UNITED STATES REPORTS VOLUME 435 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1977 Opinions of February 27 Through (in part) May 1, 1978 Orders of February 27 Through May 1, 1978 Together With Opinions of Individual Justices in Chambers HENRY PUTZEL, jr. REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1980 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402. Stock Number 028-001-00403-2 Erratum 432 U. S. 275, lines 10-11: “Brief for Petitioner in No. 74-454, p. 9” should be “Brief for Petitioner in No. 76-454, p. 9.” ii JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WARREN E. BURGER, Chief Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. POTTER STEWART, Associate Justice. BYRON R. WHITE, Associate Justice. THURGOOD MARSHALL, Associate Justice. HARRY A. BLACKMUN, Associate Justice. LEWIS F. POWELL, Jr., Associate Justice. WILLIAM H. REHNQUIST, Associate Justice. JOHN PAUL STEVENS, Associate Justice. retired STANLEY REED, Associate Justice. WILLIAM 0. DOUGLAS, Associate Justice. OFFICERS OF THE COURT GRIFFIN B. BELL, Attorney General. WADE H. McCREE, Jr., Solicitor General. MICHAEL RODAK, Jr., Clerk. HENRY PUTZEL, jr., Reporter of Decisions. ALFRED WONG, Marshal. ROGER F. JACOBS, Librarian. hi SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, viz.: For the District of Columbia Circuit, Warren E. Burger, Chief Justice. For the First Circuit, William J. Brennan, Jr., Associate Justice. For the Second Circuit, Thurgood Marshall, Associate Justice. For the Third Circuit, William J. Brennan, Jr., Associate Justice. For the Fourth Circuit, Warren E. Burger, Chief Justice. For the Fifth Circuit, Lewis F. Powell, Jr., Associate Justice. For the Sixth Circuit, Potter Stewart, Associate Justice. For the Seventh Circuit, John Paul Stevens, Associate Justice. For the Eighth Circuit, Harry A. Blackmun, Associate Justice. For the Ninth Circuit, William H. Rehnquist, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. December 19, 1975. (For next previous allotment, see 404 U. S., p. v.) IV DEATH OF MR. WYATT Supreme Court of the United States WEDNESDAY, MARCH 1, 1978 Present: Mr. Chief Justice Burger, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, Mr. Justice Marshall, Mr. Justice Blackmun, Mr. Justice Powell, Mr. Justice Rehnquist, and Mr. Justice Stevens. The Chief Justice said: We take note for the journal and records of the Court of the death of Walter Wyatt, the 12th Reporter of Decisions of this Court and immediate predecessor of the present incumbent, Henry Putzel, jr. Mr. Wyatt served the Court with distinction from 1946 to 1964. v TABLE OF CASES BEPOBTED Note: All undesignated references herein to the United States Code are to the 1970 edition. Cases reported before page 901 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 901 et seq. are those in which orders were entered. Opinions reported on page 1301 et seq. are those written in chambers by individual Justices. Page Abascal v. United States........................................ 953 Aberdeen & Rockfish R. Co.; Long Island R. Co. v................ 912 Acro-Matic, Inc.; Raitport v................................... 1004 Acting Comm’r, Dept, of Social Services of N. Y. v. Holley.... 947 Acting Comm’r, Dept, of Social Services of N. Y. v. Toomey.... 949 Acting Commissioner of Labor of Virgin Islands v. Rogers...... 966 Adams; Monroe County Conservation Council v.................... 1006 Adams v. Mulder............................................. 939 Adams v. United States........................................ 931 Adcock v. United States........................................ 954 Addington v. Texas............................................ 967 Adjutant General of Ohio v. Krause.............................. 924 Administrator, New Hampshire Employers’ Benefit Trust v. Whaland. 980 Administrator, N. New Eng. Carpenters Health Fund v. Whaland. 981 Administrator of Veterans’ Admin, v. National College of Business. 213 Administrator, Veterans’ Affairs; Frivaldo v.................... 981 Aeschliman; Consumers Power Co. v............................ 519 Aguirre v. Morris............................................... 999 Akin v. United States........................................... 933 Alabama; Clift v............’................................... 909 Alabama; Summers v.............................................. 981 Alabama Assn, of Ins. Agents v. Board of Govs, of Fed. Res. System. 904 Alabama ex rel. Payne; Moody v.................................. 969 Alaska; Hampton v............................................... 981 Alaska; Ladd v.................................................. 928 Albert v. First National Bank & Trust Co. of Marquette.......... 910 Albert v. United States......................................... 953 Albuquerque Pub. Co.; New Mexico ex rel. Env. Imp. Agency v... 956 Alcoholic Beverage Control Appeals Board; Butker v.............. 925 VII VIII TABLE OF CASES REPORTED Page Alexander; Knehans v............................................ 995 Alitalia-Linee Aeree Italiane v. Manufacturers Hanover Trust Co.. 971 Allen v. United States.......................................... 