the rule. First, the Court has recognized that society would pay too high a price "were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction." United States v. Tateo, . Second, the Court has concluded that retrial after reversal of a conviction is not the type of governmental oppression targeted by the Double Jeopardy Clause. United States v. Scott, supra, at 91. See generally United States v. DiFrancesco, supra, at 131.14 Burks v. United States and Greene v. Massey carved a narrow exception from the understanding that a defendant who successfully appeals a conviction is subject to retrial. In those cases, we held that the Double Jeopardy Clause precludes retrial "once the reviewing court has found the evidence legally insufficient" to support conviction. Burks, 437 U.S., at 18; Greene, 437 U.S., at 24. This standard, we explained, "means that the government's case was so lacking that it should not have even been submitted to the jury." Burks, 437 U.S., at 16 (emphasis in original). A conviction will survive review, we suggested, whenever "the evidence and inferences therefrom most favorable to the prosecution would warrant the jury's finding the defendant guilty beyond a reasonable doubt." Ibid. See also Greene, supra, at 25. In sum, we noted that the rule barring retrial would be "confined to cases where the prosecution's failure is clear." Burks, supra, at 17.So defined, the exception recognized in Burks and Greene rests upon two closely related policies. First, the Double Jeopardy Clause attaches special weight to judgments of acquittal.15 A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial.16 A reversal based on the insufficiency of the evidence has the same effect because it means that no rational factfinder could have voted to convict the defendant.Second, Burks and Greene implement the principle that "[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks, supra, at 11. This prohibition, lying at the core of the Clause's protections, prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction. Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance. See Green v. United States, ; United States v. DiFrancesco, 449 U.S., at 130. For this reason, when a reversal rests upon the ground that the prosecution has failed to produce sufficient evidence to prove its case, the Double Jeopardy Clause bars the prosecutor from making a second attempt at conviction.As we suggested just last Term, these policies do not have the same force when a judge disagrees with a jury's resolution of conflicting evidence and concludes that a guilty verdict is against the weight of the evidence. See Hudson v. Louisiana, , n. 5 (1981). A reversal on this ground, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a "thirteenth juror" and disagrees with the jury's resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves. A deadlocked jury, we consistently have recognized, does not result in an acquittal barring retrial under the Double Jeopardy Clause.17 Similarly, an appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal.A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek a favorable judgment.18 An appellate court's decision to give the defendant this second chance does not create "an unacceptably high risk that the Government, with its superior resources, [will] wear down [the] defendant" and obtain conviction solely through its persistence. United States v. DiFrancesco, supra, at 130.19 While an appellate ruling based on the weight of the evidence thus fails to implicate the policies supporting Burks and Greene, it does involve the usual principles permitting retrial after a defendant's successful appeal. Just as the Double Jeopardy Clause does not require society to pay the high price of freeing every defendant whose first trial was tainted by prosecutorial error, it should not exact the price of immunity for every defendant who persuades an appellate panel to overturn an error-free conviction and give him a second chance at acquittal. Giving the defendant this second opportunity, when the evidence is sufficient to support the first verdict, hardly amounts to "governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect." United States v. Scott, 437 U.S., at 91.Petitioner Tibbs resists these arguments on the grounds that a distinction between the weight and the sufficiency of the evidence is unworkable and that such a distinction will undermine the Burks rule by encouraging appellate judges to base reversals on the weight, rather than the sufficiency, of the evidence. We find these arguments unpersuasive for two reasons. First, trial and appellate judges commonly distinguish between the weight and the sufficiency of the evidence.20 We have no reason to believe that today's decision will erode the demonstrated ability of judges to distinguish legally insufficient evidence from evidence that rationally supports a verdict.Second, our decision in Jackson v. Virginia, , places some restraints on the power of appellate courts to mask reversals based on legally insufficient evidence as reversals grounded on the weight of the evidence. We held in Jackson that the Due Process Clause forbids any conviction based on evidence insufficient to persuade a rational factfinder of guilt beyond a reasonable doubt. The Due Process Clause, in other words, sets a lower limit on an appellate court's definition of evidentiary sufficiency.21 This limit, together with our belief that state appellate judges faithfully honor their obligations to enforce applicable state and federal laws, persuades us that today's ruling will not undermine Burks. In sum, we conclude that the Double Jeopardy Clause does not prevent an appellate court from granting a convicted defendant an opportunity to seek acquittal through a new trial.22 IIIWe turn, finally, to apply the above principles to the present case. A close reading of Tibbs I suggests that the Florida Supreme Court overturned Tibbs' conviction because the evidence, although sufficient to support the jury's verdict, did not fully persuade the court of Tibbs' guilt. The plurality based its review on a Florida rule directing the court in capital cases to "review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is a ground of appeal or not." See n. 8, supra. References to the "interests of justice" and the justices' own "considerable doubt" of Tibbs' guilt mark the plurality's conclusions.23 Those conclusions, moreover, stem from the justices' determination that Tibbs' testimony was more reliable than that of Nadeau. This resolution of conflicting testimony in a manner contrary to the jury's verdict is a hallmark of review based on evidentiary weight, not evidentiary sufficiency.Any ambiguity in Tibbs I, finally, was resolved by the Florida Supreme Court in Tibbs II. Absent a conflict with the Due Process Clause, see n. 21, supra, that court's construction of its prior opinion binds this Court.24 In Tibbs II, of course, the court unequivocally held that Tibbs I was "one of those rare instances in which reversal was based on evidentiary weight." 397 So.2d, at 1126 (per curiam). Thus, we conclude that Tibbs' successful appeal of his conviction rested upon a finding that the conviction was against the weight of the evidence, not upon a holding that the evidence was legally insufficient to support the verdict. Under these circumstances, the Double Jeopardy Clause does not bar retrial. Accordingly, the judgment of the Florida Supreme Court is Affirmed.

Decision of Federal Communications Commission refusing to renew radio station's license because station's general manager appeared on behalf of station of various hearings before Federal Radio Commission and Federal Communications Commission and furnished false testimony, so as to conceal holdings of one stockholder, could not be reversed because it would injure innocent stockholders or because commission had previously taken less drastic measures in prior similar cases. Communications Act of 1934, 308(b), 312(a), 402(e), 47 U.S.C.A. 308(b), 312(a), 402(e). Decision of Federal Communications Commission refusing to renew radio station's license because station's general manager appeared on behalf of station at various hearings before Federal Radio Commission and Federal Communications Commission and furnished testimony, so as to conceal holdings of one stockholder, could not be reversed by court on ground that the decision imposed a penalty or because of commission's failure to make findings with respect to quality of station's service in the past and its equipment for good service in the future. Communications Act of 1934, 308(b), 31 (a), 402(e), 47 U.S.C.A. 308(b), 312(a), 402(e). Mr.Harry M. Plotkin, of Washington, D.C., for petitioner. Mr.William J. Dempsey, of Washington, D.C., for respondent. Mr. Justice JACKSON delivered the opinion of the Court. WOKO, Incorporated, for some years has operated a radio station at Albany, New York, and appears to have readered public service of acceptable quality and to be able to continue. The Federal Communications Commission refused to renew its license because of misrepresentations made to the Commission and its predecessor as to the ownership of the applicant's capital stock. Two hundred and forty shares, being twenty-four per cent of its outstanding capital stock, was owned by one Pickard and his family. For some twelve years they received all dividends paid on the stock and Pickard took an active interest in the Company's affairs. He also was a vice-president of the Columbia Broadcasting Company and had obtained the stock on the assurance that he would help to secure Columbia affiliation for Station WOKO, would furnish, without charge, Columbia engineers to construct the station at Albany, and supply a grand piano and certain newspaper publicity. The company, however, in reporting to the Federal Radio Commission and to the Federal Communications Commission the names of its stockholders as it was required to do for many years and in many applications, concealed the fact that the Pickards held this stock interest and represented that the shares were held by others. Its general manager appeared on behalf of the applicant at various hearings and furnished false testimony to both Commissions regarding the identity of the corporation stockholders and the shares held by each so as to conceal the Pickard holdings. The purpose of the concealment was to prevent the facts from becoming known to Pickard's Columbia colleagues. The Court of Appeals for the District of Columbia reversed the Commission's decision denying renewal of the license, a majority for the various reasons that we will consider. The dissenting Chief Justice noted that he did 'very heartily agree with the view that this is a hard case. The Commission's drastic order, terminating the life of the station, punishes the innocent equally with the guilty, and in its results is contrary to the Commission's action in several other comparable cases. But that the making of the order was within the discretion of the Commission, I think is reasonably clear.' We granted certiorari because of the importance of the issue to the administration of the Act. We come to a consideration of the reasons which led the Court of Appeals to reverse the order of the Commission under the admonition that 'review by the court shall be limited to questions of law and that findings of fact by the Commission, if supported by substantial evidence, shall be conclusive unless it shall clearly appear that the findings of the Commission are arbitrary or capricious.' 48 Stat. 1094, 47 U.S.C. 402(e), 47 U.S.C.A. 402(e). The Act provides as to applications such as WOKO filed that 'All such applications shall set forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station; the ownership and location of the proposed station ... and such other information as it may require.' It requires such statements to be under oath or affirmation. 48 Stat. 1084, 47 U.S.C. 308(b), 47 U.S.C.A. 308( b). It provides, too, that any station license may be revoked for false statements in the application. 48 Stat. 1086, 47 U.S.C. 312(a), 47 U.S.C. A. 312(a). It is said that in this case the Commission failed to find that the concealment was of material facts or had influ- enced the Commission in making any decision, or that it would have acted differently had it known that the Pickards were the beneficial owners of the stock. We think this is beside the point. The fact of concealment may be more significant than the facts concealed. The willingness to deceive a regulatory body may be disclosed by immaterial and useless deceptions as well as by material and persuasive ones. We do not think it is an answer to say that the deception was unnecessary and served no purpose. If the applicant had forthrightly refused to supply the information on the ground that it was not material, we should expect the Commission would have rejected the application and would have been sustained in so doing. If we would hold it not unlawful, arbitrary or capricious to require the information before granting a renewal, it seems difficult to say that it is unlawful, arbitrary or capricious to refuse a renewal where true information is withheld and false information is substituted. We are told that stockholders owning slightly more than 50 per cent of the stock are not found to have had any part in or knowledge of the concealment or deception of the Commission. This may be a very proper consideration for the Commission in determining just and appropriate action. But as matter of law, the fact that there are innocent stockholders can not immunize the corporation from the consequences of such deception. If officers of the corporation by such mismanagement waste its assets, presumably the State law affords adequate remedies against the wrongdoers. But in this as in other matters, stockholders entrust their interests to their chosen officers and often suffer for their dereliction. Consequences of such acts cannot be escaped by a corporation merely because not all of its stockholders participated. Respondent complains that the present case constitutes a departure from the course which the Commission has taken in dealing with misstatements and applications in other cases. Much is made in argument of the fact that deceptions of this character have not been uncommon and it is claimed that they have not been dealt with so severely as in this case. Cf. Navarro Broadcasting Association, 8 F.C.C. 198. But the very fact that temporizing and compromising with deception seemed not to discourage it, may have led the Commission to the drastic measures here taken to preserve the integrity of its own system of reports. The mild measures to others and the apparently unannounced change of policy are considerations appropriate for the Commission in determining whether its action in this case is too drastic, but we cannot say that the Commission is bound by anything that appears before us to deal with all cases at all times as it has dealt with some that seem comparable. It also is contended that this order inflicts a penalty, that the motive is punishment and that since the Commission is given no powers to penalize persons, its order must fall. We think it unnecessary to indulge in the exposition of what a penalty is. It is enough to decide this case to know what a penalty is not. A denial of an application for a license because of the insufficiency or deliberate falsity of the information lawfully required to be furnished is not a penal measure. It may hurt and it may cause loss, but it is not made illegal, arbitrary or capricious by that fact. Lastly, and more importantly, the Court of Appeals suggested that in order to justify refusal to renew, the Commission should have made findings with respect to the quality of the station's service in the past and its equipment for good service in the future. Evidence of the station's adequate service was introduced at the hearing. The Commission on the other hand insists that in administering the Act it must rely upon the reports of licensees. It points out that this concealment was not caused by slight inadvertence nor was it an isolated instance, but that the Station carried on the course of deception for approximately twelve years. It says that in deciding whether the proposed operations would serve public interest, convenience or necessity, con ideration must be given to the character, background and training of all parties having an interest in the proposed license, and that it cannot be required to exercise the discretion vested in it to entrust the responsibilities of a licensee to an applicant guilty of a systematic course of deception. We cannot say that the Commission is required as a matter of law to grant a license on a deliberately false application even if the falsity were not of this duration and character, nor can we say that refusal to renew the license is arbitrary and capricious under such circumstances. It may very well be that this Station has established such a standard of public service that the Commission would be justified in considering that its deception was not a matter that affected its qualifications to serve the public. But it is the Commission, not the courts, which must be satisfied that the public interest will be served by renewing the license. And the fact that we might not have made the same determination on the same facts does not warrant a substitution of judicial for administrative discretion since Congress has confided the problem to the latter. We agree that this is a hard case, but we cannot agree that it should be allowed to make bad law. The judgment of the Court of Appeals is reversed and the case remanded to that court with direction to remand to the Commission. Reversed and remanded with directions. Mr. Justice BLACK took no part in the consideration or decision of this case.

1. In a suit in a Federal District Court against respondent in his official capacity as Paymaster General of the Navy, petitioner obtained a judgment directing respondent to pay her the death gratuity provided by 34 U.S.C. 943 for the widow of a member of the naval service. After respondent had retired and his successor had taken office, an appeal was taken in respondent's name. Six months having elapsed since respondent's retirement without any effort being made to have respondent's successor in office substituted as a party, the Court of Appeals ruled that the action had abated; and it vacated the judgment and remanded the cause to the District Court with directions to dismiss the complaint. Held: This was a proper application of 11 (a) of the Judiciary Act of 1925, 43 Stat. 936. Pp. 16-22. (a) Section 11 (a) of the Judiciary Act of 1925 made survival of the action dependent on a timely substitution. P. 19. (b) This was a declared policy of Congress not to be altered by an agreement of the parties or by some theory of estoppel. P. 19. (c) The application of 11 (a) did not turn on whether the judgment rendered prior to the death or resignation of the official was for or against the plaintiff. P. 19. (d) Section 11 (a) is not limited to actions brought against officials for remedies which could not be obtained in direct suits against the United States. P. 20. (e) An action is nonetheless pending within the meaning of 11 (a) though an appeal is being sought - even when, as in this case, the appeal was taken after the retirement of the official and therefore without authority. Pp. 20-21. (f) Since the suit had abated in the District Court, there was no way of substituting the successor on remand of the present case. Therefore, vacating the judgment of the District Court was the proper procedure for the Court of Appeals. P. 21.2. Since the absence of a necessary party and the statutory barrier to substitution "involve jurisdiction," 28 U.S.C. 2105 did not prohibit this Court's review of the ruling below on abatement. Pp. 21-22. App. D.C. 428, 179 F.2d 466, affirmed. No substitution of parties having been made under 11 (a) of the Judiciary Act of 1925, 43 Stat. 936, within six months after his retirement, the Court of Appeals vacated a judgment against respondent in his official capacity of Paymaster General of the Navy. App. D.C. 428, 179 F.2d 466. This Court granted certiorari. . Affirmed, p. 22.John Geyer Tausig argued the cause for petitioner. With him on the brief was Gibbs L. Baker.John R. Benney argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Samuel D. Slade and Morton Hollander.MR. JUSTICE DOUGLAS delivered the opinion of the Court.Petitioner sued in the District Court for a death gratuity under the Act of June 4, 1920, 41 Stat. 824, as amended, 34 U.S.C. 943, claiming as the widow of a member of the naval service. Respondent, the defendant in the suit, was Paymaster General of the Navy. The relief asked was mandamus to compel him to pay the widow's allowance. The District Court held for petitioner, ordering respondent to pay her the amount of the allowance. 75 F. Supp. 902. That judgment was entered January 30, 1948. On March 18, 1948, notice of appeal was filed in the name of Rear Admiral W. A. Buck, Paymaster General of the Navy. On March 1, 1948, however, Buck had been retired and Rear Admiral Edwin D. Foster had succeeded him in the office.Section 11 (a) of the Judiciary Act of 1925, 43 Stat. 936, 941, provided that "... where, during the pendency of an action ... brought by or against an officer of the United States ... and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall be competent for the court wherein the action, suit, or proceeding is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved."1 Neither party made any effort within the six months period2 to have Buck's successor in office substituted for him. The Court of Appeals therefore ruled that the action had abated; it then vacated the judgment and remanded the cause to the District Court with directions to dismiss the complaint. App. D.C. 428, 179 F.2d 466.The complaint in this case makes no claim against Buck personally. Therefore we put to one side cases such as Patton v. Brady, , dealing with actions in assumpsit against collectors for taxes erroneously collected. The writ that issued against Buck related to a duty attaching to the office. The duty existed so long and only so long as the office was held. When Buck retired from office, his power to perform ceased. He no longer had any authority over death gratuity allowances. Moreover, his successor might on demand recognize the claim asserted and discharge his duty. For these reasons it was held that in absence of a statute an action aimed at compelling an official to discharge his official duties abated where the official died or retired from the office.3 See Secretary v. McGarrahan, 9 Wall. 298, 313; United States v. Boutwell, 17 Wall. 604, 607-608; Warner Valley Stock Co. v. Smith, ; United States ex rel. Bernardin v. Butterworth, .Congress changed the rule. It provided by the Act of February 8, 1899, 30 Stat. 822, that no action by or against a federal officer in his official capacity or in relation to the discharge of his official duties should abate because of his death or resignation; and it provided a period in which substitution could be made.4 See LeCrone v. McAdoo, ; H. R. Rep. No. 960, 55th Cong., 2d Sess.The rule was again changed by 11 of the Judiciary Act of 1925. The provision that no action should abate was eliminated. It was provided that the action might be continued against the successor on the requisite showing within the stated period. The revision effected a substantial change. The 1925 Act made survival of the action dependent on a timely substitution. Defense Supplies Corp. v. Lawrence Co., . And see Ex parte La Prade, . Thus, where there was a failure to move for substitution within the statutory period, the judgment below was vacated and the cause was remanded with directions "to dismiss the cause as abated."5 United States ex rel. Claussen v. Curran, ; Matheus v. United States ex rel. Cunningham, . This was a declared policy of Congress not to be altered by an agreement of the parties6 or by some theory of estoppel. Nor did the application of 11 turn on whether the judgment rendered prior to the death or resignation of the official was for or against the plaintiff. The inability of one who no longer holds the office to perform any of the official duties would indeed only be emphasized by the rendition of the coercive judgment.It is argued that 11 should be read as covering only those "actions brought against officials for remedies which could not be got in a direct suit against the United States." Such a reading requires more than a tailoring of the Act; it requires a full alteration. Section 11 applies to "an action ... brought by or against an officer of the United States ... and relating to the present or future discharge of his official duties." Many actions against an official relating to the "discharge of his official duties" would in substance be suits against the United States. If the rule of abatement and substitution is to be altered in the manner suggested, the amending process is available for that purpose.Section 11 by its terms applies only during the pendency of an action. But an action is nonetheless pending within the meaning of the section though an appeal is being sought (see Becker Steel Co. v. Hicks, 66 F.2d 497, 499; United States ex rel. Trinler v. Carusi, 168 F.2d 1014), as was implicit in Matheus v. United States ex rel. Cunningham, supra. For in that case a writ of habeas corpus, denied by the District Court, had been granted by the Circuit Court of Appeals. While the case was in the Circuit Court of Appeals the time expired for substituting the successor of the custodian against whom the prisoner had brought the action. Yet, as noted above, the Court applied 11, vacated the judgments, and ordered the proceeding dismissed as abated.There is a difference in the present case by reason of the fact that the appeal was taken by Buck after his retirement and therefore without authority. The judgment concerned the performance of official duties for which Buck was no longer responsible. Hence he was not in position to obtain a review of it. See Davis v. Preston, . In the Davis case this Court dismissed a writ of certiorari granted under such circumstances. The argument is that the Court of Appeals should have done no more in the present case. The difference is that the Davis case was a suit against the Federal Agent under the Federal Employers' Liability Act, 35 Stat. 65, in which a judgment was rendered against him. An Act of Congress made special provision for substitution in those cases.7 The Court, however, held that this statute did not affect in any manner the appellate jurisdiction of this Court. But that Act preserved those judgments against abatement by reason of the death or retirement of the Federal Agent and allowed substitution at any time before satisfaction of the judgment. Therefore, on remand of the cause in the Davis case the successor Federal Agent could be substituted and the judgment enforced against him. On remand of the present cause there would be no way of substituting the successor, as the suit had abated in the District Court. Vacating the judgment of the District Court was therefore the proper procedure.Nor is there any barrier to our review of this ruling on abatement by 28 U.S.C. 2105 which prohibits a reversal by the Court of Appeals or this Court for error in ruling upon matters in abatement "which do not involve jurisdiction." The absence of a necessary party and the statutory barrier to substitution go to jurisdiction.Petitioner loses her judgment and must start over. Affirmed.