926 Allensworth; Michigan v....................................... 933 All Island Delivery Service, Inc. v. United States............. 1007 Alnoa G. Corp. v. Houston........................................ 970 Alsop; Toro Co. v................................................ 952 Altizer v. Young............................................... 1009 Aluminum Co. of America v. Cuyahoga County Bd. of Revision.... 1008 Alvarez-Tostado v. United States................................. 916 Amerada Hess Corp. v. Federal Energy Regulatory Comm’n........ 907 American Assn, of Medical Staffs v. Judges, U. S. Ct. of Appeals... 993 American Biltrite, Inc. v. United States........................ 952 American Brands, Inc.; Windham v................................ 968 American Iron & Steel Institute v. Environmental Protection Agency. 914 American Public Gas Assn. v. Federal Energy Regulatory Comm’n. 907 American Society of Travel Agents, Inc. v. Blumenthal........... 947 Andersen & Co.; Fund of Funds, Ltd. v........................... 940 Anderson v. Dabdo............................................ 1009 Anderson v. United States................................... 974,996 Anderson v. Watertown Savings Bank.............................. 929 Andrus v. Charlestone Stone Products Co......................... 965 Andruss; Evanston v............................................. 952 Angelini v. United States....................................... 923 Anker; Trachtman v.............................................. 925 Antal v. Boyle.................................................. 956 Anthony v. United States........................................ 915 Apel v. Wainwright............................................. 1009 Appalachian Power Co. v. Public Service Comm’n of W. Va....... 901 Apuzzo v. United States.......................................... 916 ARCO Pipe Line Co. v. United States............................. 903 Arias v. United States........................................... 945 Arizona; Knapp v........................•....................... 908 Arizona; Myers v................................................ 928 Arkansas; Burnett v.......................................... 944 Arkansas; Coakley v........................................... 909 Arkansas; Holloway v............................................ 475 Arkansas; Little v............................................. 957 Arkansas; Norris v............................................. 970 Arkansas; Pickens v'............................................ 909 Armstead v. Phelps.............................................. 997 Armstrong; Tennessee v.......................................... 904 Arthur Andersen & Co.; Fund of Funds, Ltd. v.................... 940 TABLE OF CASES REPORTED IX Page Arunga v. Ellis.................................................. 910 Arya Shipping Lines, S. A.; Iranian Shipping Lines, S. A. v.... 905 Ashland Oil Co. of California; Union Oil Co. of California v... 994 Assaf; University of Texas System v....................:......... 992 Assistant District Attorney of Tulsa County; McDaniel v........ 1009 Association of Wash. Stevedoring Cos.; Dept, of Rev. of Wash, v.. 734 Asumansi v. United States........................................ 944 Atkins; Franklin v............................................... 994 Atlantic Richfield Co.; Ray v.................................... 151 Attorney General; Cardillo v..................................... 946 Attorney General; McAdams v...................................... 997 Attorney General of Florida; Sunbeam Television Corp, v..... 920,1018 Attorney General of Mass.; First National Bank of Boston v..... 765 Attorney General of United States; Galante v..................... 921 Austin; Marco Dental Products, Inc. v............................ 918 Avery v. New England Telephone & Telegraph Co.................... 950 Ayala v. United States........................................... 982 Aznavorian v. Calif ano.......................................... 921 Aznavorian; Califano v........................................... 921 Baby Fold, Inc.; Regenold v...................................... 963 Bache & Co. (Lebanon) S. A. L.; Tamari v......................... 905 Bache & Co. (Lebanon) S. A. L.; Wahbe Tamari & Sons Co. v.... 905 Bachrodt Chevrolet, Inc.; Beltone Hearing Aid Center v........... 999 Backus v. Florida............................................... 975 Bailey v. United States........................................ 906 Bailey Co. v. Equal Employment Opportunity Comm’n................ 915 Baker v. United States........................................... 926 Baldwin Piano & Organ Co.; Faulkner v............................ 905 Ballew v. Georgia...........................................'... 223 Baltimore Gas & Electric Co. v. Natural Resources Def. Council... 964 Bankers Trust Co. v. Mallis...................................... 381 Bank & Trust Co. of Old York Road; Raitport v.................... 962 Barbee v. North Carolina......................................... 943 Barchi; Barry v.................................................. 921 Barkley v. Lumpkin............................................... 