Subpoenaed to testify before a federal grand jury which was investigating possible violations of Part II of the Interstate Commerce Act, petitioner refused, on grounds of possible self-incrimination, to answer questions which were concededly relevant to the grand jury's inquiry. The grand jury sought the aid of the district judge, who heard extensive arguments on the subject, ruled that petitioner would be accorded immunity as extensive as the privilege he had asserted, and ordered petitioner to answer the questions. After returning to the jury room, petitioner persisted in his refusal, and he was again brought before the district judge, who addressed the same questions to him in the presence of the grand jury, explicitly directed him to answer them, and, upon his refusal to do so, adjudged him guilty of criminal contempt and sentenced him to imprisonment for 15 months. Held: The judgment is sustained. Pp. 42-52. 1. Section 205 (e) of the Motor Carrier Act, 49 U.S.C. 305 (d), clothed petitioner with statutory immunity coextensive with his constitutional privilege not to incriminate himself; and, therefore, he had an unqualified duty to answer the questions as he was directed to do. Pp. 44-47. 2. Since petitioner's disobedience of the court's order occurred in the court's presence, it was proper for the court to proceed under Rule 42 (a) of the Federal Rules of Criminal Procedure; and the court's action in affording petitioner a locus penitentiae before finally adjudicating him in contempt was entirely proper. Pp. 47-52. 3. The sentence of 15 months' imprisonment was not an abuse of the District Court's discretion. P. 52. 247 F.2d 332, affirmed.Myron L. Shapiro argued the cause for petitioner. With him on the brief was J. Bertram Wegman. John F. Davis argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Anderson, Beatrice Rosenberg and Carl H. Imlay.MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner was sentenced to 15 months' imprisonment for criminal contempt stemming from his refusal to testify before a federal grand jury. His conviction was affirmed by the Court of Appeals, 247 F.2d 332. The case was brought here primarily to review the validity of the procedure which resulted in the contempt adjudication. . Other issues relate to the nature and extent of immunity from prosecution conferred by 205 (e) of the Interstate Commerce Act, as amended,1 and the severity of the punishment imposed by the District Court.A grand jury in the Southern District of New York investigating possible violations of Part II of the Interstate Commerce Act2 issued a subpoena directing the petitioner to appear and testify as to "all and everything which you may know in regard to an alleged violation of Sections 309, 322, Title 49, United States Code." In response to this subpoena the petitioner appeared and, after being sworn, answered a few preliminary questions. He was then asked six further questions concededly relevant to the grand jury's inquiry. These he refused to answer upon the ground of possible self-incrimination. After consulting with his lawyer, who was continuously present in an adjoining anteroom, the petitioner persisted in his refusal to answer, although advised at length by the Assistant United States Attorney that the applicable statute conferred complete immunity from prosecution as to any matter concerning which the petitioner might testify, and that, therefore, "you do not have any privilege to plead the Fifth Amendment."Thereupon the scene of the proceedings shifted to the courtroom, where the grand jury sought the aid of the district judge. After being apprised of what had transpired in the grand jury room, the district judge heard extensive argument by counsel as to the scope of immunity afforded a grand jury witness under the applicable statute.Following a weekend recess the district judge ruled that under the statute the petitioner would be accorded immunity as extensive as the privilege he had asserted, and directed that the petitioner therefore return to the grand jury room and answer the questions. Later the same day the grand jury again returned to the courtroom "to request the aid and assistance of the Court." The district judge was advised through the official reporter that the petitioner had refused to obey the court's order to answer the questions.The judge then addressed the same questions to the petitioner in the grand jury's presence. Each question was met with a refusal to answer upon the ground of possible self-incrimination. The petitioner was thereupon explicitly directed by the judge to answer each question, and he just as explicitly refused. The judge inquired whether the petitioner would persist in his refusal if he returned to the grand jury room and were again asked the questions there. The petitioner replied that he would. After further argument by counsel, the district judge held the petitioner in contempt and imposed sentence.Throughout the proceedings in the courtroom the petitioner was represented by counsel, who unsuccessfully advanced three basic contentions: (1) A witness who testifies before a grand jury investigating offenses under the Motor Carrier Act is accorded no statutory immunity from subsequent prosecution based upon his testimony. (2) Even if some immunity is conferred, it is not coextensive with the constitutional privilege against self-incrimination. (3) In any event, the District Court, by adjudging the petitioner in criminal contempt without following the procedural requirements of Rule 42 (b) of the Federal Rules of Criminal Procedure, deprived the petitioner of due process of law. The same contentions are advanced here. In addition, we are asked to hold that the sentence of 15 months' imprisonment was an abuse of the District Court's discretion.In determining that 205 (e) of the Motor Carrier Act clothed the petitioner with statutory immunity coextensive with his constitutional privilege not to incriminate himself, the District Court and the Court of Appeals were plainly correct. The relevant statutory language is unambiguous: "... and any person subpenaed or testifying in connection with any matter under investigation under this chapter shall have the same rights, privileges, and immunities and be subject to the same duties, liabilities, and penalties as though such matter arose under chapter 1 of this title [Part I of the Interstate Commerce Act] ... ."3 The obvious purpose and effect of this language is to confer the same immunity upon a witness testifying in an investigation under Part II of the Interstate Commerce Act as is conferred upon one testifying in an investigation under Part I. Both Part I and Part II contain criminal sanctions, and the power of a grand jury to investigate violations of either Part is unquestioned.The statute which confers immunity upon a witness testifying in a grand jury investigation under Part I was enacted in 1893.4 For more than half a century it has been settled that this statute confers immunity from prosecution coextensive with the constitutional privilege against self-incrimination, and that the witness may not therefore lawfully refuse to testify. Brown v. Walker, . The context in which the doctrine originated and the history of its reaffirmance through the years have been so recently re-examined by this Court in Ullman v. United States, , as to make it a needless exercise to retrace that ground here. Suffice it to repeat that Brown v. Walker has become "part of our constitutional fabric." 350 U.S., at 438. It is thus clearly too late in the day to question the constitutional sufficiency of the immunity provided under Part I of the Act.In contending that this immunity is not fully imported into Part II the petitioner grasps at straws. He points out that the above-quoted language of 49 U.S.C. 305 (d) which incorporates into Part II the immunity provisions of Part I is separated by only a semicolon from a provision which gives the Commission investigative powers under Part II. See footnote 3. He would therefore have us rewrite the section so as to make the immunity provision applicable only to witnesses appearing before the Commission, not to those appearing before a grand jury or in a court. Such a construction would not only do violence to plain language, but also, as the Court of Appeals observed, to the whole structure of the Interstate Commerce Act. See 247 F.2d, at 336-337.The petitioner argues alternatively that even if some immunity is granted by Part II to a grand jury witness, the immunity is not commensurate with that of Part I, and that its scope is therefore constitutionally insufficient. The contention is that 305 (d) provides immunity from prosecution only for offenses related to violations of the Motor Carrier Act itself because of the clause appearing at the beginning of the section - "So far as may be necessary for the purposes of this chapter." See footnote 3. Assuming that this clause limits the immunity provision of the section at all, it clearly limits only the class of witnesses to whom the immunity will attach, not the scope of the immunity conferred. The petitioner "subpoenaed ... in connection with [a] matter under investigation under this chapter ... necessary for the purposes of this chapter" was clearly within that class.Congress thus provided that the petitioner could not and would not incriminate himself by answering the questions put to him. He could not "be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he [might] testify... ." 49 U.S.C. 46. He therefore had an unqualified duty to answer the questions as he was directed to do.We turn then to the petitioner's attack upon the validity of the procedure which the District Court followed in adjudicating him in contempt.5 This procedure, it is contended, robbed the petitioner not only of the safeguards of notice, opportunity to prepare a defense, and a hearing, but also of the presumption of innocence and other rights basic to a fair criminal trial.In view of the apparent breadth of the petitioner's argument, it may promote analysis of this aspect of the case to emphasize at the outset what it does not involve. This is not a situation where the contempt was in any sense personal to the judge, raising issues of possible unfairness resulting from the operation of human emotions. Cf. Cooke v. United States, ; Sacher v. United States, ; Offutt v. United States, . This is not a case of "misbehavior" involving factual issues as to the nature of the petitioner's conduct and whether it occurred in the "presence" of the court or "so near thereto as to obstruct the administration of justice."6 Cf. Ex parte Savin, ; Ex parte Cuddy, ; Nye v. United States, . Moreover, the petitioner does not question the power of the court to punish disobedience of its lawful order as a criminal contempt,7 and to do so summarily, if the disobedience occurs in the presence of the court and in the sight or hearing of the judge.8 The issue presented is thus considerably narrower than the broad strokes of the petitioner's argument would at first suggest. Indeed, the argument boils down to the contention that when the petitioner first disobeyed the court's order in the grand jury room the court had no choice but to initiate criminal contempt proceedings against him at once, under the provisions of Rule 42 (b) of the Federal Rules of Criminal Procedure,9 and that it therefore violated his rights by calling him before it and giving him another opportunity to answer the questions before adjudicating him in contempt. This argument disregards the historic relationship between court and grand jury. It finds support in neither precedent nor reason.A grand jury is clothed with great independence in many areas, but it remains an appendage of the court, powerless to perform its investigative function without the court's aid, because powerless itself to compel the testimony of witnesses. It is the court's process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so.When the petitioner first refused to answer the grand jury's questions, he was guilty of no contempt. He was entitled to persist in his refusal until the court ordered him to answer. Unless, therefore, it was to be frustrated in its investigative purpose, the grand jury had to do exactly what it did - turn to the court for help. If the court had ruled that the privilege against self-incrimination had been properly invoked, that would have been the end of the matter. Even after an adverse ruling upon his claim of privilege, the petitioner was still guilty of no contempt. It was incumbent upon the court unequivocally to order the petitioner to answer. Cf. Wong Gim Ying v. United StatesApp. D.C. 23, 231 F.2d 776. The court did so.When upon his return to the grand jury room the petitioner again refused to answer the grand jury's questions, now in direct disobedience of the court's order, he was for the first time guilty of contempt. At that point a contempt proceeding could unquestionably and quite properly have been initiated. Since this disobedience of the order did not take place in the actual presence of the court, and thus could be made known to the court only by the taking of evidence, the proceeding would have been conducted upon notice and hearing in conformity with Rule 42 (b). See Carlson v. United States, 209 F.2d 209, 216 (C. A. 1st Cir.).A judge more intent upon punishing the witness than aiding the grand jury in its investigation might well have taken just such a course. Instead, the court made another effort to induce the petitioner to testify. Again unequivocally advising the petitioner that the statute afforded him complete immunity, the court directed him to answer the questions. Had the petitioner done so, he would have purged himself of contempt, and the grand jury's investigation could have proceeded.10 His deliberate refusal, continuing his contempt, cf. Yates v. United States, , left the court no choice.11 Since the disobedience occurred in the court's presence, it was clearly proper to proceed under Rule 42 (a).Rule 42 of the Federal Rules of Criminal Procedure is no innovation. It simply makes "more explicit" the long-settled usages of law governing the procedure to be followed in contempt proceedings.12 No decision of this Court has ever questioned the propriety of summary contempt proceedings in aid of a grand jury investigation. Repeated decisions of this Court and the Courts of Appeals have, at least sub silentio, approved such a procedure, stemming as it does from the usages of the common law.13 Indeed less than a decade ago this Court did not consider the question sufficiently doubtful to merit discussion.14 In the light, therefore, of both reason and authority, we hold that the court's action in affording the petitioner a locus penitentiae before finally adjudicating him in contempt was entirely proper.We hold, finally, that the sentence of 15 months' imprisonment was not an abuse of the District Court's discretion. Because there is no statutory limit upon a District Court's sentencing power in cases of criminal contempt, Green v. United States, , this Court is not without power to review its exercise. Cf. Yates v. United States, ; Nilva v. United States, . But the decision is one primarily for the District Court, to be made "with the utmost sense of responsibility and circumspection." Green v. United States, supra, at 188. The record does not indicate that the district judge's decision was otherwise reached. Before sentence was imposed, the petitioner's counsel was fully, repeatedly and patiently heard.15 Affirmed.

After petitioner Doe filed a black lung benefits claim with the Department of Labor, the agency used his Social Security number to identify his claim on official agency documents, including a multicaptioned hearing notice that was sent to a group of claimants, their employers, and lawyers. Doe and other black lung claimants sued the Department, claiming that such disclosures violated the Privacy Act of 1974. The Government stipulated to an order prohibiting future publication of Social Security numbers on multicaptioned hearing notices, and the parties moved for summary judgment. The District Court entered judgment against all plaintiffs but Doe, finding that they had raised no issues of cognizable harm. However, the court accepted Doe's uncontroverted testimony about his distress on learning of the improper disclosure, granted him summary judgment, and awarded him $1,000, the minimum statutory damages award under 5 U. S. C. §552a(g)(4). The Fourth Circuit reversed on Doe's claim, holding that the $1,000 minimum is available only to plaintiffs who suffer actual damages, and that Doe had not raised a triable issue of fact about such damages, having submitted no corroboration for his emotional distress claim.Held: Plaintiffs must prove some actual damages to qualify for the minimum statutory award. Pp. 3-13. (a) The Privacy Act gives agencies detailed instructions for managing their records and provides various sorts of civil relief to persons aggrieved by the Government's failure to comply with the Act's requirements. Doe's claim falls within a catchall category for someone who suffers an "adverse effect" from a failure not otherwise specified in the remedial section of the Act. §552a(g)(1)(D). If a court determines in a subsection (g)(1)(D) suit that the agency acted in an "intentional or willful" manner, the Government is liable for "actual damages sustained by the individual ... , but in no case shall a person entitled to recovery receive less than ... $1,000." §552a(g)(4)(A). Pp. 3-4. (b) A straightforward textual analysis supports the Government's position that the minimum guarantee goes only to victims who prove some actual damages. By the time the statute guarantees the $1,000 minimum, it not only has confined eligibility to victims of adverse effects caused by intentional or willful actions, but has provided expressly for liability to such victims for "actual damages sustained." When the next clause of the sentence containing such an explicit provision guarantees $1,000 to the "person entitled to recovery," the obvious referent is the immediately preceding provision for recovering actual damages, the Act's sole provision for recovering anything. Doe's theory that the minimum requires nothing more than proof of a statutory violation is immediately questionable in ignoring the "actual damages" language so directly at hand and instead looking for "a person entitled to recovery" in a separate part of the statute devoid of any mention of recovery or of what might be recovered. Doe ignores statutory language by reading the statute to speak of liability in a freestanding, unqualified way, when it actually speaks in a limited way, by referencing enumerated damages. His reading is also at odds with the traditional understanding that tort recovery requires both wrongful act plus causation and proof of some harm for which damages can reasonably be assessed. And an uncodified provision of the Act demonstrates that Congress left for another day the question whether to authorize general damages, i.e., an award calculated without reference to specific harm. In fact, drafting history shows that Congress cut out the very language in the bill that would have authorized such damages. Finally, Doe's reading leaves the entitlement to recovery reference with no job to do. As he treats the text, Congress could have accomplished its object simply by providing that the Government would be liable for actual damages but in no case less than $1,000. Pp. 4-8. (c) Doe's argument suggests that it would have been illogical for Congress to create a cause of action for anyone suffering an adverse effect from intentional or willful agency action, then deny recovery without actual damages. But subsection (g)(1)(D)'s recognition of a civil action was not meant to provide a complete cause of action. A subsequent provision requires proof of intent or willfulness in addition to adverse effect, and if the specific state of mind must be proven additionally, it is consistent with logic to require some actual damages as well. Doe also suggests that it is peculiar to offer guaranteed damages, as a form of presumed damages not requiring proof of amount, only to plaintiffs who can demonstrate actual damages. But this approach parallels the common-law remedial scheme for certain defamation claims in which plaintiffs can recover presumed damages only if they can demonstrate some actual, quantifiable pecuniary loss. Finally, Doe points to subsequently enacted statutes with remedial provisions similar to §552a(g)(4). However, the text of one provision is too far different from the Privacy Act's language to serve as a sound basis for analogy; and even as to the other provisions, this Court has said repeatedly that subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment. Pp. 9-12.306 F. 3d 170, affirmed. Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined, and in which Scalia, J., joined except as to the penultimate paragraph of Part III and footnote 8. Ginsburg, J., filed a dissenting opinion, in which Stevens and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion.BUCK DOE, PETITIONER v. ELAINE L. CHAO,SECRETARY OF LABORon writ of certiorari to the united states court of appeals for the fourth circuit[February 24, 2004] Justice Souter delivered the opinion of the Court. The United States is subject to a cause of action for the benefit of at least some individuals adversely affected by a federal agency's violation of the Privacy Act of 1974. The question before us is whether plaintiffs must prove some actual damages to qualify for a minimum statutory award of $1,000. We hold that they must.I Petitioner Buck Doe filed for benefits under the Black Lung Benefits Act, 83 Stat. 792, 30 U. S. C. §901 et seq., with the Office of Workers' Compensation Programs, the division of the Department of Labor responsible for adjudicating it. The application form called for a Social Security number, which the agency then used to identify the applicant's claim, as on documents like "multicaptioned" notices of hearing dates, sent to groups of claimants, their employers, and the lawyers involved in their cases. The Government concedes that following this practice led to disclosing Doe's Social Security number beyond the limits set by the Privacy Act. See 5 U. S. C. §552a(b). Doe joined with six other black lung claimants to sue the Department of Labor, alleging repeated violations of the Act and seeking certification of a class of " 'all claimants for Black Lung Benefits since the passage of the Privacy Act.' " Pet. for Cert. 6a. Early on, the United States stipulated to an order prohibiting future publication of applicants' Social Security numbers on multicaptioned hearing notices, and the parties then filed cross-motions for summary judgment. The District Court denied class certification and entered judgment against all individual plaintiffs except Doe, finding that their submissions had raised no issues of cognizable harm. As to Doe, the Court accepted his uncontroverted evidence of distress on learning of the improper disclosure, granted summary judgment, and awarded $1,000 in statutory damages under 5 U. S. C. §552a(g)(4). A divided panel of the Fourth Circuit affirmed in part but reversed on Doe's claim, holding the United States entitled to summary judgment across the board. 306 F. 3d 170 (2002). The Circuit treated the $1,000 statutory minimum as available only to plaintiffs who suffered actual damages because of the agency's violation, id., at 176-179, and then found that Doe had not raised a triable issue of fact about actual damages, having submitted no corroboration for his claim of emotional distress, such as evidence of physical symptoms, medical treatment, loss of income, or impact on his behavior. In fact, the only indication of emotional affliction was Doe's conclusory allegations that he was " 'torn ... all to pieces' " and " 'greatly concerned and worried' " because of the disclosure of his Social Security number and its potentially " 'devastating' " consequences. Id., at 181. Doe petitioned for review of the holding that some actual damages must be proven before a plaintiff may receive the minimum statutory award. See Pet. for Cert. i. Because the Fourth Circuit's decision requiring proof of actual damages conflicted with the views of other Circuits, see, e.g., Orekoya v. Mooney, 330 F. 3d 1, 7-8 (CA1 2003); Wilborn v. Department of Health and Human Servs., 49 F. 3d 597, 603 (CA9 1995); Waters v. Thornburgh, 888 F. 2d 870, 872 (CADC 1989); Johnson v. Department of Treasury, 700 F. 2d 971, 977, and n. 12 (CA5 1983); Fitzpatrick v. IRS, 665 F. 2d 327, 330-331 (CA11 1982), we granted certiorari. 539 U. S. ___ (2003). We now affirm.II "[I]n order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary ... to regulate the collection, maintenance, use, and dissemination of information by such agencies." Privacy Act of 1974, §2(a)(5), 88 Stat. 1896. The Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government's part to comply with the requirements. Subsection (g)(1) recognizes a civil action for agency misconduct fitting within any of four categories (the fourth, in issue here, being a catchall), 5 U. S. C. §§552a(g)(1)(A)-(D), and then makes separate provision for the redress of each. The first two categories cover deficient management of records: subsection (g)(1)(A) provides for the correction of any inaccurate or otherwise improper material in a record, and subsection (g)(1)(B) provides a right of access against any agency refusing to allow an individual to inspect a record kept on him. In each instance, further provisions specify such things as the de novo nature of the suit (as distinct from any form of deferential review), §§552a(g)(2)(A), (g)(3)(A), and mechanisms for exercising judicial equity jurisdiction (by in camera inspection, for example), §552a(g)(3)(A). The two remaining categories deal with derelictions having consequences beyond the statutory violations per se. Subsection (g)(1)(C) describes an agency's failure to maintain an adequate record on an individual, when the result is a determination "adverse" to that person. Subsection (g)(1)(D) speaks of a violation when someone suffers an "adverse effect" from any other failure to hew to the terms of the Act. Like the inspection and correction infractions, breaches of the statute with adverse consequences are addressed by specific terms governing relief: "In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of-- "(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and "(B) the costs of the action together with reason-able attorney fees as determined by the court." §552a(g)(4).1III Doe argues that subsection (g)(4)(A) entitles any plaintiff adversely affected by an intentional or willful violation to the $1,000 minimum on proof of nothing more than a statutory violation: anyone suffering an adverse consequence of intentional or willful disclosure is entitled to recovery. The Government claims the minimum guarantee goes only to victims who prove some actual dam-ages. We think the Government has the better side of the argument. To begin with, the Government's position is supported by a straightforward textual analysis. When the statute gets to the point of guaranteeing the $1,000 minimum, it not only has confined any eligibility to victims of adverse effects caused by intentional or willful actions, but has provided expressly for liability to such victims for "actual damages sustained." It has made specific provision, in other words, for what a victim within the limited class may recover. When the very next clause of the sentence containing the explicit provision guarantees $1,000 to a "person entitled to recovery," the simplest reading of that phrase looks back to the immediately preceding provision for recovering actual damages, which is also the Act's sole provision for recovering anything (as distinct from equitable relief). With such an obvious referent for "person entitled to recovery" in the plaintiff who sustains "actual damages," Doe's theory is immediately questionable in ignoring the "actual damages" language so directly at hand and instead looking for "a person entitled to recovery" in a separate part of the statute devoid of any mention either of recovery or of what might be recovered. Nor is it too strong to say that Doe does ignore statutory language. When Doe reads the statute to mean that the United States shall be liable to any adversely affected subject of an intentional or willful violation, without more, he treats willful action as the last fact necessary to make the Government "liable," and he is thus able to describe anyone to whom it is liable as entitled to the $1,000 guarantee. But this way of reading the statute simply pays no attention to the fact that the statute does not speak of liability (and consequent entitlement to recovery) in a freestanding, unqualified way, but in a limited way, by reference to enumerated damages.2 Doe's manner of reading "entitle[ment] to recovery" as satisfied by adverse effect caused by intentional or willful violation is in tension with more than the text, however. It is at odds with the traditional understanding that tort recovery requires not only wrongful act plus causation reaching to the plaintiff, but proof of some harm for which damages can reasonably be assessed. See, e.g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §30 (5th ed. 1984). Doe, instead, identifies a person as entitled to recover without any reference to proof of damages, actual or otherwise. Doe might respond that it makes sense to speak of a privacy tort victim as entitled to recover without reference to damages because analogous common law would not require him to show particular items of injury in order to receive a dollar recovery. Traditionally, the common law has provided such victims with a claim for "general" damages, which for privacy and defamation torts are presumed damages: a monetary award calculated without reference to specific harm.3 Such a rejoinder would not pass muster under the Privacy Act, however, because a provision of the Act not previously mentioned indicates beyond serious doubt that general damages are not authorized for a statutory violation. An uncodified section of the Act established a Privacy Protection Study Commission, which was charged, among its other jobs, to consider "whether the Federal Government should be liable for general damages incurred by an individual as the result of a willful or intentional violation of the provisions of sections 552a(g)(1)(C) or (D) of title 5."4 §5(c)(2)(B)(iii), 88 Stat. 1907. Congress left the question of general damages, that is, for another day. Because presumed damages are therefore clearly unavailable, we have no business treating just any adversely affected victim of an intentional or willful violation as entitled to recovery, without something more. This inference from the terms of the Commission's mandate is underscored by drafting history showing that Congress cut out the very language in the bill that would have authorized any presumed damages.5 The Senate bill would have authorized an award of "actual and general damages sustained by any person," with that language followed by the guarantee that "in no case shall a person entitled to recovery receive less than the sum of $1,000." S. 3418, 93d Cong., 2d Sess., §303(c)(1) (1974). Although the provision for general damages would have covered presumed damages, see n. 3, supra, this language was trimmed from the final statute, subject to any later revision that might be recommended by the Commission. The deletion of "general damages" from the bill is fairly seen, then, as a deliberate elimination of any possibility of imputing harm and awarding presumed damages.6 The deletion thus precludes any hope of a sound interpretation of entitlement to recovery without reference to actual damages.7 Finally, Doe's reading is open to the objection that no purpose is served by conditioning the guarantee on a person's being entitled to recovery. As Doe treats the text, Congress could have accomplished its object simply by providing that the Government would be liable to the individual for actual damages "but in no case ... less than the sum of $1,000" plus fees and costs. Doe's reading leaves the reference to entitlement to recovery with no job to do, and it accordingly accomplishes nothing.8IV There are three loose ends. Doe's argument suggests it would have been illogical for Congress to create a cause of action for anyone who suffers an adverse effect from intentional or willful agency action, then deny recovery without actual damages. But this objection assumes that the language in subsection (g)(1)(D) recognizing a federal "civil action" on the part of someone adversely affected was meant, without more, to provide a complete cause of action, and of course this is not so. A subsequent provision requires proof of intent or willfulness in addition to adverse effect, and if the specific state of mind must be proven additionally, it is equally consistent with logic to require some actual damages as well. Nor does our view deprive the language recognizing a civil action by an adversely affected person of any independent effect, for it may readily be understood as having a limited but specific function: the reference in §552a(g)(1)(D) to "adverse effect" acts as a term of art identifying a potential plaintiff who satisfies the injury-in-fact and causation requirements of Article III standing, and who may consequently bring a civil action without suffering dismissal for want of standing to sue. See Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 126 (1995) ("The phrase 'person adversely affected or aggrieved' is a term of art used in many statutes to designate those who have standing to challenge or appeal an agency decision, within the agency or before the courts"); see also 5 U. S. C. §702 (providing review of agency action under the Administrative Procedure Act to individuals who have been "adversely affected or aggrieved"). That is, an individual subjected to an adverse effect has injury enough to open the courthouse door, but without more has no cause of action for damages under the Privacy Act.9 Next, Doe also suggests there is something peculiar in offering some guaranteed damages, as a form of presumed damages not requiring proof of amount, only to those plaintiffs who can demonstrate actual damages. But this approach parallels another remedial scheme that the drafters of the Privacy Act would probably have known about. At common law, certain defamation torts were redressed by general damages but only when a plaintiff first proved some "special harm," i.e., "harm of a material and generally of a pecuniary nature." 3 Restatement of Torts §575, Comments a and b (1938) (discussing defamation torts that are "not actionable per se"); see also 3 Restatement (Second) of Torts §575, Comments a and b (1976) (same). Plaintiffs claiming such torts could recover presumed damages only if they could demonstrate some actual, quantifiable pecuniary loss. Because the recovery of presumed damages in these cases was supplemental to compensation for specific harm, it was hardly unprecedented for Congress to make a guaranteed minimum contingent upon some showing of actual damages, thereby avoiding giveaways to plaintiffs with nothing more than "abstract injuries," Los Angeles v. Lyons, 461 U. S. 95, 101-102 (1983).10 In a final effort to save his claim, Doe points to a pair of statutes with remedial provisions that are worded similarly to §552a(g)(4). See Tax Reform Act of 1976, §1201(i)(2)(A), 90 Stat. 1665-1666, 26 U. S. C. §6110(j)(2)(A); §1202(e)(1), 90 Stat. 1687, 26 U. S. C. §7217(c) (1976 ed., Supp. V) (repealed 1982); Electronic Communications Privacy Act of 1986, §201, 100 Stat. 1866, 18 U. S. C. §2707(c). He contends that legislative history of these subsequent enactments shows that Congress sometimes used language similar to 5 U. S. C. §552a(g)(4) with the object of authorizing true liquidated damages remedies. See, e.g., S. Rep. No. 94-938, p. 348 (1976) (discussing §1202(e)(1) of the Tax Reform Act); S. Rep. No. 99-541, p. 43 (1986) (discussing §201 of the Electronic Communications Privacy Act). There are two problems with this argument. First, as to §1201(i)(2)(A) of the Tax Reform Act, the text is too far different from the language of the Privacy Act to serve as any sound basis for analogy; it does not include the critical limiting phrase "entitled to recovery." But even as to §1202(e)(1) of the Tax Reform Act and §201 of the Electronic Communications Privacy Act, the trouble with Doe's position is its reliance on the legislative histories of completely separate statutes passed well after the Privacy Act. Those of us who look to legislative history have been wary about expecting to find reliable interpretive help outside the record of the statute being construed, and we have said repeatedly that " 'subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment,' " Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 170, n. 5 (2001) (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 118, n. 13 (1980)).11V The "entitle[ment] to recovery" necessary to qualify for the $1,000 minimum is not shown merely by an intentional or willful violation of the Act producing some adverse effect. The statute guarantees $1,000 only to plaintiffs who have suffered some actual damages.12 The judgment of the Fourth Circuit is affirmed.It is so ordered.BUCK DOE, PETITIONER v. ELAINE L. CHAO,SECRETARY OF LABORon writ of certiorari to the united states court ofappeals for the fourth circuit[February 24, 2004] Justice Ginsburg, with whom Justice Stevens and Justice Breyer join, dissenting. In this Privacy Act suit brought under 5 U. S. C. §552a(g)(1)(D), the Government concedes the alleged violation and does not challenge the District Court's finding that the agency in question (the Department of Labor) acted in an intentional or willful manner. Tr. of Oral Arg. 35; Brief for Respondent (I). Nor does the Government here contest that Buck Doe, the only petitioner before us, suffered an "adverse effect" from the Privacy Act violation. The case therefore cleanly presents a sole issue for this Court's resolution: Does a claimant who has suffered an "adverse effect"--in this case and typically, emotional anguish — from a federal agency's intentional or willful Privacy Act violation, but has proved no "actual damages" beyond psychological harm, qualify as "a person entitled to recovery" within the meaning of §552a(g)(4)(A)? In accord with Circuit Judge Michael, who disagreed with the Fourth Circuit's majority on the need to show actual damages, I would answer that question yes. Section 552a(g)(4)(A) affords a remedy for violation of a Privacy Act right safeguarded by §552a(g)(1)(C) or (D). The words "a person entitled to recovery," as used in §552a(g)(4)(A)'s remedial prescription, are most sensibly read to include anyone experiencing an "adverse effect" as a consequence of an agency's intentional or willful commission of a Privacy Act violation of the kind described in §552a(g)(1)(C) or (D). The Act's text, structure, and purpose warrant this construction, under which Doe need not show a current pecuniary loss, or "actual damages" of some other sort, to recover the minimum award of $1,000, attorney's fees, and costs.I Section 552a(g)(4) provides: "In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of-- "(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and "(B) the costs of the action together with reasonable attorney fees as determined by the court."The opening clause of §552a(g)(4) prescribes two conditions on which liability depends. First, the claimant's suit must lie under §552a(g)(1)(C) or (D); both provisions require an agency action "adverse" to the claimant. Section 552a(g)(1)(C) authorizes a civil action when an agency "fails to maintain [a] record concerning [an] individual with [the] accuracy, relevance, timeliness, and completeness" needed to determine fairly "the qualifications, character, rights, or opportunities of, or benefits to the individual," if the agency's lapse yields a "determination ... adverse to the individual." (Emphasis added.) Section 552a(g)(1)(D) allows a civil action when an agency "fails to comply with [a] provision of [§552a], or [a] rule promulgated thereunder, in such a way as to have an adverse effect on an individual." (Emphasis added.) Second, the agency action triggering the suit under §552a(g)(1)(C) or (D) must have been "intentional or willful." §552a(g)(4). If those two liability-determining conditions are satisfied (suit under §552a(g)(1)(C) or (D); intentional or willful conduct), the next clause specifies the consequences: "[T]he United States shall be liable to the individual in an amount equal to the sum of" the recovery allowed under §552a(g)(4)(A) and the costs and fees determined under §552a(g)(4)(B). The terms "actual damages" and "person entitled to recovery" appear only in the text describing the relief attendant upon the agency's statutory dereliction; they do not appear in the preceding text describing the conditions on which the agency's liability turns. Most reasonably read, §552a(g)(4)(A) does not wend back to add "actual damages" as a third liability-determining element. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) ("It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."). Nor, when Congress used different words, here "actual damages sustained by the individual" and "a person entitled to recovery," should a court ordinarily equate the two phrases. Had Congress intended the meaning that the Government urged upon this Court, one might have expected the statutory instruction to read, not as it does: "actual damages ... but in no case shall a person entitled to recovery receive less than ... $1,000." Instead, Congress more rationally would have written: "actual damages ... but in no case shall a person who proves such damages [in any amount] receive less than $1,000." Cf. Barnhart v. Sigmon Coal Co., 534 U. S. 438, 454 (2002) (" 'We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.' " (quoting Russello v. United States, 464 U. S. 16, 23 (1983))). Just as the words "person entitled to recovery" suggest greater breadth than "individual [who has sustained] actual damages," so the term "recovery" ordinarily encompasses more than " 'get[ting] or win[ning] back,' " Brief for Respondent 26 (quoting Webster's Third New International Dictionary 1898 (1966)). "Recovery" generally embraces "[t]he obtaining of a right to something (esp. damages) by a judgment or decree" and "[a]n amount awarded in or collected from a judgment or decree." Black's Law Dictionary 1280 (7th ed. 1999). So comprehended, "recovery" here would yield a claimant who suffers an "adverse effect" from an agency's intentional or willful §552a(g)(1)(C) or (D) violation a minimum of $1,000 plus costs and attorney's fees, whether or not the claimant proves "actual damages." "It is 'a cardinal principle of statutory construction' that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.' " TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U. S. 167, 174 (2001) (internal quotation marks omitted)). The Court's reading of §552a(g)(4) is hardly in full harmony with that principle. Under the Court's construction, the words "a person entitled to recovery" have no office, see ante, at 8-9, n. 8, and the liability-determining element "adverse effect" becomes superfluous, swallowed up by the "actual damages" requirement.1 Further, the Court's interpretation renders the word "recovery" nothing more than a synonym for "actual damages," and it turns the phrase "shall be liable" into "may be liable." In part because it fails to " 'give effect ... to every clause and word' " Congress wrote, United States v. Menasche, 348 U. S. 528, 538-539 (1955) (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883)), the Court's reading of §552a(g)(4) is at odds with the interpretation prevailing in the Federal Circuits. I would adhere to the interpretation of the key statutory terms advanced by most courts of appeals. As interpreted by those courts, §552a(g)(4) authorizes a minimum $1,000 award that need not be hinged to proof of actual damages. See Orekoya v. Mooney, 330 F. 3d 1, 5 (CA1 2003) (§552a(g)(4) makes available "[b]oth 'actual damages sustained by the individual' and statutory minimum damages of $1,000"); Wilborn v. Department of Health and Human Servs., 49 F. 3d 597, 603 (CA9 1995) ("statutory minimum of $1,000" under §552a(g)(4)(A) meant to provide plaintiffs "with 'no provable damages' the incentive to sue" (quoting Fitzpatrick v. IRS, 665 F. 2d 327, 330 (CA11 1982))); Waters v. Thornburgh, 888 F. 2d 870, 872 (CADC 1989) (If a plaintiff establishes that she suffered an "adverse effect" from an "intentional or willful" violation of §552a(e)(2), "the plaintiff is entitled to the greater of $1,000 or the actual damages sustained." (internal quotation marks omitted)); Johnson v. Department of Treasury, IRS, 700 F. 2d 971, 977, and n. 12 (CA5 1983) (Even without proof of actual damages, "[t]he statutory minimum of $1,000 [under §552a(g)(4)(A)], of course, is recoverable."); Fitzpatrick, 665 F. 2d, at 331 ("Because [the plaintiff] proved only that he suffered a general mental injury from the disclosure, he could not recover beyond the statutory $1,000 minimum damages, costs, and reasonable attorneys' fees [under §552a(g)(4)]."); cf. Quinn v. Stone, 978 F. 2d 126, 131 (CA3 1992) ("adverse effect" but not "actual damages" is a "necessary" element "to maintain a suit for damages under the catch-all provision of 5 U. S. C. §552a(g)(1)(D)" (internal quotation marks omitted)); Parks v. IRS, 618 F. 2d 677, 680, 683 (CA10 1980) (plaintiffs seeking "the award of a minimum of $1,000 damages together with attorney's fees" under §552a(g)(4) state a claim by alleging the agency acted intentionally or willfully when it illegally disclosed protected information, causing "psychological damage or harm"). But see Hudson v. Reno, 130 F. 3d 1193, 1207 (CA6 1997) ("A final basis for affirming the District Court's decision with respect to [the plaintiff]'s claims under the Privacy Act is her failure to show 'actual damages,' as required by [§552a(g)(4)]."), overruled in part on other grounds, Pollard v. E. I. du Pont de Nemours & Co., 532 U. S. 843 (2001); Molerio v. FBI, 749 F. 2d 815, 826 (CADC 1984) ("This cause of action under [§§552a(g)(1)(C) and (g)(4)(A)] requires, however, not merely an intentional or willful failure to maintain accurate records, but also 'actual damages sustained' as a result of such failure."). The view prevailing in the Federal Circuits is in sync with an Office of Management and Budget (OMB) interpretation of the Privacy Act published in 1975, the year following the Act's adoption. Congress instructed OMB to "develop guidelines and regulations for the use of agencies in implementing the provisions of [the Privacy Act]." §6, 88 Stat. 1909. Just over six months after the Act's adoption, OMB promulgated Privacy Act Guidelines. 40Fed. Reg. 28949 (1975). The Guidelines speak directlyto the issue presented in this case. They interpret §§552a(g)(1)(C), (D), and (g)(4) to convey: "When the court finds that an agency has acted willfully or intentionally in violation of the Act in such a manner as to have an adverse effect upon the individual, the United States will be required to pay "Actual damages or $1,000, whichever is greater "Court costs and attorney fees." Id., at 28970.The Guidelines have been amended several times since 1975, but OMB's published interpretation of §552a(g)(4) has remained unchanged. See id., at 56741; 44 Fed. Reg. 23138 (1979); 47 Fed. Reg. 21656 (1982); 48 Fed. Reg. 15556 (1983); 49 Fed. Reg. 12338 (1984); 50 Fed. Reg. 52738 (1985); 52 Fed. Reg. 12990 (1987); 54 Fed. Reg. 25821 (1989); 58 Fed. Reg. 36075 (1993); 59 Fed. Reg. 37914 (1994); 61 Fed. Reg. 6435 (1996).2II The purpose and legislative history of the Privacy Act, as well as similarly designed statutes, are in harmony with the reading of §552a(g)(4) most federal judges have found sound. Congress sought to afford recovery for "any damages" resulting from the "willful or intentional" violation of "any individual's rights under th[e] Act." §2(b)(6), 88 Stat. 1896 (emphasis added). Privacy Act violations commonly cause fear, anxiety, or other emotional distress — in the Act's parlance, "adverse effects." Harm of this character must, of course, be proved genuine.3 In cases like Doe's, emotional distress is generally the only harm the claimant suffers, e.g., the identity theft apprehended never materializes.4 It bears emphasis that the Privacy Act does not authorize injunctive relief when suit is maintained under §552a(g)(1)(C) or (D). Injunctive relief, and attendant counsel fees and costs, are available under the Act in two categories of cases: suits to amend a record, §552a(g)(2), and suits for access to a record, §552a(g)(3). But for cases like Doe's, brought under §552a(g)(1)(C) or (D), see supra, at 2, only monetary relief is available. Hence, in the Government's view, if a plaintiff who sues under §552a(g)(1)(C) or (D) fails to prove actual damages, "he will not be entitled to attorney's fees." Brief for Respondent 39 ("[T]he Privacy Act permits an award only of 'reasonable' attorney's fees. The most critical factor in determining the reasonableness of an attorney fee award is the degree of success obtained. For a plaintiff who enjoys no success in prosecuting his claim, 'the only reasonable fee' is 'no fee at all.' " (quoting Farrar v. Hobby, 506 U. S. 103, 115 (1992)) (citations omitted)). The Court's reading of §552a(g)(4) to require proof of "actual damages," however small, in order to gain the $1,000 statutory minimum, ironically, invites claimants to arrange or manufacture such damages. The following colloquy from oral argument is illustrative. Court: "Suppose ... Doe said, 'I'm very concerned about the impact of this on my credit rating, so I'm going to [pay] $10 to a ... credit reporting company to find out whether there's been any theft of my identity, $10.' Would there then be a claim under this statute for actual damages?" Counsel for respondent Secretary of Labor Chao: "[T]here would be a question ... whether that was a reasonable response to the threat, but in theory, an expense like that could qualify as pecuniary harm and, thus, is actual damages." Tr. of Oral Arg. 43 (internal quotation marks added).Indeed, the Court itself suggests that "fees associated with running a credit report" or "the charge for a Valium prescription" might suffice to prove "actual damages." Ante, at 11, n. 10. I think it dubious to insist on such readily created costs as essential to recovery under §552a(g)(4). Nevertheless, the Court's examples of what might qualify as "actual damages" indicate that its disagreement with the construction of the Act prevailing in the Circuits, see supra, at 5-6, is ethereal. The Government, although recognizing that "actual damages" may be slender and easy to generate, fears depletion of the federal fisc were the Court to adopt Doe's reading of §552a(g)(4). Brief for Respondent 22-23, n. 5. Experience does not support those fears. As the Government candidly acknowledged at oral argument: "[W]e have not had a problem with enormous recoveries against the Government up to this point." Tr. of Oral Arg. 35. No doubt mindful that Congress did not endorse massive recoveries, the District Court in this very case denied class-action certification, see App. to Pet. for Cert. 65a, and other courts have similarly refused to certify suits seeking damages under §552a(g)(4) as class actions. See, e.g., Schmidt v. Department of Veterans Affairs, 218 F. R. D. 619, 637 (ED Wis. 2003) (denying class certification on ground that each individual would have to prove he "suffered an adverse effect as a result of the [agency]'s failure to comply with [the Act]"); Lyon v. United States, 94 F. R. D. 69, 76 (WD Okla. 1982) ("In Privacy Act damages actions, questions affecting only individual members greatly outweigh questions of law and fact common to the class."). Furthermore, courts have disallowed the runaway liability that might ensue were they to count every single wrongful disclosure as a discrete basis for a $1,000 award. See, e.g., Tomasello v. Rubin, 167 F. 3d 612, 618 (CADC 1999) (holding that 4,500 "more-or-less contemporaneous transmissions of the same record" by facsimile constituted one "act," entitling the plaintiff to a single recovery of $1,000 in damages (internal quotation marks omitted)). The text of §552a(g)(4), it is undisputed, accommodates two concerns. Congress sought to give the Privacy Act teeth by deterring violations and providing remedies when violations occur. At the same time, Congress did not want to saddle the Government with disproportionate liability. The Senate bill advanced the former concern; the House bill was more cost conscious. The House bill, as reported by the Committee on Government Operations and passed by the House, provided: "In any suit brought under the provisions of subsection (g)(1)(B) or (C) of this section in which the court determines that the agency acted in a manner which was willful, arbitrary, or capricious, the United States shall be liable to the individual in an amount equal to the sum of-- "(A) actual damages sustained by the individual as a result of the refusal or failure; and "(B) the costs of the action together with reasonable attorney fees as determined by the court." H. R. 16373, 93d Cong., 2d Sess., §552a(g)(3) (1974), reprinted in Legislative History of the Privacy Act of 1974: Source Book on Privacy, p. 288 (Joint Comm. Print compiled for the Senate and House Committees on Government Operations) (hereinafter Source Book). The Senate bill, as amended and passed, provided: "The United States shall be liable for the actions or omissions of any officer or employee of the Government who violates the provisions of this Act, or any rule, regulation, or order issued thereunder in the same manner and to the same extent as a private individual under like circumstances to any person aggrieved thereby in an amount equal to the sum of-- "(1) any actual and general damages sustained by any person but in no case shall a person entitled to recovery receive less than the sum of $1,000; and "(2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court." S. 3418, 93d Cong., 2d Sess., §303(c) (1974), reprinted in Source Book 371. The provision for monetary relief ultimately enacted, §552a(g)(4), represented a compromise between the House and Senate versions. The House bill's culpability standard ("willful, arbitrary, or capricious"), not present in the Senate bill, accounts for §552a(g)(4)'s imposition of liability only when the agency acts in an "intentional or willful" manner. That culpability requirement affords the Government some insulation against excessive liability.5 On the other hand, the enacted provision adds to the House allowance of "actual damages" only, the Senate specification that "in no case shall a person entitled to recovery receive less than the sum of $1,000 ... ." §552a(g)(4)(A). The $1,000 minimum, as earlier developed, supra, at 7-8, enables individuals to recover for genuine, albeit non-pocketbook harm, and gives persons thus adversely affected an incentive to sue to enforce the Act.6 Congress has used language similar to §552a(g)(4) in other privacy statutes. See 18 U. S. C. §2707(c);7 26 U. S. C. §6110(j)(2);8 26 U. S. C. §7217(c) (1976 ed., Supp. V).9 These other statutes have been understood to permit recovery of the $1,000 statutory minimum despite the absence of proven actual damages. See H. R. Rep. No. 99-647, p. 74 (1986) ("Damages [under 18 U. S. C. §2707(c)] include actual damages, any lost profits but in no case less than $1,000."); S. Rep. No. 99-541, p. 43 (1986) ("[D]amages under [18 U. S. C. §2707(c)] includ[e] the sum of actual damages suffered by the plaintiff and any profits made by the violator as the result of the violation ... with minimum statutory damages of $1,000 ... and ... reasonable attorney's fees and other reasonable litigation costs."); H. R. Conf. Rep. No. 94-1515, p. 475 (1976) (Title 26 U. S. C. §6110(j)(2) "creates a civil remedy for intentional or willful failure of the IRS to make required deletions or to follow the procedures of this section, including minimum damages of $1,000 plus costs."); S. Rep. No. 94-938, p. 348 (1976) ("Because of the difficulty in establishing in monetary terms the damages sustained by a taxpayer as the result of the invasion of his privacy caused by an unlawful disclosure of his returns or return information, [26 U. S. C. §7217(c)] provides that these damages would, in no event, be less than liquidated damages of $1,000 for each disclosure."). See also Johnson v. Sawyer, 120 F. 3d 1307, 1313 (CA5 1997) ("Pursuant to [26 U. S. C.] §7217, a plaintiff is entitled to his actual damages sustained as a result of an unauthorized disclosure (including punitive damages for willful or grossly negligent disclosures) or to liquidated damages of $1,000 per such disclosure, whichever is greater, as well as the costs of the action."); Rorex v. Traynor, 771 F. 2d 383, 387-388 (CA8 1985) ("We do not think that hurt feelings alone constitute actual damages compensable under [26 U. S. C. §7217(c)]. Accordingly, the jury's award of $30,000 in actual damages must be vacated. The taxpayers are each entitled to the statutory minimum award of $1,000."). As Circuit Judge Michael, dissenting from the Fourth Circuit's disposition of Doe's claim, trenchantly observed: "[T]he remedy of minimum statutory damages is a fairly common feature of federal legislation... . In contrast, I am not aware of any statute in which Congress has provide[d] for a statutory minimum to actual damages." 306 F. 3d, 170, 195 (2002) (opinion concurring in part and dissenting in part) (internal quotation marks omitted).* * * Doe has standing to sue, the Court agrees, based on "allegations that he was 'torn ... all to pieces' and 'greatly concerned and worried' because of the disclosure of his Social Security number and its potentially 'devastating' consequences." Ante, at 2 (some internal quotation marks omitted). Standing to sue, but not to succeed, the Court holds, unless Doe also incurred an easily arranged out-of-pocket expense. See ante, at 11, n. 10.10 In my view, Congress gave Privacy Act suitors like Doe not only standing to sue, but the right to a recovery if the fact trier credits their claims of emotional distress brought on by an agency's intentional or willful violation of the Act. For the reasons stated in this dissenting opinion, which track the reasons expressed by Circuit Judge Michael dissenting in part in the Fourth Circuit, I would reverse the judgment of the Court of Appeals.BUCK DOE, PETITIONER v. ELAINE L. CHAO,SECRETARY OF LABORon writ of certiorari to the united states court ofappeals for the fourth circuit[February 24, 2004] Justice Breyer, dissenting. I agree with Justice Ginsburg and join her opinion. I emphasize Justice Ginsburg's view that the statute (as we interpret it) is not likely to produce "massive recoveries" against the Government — recoveries that "Congress did not endorse." Ante, at 10 (dissenting opinion). I concede that the statute would lead to monetary recoveries whenever the Government's violation of the Privacy Act of 1974 is "intentional or willful." 