973 Barnes; Barone v............................................... 1007 Barnett v. Cisneros............................................. 962 Barney v. United States....................................... 955 Barone v. Barnes.............................................. 1007 Barron v. United States........................................ 907 Barry v. Barchi.................................................. 921 Barry; St. Paul Fire & Marine Insurance Co. v............... 902,913 Bass v. United States............................................ 931 X TABLE OF CASES REPORTED Page Beachem v. United States........................................ 919 Beal v. Franklin................................................. 913 Beard v. Estelle.....................:........................... 938 Beck v. Morrison Pump Co........................................ 1013 Bee Jay’s Truck Stop, Inc. v. Department of Revenue of Ill...... 970 Begley v. Carter................................................. 994 Beitling, In re...............,.................................. 993 Belgarde v. Suquamish Indian Tribe............................... 191 Bell; Cardillo v................................................. 946 Bell v. International Trading, Ltd............................... 941 Bell; McAdams v................................................ 997 Bell v. United States........................................... 1007 Bell Federal Savings & Loan Assn.; Winokur v................... 932 Bellotti; First National Bank of Boston v....................... 765 Bell Telephone Laboratories, Inc.; Hughes Aircraft Co. v........ 924 Beltone Hearing Aid Center v. Lou Bachrodt Chevrolet, Inc....... 999 Benel v. United States........................................... 926 Ben R. Hendrix Trading Co. v. J. Henry Schroeder Banking Corp.. 1007 Benson; Clark v.................................................. 945 Benton; Phillips v. . 997 Bergen County Associates v. East Rutherford...................... 925 Berger; Fahrig v................................................. 945 Berkley v. United States......................................... 931 Beth Israel Hospital v. Labor Board.............................. 940 Bhongsupatana v. United States.................................. 1008 Bibbs v. United States.......................................... 1007 Billingsley v. Seibels............................................. 929 Bisping v. Virginia............................................. 1007 Black v. Niemeyer.................................................. 932 Black; O’Haver v. 969 Black v. United States............................................. 944 Black Horse v. United States.................................. 999 Blitz v. Illinois................................................ 974 Blizzard v. Mahan.................................................. 951 Blue Shield of Texas v. Royal Drug Co.............................. 903 Blue Shield of Texas v. Royal Pharmacy of Castle Hills........... 903 Blum v. Toomey..................................................... 949 Blumenthal; American Society of Travel Agents, Inc. v............ 947 Blumenthal; Richardson v........................................ 939 Board of Chiropractic Examiners of Florida; Dappolonia v...... 961 Board of Comm’rs of Miami County; Geisinger v.................. 905 Board of Comm’rs of Sheffield; United States v................. 110 Board of Curators of University of Missouri v. Horowitz......... 78 TABLE OF CASES REPORTED XI Page Board of Ed. of N. Hunterdon H. S.; Comm’r of Ed. of N. J. v.... 950 Board of Fire & Police Commissioners of Schaumburg; Doyle v... 970 Board of Govs, of Fed. Res. Syst.; Alabama Assn, of Ins. Agents v.. 904 Board of Higher Education of New York City; Linfield v..... 915 Bobisink v. United States.......................................... 92'6 Boettjer v. United States........................................... 976 Bogley Harting Mahoney & Leibling, Inc.; Caravel Office Bldg. Co. v. 925 Bomar; Clay v............................................... 943 Bonner v. Coughlin.......................................... 932 Boord v. United States...................................... 905 Bordenkircher v. Gaston..................................... 964 Bordenkircher v. Hayes...................................... 918 Borough. See name of borough. Bossard v. Exxon Corp....................................... 934 Boudreaux v. Mississippi.................................... 924 Bowden v. Georgia........................................... 937 Bowers v. United States..................................... 976 Boyle; Antal v...... t........................................ 956 Boznos, In re............................................... 901 BP Pipelines, Inc. v. United States......................... 903 Brackett v. United States......................................... 968 Bracy v. United States...................................... 965,1301 Brady; Swisher v............................................. 913 Bramlett; Colorado v........................................ 956 Brand v. United States...................................... 