5 U. S. C. §552a(g)(4). But the Government at oral argument pointed out that the phrase" 'intentional or willful' has been construed by the lower courts as essentially a term of art, and the prevailing test ... is ... akin to the standard that would prevail in a Bivens action[:] ... '[C]ould a reasonable officer in this person's position have believed what he was doing was legal?' " Tr. of Oral Arg. 33-34 (internal quotation marks added).That is to say, the lower courts have interpreted the phrase restrictively, essentially applying it where the Government's violation of the Act is in bad faith. See, e.g., Albright v. United States, 732 F. 2d 181, 189 (CADC 1984) (the term means "without grounds for believing [an action] to be lawful, or by flagrantly disregarding others' rights under the Act"); see also, e.g., Scrimgeour v. IRS, 149 F. 3d 318, 326 (CA4 1998) (same); Wisdom v. Department of Housing and Urban Development, 713 F. 2d 422, 424-435 (CA8 1983) (same); Pippinger v. Rubin, 129 F. 3d 519, 530 (CA10 1997) (same); Hudson v. Reno, 130 F. 3d 1193, 1205 (CA6 1997) (similar), overruled in part on other grounds, Pollard v. E. I. du Pont de Nemours & Co., 532 U. S. 843, 848 (2001); Moskiewicz v. Department of Agriculture, 791 F. 2d 561, 564 (CA7 1986) (similar); Wilborn v. Department of Health and Human Servs., 49 F. 3d 597, 602(CA9 1995) (similar). But cf. Covert v. Harrington, 876 F. 2d 751, 757 (CA9 1989) (apparently applying a broader standard). Given this prevailing interpretation, the Government need not fear liability based upon a technical, accidental, or good faith violation of the statute's detailed provisions. Hence Justice Ginsburg's interpretation would not risk injury to the public fisc. And I consequently find no support in any of the statute's basic purposes for the majority's restrictive reading of the damages provision.FOOTNOTESFootnote 1 The Privacy Act says nothing about standards of proof governing equitable relief that may be open to victims of adverse determinations or effects, although it may be that this inattention is explained by the general provisions for equitable relief within the Administrative Procedure Act (APA), 5 U. S. C. §706. Indeed, the District Court relied on the APA in determining that it had jurisdiction to enforce the stipulated order prohibiting the Department of Labor from using Social Security numbers in multiparty captions. Doe v. Herman, Civ. Action No. 97-0043-B (DC Va., Mar. 18, 1998), pp. 9-11.Footnote 2 Indeed, if adverse effect of intentional or willful violation were alone enough to make a person entitled to recovery, then Congress could have conditioned the entire subsection (g)(4)(A) as applying only to "a person entitled to recovery." That, of course, is not what Congress wrote. As we mentioned before, Congress used the entitled-to-recovery phrase only to describe those entitled to the $1,000 guarantee, and it spoke of entitlement and guarantee only after referring to an individual's actual damages, indicating that "actual damages" is a further touchstone of the entitlement.Footnote 3 3 Restatement of Torts §621, Comment a (1938) ("It is not necessary for the plaintiff [who is seeking general damages in an action for defamation] to prove any specific harm to his reputation or any other loss caused thereby"); 4 id., §867, Comment d (1939) (noting that damages are available for privacy torts "in the same way in which general damages are given for defamation," without proof of "pecuniary loss [or] physical harm"); see also 3 Restatement (Second) of Torts §621, Comment a (1976).Footnote 4 The Commission ultimately recommended that the Act should "permit the recovery of special and general damages ... but in no case should a person entitled to recovery receive less than the sum of $1,000 or more than the sum of $10,000 for general damages in excess of the dollar amount of any special damages." Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission 531 (July 1977).Footnote 5 On this point, we do not understand Justice Ginsburg's dissent to take issue with our conclusion that Congress explicitly rejected the proposal to make presumed damages available for Privacy Act violations. Instead, Justice Ginsburg appears to argue only that Congress would have wanted nonpecuniary harm to qualify as actual damages under subsection (g)(4)(A). Post, at 8, n. 4 (plaintiff may recover for emotional distress " 'that he proves to have been actually suffered by him' " (quoting 3 Restatement (Second) of Torts, supra, at 402, Comment b)). That issue, however, is not before us today. See n. 12, infra.Footnote 6 While theoretically there could also have been a third category, that of "nominal damages," it is implausible that Congress intended tacitly to recognize a nominal damages remedy after eliminating the explicit reference to general damages.Footnote 7 Justice Scalia does not join this paragraph or footnote 8.Footnote 8 Justice Ginsburg responds that our reading is subject to a similar criticism: "Congress more rationally [c]ould have written: 'actual damages ... but in no case shall a person who proves such damages [in any amount] receive less than $1,000.' " Post, at 3-4. Congress's use of the entitlement phrase actually contained in the statute, however, is explained by drafting history. The first bill passed by the Senate authorized recovery of both actual and general damages. See infra, at 7-8. At that point, when discussing eligibility for the $1,000 guarantee, it was reasonable to refer to plaintiffs with either sort of damages by the general term "a person entitled to recovery." When subsequent amendment limited recovery to actual damages by eliminating the general, no one apparently thought to delete the inclusive reference to entitlement. But this failure to remove the old language did not affect its reference to "actual damages," the term remaining from the original pair, "actual and general."Footnote 9 Nor are we convinced by the analysis mentioned in the dissenting opinion in the Court of Appeals, that any plaintiff who can demonstrate that he was adversely affected by intentional or willful agency action is entitled to costs and reasonable attorney's fees under §552a(g)(4)(B), and is for that reason "a person entitled to recovery" under subsection (g)(4)(A). See 306 F. 3d 170, 188-189 (CA4 2002). Instead of treating damages as a recovery entitling a plaintiff to costs and fees, see, e.g., 42 U. S. C. §1988(b) (allowing "a reasonable attorney's fee" to a "prevailing party" under many federal civil rights statutes); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247-258 (1975) (discussing history of American courts' power to award fees and costs to prevailing plaintiffs), this analysis would treat costs and fees as the recovery entitling a plaintiff to minimum damages; it would get the cart before the horse.Footnote 10 We also reject the related suggestion that the category of cases with actual damages not exceeding $1,000 is so small as to render the minimum award meaningless under our reading. It is easy enough to imagine pecuniary expenses that might turn out to be reasonable in particular cases but fall well short of $1,000: fees associated with running a credit report, for example, or the charge for a Valium prescription. Since we do not address the definition of actual damages today, see n. 12, infra, this challenge is too speculative to overcome our interpretation of the statute's plain language and history.Footnote 11 In support of Doe's position, Justice Ginsburg's dissent also cites another item of extratextual material, an interpretation of the Privacy Act that was published by the Office of Management and Budget in 1975 as a guideline for federal agencies seeking to comply with the Act. Post, at 6-7. The dissent does not claim that any deference is due this interpretation, however, and we do not find its unelaborated conclusion persuasive.Footnote 12 The Courts of Appeals are divided on the precise definition of actual damages. Compare Fitzpatrick v. IRS, 665 F. 2d 327, 331 (CA11 1982) (actual damages are restricted to pecuniary loss), with Johnson v. Department of Treasury, 700 F. 2d 971, 972-974 (CA5 1983) (actual damages can cover adequately demonstrated mental anxiety even without any out-of-pocket loss). That issue is not before us, however, since the petition for certiorari did not raise it for our review. We assume without deciding that the Fourth Circuit was correct to hold that Doe's complaints in this case did not rise to the level of alleging actual damages. We do not suggest that out-of-pocket expenses are necessary for recovery of the $1,000 minimum; only that they suffice to qualify under any view of actual damages.FOOTNOTESFootnote 1 The Court interprets "the reference in §552a(g)(1)(D) to 'adverse effect' ... as a term of art identifying a potential plaintiff who satisfies the injury-in-fact and causation requirements of Article III standing, and who may consequently bring a civil action without suffering dismissal for want of standing to sue." Ante, at 9. Under the Court's reading, §552a(g)(1)(D) "open[s] the courthouse door" to individuals "adversely affected" by an intentional or willful agency violation of the Privacy Act, ante, at 10, while §552a(g)(4) bars those individuals from recovering anything if they do not additionally show actual damages. See infra, at 8-9. In other words, the open door for plaintiffs like Buck Doe is an illusion: what one hand opens, the other shuts.Footnote 2 In briefing this case, the Government noted a communication to the Office of the Solicitor General from an unnamed OMB official conveying that OMB does not now "interpret its Guideline to require the payment of $1000 to plaintiffs who have sustained no actual damages from a violation of the Act." Brief for Respondent 47-48. Such an informal communication cannot override OMB's contemporaneous, long-published construction of §552a(g)(4); cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212 (1988) ("We have never applied [deference] to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice."); INS v. Cardoza-Fonseca, 480 U. S. 421, 446, n. 30 (1987) ("An agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is 'entitled to considerably less deference,' than a consistently held agency view." (quoting Watt v. Alaska, 451 U. S. 259, 273 (1981))).Footnote 3 Circuit Judge Michael, who dissented from the Fourth Circuit's judgment as to petitioner Buck Doe but agreed with his colleagues on this point, noted: "[A]dverse effects must be proven rather than merely presumed ... ." 306 F. 3d 170, 187 (2002) (opinion concurring in part and dissenting in part). Doe had declared in his affidavit that "no amount of money could compensate [him] for worry and fear of not knowing when someone would use [his] name and Social Security number to establish credit, a new identity, change [his] address, use [his] checking account or even get credit cards." App. 15. Doe's several co-plaintiffs, against whom summary judgment was entered and unanimously affirmed on appeal, made no such declaration.Footnote 4 The Court asserts that Doe's reading of §552a(g)(4)(A) "is at odds with the traditional understanding that tort recovery requires ... proof of some harm for which damages can reasonably be assessed." Ante, at 6. Although that understanding applies to common negligence actions, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 165 (5th ed. 1984) (cited ante, at 6), it is not the black letter rule for privacy actions. See 3 Restatement (Second) of Torts §652H, p. 401 (1976) ("One who has established a cause of action for invasion of his privacy is entitled to recover damages for ... his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion ... ."); id., at 402, Comment b ("The plaintiff may also recover damages for emotional distress or personal humiliation that he proves to have been actually suffered by him, if it is of a kind that normally results from such an invasion [of privacy] and it is normal and reasonable in its extent.").Footnote 5 Petitioner Doe recognizes that "the 'intentional [or] willful' level of culpability a Privacy Act plaintiff must demonstrate is a formidable barrier." Brief for Petitioner 29; Reply Brief 1 ("Congress and commentators agree [the 'intentional or willful' qualification] is a formidable obstacle to recovery under the Act."). In this Court and case, as earlier noted, supra, at 1, the Government does not challenge the finding that the Department of Labor's violation of the Act was "intentional or willful." Tr. of Oral Arg. 35; see App. to Pet. for Cert. 96a-97a (Characterizing the Department of Labor's actions as "intentional and willful," the Magistrate Judge observed: "The undisputed evidence shows that the Department took little, if any, action to see that it complied with the Privacy Act... . Several of the Administrative Law Judges responsible for sending out the multi-captioned hearing notices testified that they had received no training on the Privacy Act."). Because the "intentional or willful" character of the agency's conduct is undisputed here, the Court is not positioned to give that issue the full consideration it would warrant were the issue the subject of dispute. Footnote 6 The Court places great weight on Congress' establishment of a Privacy Protection Study Commission, and its charge to the Commission to consider, among many other things, "whether the Federal Government should be liable for general damages incurred by an individual as the result of a willful or intentional violation of [§552a(g)(1)(C) or (D)]." Ante, at 7 (internal quotation marks omitted). This less than crystalline reference to the Commission, however, left unaltered §552a(g)(4)(A)'s embracive term "a person entitled to recovery," words the Court must read out of the statute to render its interpretation sensible. See ante, at 8-9, n. 8.Footnote 7 Section 2707(c), concerning unauthorized access to electronic communications, provides:"The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court." (Emphasis added.)Footnote 8 Section 6110(j)(2) provides:"In any suit brought under the provisions of paragraph (1)(A) in which the Court determines that an employee of the Internal Revenue Service intentionally or willfully failed to delete in accordance with subsection (c), or in any suit brought under subparagraph (1)(B) in which the Court determines that an employee intentionally or willfully failed to act in accordance with subsection (g) or (i)(4)(B), the United States shall be liable to the person in an amount equal to the sum of--"(A) actual damages sustained by the person but in no case shall a person be entitled to receive less than the sum of $1,000, and "(B) the costs of the action together with reasonable attorney's fees as determined by the Court." (Emphasis added.)Footnote 9 Section 7217(c), which was repealed in 1982, provided:"In any suit brought under the provisions of subsection (a), upon a finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff in an amount equal to the sum of--"(1) actual damages sustained by the plaintiff as a result of the unauthorized disclosure of the return or return information and, in the case of a willful disclosure or a disclosure which is the result of gross negligence, punitive damages, but in no case shall a plaintiff entitled to recovery receive less than the sum of $1,000 with respect to each instance of such unauthorized disclosure; and "(2) the costs of the action." (Emphasis added.)Footnote 10 Cf. ante, at 12-13, n. 12 (suggesting that a nonpecuniary, but somehow heightened "adverse effect" ("demonstrated mental anxiety") might do).

From its Seattle Regional Office the Government Services Administration (GSA) invited bids to supply motor fuel for use by government agencies in Idaho and other States. Utah Oil Refining Company (Utah Oil) made bids from its Salt Lake City offices including two bids for supplying gasoline to the Atomic Energy Commission (AEC), each bid being made alternatively for delivery f. o. b. Salt Lake City or the AEC site in Idaho. GSA, at Seattle, awarded Utah Oil the contract for delivery of the gasoline at Utah Oil's Salt Lake City bulk plant, where title passed. AEC arranged for transportation of the gasoline to its Idaho site by common carriers. Utah Oil was licensed as a "dealer" in Idaho but its activities there were unrelated to the GSA contract. Appellee Idaho State Tax Collector imposed an excise tax on the transaction under a statute taxing the "dealer" who first "receives" motor fuel in the State, the statute making a licensed dealer the constructive recipient of motor fuel unloaded in Idaho which it sold out-of-state for in-state use to a purchaser without a license. The tax was paid under protest by Utah Oil which appellant, its successor in interest, now seeks to have refunded. The trial court granted appellant summary judgment, holding the tax invalid since applied to a sale outside Idaho. The Idaho Supreme Court reversed. Held: 1. The operating incidence of the tax fell on the dealer, who was not required to pass it on to or collect it from the consumer. Pp. 455-457. 2. A State's imposition of an excise tax with respect to an out-of-state transaction upon a dealer entirely dissociated from any in-state activities violates the Due Process Clause. Pp. 457-459. (a) The vendor's knowledge that the commodity sold was for use in the State would not of itself make the tax on the out-of-state sale permissible. P. 457. (b) Since every phase of the transaction here occurred outside the taxing State, neither the fact that the dealer was licensed in the State nor that it performed activities in the State suffices to uphold the tax. Pp. 458-459. 86 Idaho 7, 383 P.2d 350, reversed and remanded. Frank I. Goodman argued the cause for appellant and for the United States, as amicus curiae. With him on the briefs were Solicitor General Cox, Assistant Attorney General Oberdorfer, I. Henry Kutz and Robert A. Bernstein for the United States, and Calvin Dworshak for appellant.Allan G. Shepard, Attorney General of Idaho, argued the cause for appellees. With him on the brief were William M. Smith, Assistant Attorney General, Faber F. Tway and Anton Hohler.MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.This appeal presents the issue of whether, where a licensed Idaho dealer in motor fuels sells and transfers gasoline outside the State for importation into the State by an agency of the Federal Government, the State of Idaho may constitutionally impose an excise tax upon the transaction on the theory that the dealer constructively "receives" the gasoline in Idaho upon its importation.On June 26, 1959, invitations for bids were issued by the United States Government from the Regional Office of the General Services Administration (GSA) at Seattle, Washington, covering some 607 separate items - each designed to supply a distinct motor fuel need of a particular government agency at one of a multitude of locations in Idaho, Montana, Oregon, and Washington for the period from November 1, 1959, through October 31, 1960. Bids on each item were to be submitted to the Seattle office and were to be evaluated on their individual merits and accepted or rejected without reference to other items.Appellant's predecessor in interest, Utah Oil Refining Company (Utah Oil), is a Delaware corporation. Pursuant to the GSA invitation it transmitted bids from its offices in Salt Lake City, Utah, on various items. Included were numbers 63 and 64 dealing with the supply of approximately 200,000 and 1,000,000 gallons of gasoline, respectively, for the use of the Atomic Energy Commission (AEC) at Idaho Falls, Idaho. Bids on these two items were submitted in alternative form, quoting a price f. o. b. Salt Lake City and a price f. o. b. the AEC activity site in Idaho.1 On October 26, 1959, Utah Oil's bids on the two items were accepted in Seattle by the GSA. Under the terms of the contract gasoline was to be sold to the AEC at a designated price f. o. b. Bulk Plant, Salt Lake City. The total price did not include any state tax but provision was made for an increase in the contract price if any such tax was imposed.In accordance with the contract, the AEC, or its operating agent, Phillips Petroleum Company, periodically ordered some 1,436,355 gallons of gasoline. Delivery was effected by Utah Oil in Salt Lake City. Although the facts subsequent to delivery are in dispute, it appears that thereafter common carriers, selected and paid by the AEC, transported the fuel from Salt Lake City to Idaho Falls where it was placed in AEC-owned storage tanks and used in AEC operations in Idaho.2 During the time that Utah Oil was performing the contract, it was authorized to do business in the State of Idaho as a "licensed dealer" as defined by the Idaho Motor Fuels Tax Act, as amended, Idaho Code, Tit. 49, c. 12 (1957). This Act imposes an initial requirement that all motor fuel "dealers" hold a permit issued by the State Tax Collector. To procure such a permit one need only fill out an application, post bond, and pay a five-dollar filing fee. Securance of a permit is necessary before any dealer can "import, receive, use, sell or distribute any motor fuels" within the State. Idaho Code Ann. 49-1202 (1957).A "dealer" is defined by 49-1201 as any person who first receives motor fuels in the State within the meaning of the word "received"3 As a dealer, one is required to make monthly reports to the State Tax Collector and pay an excise tax of six cents per gallon on all motor fuels "received" within the ambit of 49-1201 (g). The Act then provides that the proceeds of the tax are to be placed into a state highway fund.During its performance of the contracts Utah Oil submitted the required monthly reports. The State Tax Collector thereupon insisted that payment of the six-cent tax be forthcoming pursuant to 49-1201 (g) due to the fact that Utah Oil was a licensed dealer in the State of Idaho which had sold motor fuel to an agency "not the holder of [a] ... dealer permit ... for importation into the state ... from a point of origin outside the state." Taxes totaling $86,181.30 were paid under protest. The instant litigation was then initiated in the District Court of the Third Judicial District of the State of Idaho for refund. Appellant claimed at the threshold that the imposition of the tax on an out-of-state sale to the Federal Government violated the Due Process, Commerce, and Supremacy Clauses of the Constitution.The trial judge granted summary judgment for the appellant finding that the imposition of the tax violated the Due Process and Commerce Clauses since it was applied to a sale made outside of Idaho. On appeal the Idaho Supreme Court reversed, finding the constitutional objections to be without merit. 86 Idaho 7, 383 P.2d 350. We noted probable jurisdiction, , because the validity of a state statute had been upheld over an objection that it was repugnant to the Constitution. 28 U.S.C. 1257 (2) (1958 ed.).I.When passing on the constitutionality of a state taxing scheme it is firmly established that this Court concerns itself with the practical operation of the tax, that is, substance rather than form. Wisconsin v. J. C. Penney Co., ; Lawrence v. State Tax Comm'n, , and cases cited therein. This approach requires us to determine the ultimate effect of the law as applied and enforced by a State or, in other words, to find the operating incidence of the tax. Connecticut Gen. Life Ins. Co. v. Johnson, .When a state court has made its own definitive determination as to the operating incidence, our task is simplified. We give this finding great weight in determining the natural effect of a statute, and if it is consistent with the statute's reasonable interpretation it will be deemed conclusive.4 Such a situation is manifest in the instant case.The trial judge found that the operating incidence of the tax clearly fell on the dealer:"[T]he dealer is not in any way required to pass the tax on or collect it from the consumer, and the ultimate purchaser or consumer has no responsibility whatsoever for payment of the tax. While it may be the overall policy of the state to collect a tax of 6 per gallon on all gasoline used to propel motor vehicles over Idaho state highways, the taxable event or transaction is not the use by the local consumer or purchaser, but the `receipt' of the gas by the dealer. It cannot be said under this statute that the licensed dealer is the mere collector of a tax from the purchaser or user ... ." This conclusion was further buttressed by finding that the Idaho administrative interpretation of the statute in the past has been to treat it as a privilege tax upon the dealer.5 On appeal the Idaho Supreme Court left the trial court's conclusions undisturbed. Moreover, the State Attorney General in his brief before this Court expressly states that the tax "is a privilege tax, the incidence of which falls on the dealer ... ."6 This unanimity between the courts of Idaho and its agencies is to us in accord with the literal interpretation of the Act inasmuch as 49-1210 clearly states that "each dealer shall pay to the commissioner an excise tax of six cents per gallon on all motor fuels ..." with no coinciding provision passing the burden of the tax to the purchaser. We therefore give the findings below controlling effect and hold that the incidence of the tax falls on the dealer.II.Although the Idaho Supreme Court agreed with the trial judge that the taxed events were the sales of gasoline in Utah, two factors were considered sufficient to bring the transactions within the purview of Idaho's taxing power. First, Utah Oil sold the gasoline with knowledge that it would be imported into and used within Idaho; and, second, Utah Oil had been authorized to do business in Idaho having applied for and received a dealer's permit "authorizing it to enter into the Idaho market as a distributor of motor fuels ... ." 86 Idaho, at 23, 383 P.2d, at 360. We conclude that these considerations are insufficient to uphold the tax as against attack under the Due Process Clause.The mere fact that Utah Oil knew that the gasoline was to be imported into Idaho merits little discussion. More than once this Court has struck down taxes directly imposed on or resulting from out-of-state sales which were held to be insufficiently related to activities within the taxing State, despite the fact that the vendor knew that the goods were destined for use in that State. Miller Bros. Co. v. Maryland, (use tax); Norton Co. v. Department of Revenue, (gross receipts tax); McLeod v. J. E. Dilworth Co., (sales tax).These cases have also firmly established the doctrine that when a tax is imposed on an out-of-state vendor, "nexus" between the taxing State and the taxpayer is the outstanding prerequisite on state power to tax. Consistent with this requirement there must be "some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax." Miller Bros. Co. v. Maryland, supra, at 344-345. Granted that when a corporation, pursuant to permission given, enters a State and proceeds to do local business the "link" is strong. In such instances there is a strong inference that it exists between the State and transactions which result in economic benefits obtained from a source within the State's territorial limits. The corporation can, however, exempt itself by a clear showing that there are no in-state activities connected with out-of-state sales. In such instances, the transactions are said to be "dissociated from the local business," Norton Co. v. Department of Revenue, supra, at 537, and therefore may not, consistent with due process, be taxed.In the present case it is plain that neither Utah Oil's position as a licensed dealer in Idaho nor the fact that it otherwise engaged in business there will suffice to uphold the tax. Utah Oil's transfer of gasoline was unquestionably an out-of-state sale vis-a-vis Idaho and entirely unconnected with its business in that State. Each and every phase of the transaction had its locus outside of Idaho: invitations for bids were issued by the Government in Seattle, Washington; Utah Oil submitted its bids from Salt Lake City; the bids were accepted in Seattle; the contract called for delivery of the gasoline f. o. b. Salt Lake City; Utah Oil delivered the gasoline to Salt Lake City, and it was there that title passed. There is no reason to suppose, nor does the record in any way indicate, that Utah Oil's activities in Idaho contributed in any way to the procurement or performance of the contract. Compare Norton Co. v. Department of Revenue, supra, with General Motors Corp. v. Washington, .The Idaho Supreme Court was fully cognizant of these facts but chose to characterize Utah Oil's dealer's permit as authorizing it "to engage in the very activity it now claims is exempt from the tax." 86 Idaho, at 23, 383 P.2d ___, at 360. This statement, however, fails to reflect the clear holding by this Court that the granting by a State "of the privilege of doing business there and its consequent authority to tax the privilege do not withdraw from the protection of the due process clause the privilege" of doing business elsewhere. Connecticut Gen. Life Ins. Co. v. Johnson, supra, at 82. This is exactly the situation present in the instant case. Under the circumstances we hold the fact that Utah Oil was the holder of an Idaho dealer's permit to be purely fortuitous.Since we decide that the exacted tax violates the Due Process Clause, there is no need for discussion of constitutionality under the Commerce or Supremacy Clause. The decision of the Idaho Supreme Court is reversed and the case remanded to that court for proceedings not inconsistent with this opinion. Reversed and remanded.MR. JUSTICE BLACK dissents.