961 Brannon v. United States................................... 1009 Breza v. Trimont............................................ 963 Brierton; Moore v................................................... 962 Briscoe v. Escalante.......................................... 901,919 Bromley; Crisp v............................................ 908 Broomfield v. Wainwright.......*,................................. 945 Brotherhood. For labor union, see name of trade. Brown; Chrysler Corp, v............................................. 914 Brown; Reynolds Metals Co. v........................................ 995 Brown v. Tanenbaum.................................................. 969 Brown v. Thomson................................................ 938,993 Brown v. United States...................... 904,931,932,948,951,952,973 Brown; West v.................................................... 926 Brownlee; Western Chain Co. v.... .................................. 968 Bryan v. Merrill Lynch, Pierce, Fenner & Smith, Inc................. 943 Bryant v. United States............................................. 972 Buffalo River Conserv. & Rec. Council v. National Park Serv... 924,1018 Bull v. United States............................................... 946 XII TABLE OF CASES REPORTED Page Bullard v. United States............................................ 996 Bunge Corp.; Furness Withy & Co. v.................................. 924 Bunkis v. United States............................................. 976 Burgess v. California............................................... 972 Burke v. Narragansett Electric Co................................... 972 Burlington Northern, Inc.; Wagner v................................. 996 Burnett v. Arkansas................................................. 944 Burnett v. United States........................................... 1010 Burr v. Indiana..................................................... 998 Burrell v. Estelle.................................................. 999 Busic v. United States.............................................. 964 Buthorn v. United States....................................... 915,1004 Butker v. Alcoholic Beverage Control Appeals Board.................. 925 Buttram v. United States.......................................... 995 Cady v. United States............................................... 944 Caldwell v. United States.......................................... 928 Calif ano v. Aznavorian............................................. 921 Califano; Aznavorian v.............................................. 921 Califano v. Colon..................................................... 1 Califano; Fermin v................................................. 1010 Califano; Mawyer v.................................................. 916 Califano; Murray v.................................................. 945 Califano; North Carolina ex rel. Morrow v......................... 962 Califano; Parke, Davis & Co. v...................................... 942 Califano v. Torres.................................................... 1 Califano v. White................................................... 908 California; Burgess v............................................... 972 California; Conover v............................................... 929 California; Hines v................................................ 1010 California; Manson v................................................ 953 California; O’Neill v............................................... 930 California; Schroeder v............................................. 990 California; Silverton v............................................. 919 California; Smiley v................................................ 910 California; Solomon v.............................................. 1009 California v. Southland Royalty Co.................................. 940 California v. United States......................................... 902 California; Whitten v............................................... 996 California; Young v................................................. 998 Calvert Fire Insurance Co.; Will v.................................. 966 Campbell v. Indiana................................................. 931 Campbell v. United States........................................... 972 Canon v. Massachusetts.............................................. 933 TABLE OF CASES REPORTED xm Page Capri Theatre Co. v. East Detroit................................ 1008 Caravel Office Bldg. Co. v. Bogley Harting Mahoney & Leibling, Inc. 925 Carbajal v. United States......................................... 955 Cardarella v. United States....................................... 997 Cardillo v. Bell.................................................. 946 Cardwell; Skinner v.............................................. 1009 Carey v. Piphus................................................... 247 Carey v. United States............................................ 953 Carlson; Payton v................................................. 916 Carr v. Dick.................................................... 930 Carr v. United States........................................... 