Respondent trade association was charged with violating, inter alia, 18 U. S. C. §201(c)(1)(A), which prohibits giving "anything of value" to a present, past, or future public official "for or because of any official act performed or to be performed by such public official." Count One of the indictment asserted that respondent gave illegal gratuities to former Secretary of Agriculture Michael Espy while two matters in which it had an interest in favorable treatment were pending before Espy. The indictment did not, however, allege a specific connection between either of those matters (or any other Espy action) and the gratuities conferred. In denying respondent's motion to dismiss Count One because of this omission, the District Court stated that, to sustain a §201(c)(1)(A) charge, it is sufficient to allege that the defendant provided things of value to the official because of his position. At trial, the court instructed the jury along these same lines. The jury convicted respondent on Count One, and the court imposed a fine. The Court of Appeals reversed that conviction and remanded for a new trial, stating that, because §201(c)(1)(A)'s "for or because of any official act" language means what it says, the instructions invited the jury to convict on materially less evidence than the statute demands — evidence of gifts driven simply by Espy's official position. In rejecting respondent's attack on the indictment, however, the court stated that the Government need not show that a gratuity was given "for or because of" any particular act or acts: That an official has relevant matters before him should not insulate him as long as the jury is required to find the requisite intent to reward past favorable acts or to make future ones more likely.Held: 1. In order to establish a §201(c)(1)(A) violation, the Government must prove a link between a thing of value conferred upon a federal official and a specific "official act" for or because of which it was given. The Government's contention that §201(c)(1)(A) is satisfied merely by a showing that respondent gave Secretary Espy a gratuity because of his official position does not fit comfortably with the statutory text, the more natural meaning of which is "for or because of some particular official act of whatever identity." The statute's insistence upon an "official act," carefully defined (in §201(a)(3)), seems pregnant with the requirement that some particular official act be identified and proved. The Government's alternative reading would produce peculiar results, criminalizing, e.g., token gifts to the President based on his official position and not linked to any identifiable act — such as the replica jerseys given by championship sports teams each year during ceremonial White House visits. Although, under the more narrow interpretation, the jerseys could be regarded as having been conferred (perhaps principally) "for or because of" the official act of receiving sports teams at the White House, such receipt — while assuredly an "official act" in some sense — is not an "action on [a] matter ... before any public official, in [his] official capacity, or in [his] place of trust or profit" within the meaning of the §201(a)(3) definition. The Government's insistence that its interpretation is the only one that gives effect to §201(c)(1)(A)'s forward-looking prohibition on gratuities to selectees for federal office is rejected because the section can readily be applied to such persons even under the more narrow interpretation. Pp. 5-10. 2. The Court's holding is supported by the fact that when Congress has wanted to adopt a broadly prophylactic criminal prohibition upon gift giving, it has done so in a more precise and more administrable fashion. See, e.g., §209(a). Finally, a narrow, rather than a sweeping, prohibition is more compatible with the fact that §201(c)(1)(A) is merely one strand of an intricate web of regulations, both administrative and criminal, governing the acceptance of gifts and other self-enriching actions by public officials. Because this is an area where precisely targeted prohibitions are commonplace, and where more general prohibitions have been qualified by numerous exceptions, a statute that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter. Pp. 10-14. 3. The Court rejects the Government's contention that the District Court's mistaken instructions concerning §201(c)(1)(A)'s scope — which essentially and incorrectly substituted the term "official position" for "official act"--constituted harmless error. The Government's argument that the jury's verdict rendered pursuant to the instructions necessarily included a finding that respondent's gratuities were given and received "for or because of " official acts is but a restatement of the same flawed premise that permeated the instructions themselves and that the Court has herein rejected. Pp. 14-16.138 F. 3d 961, affirmed. Scalia, J., delivered the opinion for a unanimous Court. UNITED STATES, PETITIONER v. SUN-DIAMOND GROWERS OF CALIFORNIAon writ of certiorari to the united states court of appeals for the district of columbia circuit[April 27, 1999] Justice Scalia delivered the opinion of the Court. Talmudic sages believed that judges who accepted bribes would be punished by eventually losing all knowledge of the divine law. The Federal Government, dealing with many public officials who are not judges, and with at least some judges for whom this sanction holds no terror, has constructed a framework of human laws and regulations defining various sorts of impermissible gifts, and punishing those who give or receive them with administrative sanctions, fines, and incarceration. One element of that framework is 18 U. S. C. §201(c)(1)(A), the "illegal gratuity statute," which prohibits giving "anything of value" to a present, past, or future public official "for or because of any official act performed or to be performed by such public official." In this case, we consider whether conviction under the illegal gratuity statute requires any showing beyond the fact that a gratuity was given because of the recipient's official position.I Respondent is a trade association that engaged in marketing and lobbying activities on behalf of its member cooperatives, which were owned by approximately 5,000 individual growers of raisins, figs, walnuts, prunes, and hazelnuts. Petitioner United States is represented by Independent Counsel Donald Smaltz, who, as a consequence of his investigation of former Secretary of Agriculture Michael Espy, charged respondent with, inter alia, making illegal gifts to Espy in violation of §201(c)(1)(A). That statute provides, in relevant part, that anyone who"otherwise than as provided by law for the proper discharge of official duty ... directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official ... shall be fined under this title or imprisoned for not more than two years, or both." Count One of the indictment charged Sun-Diamond with giving Espy approximately $5,900 in illegal gratuities: tickets to the 1993 U. S. Open Tennis Tournament (worth $2,295), luggage ($2,427), meals ($665), and a framed print and crystal bowl ($524). The indictment alluded to two matters in which respondent had an interest in favorable treatment from the Secretary at the time it bestowed the gratuities. First, respondent's member cooperatives participated in the Market Promotion Plan (MPP), a grant program administered by the Department of Agriculture to promote the sale of U. S. farm commodities in foreign countries. The cooperatives belonged to trade organizations, such as the California Prune Board and the Raisin Administrative Committee, which submitted overseas marketing plans for their respective commodities. If their plans were approved by the Secretary of Agriculture, the trade organizations received funds to be used in defraying the foreign marketing expenses of their constituents. Each of respondent's member cooperatives was the largest member of its respective trade organization, and each received significant MPP funding. Respondent was understandably concerned, then, when Congress in 1993 instructed the Secretary to promulgate regulations giving small-sized entities preference in obtaining MPP funds. Omnibus Budget Reconciliation Act of 1993, Pub. L. 103-66, §1302(b)(2)(A), 107 Stat. 330-331. If the Secretary did not deem respondent's member cooperatives to be small-sized entities, there was a good chance they would no longer receive MPP grants. Thus, respondent had an interest in persuading the Secretary to adopt a regulatory definition of "small-sized entity" that would include its member cooperatives. Second, respondent had an interest in the Federal Government's regulation of methyl bromide, a low-cost pesticide used by many individual growers in respondent's member cooperatives. In 1992, the Environmental Protection Agency announced plans to promulgate a rule to phase out the use of methyl bromide in the United States. The indictment alleged that respondent sought the Department of Agriculture's assistance in persuading EPA to abandon its proposed rule altogether, or at least to mitigate its impact. In the latter event, respondent wanted the Department to fund research efforts to develop reliable alternatives to methyl bromide. Although describing these two matters before the Secretary in which respondent had an interest, the indictment did not allege a specific connection between either of them — or between any other action of the Secretary — and the gratuities conferred. The District Court denied respondent's motion to dismiss Count One because of this omission. 941 F. Supp. 1262 (DDC 1996). The court stated:"[T]o sustain a charge under the gratuity statute, it is not necessary for the indictment to allege a direct nexus between the value conferred to Secretary Espy by Sun-Diamond and an official act performed or to be performed by Secretary Espy. It is sufficient for the indictment to allege that Sun-Diamond provided things of value to Secretary Espy because of his position." Id., at 1265. At trial, the District Court instructed the jury along these same lines. It read §201(c)(1)(A) to the jury twice (along with the definition of "official act" from §201(a)(3)), but then placed an expansive gloss on that statutory language, saying, among other things, that "[i]t is sufficient if Sun-Diamond provided Espy with unauthorized compensation simply because he held public office," and that "[t]he government need not prove that the alleged gratuity was linked to a specific or identifiable official act or any act at all." App. to Pet. for Cert. 85a, 87a. The jury convicted respondent on, inter alia, Count One (the only subject of this appeal), and the District Court sentenced respondent on this count to pay a fine of $400,000.** The Court of Appeals reversed the conviction on Count One and remanded for a new trial, stating:"Given that the `for or because of any official act' language in §201(c)(1)(A) means what it says, the jury instructions invited the jury to convict on materially less evidence than the statute demands — evidence of gifts driven simply by Espy's official position." 138 F. 3d 961, 968 (CADC 1998).In rejecting respondent's attack on the indictment, however, the court stated that the Government need not show that a gratuity was given "for or because of" any particular act or acts: "That an official has an abundance of relevant matters on his plate should not insulate him or his benefactors from the gratuity statute — as long as the jury is required to find the requisite intent to reward past favorable acts or to make future ones more likely." Id., at 969. We granted certiorari. 525 U. S. ___ (1998).II Initially, it will be helpful to place §201(c)(1)(A) within the context of the statutory scheme. Subsection (a) of §201 sets forth definitions applicable to the section — including a definition of "official act," §201(a)(3). Subsections (b) and (c) then set forth, respectively, two separate crimes — or two pairs of crimes, if one counts the giving and receiving of unlawful gifts as separate crimes — with two different sets of elements and authorized punishments. The first crime, described in §201(b)(1) as to the giver, and §201(b)(2) as to the recipient, is bribery, which requires a showing that something of value was corruptly given, offered, or promised to a public official (as to the giver) or corruptly demanded, sought, received, accepted, or agreed to be received or accepted by a public official (as to the recipient) with intent, inter alia, "to influence any official act" (giver) or in return for "being influenced in the performance of any official act" (recipient). The second crime, defined in §201(c)(1)(A) as to the giver, and §201(c)(1)(B) as to the recipient, is illegal gratuity, which requires a showing that something of value was given, offered, or promised to a public official (as to the giver), or demanded, sought, received, accepted, or agreed to be received or accepted by a public official (as to the recipient), "for or because of any official act performed or to be performed by such public official." The distinguishing feature of each crime is its intent element. Bribery requires intent "to influence" an official act or "to be influenced" in an official act, while illegal gratuity requires only that the gratuity be given or accepted "for or because of" an official act. In other words, for bribery there must be a quid pro quo--a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken. The punishments prescribed for the two offenses reflect their relative seriousness: Bribery may be punished by up to 15 years' imprisonment, a fine of $250,000 ($500,000 for organizations) or triple the value of the bribe, whichever is greater, and disqualification from holding government office. See 18 U. S. C. §§201(b) and 3571. Violation of the illegal gratuity statute, on the other hand, may be punished by up to two years' imprisonment and a fine of $250,000 ($500,000 for organizations). See §§201(c) and 3571. The District Court's instructions in this case, in differentiating between a bribe and an illegal gratuity, correctly noted that only a bribe requires proof of a quid pro quo. The point in controversy here is that the instructions went on to suggest that §201(c)(1)(A), unlike the bribery statute, did not require any connection between respondent's intent and a specific official act. It would be satisfied, according to the instructions, merely by a showing that respondent gave Secretary Espy a gratuity because of his official position — perhaps, for example, to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future. The United States, represented by the Independent Counsel, and the Solicitor General as amicus curiae, contend that this instruction was correct. The Independent Counsel asserts that "section 201(c)(1)(A) reaches any effort to buy favor or generalized goodwill from an official who either has been, is, or may at some unknown, unspecified later time, be in a position to act favorably to the giver's interests." Brief for United States 22 (emphasis added). The Solicitor General contends that §201(c)(1)(A) requires only a showing that a "gift was motivated, at least in part, by the recipient's capacity to exercise governmental power or influence in the donor's favor" without necessarily showing that it was connected to a particular official act. Brief for the United States Dept. of Justice as Amicus Curiae 17 (emphasis added). In our view, this interpretation does not fit comfortably with the statutory text, which prohibits only gratuities given or received "for or because of any officialact performed or to be performed" (emphasis added). It seems to us that this means "for or because of some particular official act of whatever identity"--just as the question "Do you like any composer?" normally means "Do you like some particular composer?" It is linguistically possible, of course, for the phrase to mean "for or because of official acts in general, without specification as to which one"--just as the question "Do you like any composer?" could mean "Do you like all composers, no matter what their names or music?" But the former seems to us the more natural meaning, especially given the complex structure of the provision before us here. Why go through the trouble of requiring that the gift be made "for or because of any official act performed or to be performed by such public official," and then defining "official act" (in §201(a)(3)) to mean "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity," when, if the Government's interpretation were correct, it would have sufficed to say "for or because of such official's ability to favor the donor in executing the functions of his office"? The insistence upon an "official act," carefully defined, seems pregnant with the requirement that some particular official act be identified and proved. Besides thinking that this is the more natural meaning of §201(c)(1)(A), we are inclined to believe it correct because of the peculiar results that the Government's alternative reading would produce. It would criminalize, for example, token gifts to the President based on his official position and not linked to any identifiable act — such as the replica jerseys given by championship sports teams each year during ceremonial White House visits, see, e.g., Gail Gibson, Masters of the Game, Lexington Herald-Leader, Nov. 10, 1998, p. A1. Similarly, it would criminalize a high school principal's gift of a school baseball cap to the Secretary of Education, by reason of his office, on the occasion of the latter's visit to the school. That these examples are not fanciful is demonstrated by the fact that counsel for the United States maintained at oral argument that a group of farmers would violate §201(c)(1)(A) by providing a complimentary lunch for the Secretary of Agriculture in conjunction with his speech to the farmers concerning various matters of USDA policy — so long as the Secretary had before him, or had in prospect, matters affecting the farmers. Tr. of Oral Arg. 26-27. Of course the Secretary of Agriculture always has before him or in prospect matters that affect farmers, just as the President always has before him or in prospect matters that affect college and professional sports, and the Secretary of Education matters that affect high schools. It might be said in reply to this that the more narrow interpretation of the statute can also produce some peculiar results. In fact, in the above-given examples, the gifts could easily be regarded as having been conferred, not only because of the official's position as President or Secretary, but also (and perhaps principally) "for or because of" the official acts of receiving the sports teams at the White House, visiting the high school, and speaking to the farmers about USDA policy, respectively. The answer to this objection is that those actions — while they are assuredly "official acts" in some sense — are not "official acts" within the meaning of the statute, which, as we have noted, defines "official act" to mean "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." 18 U. S. C. §201(a)(3). Thus, when the violation is linked to a particular "official act," it is possible to eliminate the absurdities through the definition of that term. When, however, no particular "official act" need be identified, and the giving of gifts by reason of the recipient's mere tenure in office constitutes a violation, nothing but the Government's discretion prevents the foregoing examples from being prosecuted. The Government insists that its interpretation is the only one that gives effect to all of the statutory language. Specifically, it claims that the "official position" construction is the only way to give effect to §201(c)(1)(A)'s forward-looking prohibition on gratuities to persons who have been selected to be public officials but have not yet taken office. Because, it contends, such individuals would not know of specific matters that would come before them, the only way to give this provision effect is to interpret "official act" to mean "official position." But we have no trouble envisioning the application of §201(c)(1)(A) to a selectee for federal office under the more narrow interpretation. If, for instance, a large computer company that has planned to merge with another large computer company makes a gift to a person who has been chosen to be Assistant Attorney General for the Antitrust Division of the Department of Justice and who has publicly indicated his approval of the merger, it would be quite possible for a jury to find that the gift was made "for or because of" the person's anticipated decision, once he is in office, not to challenge the merger. The uncertainty of future action seems to us, in principle, no more an impediment to prosecution of a selectee with respect to some future official act than it is to prosecution of an officeholder with respect to some future official act. Our refusal to read §201(c)(1)(A) as a prohibition of gifts given by reason of the donee's office is supported by the fact that when Congress has wanted to adopt such a broadly prophylactic criminal prohibition upon gift giving, it has done so in a more precise and more administrable fashion. For example, another provision of Chapter 11 of Title 18, the chapter entitled "Bribery, Graft, and Conflicts of Interest," criminalizes the giving or receiving of any "supplementation" of an Executive official's salary, without regard to the purpose of the payment. See 18 U. S. C. §209(a). Other provisions of the same chapter make it a crime for a bank employee to give a bank examiner, and for a bank examiner to receive from a bank employee, "any loan or gratuity," again without regard to the purpose for which it is given. See §§212-213. A provision of the Labor Management Relations Act makes it a felony for an employer to give to a union representative, and for a union representative to receive from an employer, anything of value. 29 U. S. C. §186 (1994 ed. and Supp. III). With clearly framed and easily administrable provisions such as these on the books imposing gift-giving and gift-receiving prohibitions specifically based upon the holding of office, it seems to us most implausible that Congress intended the language of the gratuity statute--"for or because of any official act performed or to be performed"--to pertain to the office rather than (as the language more naturally suggests) to particular official acts. Finally, a narrow, rather than a sweeping, prohibition is more compatible with the fact that §201(c)(1)(A) is merely one strand of an intricate web of regulations, both administrative and criminal, governing the acceptance of gifts and other self-enriching actions by public officials. For example, the provisions following §201 in Chapter 11 of Title 18 make it a crime to give any compensation to a federal employee, or for the employee to receive compensation, in consideration of his representational assistance to anyone involved in a proceeding in which the United States has a direct and substantial interest, §203; for a federal employee to act as "agent or attorney" for anyone prosecuting a claim against the United States, §205(a)(1); for a federal employee to act as "agent or attorney" for anyone appearing before virtually any Government tribunal in connection with a matter in which the United States has a direct and substantial interest, §205(a)(2); for various types of federal employees to engage in various activities after completion of their federal service, §207; for an Executive employee to participate in any decision or proceeding relating to a matter in which he has a financial interest, §208; for an employee of the Executive Branch or an independent agency to receive "any contribution to or supplementation of salary ... from any source other than the Government of the United States," §209; and for a federal employee to accept a gift in connection with the "compromise, adjustment, or cancellation of any farm indebtedness," §217. A provision of the Internal Revenue Code makes it criminal for a federal employee to accept a gift for the "compromise, adjustment, or settlement of any charge or complaint" for violation of the revenue laws. 26 U. S. C. §7214(a)(9). And the criminal statutes are merely the tip of the regulatory iceberg. In 5 U. S. C. §7353, which announces broadly that no "employee of the executive, legislative, or judicial branch shall solicit or accept anything of value from a person ... whose interests may be substantially affected by the performance or nonperformance of the individual's official duties," §7353(a)(2), Congress has authorized the promulgation of ethical rules for each branch of the Federal Government, §7353(b)(1). Pursuant to that provision, each branch of Government regulates its employees' acceptance of gratuities in some fashion. See, e.g., 5 CFR §2635.202 et seq. (1999) (Executive employees); Rule XXXV of the Standing Rules of the Senate, Senate Manual, S. Doc. No. 104-1 (rev. July 18, 1995) (Senators and Senate Employees); Rule XXVI of the Rules of the House of Representatives, 106th Cong. (rev. Jan. 7, 1999) (Representatives and House employees); 1 Research Papers of the National Commission on Judicial Discipline & Removal, Code of Conduct for U. S. Judges, Canon 5(C)(4), pp. 925-927 (1993) (federal judges). All of the regulations, and some of the statutes, described above contain exceptions for various kinds of gratuities given by various donors for various purposes. Many of those exceptions would be snares for the unwary, given that there are no exceptions to the broad prohibition that the Government claims is imposed by §201(c)(1). In this regard it is interesting to consider the provisions of 5 CFR §2635.202 (1999), issued by the Office of Government Ethics (OGE) and binding on all employees of the Executive Branch and independent agencies. The first subsection of that provision, entitled "General prohibitions," makes unlawful approximately (if not precisely) what the Government asserts §201(c)(1)(B) makes unlawful: acceptance of a gift "[f]rom a prohibited source" (defined to include any person who "[h]as interests that may be substantially affected by performance or nonperformanceof the employee's official duties," 5 CFR §2635.203(d)(4) (1999)) or "[g]iven because of the employee's official position," §2635.202(a)(2). The second subsection, entitled "Relationship to illegal gratuities statute," then provides:"Unless accepted in violation of paragraph (c)(1) of this section [banning acceptance of a gift `in return for being influenced in the performance of an official act'], a gift accepted under the standards set forth in this subpart shall not constitute an illegal gratuity otherwise prohibited by 18 U. S. C. §201(c)(1)(B)." §2635.202(b) (emphasis added).We are unaware of any law empowering OGE to decriminalize acts prohibited by Title 18 of the United States Code. Yet it is clear that many gifts "accepted under the standards set forth in [the relevant] subpart" will violate 18 U. S. C. §201(c)(1)(B) if the interpretation thatthe Government urges upon us is accepted. The subpart includes, for example — as §201(c)(1)(B) does not — exceptions for gifts of $20 or less, aggregating no more than$50 from a single source in a calendar year, see 5CFR §2635.204(a) (1999), and for certain public-serviceor achievement awards and honorary degrees, see §2635.204(d). We are frankly not sure that even our more narrow interpretation of 18 U. S. C. §201(c)(1)(B) will cause OGE's assurance of nonviolation if the regulation is complied with to be entirely accurate; but the misdirection, if any, will be infinitely less. More important for present purposes, however, this regulation, and the numerous other regulations and statutes littering this field, demonstrate that this is an area where precisely targeted prohibitions are commonplace, and where more general prohibitions have been qualified by numerous exceptions. Given that reality, a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter. Absent a text that clearly requires it, we ought not expand this one piece of the regulatory puzzle so dramatically as to make many other pieces misfits. As discussed earlier, not only does the text here not require that result; its more natural reading forbids it.III As an alternative means of preserving the jury's verdict on Count One, the Government contends that the District Court's mistaken instruction concerning the scope of §201(c)(1)(A) constituted harmless error. As described earlier, the District Court twice read the text of §§201(c)(1)(A) and 201(a)(3), but it then incorrectly explained the meaning of that statutory language by essentially substituting the term "official position" for "official act." More specifically, the court instructed the jury as follows:"The essence of the crime is the official's position [as] the receiver of the payment not whether the official agrees to do anything in particular, that is, not whether the official agrees to do any particular official act in return. Therefore ... to prove that a gratuity offense has been committed, it is not necessary to show that the payment is intended for a particular matter then pending before the official. It is sufficient if the motivating factor for the payment is just to keep the official happy or to create a better relationship in general with the official.... . . "It is sufficient if Sun-Diamond provided Espy with unauthorized compensation simply because he held public office.... . . "In order for you to convict Sun-Diamond of violating the gratuity statute, you must find beyond a reasonable doubt that Sun-Diamond gave the gifts to Mr. Espy for or because of Mr. Espy's official government position and not solely for reasons of friendship or social purpose.... . . "With respect to official acts, the government has to prove that Sun-Diamond Growers of California gave knowingly and willingly Secretary Espy things of value while it had issues before the United States Department of Agriculture.... . . "Now the government must prove that the gratuity was knowingly and willingly given for or because of an official act performed or to be performed by the Secretary of Agriculture, Michael Espy. That means that the government must prove that Sun-Diamond Growers of California ... knowingly and willingly gave the gratuities, at least in part, because of the Secretary's position in appreciation of Sun-Diamond Growers of California's relationship with him as a public official or in anticipation of the continuation of its relationship with him as a public official. The government need not prove that the alleged gratuity was linked to a specific or identifiable official act or any act at all." App to Pet. for Cert. 84a-86a, 87a-88a. The Government contends that the jury's verdict rendered pursuant to these instructions necessarily included a finding that respondent's gratuities were given and received "for or because of " an official act or acts. Upon closer examination, however, this argument is revealed to be nothing more than a restatement of the same flawed premise that permeated the instructions themselves and that we have just rejected: "By returning a guilty verdict, the jury necessarily rejected respondent's theory of defense and found beyond a reasonable doubt that the gifts were motivated by the fact that the Secretary of Agriculture exercised regulatory authority over respondent's business." Brief for United States 44. The Court of Appeals tersely rejected this claim of harmless error, 138 F. 3d, at 968, and we do the same.* * * We hold that, in order to establish a violation of 18 U. S. C. §201(c)(1)(A), the Government must prove a link between a thing of value conferred upon a public official and a specific "official act" for or because of which it was given. We affirm the judgment of the Court of Appeals, which remanded the case to the District Court for a new trial on Count One. Our decision today casts doubt upon the lower courts' resolution of respondent's challenge to the sufficiency of the indictment on Count One — an issue on which certiorari was neither sought nor granted. We leave it to the District Court to determine whether that issue should be reopened on remand.It is so ordered.FOOTNOTESFootnote * * Respondent was also sentenced to serve five years' probation on this and the other counts of which it stood convicted. Insofar as that element of the sentence was concerned, the Court of Appeals remanded for resentencing because the probation included impermissible reporting requirements. 138 F. 3d 961, 977 (CADC 1998). That issue is not before us.

During a tender-offer campaign, respondent bought more than 10% of the outstanding stock of petitioner's predecessor (Old Kern). Respondent was blocked in its takeover efforts by a defensive merger between Old Kern and Tenneco, in which Old Kern stockholders were to receive new Tenneco stock on a share-for-share basis. Less than a month after its initial tender offer, respondent thereupon negotiated a binding option to sell to Tenneco at a date over six months after the tender offer expired all the new Tenneco stock to which respondent would be entitled when the merger took place. Sale of the post-merger stock yielded respondent a profit of some $19 million, which petitioner sought to recover by a suit under 16 (b) of the Securities Exchange Act of 1934, prohibiting profitable short-swing speculation by statutory insiders. The District Court's summary judgment for petitioner was reversed by the Court of Appeals. Held: The transactions, which were not based on a statutory insider's information and were not susceptible of the speculative abuse that 16 (b) was designed to prevent, did not constitute "sales" within the meaning of that provision. Pp. 591-604. (a) There was nothing in connection with respondent's tender-offer acquisition of Old Kern stock or the exchange thereof for the Tenneco stock that gave respondent "inside information," and once the merger, which respondent did not engineer, was approved the Old Kern-Tenneco stock exchange was involuntary. Pp. 596-600. (b) The option agreement was not of itself a "sale"; the option was grounded on the mutual advantages to respondent as a minority stockholder that wanted to terminate an investment it had not chosen to make and Tenneco whose management did not want a potentially troublesome minority stockholder; and the option was not a source of potential speculative abuse, since respondent had no inside information about Tenneco or its new stock. Pp. 601-604. 450 F.2d 157, affirmed. WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 605.David R. Hyde argued the cause for petitioner. With him on the briefs were F. Arnold Daum, William E. Hegarty, and Immanuel Kohn.Whitney North Seymour argued the cause for respondent. With him on the brief were Louis Nizer, Paul Martinson, and Bernhardt K. Wruble.MR. JUSTICE WHITE delivered the opinion of the Court.Section 16 (b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U.S.C. 78p (b),1 provides that officers, directors, and holders of more than 10% of the listed stock of any company shall be liable to the company for any profits realized from any purchase and sale or sale and purchase of such stock occurring within a period of six months. Unquestionably, one or more statutory purchases occur when one company, seeking to gain control of another, acquires more than 10% of the stock of the latter through a tender offer made to its shareholders. But is it a 16 (b) "sale" when the target of the tender offer defends itself by merging into a third company and the tender offeror then exchanges his stock for the stock of the surviving company and also grants an option to purchase the latter stock that is not exercisable within the statutory six-month period? This is the question before us in this case.IOn May 8, 1967, after unsuccessfully seeking to merge with Kern County Land Co. (Old Kern),2 Occidental Petroleum Corp. (Occidental)3 announced an offer, to expire on June 8, 1967, to purchase on a first-come, first-served basis 500,000 shares of Old Kern common stock4 at a price of $83.50 per share plus a brokerage commission of $1.50 per share.5 By May 10, 1967, 500,000 shares, more than 10% of the outstanding shares of Old Kern,6 had been tendered. On May 11, Occidental extended its offer to encompass an additional 500,000 shares. At the close of the tender offer, on June 8, 1967, Occidental owned 887,549 shares of Old Kern.7 Immediately upon the announcement of Occidental's tender offer, the Old Kern management undertook to frustrate Occidental's takeover attempt. A management letter to all stockholders cautioned against tender and indicated that Occidental's offer might not be the best available, since the management was engaged in merger discussions with several companies. When Occidental extended its tender offer, the president of Old Kern sent a telegram to all stockholders again advising against tender. In addition, Old Kern undertook merger discussions with Tenneco, Inc. (Tenneco),8 and, on May 19, 1967, the Board of Directors of Old Kern announced that it had approved a merger proposal advanced by Tenneco.9 Under the terms of the merger, Tenneco would acquire the assets, property, and goodwill of Old Kern, subject to its liabilities, through "Kern County Land Co." (New Kern),10 a new corporation to be formed by Tenneco to receive the assets and carry on the business of Old Kern. The shareholders of Old Kern would receive a share of Tenneco cumulative convertible preference stock in exchange for each share of Old Kern common stock which they owned. On the same day, May 19, Occidental, in a quarterly report to stockholders, appraised the value of the new Tenneco stock at $105 per share.11 Occidental, seeing its tender offer and takeover attempt being blocked by the Old Kern-Tenneco "defensive" merger, countered on May 25 and 31 with two mandamus actions in the California courts seeking to obtain extensive inspection of Old Kern books and records.12 Realizing that, if the Old Kern-Tenneco merger were approved and successfully closed, Occidental would have to exchange its Old Kern shares for Tenneco stock and would be locked into a minority position in Tenneco, Occidental took other steps to protect itself. Between May 30 and June 2, it negotiated an arrangement with Tenneco whereby Occidental granted Tenneco Corp., a subsidiary of Tenneco, an option to purchase at $105 per share all of the Tenneco preference stock to which Occidental would be entitled in exchange for its Old Kern stock when and if the Old Kern-Tenneco merger was closed.13 The premium to secure the option, at $10 per share, totaled $8,866,230 and was to be paid immediately upon the signing of the option agreement.14 If the option were exercised, the premium was to be applied to the purchase price. By the terms of the option agreement, the option could not be exercised prior to December 9, 1967, a date six months and one day after expiration of Occidental's tender offer. On June 2, 1967, within six months of the acquisition by Occidental of more than 10% ownership of Old Kern, Occidental and Tenneco Corp. executed the option.15 Soon thereafter, Occidental announced that it would not oppose the Old Kern-Tenneco merger and dismissed its state court suits against Old Kern.16 The Old Kern-Tenneco merger plan was presented to and approved by Old Kern shareholders at their meeting on July 17, 1967. Occidental refrained from voting its Old Kern shares, but in a letter read at the meeting Occidental stated that it had determined prior to June 2 not to oppose the merger and that it did not consider the plan unfair or inequitable.17 Indeed, Occidental indicated that, had it been voting, it would have voted in favor of the merger.Meanwhile, the Securities and Exchange Commission had refused Occidental's request to exempt from possible 16 (b) liability Occidental's exchange of its Old Kern stock for the Tenneco preference shares that would take place when and if the merger transaction were closed. Various Old Kern stockholders, with Occidental's interests in mind, thereupon sought to delay consummation of the merger by instituting various lawsuits in the state and federal courts.18 These attempts were unsuccessful, however, and preparations for the merger neared completion with an Internal Revenue Service ruling that consummation of the plan would result in a tax-free exchange with no taxable gain or loss to Old Kern shareholders, and with the issuance of the necessary approval of the merger closing by the California Commissioner of Corporations.The Old Kern-Tenneco merger transaction was closed on August 30. Old Kern shareholders thereupon became irrevocably entitled to receive Tenneco preference stock, share for share in exchange for their Old Kern stock. Old Kern was dissolved and all of its assets, including "all claims, demands, rights and chooses in action accrued or to accrue under and by virtue of the Securities Exchange Act of 1934 ...," were transferred to New Kern.The option granted by Occidental on June 2, 1967, was exercised on December 11, 1967. Occidental, not having previously availed itself of its right, exchanged certificates representing 887,549 shares of Old Kern stock for a certificate representing a like number of shares of Tenneco preference stock. The certificate was then endorsed over to the optionee-purchaser, and in return $84,229,185 was credited to Occidental's accounts at various banks. Adding to this amount the $8,886,230 premium paid in June, Occidental received $93,905,415 for its Old Kern stock (including the 1,900 shares acquired prior to issuance of its tender offer). In addition, Occidental received dividends totaling $1,793,439.22. Occidental's total profit was $19,506,419.22 on the shares obtained through its tender offer.On October 17, 1967, New Kern instituted a suit under 16 (b) against Occidental to recover the profits which Occidental had realized as a result of its dealings in Old Kern stock. The complaint alleged that the execution of the Occidental-Tenneco option on June 2, 1967, and the exchange of Old Kern shares for shares of Tenneco to which Occidental became entitled pursuant to the merger closed on August 30, 1967, were both "sales" within the coverage of 16 (b). Since both acts took place within six months of the date on which Occidental became the owner of more than 10% of the stock of Old Kern, New Kern asserted that 16 (b) required surrender of the profits realized by Occidental.19 New Kern eventually moved for summary judgment, and, on December 27, 1970, the District Court granted summary judgment in favor of New Kern. Abrams v. Occidental Petroleum Corp., 323 F. Supp. 570 (SDNY 1970). The District Court held that the execution of the option on June 2, 1967, and the exchange of Old Kern shares for shares of Tenneco on August 30, 1967, were "sales" under 16 (b). The Court ordered Occidental to disgorge its profits plus interest. In a supplemental opinion, Occidental was also ordered to refund the dividends which it had received plus interest.On appeal, the Court of Appeals reversed and ordered summary judgment entered in favor of Occidental. Abrams v. Occidental Petroleum Corp., 450 F.2d 157 (CA2 1971). The Court held that neither the option nor the exchange constituted a "sale" within the purview of 16 (b).20 We granted certiorari. . We affirm.IISection 16 (b) provides, inter alia, that a statutory insider21 must surrender to the issuing corporation "any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security22 of such issuer ... within any period of less than six months." As specified in its introductory clause, 16 (b) was enacted "[f]or the purpose of preventing the unfair use of information which may have been obtained by [a statutory insider] ... by reason of his relationship to the issuer." Congress recognized that short-swing speculation by stockholders with advance, inside information would threaten the goal of the Securities Exchange Act to "insure the maintenance of fair and honest markets." 15 U.S.C. 78b. Insiders could exploit information not generally available to others to secure quick profits. As we have noted, "the only method Congress deemed effective to curb the evils of insider trading was a flat rule taking the profits out of a class of transactions in which the possibility of abuse was believed to be intolerably great." Reliance Electric Co. v. Emerson Electric Co., . As stated in the report of the Senate Committee, the bill aimed at protecting the public "by preventing directors, officers, and principal stockholders of a corporation ... from speculating in the stock on the basis of information not available to others." S. Rep. No. 792, 73d Cong., 2d Sess., 9 (1934).23 Although traditional cash-for-stock transactions that result in a purchase and sale or a sale and purchase within the six-month, statutory period are clearly within the purview of 16 (b), the courts have wrestled with the question of inclusion or exclusion of certain "unorthodox" transactions.24 The statutory definitions of "purchase" and "sale" are broad and, at least arguably, reach many transactions not ordinarily deemed a sale or purchase.25 In deciding whether borderline transactions are within the reach of the statute, the courts have come to inquire whether the transaction may serve as a vehicle for the evil which Congress sought to prevent - the realization of short-swing profits based upon access to inside information26 - thereby endeavoring to implement congressional objectives without extending the reach of the statute beyond its intended limits. The statute requires the inside, short-swing trader to disgorge all profits realized on all "purchases" and "sales" within the specified time period, without proof of actual abuse of insider information, and without proof of intent to profit on the basis of such information. Under these strict terms, the prevailing view is to apply the statute only when its application would serve its goals. "[W]here alternative constructions of the terms of 16 (b) are possible, those terms are to be given the construction that best serves the congressional purpose of curbing short-swing speculation by corporate insiders." Reliance Electric Co. v. Emerson Electric Co., 404 U.S., at 424. See Blau v. Lamb, 363 F.2d 507 (CA2 1966), cert. denied, . Thus, "[i]n interpreting the terms `purchase' and `sale,' courts have properly asked whether the particular type of transaction involved is one that gives rise to speculative abuse." Reliance Electric Co. v. Emerson Electric Co., supra, at 424 n. 4.27 In the present case, it is undisputed that Occidental became a "beneficial owner" within the terms of 16 (b) when, pursuant to its tender offer, it "purchased" more than 10% of the outstanding shares of Old Kern. We must decide, however, whether a "sale" within the ambit of the statute took place either when Occidental became irrevocably bound to exchange its shares of Old Kern for shares of Tenneco pursuant to the terms of the merger agreement between Old Kern and Tenneco or when Occidental gave an option to Tenneco to purchase from Occidental the Tenneco shares so acquired.28 IIIOn August 30, 1967, the Old Kern-Tenneco merger agreement was signed, and Occidental became irrevocably entitled to exchange its shares of Old Kern stock for shares of Tenneco preference stock. Concededly, the transaction must be viewed as though Occidental had made the exchange on that day. But, even so, did the exchange involve a "sale" of Old Kern shares within the meaning of 16 (b)? We agree with the Court of Appeals that it did not, for we think it totally unrealistic to assume or infer from the facts before us that Occidental either had or was likely to have access to inside information, by reason of its ownership of more than 10% of the outstanding shares of Old Kern, so as to afford it an opportunity to reap speculative, short-swing profits from its disposition within six months of its tender-offer purchases.It cannot be contended that Occidental was an insider when, on May 8, 1967, it made an irrevocable offer to purchase 500,000 shares of Old Kern stock at a price substantially above market. At that time, it owned only 1,900 shares of Old Kern stock, far fewer than the 432,000 shares needed to constitute the 10% ownership required by the statute. There is no basis for finding that, at the time the tender offer was commenced, Occidental enjoyed an insider's opportunity to acquire information about Old Kern's affairs.It is also wide of the mark to assert that Occidental, as a sophisticated corporation knowledgeable in matters of corporate affairs and finance, knew that its tender offer would either succeed or would be met with a "defensive merger." If its takeover efforts failed, it is argued, Occidental knew it could sell its stock to the target company's merger partner at a substantial profit. Calculations of this sort, however, whether speculative or not and whether fair or unfair to other stockholders or to Old Kern, do not represent the kind of speculative abuse at which the statute is aimed, for they could not have been based on inside information obtained from substantial stockholdings that did not yet exist. Accepting both that Occidental made this very prediction and that it would recurringly be an accurate forecast in tender-offer situations,29 we nevertheless fail to perceive how the fruition of such anticipated events would require, or in any way depend upon, the receipt and use of inside information. If there are evils to be redressed by way of deterring those who would make tender offers, 16 (b) does not appear to us to have been designed for this task.By May 10, 1967, Occidental had acquired more than 10% of the outstanding shares of Old Kern. It was thus a statutory insider when, on May 11, it extended its tender offer to include another 500,000 shares. We are quite unconvinced, however, that the situation had changed materially with respect to the possibilities of speculative abuse of inside information by Occidental. Perhaps Occidental anticipated that extending its offer would increase the likelihood of the ultimate success of its takeover attempt or the occurrence of a defensive merger. But, again, the expectation of such benefits was unrelated to the use of information unavailable to other stockholders or members of the public with sufficient funds and the intention to make the purchases Occidental had offered to make before June 8, 1967.The possibility that Occidental had, or had the opportunity to have, any confidential information about Old Kern before or after May 11, 1967, seems extremely remote. Occidental was, after all, a tender offeror, threatening to seize control of Old Kern, displace its management, and use the company for its own ends. The Old Kern management vigorously and immediately opposed Occidental's efforts. Twice it communicated with its stockholders, advising against acceptance of Occidental's offer and indicating prior to May 11 and prior to Occidental's extension of its offer, that there was a possibility of an imminent merger and a more profitable exchange. Old Kern's management refused to discuss with Occidental officials the subject of an Old Kern-Occidental merger. Instead, it undertook negotiations with Tenneco and forthwith concluded an agreement, announcing the merger terms on May 19. Requests by Occidental for inspection of Old Kern records were sufficiently frustrated by Old Kern's management to force Occidental to litigate to secure the information it desired.There is, therefore, nothing in connection with Occidental's acquisition of Old Kern stock pursuant to its tender offer to indicate either the possibility of inside information being available to Occidental by virtue of its stock ownership or the potential for speculative abuse of such inside information by Occidental. Much the same can be said of the events leading to the exchange of Occidental's Old Kern stock for Tenneco preferred, which is one of the transactions that is sought to be classified a "sale" under 16 (b). The critical fact is that the exchange took place and was required pursuant to a merger between Old Kern and Tenneco. That merger was not engineered by Occidental but was sought by Old Kern to frustrate the attempts of Occidental to gain control of Old Kern. Occidental obviously did not participate in or control the negotiations or the agreement between Old Kern and Tenneco. Cf. Newmark v. RKO General, 425 F.2d 348 (CA2), cert. denied, ; Park & Tilford v. Schulte, 160 F.2d 984 (CA2), cert. denied, . Once agreement between those two companies crystallized, the course of subsequent events was out of Occidental's hands. Old Kern needed the consent of its stockholders, but as it turned out, Old Kern's management had the necessary votes without the affirmative vote of Occidental. The merger agreement was approved by a majority of the stockholders of Old Kern, excluding the votes to which Occidental was entitled by virtue of its ownership of Old Kern shares. See generally Ferraiolo v. Newman, 259 F.2d 342 (CA6 1958), cert. denied, ; Roberts v. Eaton, 212 F.2d 82 (CA2 1954). Occidental, although registering its opinion that the merger would be beneficial to Old Kern shareholders, did not in fact vote at the stockholders' meeting at which merger approval was obtained. Under California law, its abstention was tantamount to a vote against approval of the merger. Moreover, at the time of stockholder ratification of the merger, Occidental's previous dealing in Old Kern stock was, as it had always been, fully disclosed.Once the merger and exchange were approved, Occidental was left with no real choice with respect to the future of its shares of Old Kern. Occidental was in no position to prevent the issuance of a ruling by the Internal Revenue Service that the exchange of Old Kern stock for Tenneco preferred would be tax free; and, although various lawsuits were begun in state and federal courts seeking to postpone the merger closing beyond the statutory six-month period, those efforts were futile. The California Corporation Commissioner issued the necessary permits for the closing that took place on August 30, 1967. The merger left no right in dissenters to secure appraisal of their stock. Occidental could, of course, have disposed of its shares of Old Kern for cash before the merger was closed. Such an act would have been a 16 (b) sale and would have left Occidental with a prima facie 16 (b) liability. It was not, therefore, a realistic alternative for Occidental as long as it felt that it could successfully defend a suit like the present one. See generally Petteys v. Butler, 367 F.2d 528 (CA8 1966), cert. denied, ; Ferraiolo v. Newman, supra; Lynam v. Livingston, 276 F. Supp. 104 (Del. 1967); Blau v. Hodgkinson, 100 F. Supp. 361 (SDNY 1951). We do not suggest that an exchange of stock pursuant to a merger may never result in 16 (b) liability. But the involuntary nature of Occidental's exchange, when coupled with the absence of the possibility of speculative abuse of inside information, convinces us that 16 (b) should not apply to transactions such as this one. IVPetitioner also claims that the Occidental-Tenneco option agreement should itself be considered a sale, either because it was the kind of transaction the statute was designed to prevent or because the agreement was an option in form but a sale in fact. But the mere execution of an option to sell is not generally regarded as a "sale." See Booth v. Varian Associates, 334 F.2d 1 (CA1 1964), cert. denied, ; Allis-Chalmers Mfg. Co. v. Gulf & Western Industries, 309 F. Supp. 75 (ED Wis. 1970); Marquette Cement Mfg. Co. v. Andreas, 239 F. Supp. 962 (SDNY 1965). And we do not find in the execution of the Occidental-Tenneco option agreement a sufficient possibility for the speculative abuse of inside information with respect to Old Kern's affairs to warrant holding that the option agreement was itself a "sale" within the meaning of 16 (b). The mutual advantages of the arrangement appear quite clear. As the District Court found, Occidental wanted to avoid the position of a minority stockholder with a huge investment in a company over which it had no control and in which it had not chosen to invest. On the other hand, Tenneco did not want a potentially troublesome minority stockholder that had just been vanquished in a fight for the control of Old Kern. Motivations like these do not smack of insider trading; and it is not clear to us, as it was not to the Court of Appeals, how the negotiation and execution of the option agreement gave Occidental any possible opportunity to trade on inside information it might have obtained from its position as a major stockholder of Old Kern. Occidental wanted to get out, but only at a date more than six months thence. It was willing to get out at a price of $105 per share, a price at which it had publicly valued Tenneco preferred on May 19 when the Tenneco-Old Kern agreement was announced. In any event, Occidental was dealing with the putative new owners of Old Kern, who undoubtedly knew more about Old Kern and Tenneco's affairs than did Occidental. If Occidental had leverage in dealing with Tenneco, it is incredible that its source was inside information rather than the fact of its large stock ownership itself.Neither does it appear that the option agreement, as drafted and executed by the parties, offered measurable possibilities for speculative abuse. What Occidental granted was a "call" option. Tenneco had the right to buy after six months, but Occidental could not force Tenneco to buy. The price was fixed at $105 for each share of Tenneco preferred. Occidental could not share in a rising market for the Tenneco stock See Silverman v. Landa, 306 F.2d 422 (CA2 1962). If the stock fell more than $10 per share, the option might not be exercised, and Occidental might suffer a loss if the market further deteriorated to a point where Occidental was forced to sell. Thus, the option, by its very form, left Occidental with no choice but to sell if Tenneco exercised the option, which it was almost sure to do if the value of Tenneco stock remained relatively steady. On the other hand, it is difficult to perceive any speculative value to Occidental if the stock declined and Tenneco chose not to exercise its option. See generally Note, Put and Call Options Under Section 16 of the Securities Exchange Act, 69 Yale L. J. 868 (1960); H. Filer, Understanding Put and Call Options 96-111 (1959); G. Leffler, The Stock Market 363-378 (2d ed. 1957).The option, therefore, does not appear to have been an instrument with potential for speculative abuse, whether or not Occidental possessed inside information about the affairs of Old Kern. In addition, the option covered Tenneco preference stock, a stock as yet unissued, unregistered, and untraded. It was the value of this stock that underlay the option and that determined whether the option would be exercised, whether Occidental would be able to profit from the exercise, and whether there was any real likelihood of the exploitation of inside information. If Occidental had inside information when it negotiated and signed the option agreement, it was inside information with respect to Old Kern. Whatever it may have known or expected as to the future value of Old Kern stock, Occidental had no ownership position in Tenneco giving it any actual or presumed insights into the future value of Tenneco stock. That was the critical item of intelligence if Occidental was to use the option for purposes of speculation. Also, the date for exercise of the option was over six months in the future, a period that, under the statute itself, is assumed to dissipate whatever trading advantage might be imputed to a major stockholder with inside information. See Comment, Stock Exchanges Pursuant to Corporate Consolidation: A Section 16 (b) "Purchase or Sale?," 117 U. Pa. L. Rev. 1034, 1054 (1969); Silverman v. Landa, supra. By enshrining the statutory period into the option. Occidental also, at least if the statutory period is taken to accomplish its intended purpose, limited its speculative possibilities. Nor should it be forgotten that there was no absolute assurance that the merger, which was not controlled by Occidental, would be consummated. In the event the merger did not close, the option itself would become null and void.Nor can we agree that we must reverse the Court of Appeals on the ground that the option agreement was in fact a sale because the premium paid was so large as to make the exercise of the option almost inevitable, particularly when coupled with Tenneco's desire to rid itself of a potentially troublesome stockholder. The argument has force, but resolution of the question is very much a matter of judgment, economic and otherwise, and the Court of Appeals rejected the argument. That court emphasized that the premium paid was what experts had said the option was worth, the possibility that the market might drop sufficiently in the six months following execution of the option to make exercise unlikely, and the fact that here, unlike the situation in Bershad v. McDonough, 428 F.2d 693 (CA7 1970), the optionor did not surrender practically all emoluments of ownership by executing the option. Nor did any other special circumstances indicate that the parties understood and intended that the option was in fact a sale.30 We see no satisfactory basis or reason for disagreeing with the judgment of the Court of Appeals in this respect.31 The judgment of the Court of Appeals is affirmed. So ordered.