973,996 Carroll v. Department of Health, Education, and Welfare......... 904 Carroll v. Manson................................................. 982 Carter; Begley v.................................................. 994 Carter; Edwards v............................................ 965,1005 Carter v. United States........................................... 973 Ceccolini; United States v268 Cedillo v. Estelle............................................ 1008 Central Illinois Public Service Co. v. United States............... 21 Cerkl v. United States........................................... 955 Chairman, House Committee on District of Columbia; Doe v........ 969 Chairman, Racing and Wagering Board of New York v. Barchi.... 921 Chalk v. Secretary of Labor...................................... 945 Chancellor, New York City Public Schools; Trachtman v........... 925 Chapman v. Indiana................................................ 998 Charlestons Stone Products Co.; Andrus v............... i....... 965 Chase; Harris v................................................... 975 Chase Brass & Copper Co. v. Franchise Tax Bd. of California..... 910 Chavez; Lewis v............................................... 916,953 Chavez-Chapula v. United States................................ 976 Chesapeake & Ohio R. Co. v. Illinois Central Gulf R. Co........... 919 Chester County Water Resources Authority; Doyle v................. 907 Chestnutt Corp. v. Galfand........................................ 943 Chiappe v. United States.......................................... 941 Chicago, Rock Island & Pacific R. Co. v. Rediker.............. 922,982 Chief Judge, U. S. District Court; Harrison v..................... 928 Chief, UI Div., Dept, of Employment Development; Arunga v.... 910 Christian v. Perini.............................................. 930 Christiansen v. Gunn............................................. 1009 Chrysler Corp. v. Brown........................................... 914 Chrysler Corp.; Ender v........................................... 981 Chu, In re....................................................... 949 Cisneros; Barnett v............................................... 962 XIV TABLE OF CASES REPORTED Page City. See name of city. Civil Service Comm’n; Epstein v................................. 911 Clark v. Benson................................................. 945 Clark v. Florida................................................ 910 Clark v. Malley................................................. 928 Clark v. United States.......................................... 973 Classic Cat Theater v. Department of Alcoholic Bev. Control of Cal. 962 Clay v. Bomar................................................... 943 Cleland; Frivaldo v............................................. 981 Cleland v. National College of Business........................ 213 Clemente v. United States...................................... 1006 Cleveland v. Cleveland Electric Illuminating Co................. 996 Cleveland Electric Illuminating Co.; Cleveland v................ 996 Clift v. Alabama................................................ 909 Cline; Crist v.................................................. 913 Clinton Municipal Separate School District v. United States... 951 Cloudy v. Indiana............................................... 945 Clyburn v. United States........................................ 999 Coakley v. Arkansas............................................. 909 Coastal States Petrochemical Co. v. United States............... 942 Cohen v. New York............................................... 954 Cole v. Illinois................................................ 944 Coledanchise v. Murdaugh........................................ 976 Coleman v. Virginia............................................. 997 Collins; Ricks v................................................ 994 Colon; Califano v................................................. 1 Colorado v. Bramlett............................................ 956 Colorado; Hernandez v.......:................................... 954 Columbia University; Davidson v................................. 971 Commercial National Bank of Dallas v. United States............. 923 Commissioner; Gordon v.......................................... 924 Commissioner; Thor Power Tool Co. v............................. 914 Commissioner, Dept, of Insurance of N. H.; Dawson v............. 981 Commissioner, Dept, of Insurance of N. H.; Wadsworth v........ 980 Commissioner, Dept, of Labor of Alaska; Hicklin v............... 902 Commissioner of Ed. of N, J. v. Bd. of Ed. of N. Hunterdon H. S.. 950 Commissioner of Ed. of New York; Quraishi v..................... 910 Commissioner of Insurance of Alabama; Moody v................... 969 Commissioner of Internal Revenue. See Commissioner. Commissioner of Labor & Industry for Minn. v. White Motor Corp. 497 Commissioner of Patents and Trademarks; Ewanco v............. 969 Committee for Impl. of Textile Agreements; Consumers Union v.. 933 Committee of Interns and Residents v. Labor Board............... 