After petitioners, Los Angeles police officers, were acquitted on state charges of assault and excessive use of force in the beating of a suspect during an arrest, they were convicted under C. Section(s) 242 of violating the victim's constitutional rights under color of law. Although the applicable United States Sentencing Guideline, 1992 USSG Section(s) 2H1.4, indicated that they should be imprisoned for 70 to 87 months, the District Court granted them two downward departures from that range. The first was based on the victim's misconduct, which contributed significantly to provoking the offense. The second was based on a combination of four factors: (1) that petitioners were unusually susceptible to abuse in prison; (2) that petitioners would lose their jobs and be precluded from employment in law enforcement; (3) that petitioners had been subject to successive state and federal prosecutions; and (4) that petitioners posed a low risk of recidivism. The sentencing range after the departures was 30 to 37 months, and the court sentenced each petitioner to 30 months. The Ninth Circuit reviewed the departure decisions de novo and rejected all of them.Held: 1. An appellate court should not review de novo a decision to depart from the Guideline sentencing range, but instead should ask whether the sentencing court abused its discretion. Pp. 8-17. (a) Although the Sentencing Reform Act of 1984 requires that a district court impose a sentence within the applicable Guideline range in an ordinary caseC. Section(s) 3553(a), it does not eliminate all of the district court's traditional sentencing discretion. Rather, it allows a departure from the range if the court finds ``there exists an aggravating or mitigating circumstance of a kind, to a degree, not adequately taken into consideration'' by the Sentencing Commission in formulating the Guidelines, Section(s) 3553(b). The Commission states that it has formulated each Guideline to apply to a ``heartland'' of typical cases and that it did not "adequately ... conside[r]" atypical cases, 1995 USSG ch. 1, pt. A., intro. comment. 4(b). The Commission prohibits consideration of a few factors, and it provides guidance as to the factors that are likely to make a case atypical by delineating certain of them as ``encouraged'' bases for departure and others as ``discouraged'' bases for departure. Courts may depart on the basis of an encouraged factor if the applicable Guideline does not already take the factor into account. A court may depart on the basis of a discouraged factor, or an encouraged factor already taken into account, however, only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case. If the Guidelines do not mention a factor, the court must, after considering the structure and theory of relevant individual Guidelines and the Guidelines as a whole, decide whether the factor is sufficiently unusual to take the case out of the Guideline's heartland, bearing in mind the Commission's expectation that departures based on factors not mentioned in the Guidelines will be "highly infrequent." Pp. 8-13. (b) Although Section(s) 3742 established a limited appellate review of sentencing decisions, Section(s) 3742(e)(4)'s direction to "give due deference to the district court's application of the guidelines to the facts" demonstrates that the Act was not intended to vest in appellate courts wide-ranging authority over district court sentencing decisions. See, e.g., Williams v. United States, . The deference that is due depends on the nature of the question presented. A departure decision will in most cases be due substantial deference, for it embodies the sentencing court's traditional exercise of discretion. See Mistretta v. United States, . To determine if a departure is appropriate, the district court must make a refined assessment of the many facts that bear on the outcome, informed by its vantage point and day-to-day sentencing experience. Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially given that they see so many more Guidelines cases. Such considerations require adoption of the abuse-of-discretion standard of review, not de novo review. See, e.g., Cooter & Gell v. Hartmarx Corp., . Pp. 13-17. 2. Because the Court of Appeals erred in rejecting certain of the downward departure factors relied upon by the District Judge, the foregoing principles require reversal of the appellate court's rulings in significant part. Pp. 18-31. (a) Victim misconduct is an encouraged basis for departure under USSG Section(s) 5K2.10, and the District Court did not abuse its discretion in basing a departure on it. The court's analysis of this departure factor showed a correct understanding in applying Section(s) 2H1.4, the Guideline applicable to C. Section(s) 242, both as a mechanical matter and in interpreting its heartland. As the court recognized, Section(s) 2H1.4 incorporates the Guideline for the offense underlying the Section(s) 242 violation, here Section(s) 2A2.2 for aggravated assault, and thus creates a Guideline range and a heartland for aggravated assault committed under color of law. A downward departure under Section(s) 5K2.10 was justified because the punishment prescribed by Section(s) 2A2.2 contemplates unprovoked assaults, not cases like this where what begins as legitimate force in response to provocation becomes excessive. The Court of Appeals misinterpreted the District Court to have found that the victim had been the but-for cause of the crime, but not that he had provoked it; it also misinterpreted the heartland of the applicable Guideline range by concentrating on whether the victim's misconduct made this an unusual case of excessive force. Pp. 18-23. (b) This Court rejects the Government's contention that some of the four considerations underlying the District Court's second downward departure are impermissible departure factors under all circumstances. For a court to conclude that a factor must never be considered would be to usurp the policy-making authority that Congress vested in the Commission, and C. Section(s) 3553(a)(2) does not compel such a result. A court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, that factor's consideration. If the answer is no-as it will be most of the time-the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the applicable Guideline's heartland. Pp. 23-26. collateral employment consequences as support for its second departure. Because it is to be expected that a public official convicted of using his governmental authority to violate a person's rights will lose his or her job and be barred from similar employment in the future, it must be concluded that the Commission adequately considered these consequences in formulating 1992 USSG Section(s) 2H1.4. Thus, the career loss factor, as it exists in this case, cannot take the case out of Section(s) 2H1.4's heartland. Pp. 26-28. (d) The low likelihood of petitioners' recidivism was also an inappropriate ground for departure, since the Commission specifically addressed this factor in formulating the sentencing range for petitioners' criminal history category. See Section(s) 4A1.3. Pp. 28-29. (e) However, the District Court did not abuse its discretion in relying upon susceptibility to abuse in prison and the burdens of successive prosecutions. The District Court's finding that the case is unusual due to petitioners exceptional susceptibility to abuse in prison is just the sort of determination that must be accorded deference on appeal. Moreover, although consideration of petitioners' successive prosecutions could be incongruous with the dual responsibilities of citizenship in our federal system, this Court cannot conclude the District Court abused its discretion by considering that factor. Pp. 29-30. (f) Where a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless the reviewing court determines that the district court would have imposed the same sentence absent reliance on the invalid factors. Williams, supra, at 203. Because the District Court here stated that none of four factors standing alone would justify its second departure, it is not evident that the court would have imposed the same sentence had it relied only on susceptibility to abuse and the hardship of successive prosecutions. The Court of Appeals should therefore remand the case to the District Court. Pp. 30-31. 34 F. 3d 1416, affirmed in part, reversed in part, and remanded. Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined, in all but Part IV-B-1 of which Stevens, J., joined, and in all but Part IV-B-3 of which Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part. Souter, J. filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.[End of Syllabus]U.S. Supreme Court Nos. 94-1664 and 94-8842 94-1664 STACEY C. KOON, PETITIONER v. UNITED STATES 94-8842 LAURENCE M. POWELL, PETITIONER v.UNITED STATES On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit. [June 13,1996] Justice Kennedy delivered the opinion of the Court. The United States Sentencing Guidelines establish ranges of criminal sentences for federal offenses and offenders. A district court must impose a sentence within the applicable Guideline range, if it finds the case to be a typical one. See C. Section(s) 3553(a). District courts may depart from the Guideline range in certain circumstances, however, see ibid., and here the District Court departed downward eight levels. The Court of Appeals for the Ninth Circuit rejected the District Court's departure rulings, and, over the published objection of nine of its judges, declined to rehear the case en banc. In this case we explore the appropriate standards of appellate review of a district court's decision to depart from the Guidelines.I.A. The petitioners' guilt has been established, and we are concerned here only with the sentencing determinations made by the District Court and Court of Appeals. A sentencing court's departure decisions are based on the facts of the case, however, so we must set forth the details of the crime at some length. On the evening of March 2, 1991, Rodney King and two of his friends sat in King's wife's car in Altadena, California, a city in Los Angeles County, and drank malt liquor for a number of hours. Then, with King driving, they left Altadena via a major freeway. King was intoxicated. California Highway Patrol officers observed King's car traveling at a speed they estimated to be in excess of 100 m.p.h. The officers followed King with red lights and sirens activated and ordered him by loudspeaker to pull over, but he continued to drive. The Highway Patrol officers called on the radio for help. Units of the Los Angeles Police Department joined in the pursuit, one of them manned by petitioner Laurence Powell and his trainee, Timothy Wind. King left the freeway, and after a chase of about eight miles, stopped at an entrance to a recreation area. The officers ordered King and his two passengers to exit the car and to assume a felony prone position-that is, to lie on their stomachs with legs spread and arms behind their backs. King's two friends complied. King, too, got out of the car but did not lie down. Petitioner Stacey Koon arrived, at once followed by Ted Briseno and Roland Solano. All were officers of the Los Angeles Police Department, and as sergeant, Koon took charge. The officers again ordered King to assume the felony prone position. King got on his hands and knees but did not lie down. Officers Powell, Wind, Briseno and Solano tried to force King down, but King resisted and became combative, so the officers retreated. Koon then fired taser darts (designed to stun a combative suspect) into King. The events that occurred next were captured on videotape by a bystander. As the videotape begins, it shows that King rose from the ground and charged toward Officer Powell. Powell took a step and used his baton to strike King on the side of his head. King fell to the ground. From the 18th to the 30th second on the videotape, King attempted to rise, but Powell and Wind each struck him with their batons to prevent him from doing so. From the 35th to the 51st second, Powell administered repeated blows to King's lower extremities; one of the blows fractured King's leg. At the 55th second, Powell struck King on the chest, and King rolled over and lay prone. At that point, the officers stepped back and observed King for about 10 seconds. Powell began to reach for his handcuffs. (At the sentencing phase, the District Court found that Powell no longer perceived King to be a threat at this point). At one-minute-five-seconds (1:05) on the videotape, Briseno, in the District Court's words, "stomped" on King's upper back or neck. King's body writhed in response. At 1:07, Powell and Wind again began to strike King with a series of baton blows, and Wind kicked him in the upper thoracic or cervical area six times until 1:26. At about 1:29, King put his hands behind his back and was handcuffed. Where the baton blows fell and the intentions of King and the officers at various points were contested at trial, but, as noted, petitioners' guilt has been established. Powell radioed for an ambulance. He sent two messages over a communications network to the other officers that said "`ooops'" and "`I havent [sic] beaten anyone this bad in a long time.'" 34 F. 3d 1416, 1425 (CA9 1994). Koon sent a message to the police station that said "`U[nit] just had a big time use of force... . Tased and beat the suspect of CHP pursuit big time.'" Id., at 1425. King was taken to a hospital where he was treated for a fractured leg, multiple facial fractures, and numerous bruises and contusions. Learning that King worked at Dodger Stadium, Powell said to King: "`We played a little ball tonight, didn't we Rodney? ... You know, we played a little ball, we played a little hardball tonight, we hit quite a few home runs... . Yes, we played a little ball and you lost and we won.'" Ibid.B. Koon, Powell, Briseno, and Wind were tried in state court on charges of assault with a deadly weapon and excessive use of force by a police officer. The officers were acquitted of all charges, with the exception of one assault charge against Powell that resulted in a hung jury. The verdicts touched off widespread rioting in Los Angeles. More than 40 people were killed in the riots, more than 2,000 were injured, and nearly $1 billion in property was destroyed. New Initiatives for a New Los Angeles: Final Report and Recommendations, Senate Special Task Force on a New Los Angeles, Dec. 9, 1992, at 10-11. On August 4, 1992, a federal grand jury indicted the four officers under C. Section(s) 242, charging them with violating King's constitutional rights under color oflaw. Powell, Briseno, and Wind were charged with willful use of unreasonable force in arresting King. Koon was charged with willfully permitting the other officers to use unreasonable force during the arrest. After a trial in United States District Court for the Central District of California, the jury convicted Koon and Powell but acquitted Wind and Briseno. We now consider the District Court's sentencing determinations. Under the Sentencing Guidelines, a district court identifies the base offense level assigned to the crime in question, adjusts the level as the Guidelines instruct, and determines the defendant's criminal history category. 1992 USSG Section(s) 1B1.1. Coordinating the adjusted offense level and criminal history category yields the appropriate sentencing range. Ibid. The District Court sentenced petitioners pursuant to Section(s) 2H1.4 of the United States Sentencing Commission, Guidelines Manual (Nov. 1992) (1992 USSG), which applies to violations of C. Section(s) 242. Section 2H1.4 prescribes a base offense level which is the greater of the following: 10; or 6 plus the offense level applicable to any underlying offense. The District Court found the underlying offense was aggravated assault, which carries a base offense level of 15, 1992 USSG Section(s) 2A2.2(a), to which 6 was added for a total of 21. The court increased the offense level by four because petitioners had used dangerous weapons, Section(s) 2A2.2(b)(2)(B). The Government asked the court also to add four levels for King's serious bodily injury pursuant to Section(s) 2A2.2(b) (3)(B). The court found, however, that King's serious injuries were sustained when the officers were using lawful force. (At trial, the Government contended that all the blows administered after King fell to the ground 30 seconds into the videotape violated Section(s) 242. The District Court found that many of those blows "may have been tortious," but that the criminal violations did not commence until 1:07 on the videotape, after Briseno stomped King). The court did add two levels for bodily injury pursuant to Section(s) 2A2.2(b)(3)(A). The adjusted offense level totaled 27, and because neither petitioner had a criminal record, each fell within criminal history category I. The sentencing range for an offense level of 27 and a criminal history category I was, under the 1992 Guidelines, 70-to-87 months' imprisonment. Rather than sentencing petitioners to a term within the Guideline range, however, the District Court departed downward eight levels. The departure determinations are the subject of this controversy. The court granted a five-level departure because "the victim's wrongful conduct contributed significantly to provoking the offense behavior," Section(s) 5K2.10 (policy statement). 833 F. Supp. 769, 787 (CD Cal. 1993). The court also granted a three-level departure, based on a combination of four factors. First, as a result of the "widespread publicity and emotional outrage which have surrounded this case," petitioners were "particularly likely to be targets of abuse" in prison. Id., at 788. Second, petitioners would face job-termination proceedings, after which they would lose their positions as police officers, be disqualified from prospective employment in the field of law enforcement, and suffer the "anguish and disgrace these deprivations entail." Id., at 789. Third, petitioners had been "significantly burden[ed]" by having been subjected to successive state and federal prosecutions. Id., at 790. Fourth, petitioners were not "violent, dangerous, or likely to engage in future criminal conduct," so there was "no reason to impose a sentence that reflects a need to protect the public from [them]." Ibid. The court concluded these factors justified a departure when taken together, although none would have been sufficient standing alone. Id., at 786. The departures yielded an offense level of 19 and a sentencing range of 30-to-37 months' imprisonment. The court sentenced each petitioner to 30 months' imprisonment. The petitioners appealed their convictions, and the Government appealed the sentences, arguing that the District Court erred in granting the downward departures and in failing to adjust the offense level upward for serious bodily injury. The Court of Appeals affirmed petitioners' convictions, and affirmed the District Court's refusal to adjust the offense level, but it reversed the District Court's departure determinations. Only the last ruling is before us. The Court of Appeals reviewed "de novo whether the district court had authority to depart." 34 F. 3d 1416, 1451 (CA9 1994). The court reversed the five-level departure for victim misconduct, reasoning that misbehavior by suspects is typical in cases involving excessive use of force by police and is thus comprehended by the applicable Guideline. Id., at 1460. As for the three-level departure, the court rejected each factor cited. Acknowledging that a departure for susceptibility to abuse in prison may be appropriate in some instances and that police officers as a group are susceptible to prison abuse, the court nevertheless said the factor did not justify departure because "reliance solely on hostility toward a group of which the defendant is a member provides an unlimited open-ended rationale for departing." Id., at 1455. The court further noted that, unlike cases in which a defendant is vulnerable to prison abuse due to physical characteristics over which he has no control, here the petitioners' vulnerability stemmed from public condemnation of their crimes. Id., at 1456. As for petitioners' collateral employment consequences, the court first held consideration of the factor by the trial court inconsistent with the sentencing goals of C. Section(s) 3553(a) because the factor did not "speak to the offender's character, the nature or seriousness of the offense, or some other legitimate sentencing concern." 34 F. 3d, at 1453. The court noted further that because the societal consequences of a criminal conviction are almost unlimited, reliance on them "would create a system of sentencing that would be boundless in the moral, social, and psychological examinations it required courts to make." Id., at 1454. Third, the court noted the ease of using the factor to justify departures based on a defendant's socio-economic status, a consideration that, under 1992 USSG Section(s) 5H1.10, is never a permitted basis for departure. As a final point, the Court of Appeals said the factor was "troubling" because petitioners, as police officers, held positions of trust they had abused. Section 3B1.3 of the Guidelines increases, rather than decreases, punishment for those who abuse positions of trust. 34 F. 3d., at 1454. The Court of Appeals next found the successive state and federal prosecutions could not be a downward departure factor. It deemed the factor irrelevant to the sentencing goals of Section(s) 3553(a)(2) and contradictory to the Attorney General's determination that compelling federal interests warranted a second prosecution. Id., at 1457. The court rejected the last departure factor as well, ruling that low risk of recidivism was comprehended in the criminal history category and so should not be double counted. Id., at 1456-1457. We granted certiorari to determine the standard of review governing appeals from a district court's decision to depart from the sentencing ranges in the Guidelines. The appellate court should not review the departure decision de novo, but instead should ask whether the sentencing court abused its discretion. Having invoked the wrong standard, the Court of Appeals erred further in rejecting certain of the downward departure factors relied upon by the District Judge.II. The Sentencing Reform Act of 1984, as amendedC. Section(s) 3551 et seq.C. Section(s) 991-998, made far-reaching changes in federal sentencing. Before the Act, sentencing judges enjoyed broad discretion in determining whether and how long an offender should be incarcerated. Mistretta v. United States, . The discretion led to perceptions that "federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances." S. Rep. No. 98-225, p. 38 (1983). In response, Congress created the United States Sentencing Commission and charged it with developing a comprehensive set of sentencing guidelinesC. Section(s) 994. The Commission promulgated the United States Sentencing Guidelines, which "specify an appropriate [sentencing range] for each class of convicted persons" based on various factors related to the offense and the offender. United States Sentencing Commission, Guidelines Manual ch. 1, pt. A (Nov. 1995) (1995 USSG). A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one. The Act did not eliminate all of the district court's discretion, however. Acknowledging the wisdom, even the necessity, of sentencing procedures that take into account individual circumstances, see C. Section(s) 991(b)(1)(B), Congress allows district courts to depart from the applicable Guideline range if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." C. Section(s) 3553(b). To determine whether a circumstance was adequately taken into consideration by the Commission, Congress instructed courts to "consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." Ibid. Turning our attention, as instructed, to the Guidelines Manual, we learn that the Commission did not adequately take into account cases that are, for one reason or another, "unusual." 1995 USSG ch. 1, pt. A, intro. comment. 4(b). The Introduction to the Guidelines explains:"The Commission intends the sentencing courts to treat each guideline as carving out a `heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted." Ibid. The Commission lists certain factors which never can be bases for departure (race, sex, national origin, creed, religion, socio-economic status, 1995 USSG Section(s) 5H1.10; lack of guidance as a youth, Section(s) 5H1.12; drug or alcohol dependence, Section(s) 5H1.4; and economic hardship, Section(s) 5K2.12), but then states that with the exception of those listed factors, it "does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." 1995 USSG ch. 1, pt. A, intro. comment. 4(b). The Commission gives two reasons for its approach:"First, it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that the initial set of guidelines need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so and court decisions with references thereto, the Commission, over time, will be able to refine the guidelines to specify more precisely when departures should and should not be permitted."Second, the Commission believes that despite the courts' legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission's data indicate made a significant difference in pre-guidelines sentencing practice." Ibid. So the Act authorizes district courts to depart in cases that feature aggravating or mitigating circumstances of a kind or degree not adequately taken into consideration by the Commission. The Commission, in turn, says it has formulated each Guideline to apply to a heartland of typical cases. Atypical cases were not "adequately taken into consideration," and factors that may make a case atypical provide potential bases for departure. Potential departure factors "cannot, by their very nature, be comprehensively listed and analyzed in advance," 1995 USSG Section(s) 5K2.0, of course. Faced with this reality, the Commission chose to prohibit consideration of only a few factors, and not otherwise to limit, as a categorical matter, the considerations which might bear upon the decision to depart. Sentencing courts are not left adrift, however. The Commission provides considerable guidance as to the factors that are apt or not apt to make a case atypical, by listing certain factors as either encouraged or discouraged bases for departure. Encouraged factors are those "the Commission has not been able to take into account fully in formulating the guidelines." Section(s) 5K2.0. Victim provocation, a factor relied upon by the District Court in this case, is an example of an encouraged downward departure factor, Section(s) 5K2.10, whereas disruption of a governmental function is an example of an encouraged upward departure factor, Section(s) 5K2.7. Even an encouraged factor is not always an appropriate basis for departure, for on some occasions the applicable Guideline will have taken the encouraged factor into account. For instance, a departure for disruption of a governmental function "ordinarily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with a government function is inherent in the offense." Ibid. A court still may depart on the basis of such a factor but only if it "is present to a degree substantially in excess of that which ordinarily is involved in the offense." Section(s) 5K2.0. Discouraged factors, by contrast, are those "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range." 1995 USSG ch. 5, pt. H, intro. comment. Examples include the defendant's family ties and responsibilities, 1995 USSG Section(s) 5H1.6, his or her education and vocational skills, Section(s) 5H1.2, and his or her military, civic, charitable, or public service record, Section(s) 5H1.11. The Commission does not view discouraged factors "as necessarily inappropriate" bases for departure but says they should be relied upon only "in exceptional cases." 1995 USSG ch. 5, pt. H, intro. comment. The Commission's treatment of departure factors led then-Chief Judge Breyer to explain that a sentencing court considering a departure should ask the following questions:"1) What features of this case, potentially, take it outside the Guidelines' `heartland' and make of it a special, or unusual, case?"2) Has the Commission forbidden departures based on those features?"3) If not, has the Commission encouraged departures based on those features?"4) If not, has the Commission discouraged departures based on those features?" United States v. Rivera, 994 F. 2d 942, 949 (CA1 1993). We agree with this summary. If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. Cf. ibid. If a factor is unmentioned in the Guidelines, the court must, after considering the "structure and theory of both relevant individual guidelines and the Guidelines taken as a whole," id., at 949, decide whether it is sufficient to take the case out of the Guideline's heartland. The court must bear in mind the Commission's expectation that departures based on grounds not mentioned in the Guidelines will be "highly infrequent." 1995 USSG ch. 1, pt. A. Against this background, we consider the standard of review.III. Before the Guidelines system, a federal criminal sentence within statutory limits was, for all practical purposes, not reviewable on appeal. Dorszynski v. United States, (reiterating "the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end"); United States v. Tucker, (same). The Act altered this scheme in favor of a limited appellate jurisdiction to review federal sentences. C. Section(s) 3742. Among other things, it allows a defendant to appeal an upward departure and the Government to appeal a downward one. Section(s) 3742(a), (b). That much is clear. Less clear is the standard of review on appeal. The Government advocates de novo review, saying that, like the Guidelines themselves, appellate review of sentencing, and in particular of departure decisions, was intended to reduce unjustified disparities in sentencing. In its view, de novo review of departure decisions is necessary "to protect against unwarranted disparities arising from the differing sentencing approaches of individual district judges." Brief for United States 12. We agree that Congress was concerned about sentencing disparities, but we are just as convinced that Congress did not intend, by establishing limited appellate review, to vest in appellate courts wide-ranging authority over district court sentencing decisions. Indeed, the text of Section(s) 3742 manifests an intent that district courts retain much of their traditional sentencing discretion. Section 3742(e), as enacted in 1984, provided "[t]he court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous." In 1988, Congress amended the statute to impose the additional requirement that courts of appeals "give due deference to the district court's application of the guidelines to the facts." Examining Section(s) 3742 in Williams v. United States, , we stated as follows:"Although the Act established a limited appellate review of sentencing decisions, it did not alter a court of appeals' traditional deference to a district court's exercise of its sentencing discretion... . The development of the guideline sentencing regime has not changed our view that, except to the extent specifically directed by statute, `it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.'" (quoting Solem v. Helm, , n. 16 (1983)). 503 U.S., at 205. See also S. Rep. No. 225, at 150 ("The sentencing provisions of the reported bill are designed to preserve the concept that the discretion of a sentencing judge has a proper place in sentencing and should not be displaced by the discretion of an appellate court"). That the district court retains much of its traditional discretion does not mean appellate review is an empty exercise. Congress directed courts of appeals to "give due deference to the district court's application of the guidelines to the facts." C. Section(s) 3742(e)(4). The deference that is due depends on the nature of the question presented. The district court may be owed no deference, for instance, when the claim on appeal is that it made some sort of mathematical error in applying the Guidelines; under these circumstances, the appellate court will be in as good a position to consider the question as the district court was in the first instance. A district court's decision to depart from the Guidelines, by contrast, will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court. See Mistretta, 488 U.S., at 367 (noting that although the Act makes the Guidelines binding on sentencing courts, "it preserves for the judge the discretion to depart from the guideline applicable to a particular case"). Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing. Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do. In 1994, for example, 93.9% of Guidelines cases were not appealed. Letter from Pamela G. Montgomery, Deputy General Counsel, United States Sentencing Commission (Mar. 29, 1996). "To ignore the district court's special competence-about the `ordinariness' or `unusualness' of a particular case-would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of the trial judge to the fact-specific circumstances of the case... ." Rivera, 994 F. 2d, at 951. Considerations like these persuaded us to adopt the abuse-of-discretion standard in Cooter & Gell v. Hartmarx Corp., , which involved review of a district court's imposition of Rule 11 sanctions, and in Pierce v. Underwood, , which involved review of a district court's determination under the Equal Access to Justice ActC. Section(s) 2412(d), that the position of the United States was "substantially justified," thereby precluding an award of attorneys' fees against the Government. There, as here, we noted that deference was owed to the "`judicial actor ... better positioned than another to decide the issue in question.'" Pierce, supra, at 559-560 (quoting Miller v. Fenton, ; Cooter & Gell, supra, at 403. Furthermore, we adopted deferential review to afford "the district court the necessary flexibility to resolve questions involving `multifarious, fleeting, special, narrow facts that utterly resist generalization.'" 496 U.S., at 404 (quoting Pierce, supra, at 561-562). Like the questions involved in those cases, a district court's departure decision involves "the consideration of unique factors that are `little susceptible ... of useful generalization,'" 496 U.S., at 404, and as a consequence, de novo review is "unlikely to establish clear guidelines for lower courts," id., at 405. The Government seeks to avoid the factual nature of the departure inquiry by describing it at a higher level of generality linked closely to questions of law. The relevant question, however, is not, as the Government says, "whether a particular factor is within the `heartland' " as a general proposition, Brief for United States 28, but whether the particular factor is within the heartland given all the facts of the case. For example, it does not advance the analysis much to determine that a victim's misconduct might justify a departure in some aggravated assault cases. What the district court must determine is whether the misconduct which occurred in the particular instance suffices to make the case atypical. The answer is apt to vary depending on, for instance, the severity of the misconduct, its timing, and the disruption it causes. These considerations are factual matters. This does not mean that district courts do not confront questions of law in deciding whether to depart. In the present case, for example, the Government argues that the District Court relied on factors that may not be considered in any case. The Government is quite correct that whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court's resolution of the point. Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse of discretion standard does not mean a mistake of law is beyond appellate correction. Cooter & Gell, supra, at 402. A district court by definition abuses its discretion when it makes an error of law. 496 U.S., at 405. That a departure decision, in an occasional case, may call for a legal determination does not mean, as a consequence, that parts of the review must be labeled de novo while other parts are labeled an abuse of discretion. See id., at 403 (court of appeals should "apply a unitary abuse-of-discretion standard"). The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.IV. The principles we have explained require us to reverse the rulings of the Court of Appeals in significant part.A. The District Court departed downward five levels because King's "wrongful conduct contributed significantly to provoking the offense behavior." 833 F. Supp., at 786. Victim misconduct was an encouraged basis for departure under the 1992 Guidelines and is so now. 1992 USSG Section(s) 5K2.10; 1995 USSG Section(s) 5K2.10. Most Guidelines prescribe punishment for a single discrete statutory offense or a few similar statutory offenses with rather predictable fact patterns. Petitioners were convicted of violating C. Section(s) 242, however, a statute unusual for its application in so many varied circumstances. It prohibits, among other things, subjecting any person under color of law "to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." A violation of Section(s) 242 can arise in a myriad of forms, and the Guideline applicable to the statute applies to any violation of Section(s) 242 regardless of the form it takes. 1992 USSG Section(s) 2H1.4. Section 2H1.4 takes account of the different kinds of conduct that might constitute a Section(s) 242 violation by instructing courts to use as a base offense level the greater of 10, or 6 plus the offense level applicable to any underlying offense. In this way, Section(s) 2H1.4 incorporates the base offense level of the underlying offense; as a consequence, the heartland of Section(s) 2H1.4 will vary depending on the defendant's conduct. Here, the underlying offense was aggravated assault. After adjusting the offense level for use of a dangerous weapon and bodily injury, see 1992 USSG Section(s) 1B1.5(a) (a Guideline that incorporates another Guideline incorporates as well the other's specific offense characteristics), the District Court added six levels as required by Section(s) 2H1.4. Section 2H1.4 adds the six levels to account for the fact that the offense was committed "under actual or purported legal authority," commentary to Section(s) 2H1.4, and that "the harm involved both the underlying conduct and activity intended to deprive a person of his civil rights," ibid. (incorporating introductory commentary to Section(s) 2H1.1). The District Court's analysis of this departure factor showed a correct understanding in applying Section(s) 2H1.4 as a mechanical matter and in interpreting its heartland. After summarizing King's misconduct-his driving while intoxicated, fleeing from the police, refusing to obey the officers' commands, attempting to escape from police custody, etc.-the District Court concluded that a downward departure pursuant to Section(s) 5K2.10 was justified:"Mr. King's provocative behavior eventually subsided. The Court recognizes that by the time the defendants' conduct crossed the line to unlawfulness, Mr. King was no longer resisting arrest. He posed no objective threat, and the defendants had no reasonable perception of danger. Nevertheless, the incident would not have escalated to this point, indeed it would not have occurred at all, but for Mr. King's initial misconduct." 833 F. Supp., at 787. The court placed these facts within the context of the relevant Guideline range:"Messrs. Koon and Powell were convicted of conduct which began as a legal use of force against a resistant suspect and subsequently crossed the line to unlawfulness, all in a matter of seconds, during the course of a dynamic arrest situation. However, the convicted offenses fall under the same Guideline Sections that would apply to a jailor, correctional officer, police officer or other state agent who intentionally used a dangerous weapon to assault an inmate, without legitimate cause to initiate a use of force."The two situations are clearly different. Police officers are always armed with `dangerous weapons' and may legitimately employ those weapons to administer reasonable force. Where an officer's initial use of force is provoked and lawful, the line between a legal arrest and an unlawful deprivation of civil rights within the aggravated assault Guideline is relatively thin. The stringent aggravated assault Guideline, along with its upward adjustments for use of a deadly weapon and bodily injury, contemplates a range of offenses involving deliberate and unprovoked assaultive conduct. The Guidelines do not adequately account for the differences between such `heartland' offenses and the case at hand." Ibid. The Court of Appeals rejected this analysis. It interpreted the District Court to have found that King had been the but-for cause of the crime, not that he had provoked it. According to the Court of Appeals, the District Court "ultimately focused not on provocation itself but rather on the volatility of the incident, and the close proximity between, on the one hand, the victim's misconduct and the officers' concomitant lawful use of force, and, on the other hand, the appellants' unlawful use or authorization of the use of force." 34 F. 3d, at 1459. The Court of Appeals thought these considerations did not justify departure for victim misconduct. It first quoted the test this Court formulated for excessive force cases under the Fourth Amendment:"`The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving, about the amount of force that is necessary in a particular situation.'" Ibid. (quoting Graham v. Connor, ). The Court of Appeals reasoned that "before a use of force can be found excessive, the Graham `calculus,' embracing the very factor which the district court found to be unusual in this case-the `dynamic arrest situation'-has been taken into consideration." 34 F. 3d., at 1459. Indeed, it noted the jury not only had to take the Graham factors into account, but also, to establish criminal liability, had to conclude that the petitioners "willfully came down on the wrong side of the Graham standard." Ibid. (emphasis in original). The Court of Appeals concluded that "the feature which the district court found unusual, and exculpatory, is built into the most fundamental structure of excessive force jurisprudence, and in criminal cases is built in twice." Ibid. The court misinterpreted both the District Court's opinion and the heartland of the applicable Guideline range. The District Court's observation that the incident would not have occurred at all "but for" King's misconduct does not alter the further ruling that King provoked petitioners' illegal use of force. At the outset of its analysis, the District Court stated: "[T]he Court finds, and considers as a mitigating circumstance, that Mr. King's wrongful conduct contributed significantly to provoking the offense behavior." 833 F. Supp., at 786. It later discussed "Mr. King's wrongdoing and the substantial role it played in bringing about the defendants' unlawful conduct." Id., at 787. Indeed, a finding that King's misconduct provoked lawful force but not the unlawful force that followed without interruption would be a startling interpretation and contrary to ordinary understandings of provocation. A response need not immediately follow an action in order to be provoked by it. The Commission recognized this when it noted that although victim misconduct would rarely be a basis for departure in a nonviolent offense, "an extended course of provocation and harassment might lead a defendant to steal or destroy property in retaliation." 1992 USSG Section(s) 5K2.10. Furthermore, even if an immediate response were required by Section(s) 5K2.10, it occurred here: The excessive force followed within seconds of King's misconduct. The Court of Appeals misinterpreted the heartland of Section(s) 2H1.4 by concentrating on whether King's misconduct made this an unusual case of excessive force. If Section(s) 2H1.4 covered punishment only for excessive force cases, it might well be a close question whether victim misconduct of this kind would be sufficient to take the case out of the heartland. Section 2H1.4 is not so designed, however. It incorporates the Guideline for the underlying offense, here Section(s) 2A2.2 for aggravated assault, and thus creates a Guideline range and a heartland for aggravated assault committed under color of law. As the District Court was correct to point out, the same Guideline range applies both to a Government official who assaults a citizen without provocation as well as instances like this where what begins as legitimate force becomes excessive. The District Court did not abuse its discretion in differentiating between the classes of cases, nor did it do so in concluding that unprovoked assaults constitute the relevant heartland. Victim misconduct is an encouraged ground for departure. A district court, without question, would have had discretion to conclude that victim misconduct could take an aggravated assault case outside the heartland of Section(s) 2A2.2. That petitioners' aggravated assaults were committed under color of law does not change the analysis. The Court of Appeals thought that it did because Section(s) 2H1.4 "explicitly enhances sentences for official misconduct beyond those for civilian misconduct." 34 F. 3d, at 1460. The statement is a non sequitur. Section 2H1.4 imposes a six-level increase regardless of whether the Government official's aggravated assault is provoked or unprovoked. Aggravated assault committed under color of law always will be punished more severely than ordinary aggravated assault. The District Court did not compare civilian offenders with official offenders; it compared official offenders who are provoked with official offenders who are not. That was the correct inquiry. The punishment prescribed by Section(s) 2A2.2 contemplates unprovoked assaults, and as a consequence, the District Court did not abuse its discretion in departing downward for King's misconduct in provoking the wrong.B. We turn now to the three-level departure. As an initial matter, the Government urges us to hold each of the factors relied upon by the District Court to be impermissible departure factors under all circumstances. A defendant's loss of career opportunities must always be an improper consideration, the Government argues, because "persons convicted of crimes suffer a wide range of consequences in addition to the sentence." Brief for United States 38. Susceptibility to prison abuse, continues the Government, likewise never should be considered because the "degree of vulnerability to assault is an entirely `subjective' judgment, and the number of defendants who may qualify for that departure is `virtually unlimited.'" Id., at 39 (quoting 34 F. 3d, at 1455). And so on. Those arguments, however persuasive as a matter of sentencing policy, should be directed to the Commission. Congress did not grant federal courts authority to decide what sorts of sentencing considerations are inappropriate in every circumstance. RatherC. Section(s) 3553(b) instructs a court that, in determining whether there exists an aggravating or mitigating circumstance of a kind or to a degree not adequately considered by the Commission, it should consider "only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." The Guidelines, however, "place essentially no limit on the number of potential factors that may warrant departure." Burns v. United States, . The Commission set forth factors courts may not consider under any circumstances but made clear that with those excep-tions, it "does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." 1995 USSG ch. I, pt. A, intro. comment. 4(b). Thus, for the courts to conclude a factor must not be considered under any circumstances would be to transgress the policymaking authority vested in the Commission. An example is helpful. In United States v. Lara, 905 F. 2d 599 (1990), the Court of Appeals for the Second Circuit upheld a District Court's downward departure based on the defendant's "potential for victimization" in prison due to his diminutive size, immature appearance, and bisexual orientation. Id., at 601. In what appeared to be a response to Lara, the Commission amended 1989 USSG Section(s) 5H1.4, to make [p]hysicial ... appearance, including physique" a discouraged factor. 1995 USSG App. C., Amend. 386 (effective Nov. 1, 1991). The Commission did not see fit, however, to prohibit consideration of physical appearance in all cases, nor did it address the broader category of susceptibility to abuse in prison. By urging us to hold susceptibility to abuse in prison to be an impermissible factor in all cases, the Government would have us reject the Commission's considered judgment in favor of our own. The Government acknowledges as much but says its position is required by C. Section(s) 3553(a)(2). The statute provides:"The court, in determining the particular sentence to be imposed, shall consider- ... ."(2) the need for the sentence imposed-"(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;"(B) to afford adequate deterrence to criminal conduct; and"(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." Echoing the Court of Appeals, the Government interprets Section(s) 3553(a)(2) to direct courts to test potential departure factors against its broad sentencing goals and to reject, as a categorical matter, factors that are inconsistent with them. The Government and the Court of Appeals read too much into Section(s) 3553(a)(2). The statute requires a court to consider the listed goals in determining "the particular sentence to be imposed." The wording suggests that the goals should be considered in determining which sentence to choose from a given Guideline range or from outside the range, if a departure is appropriate. The statute says nothing about requiring each potential departure factor to advance one of the specified goals. So long as the overall sentence is "sufficient, but not greater than necessary, to comply" with the above-listed goals, the statute is satisfied. Section(s) 3553(a). Even if the text of the statute were ambiguous, we would reject the Government's interpretation. The Government's theory-that Section(s) 3553(a)(2) directs courts to decide for themselves, by reference to the broad, open-ended goals of the provision, whether a given factor ever can be an appropriate sentencing considerationwould impose widespread judicial control over sentencing policy. This in turn would nullify the Commission's treatment of particular departure factors and its determination that, with few exceptions, departure factors should not be ruled out on a categorical basis. The sparse text of Section(s) 3553(a)(2) cannot support this implausible result. Congress created the Commission to "establish sentencing policies and practices for the Federal criminal justice system," C. Section(s) 991(b)(1), and Congress instructed the Commission, not the courts, to "review and revise" the Guidelines periodically, Section(s) 994(o). As a result, the Commission has assumed that its role is "over time [to] ... refine the guidelines to specify more precisely when departures should and should not be permitted." 1992 USSG ch. I, pt. A, intro. comment. 4(b). Had Congress intended the courts to supervise the Commission's treatment of departure factors, we expect it would have said so in a clear way. It did not, and we will not assume this role. We conclude, then, that a federal court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, consideration of the factor. If the answer to the question is no-as it will be most of the time-the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline. We now turn to the four factors underlying the District Court's three-level departure.1. The first question is whether the District Court abused its discretion in relying on the collateral employment consequences petitioners would face as a result of their convictions. The District Court stated:"Defendants Koon and Powell will be subjected to a multiplicity of adversarial proceedings. The LAPD Board of Rights will charge Koon and Powell with a felony conviction and, in a quasi-judicial proceeding, will strip them of their positions and tenure. Koon and Powell will be disqualified from other lawenforcement careers. In combination, the additional proceedings, the loss of employment and tenure,prospective disqualification from the field of law enforcement, and the anguish and disgrace these deprivations entail, will constitute substantial punishment in addition to any court-imposed sentence. In short, because Koon and Powell are police officers, certain unique burdens flow from their convictions." 833 F. Supp., at 789 (footnotes omitted). The Court of Appeals rejected the District Court's analysis, noting among other things the "ease with which this factor can be used to justify departures that are based, either consciously or unconsciously, on the defendant's socioeconomic status, a factor that is never a permissible basis for review." 34 F. 3d, at 1454. We agree with the Court of Appeals that a defendant's career may relate to his or her socio-economic status, but the link is not so close as to justify categorical exclusion of the effect of conviction on a career. Although an impermissible factor need not be invoked by name to be rejected, socio-economic status and job loss are not the semantic or practical equivalents of each other. We nonetheless conclude that the District Court abused its discretion by considering petitioners' career loss because the factor, as it exists in these circumstances, cannot take the case out of the heartland of 1992 USSG Section(s) 2H1.4. As noted aboveC. Section(s) 242 offenses may take a variety of forms, but they must involve willful violations of rights under color of law. Although cognizant of the deference owed to the district court, we must conclude it is not unusual for a public official who is convicted of using his governmental authority to violate a person's rights to lose his or her job and to be barred from future work in that field. Indeed, many public employees are subject to termination and are prevented from obtaining future government employment following conviction of a serious crime, whether or not the crime relates to their employment. See Cal. Govt. Code Ann. Section(s) 19572(k) (West 1995) ("Conviction of a felony or conviction of a misdemeanor involving moral turpitude" constitutes cause for dismissal); Section(s) 18935(f) (State Personnel Board may refuse to declare eligible for state employment one who has "been convicted of a felony, or convicted of a misdemeanor involving moral turpitude"); Ky. Rev. Stat. Ann. 18A.146(2) (Michie 1992); 4 Pa. Code Section(s) 7.173 (1995). Public officials convicted of violating Section(s) 242 have done more than engage in serious criminal conduct; they have done so under color of the law they have sworn to uphold. It is to be expected that a government official would be subject to the career-related consequences petitioners faced after violating Section(s) 242, so we conclude these consequences were adequately considered by the Commission in formulating Section(s) 2H1.4.2. We further agree with the Court of Appeals that the low likelihood of petitioners' recidivism was not an appropriate basis for departure. Petitioners were first-time offenders and so were classified in Criminal History Category I. The District Court found that "[w]ithin Criminal History Category I, the Guidelines do not adequately distinguish defendants who, for a variety of reasons, are particularly unlikely to commit crimes in the future. Here, the need to protect the public from the defendants' future criminal conduct is absent `to a degree' not contemplated by the Guidelines." 833 F. Supp., at 790, n. 20. The District Court failed to account for the Commission's specific treatment of this issue, however. After explaining that a district court may depart upward from the highest Criminal Offense Category, the Commission stated:"However, this provision is not symmetrical. The lower limit of the range for Criminal History Category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the guideline range for Criminal History Category I on the basis of the adequacy of criminal history cannot be appropriate." 1992 USSG Section(s) 4A1.3 The District Court abused its discretion by considering appellants' low likelihood of recidivism. The Commission took that factor into account in formulating the criminal history category.3. The two remaining factors are susceptibility to abuse in prison and successive prosecutions. The District Court did not abuse its discretion in considering these factors. The Court of Appeals did not dispute, and neither do we, the District Court's finding that "[t]he extraordinary notoriety and national media coverage of this case, coupled with the defendants' status as police officers, make Koon and Powell unusually susceptible to prison abuse," 833 F. Supp., at 785-786. Petitioners' crimes, however brutal, were by definition the same for purposes of sentencing law as those of any other police officers convicted under C. Section(s) 242 of using unreasonable force in arresting a suspect, sentenced under Section(s) 2H1.4, and receiving the upward adjustments petitioners received. Had the crimes been still more severe, petitioners would have been assigned a different base offense level or received additional upward adjustments. Yet, due in large part to the existence of the videotape and all the events that ensued, "wide-spread publicity and emotional outrage ... have surrounded this case from the outset," 833 F. Supp., at 788, which led the District Court to find petitioners "particularly likely to be targets of abuse during their incarceration," ibid. The District Court's conclusion that this factor made the case unusual is just the sort of determination that must be accorded deference by the appellate courts. As for petitioners' successive prosecutions, it is true that consideration of this factor could be incongruous with the dual responsibilities of citizenship in our federal system in some instances. Successive state and federal prosecutions do not violate the Double Jeopardy Clause. Heath v. Alabama, . Nonetheless, the District Court did not abuse its discretion in determining that a "federal conviction following a state acquittal based on the same underlying conduct ... significantly burden[ed] the defendants." 833 F. Supp., at 790. The state trial was lengthy, and the toll it took is not beyond the cognizance of the District Court.V. The goal of the Sentencing Guidelines is, of course, to reduce unjustified disparities and so reach towards the evenhandedness and neutrality that are the distinguishing marks of any principled system of justice. In this respect, the Guidelines provide uniformity, predictability, and a degree of detachment lacking in our earlier system. This too must be remembered, however. It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. We do not understand it to have been the congressional purpose to withdraw all sentencing discretion from the United States District Judge. Discretion is reserved within the Sentencing Guidelines, and reflected by the standard of appellate review we adopt. The Court of Appeals identified the wrong standard of review. It erred as well in finding that victim misconduct did not justify the five-level departure and that susceptibility to prison abuse and the burdens of successive prosecutions could not be relied upon for the three-level departure. Those sentencing determinations were well within the sound discretion of the District Court. The District Court did abuse its discretion in relying on the other two factors forming the three-level departure: career loss and low recidivism risk. When a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid factors. Williams, 503 U.S., at 203. As the District Court here stated that none of the four factors standing alone would justify the three-level departure, it is not evident that the court would have imposed the same sentence if it had relied only on susceptibility to abuse in prison and the hardship of successive prosecutions. The Court of Appeals should therefore remand the case to the District Court. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Stevens, concurring in part and dissenting in part. In my opinion the District Court did not abuse its discretion when it relied on the unusual collateral employment consequences faced by these petitioners as a result of their convictions. I therefore except Part IV-B-1 from my otherwise complete endorsement of the Court's opinion. I also note that I do not understand the opinion to foreclose the District Court from basing a downward departure on an aggregation of factors each of which might in itself be insufficient to justify a departure. Justice Souter, with whom Justice Ginsburg joins, concurring in part and dissenting in part. I agree with the way today's opinion describes a district court's tasks in sentencing under the Guidelines, and the role of a court of appeals in reviewing sentences, but I part company from the Court in applying its standard on two specific points. I would affirm the Court of Appeals's rejection of the downward departures based on susceptibility to abuse in prison and on successive prosecution, for to do otherwise would be to attribute an element of irrationality to the Commission and to its "heartland" concept. Accordingly, I join the Court's opinion except Part IV-B-3. As the majority notes, ante, at 23, "Congress did not grant federal courts authority to decide what sorts of sentencing considerations are inappropriate in every circumstance." In fact, Congress allowed district courts to depart from the Guidelines only if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." C. Section(s) 3553(b); see also ante, at 9. While discussing departures, the Commission quotes this language from Section(s) 3553(b), before stating that "[w]hen a court finds an atypical case, ... the court may consider whether a departure is warranted." United States Sentencing Guidelines Manual, ch. 1, pt. A, intro. comment. 4(b) (Nov. 1995) (1995 USSG). Thus, both Congress and the Commission envisioned that departures would require some unusual factual circumstance, but would be justified only if the factual difference "should" result in a different sentence. Departures, in other words, must be consistent with rational normative order. As to the consideration of susceptibility to abuse in prison, the District Court departed downward because it believed that "the widespread publicity and emotional outrage which have surrounded this case from the outset, in addition to the [petitioners'] status as police officers, lead the Court to find that Koon and Powell are particularly likely to be targets of abuse during their incarceration." 833 F. Supp. 769, 788 (CD Cal. 1993). That is, the District Court concluded that petitioners would be subject to abuse not simply because they were former police officers, but in large part because of the degree of publicity and condemnation surrounding their crime.2 But that reasoning overlooks the fact that the publicity stemmed from the remarkable brutality of petitioners' proven behavior, which it was their misfortune to have precisely documented on film. To allow a departure on this basis is to reason, in effect, that the more serious the crime, and the more widespread its consequent publicity and condemnation, the less one should be punished; the more egregious the act, the less culpable the offender. In the terminology of the Guidelines, such reasoning would take the heartland to be the domain of the less, not the more, deplorable of the acts that might come within the statute. This moral irrationality cannot be attributed to the heartland scheme, however, and rewarding the relatively severe offender could hardly have been in the contemplation of a Commission that discouraged downward departures for susceptibility to prison abuse even when the nonculpable reason is an unusual "[p]hysical ... appearance, including physique." 1995 USSG Section(s) 5H1.4; see also ante, at 24; 1995 USSG ch. 1, pt. A, intro. comment. 3 (discussing the principle of "just deserts," which the Commission describes as a concept under which "punishment should be scaled to the offender's culpability and the resulting harms").3 The Court of Appeals appreciated the significance of the requisite moral calculus when it wrote that "[a]ny public outrage was the direct result of [petitioners'] criminal acts. It is incongruous and inappropriate to reduce [petitioners'] sentences specifically because individuals in society have condemned their acts as criminal and an abuse of the trust that society placed in them." 34 F. 3d 1416, 1456 (CA9 1994). The Court of Appeals should be affirmed on this point. I believe that it was also an abuse of discretion for the District Court to depart downward because of the successive prosecutions.4 In these cases, there were facial showings that the state court system had malfunctioned when the petitioners were acquitted (or, in the case of one charge, had received no verdict), and without something more one cannot accept the District Court's conclusion that there was no demonstration that a "clear miscarriage of justice" caused the result in the state trial. 833 F. Supp., at 790. This is so simply because the federal prosecutors, in proving their cases, proved conduct constituting the crimes for which petitioners had been prosecuted unsuccessfully in the state court. See Powell v. Superior Court, 232 Cal. App. 3d 785, 789, 283 Cal. Rptr. 777, 779 (1991) (noting that petitioners were charged, inter alia, with assault by force likely to produce great bodily injury, Cal. Penal Code Ann. Section(s) 245(a)(1), and being an officer unnecessarily assaulting or beating any person in violation of Section(s) 149); Cal. Pen. Code Section(s) 149 ("Every public officer who, under color of authority, without lawful necessity, assaults or beats any person" commits an offense); Cal. Pen. Code Section(s) 245(a)(1) ("Every person who commits an assault upon the person of another ... by any means of force likely to produce great bodily injury" commits an offense); ante, at 4 (observing that petitioners were tried in state court for assault with a deadly weapon and excessive use of force by a police officer and tried in federal court for willfully using or willfully allowing others to use unreasonable force in arresting King); 833 F. Supp., at 790 (stating that the "same underlying conduct" was involved in both cases). While such a facial showing resulting from the identity of factual predicates for the state and federal prosecutions might in some cases be overcome, (by demonstrating, say, that a crucial witness for the State was unavailable in the state trial through no one's fault), there was no evidence to overcome it here. As a consequence, reading the guidelines to suggest that those who profit from state court malfunctions should get the benefit of a downward departure would again attribute a normative irrationality to the heartland concept. The sense of irrationality here is, to be sure, different from what was presupposed by the District Court's analysis on the issue of susceptibility to abuse in prison, for the incongruity produced by downward departures here need not depend on the defendant's responsibility for the particular malfunction of the state system. But the fact remains that it would be a normatively obtuse sentencing scheme that would reward a defendant whose federal prosecution is justified solely because he has obtained the advantage of injustice produced by the failure of the state system. This is not, of course, to say that a succession of state and federal prosecutions may never justify a downward departure. If a comparison of state and federal verdicts in relation to their factual predicates indicates no incongruity, a downward departure at federal sentencing could well be consistent with an application of a rational heartland concept. But these are not such cases. Justice Breyer, with whom Justice Ginsburg joins, concurring in part and dissenting in part. I join the Court's opinion with the exception of Part IV-B-3. I agree with Justice Souter's conclusion in respect to that section. The record here does not support departures based upon either the simple fact of two prosecutions or the risk of mistreatment in prison. In my view, the relevant Guideline, 1992 USSG Section(s) 2H1.4, encompasses the possibility of a double prosecution. That Guideline applies to various civil rights statutes, which Congress enacted, in part, to provide a federal forum for the protection of constitutional rights where state law enforcement efforts had proved inadequate. See, e.g., Ngiraingas v. Sanchez, ; Monroe v. Pape, ; Screws v. United States, (Rutledge, J., concurring in result). Before promulgating the Guidelines, the Commission "examined the many hundreds of criminal statutes in the United States Code," 1995 USSG ch.1, pt. A, intro. comment 5, and it would likely have been aware of this well-known legislative purpose. The centrality of this purpose, the Commission's likely awareness of it, and other considerations that Justice Souter mentions, ante, at __, lead me to conclude on the basis of the statute and Guideline itselfC. Section(s) 3553(b), that the Commission would have considered a "double prosecution" case as one ordinarily within, not outside, the "civil rights" Guideline's "heartland." For that reason, a simple double prosecution, without more, does not support a departure. See C. Section(s) 3553(b) (departures permitted only when circumstances were "not adequately taken into consideration" by the Commission) (emphasis added). The departure on the basis of potential mistreatment in prison presents a closer question. Nonetheless, differences in prison treatment are fairly common-to the point where too frequent use of this factor as a basis for departure could undermine the uniformity that the Guidelines seek. For that reason, and others that Justice Souter mentions, ante, at __, I believe that the Guidelines themselves embody an awareness of potentially harsh (or lenient) treatment in prison, thereby permitting departure on that basis only in a truly unusual case. Even affording the District Court "due deference," C. Section(s) 3742(e), I cannot find in this record anything sufficiently unusual, compared, say, with other policemen imprisoned for civil rights violations, as to justify departure.