904 TABLE OF CASES REPORTED xv Page Community Release Board; Olden v............................... 928 Compagnie Nationale Air France; Machinists v.................. 1005 Comptroller of Currency; New York Stock Exchange, Inc. v...... 941 Condit v. United Air Lines..................................... 934 Confederated Bands of Yakima Indian Nation; Washington v...... 903 Connecticut Public Utilities Control Authority; Gulf Oil Corp. v... 911 Connelie; Foley v............................................. 291 Conover v. California.......................................... 929 Constantine v. United States............................. 926 Consumer Product Safety Comm’n; Hawaii v....................... 943 Consumers Power Co. v. Aeschliman.............................. 519 Consumers Union v. Comm, for Impl. of Textile Agreements...... 933 Cooke v. United States......................................... 974 Coone v. United States......................................... 928 Coralluzzo; New York State Parole Board v...................... 912 Cornfeld v. United States...................................... 922 Corrections Commissioner. See name of commissioner. Corrections Secretary; Armstead v.............................. 997 Couglin; Bonner v.............................................. 932 County. See name of county. Cowan; Moore v................................................. 929 Cowan; Ray v.................................................. 1010 Cowen; Lewis v................................................. 948 Cox v. United States...................................... 927,1018 Crane v. United States......................................... 918 Crawford v. Kansas............................................. 930 Crisp v. Bromley............................................... 908 Crist v. Cline................................................. 913 Crocker v. United States....................................... 974 Crownover v. Gleichman......................................... 905 Cruse; Logal v................................................ 943 Culbert; United States v....................................... 371 Cupp; Marsh v.................................................. 930 Cuyahoga County Bd. of Revision; Aluminum Co. of America v.. 1008 Cuyler; Walloe v............................................... 929 Dabdo; Anderson v............................................. 1009 Daley v. United States......................................... 933 Daniels v. Ohio............................................... 955 Dappolonia v. Board of Chiropractic Examiners of Florida...... 961 Darks v. Transok Pipe Line Co............................. 1004,1006 Davidson v. Columbia University................................ 971 Davidson v. United States..................................... 966 Davis v. Iowa.................................................. 973 XVI TABLE OF CASES REPORTED Page Davis; Newell v.................................................... 907 Davis v. New York..........................»....................... 998 Davis v. United States......................................... 951,954 Dawson v. Whaland.................................................. 981 Dean; Hunter v..................................................... 967 Deaton v. United States............................................ 917 Decker; Klein v.................................................... 967 DeKam v. Southfield.............................................. 919 Delaware; Thornton v.............................................. 1009 Del Corso v. Krause................................................ 924 Delta Air Lines; Pfister v......................................... 995 De Mateos v. Texaco Inc............................................ 904 Demers v. Rhode Island............................................. 963 Den-Mat, Inc.; Lee Pharmaceuticals v............................... 951 Department of Alco. Bev. Control of Cal.; Classic Cat Theater v.. 962 Department of Alco. Bev. Control of Cal.; M. R. T. S., Inc. v. 962 Department of Alco. Bev. Control of Cal.; Taselli v.............. 962 Department of Health, Education, and Welfare; Carroll v........ 904 Department of Highways of Lousiana; Olinkraft, Inc. v.............. 924 Department of Human Services of Tennessee; Northern v........... 950 Department of Rev. of Ill.; Bee Jay’s Truck Stop, Inc. v........... 970 Department of Rev. of Wash. v. Assn, of Wash. Stevedoring Cos... 734 Department of Transportation of Georgia; United States v........ 964 DePasquale; Gannett Co. v....................................... 1006 DeShazo v. United States......................................... 953 Detrich v. Shelton G............................................. 996 Detroit Edison Co. v. Labor Board.................................. 941 DiCarlo v. United States........................................... 924 Dick; Carr v....................................................... 930 Dillon v. United States.......................................... 971 Dinkie’s Food Mart; Impact v..................................... 992 Director, Dept, of Employment Security of R. I. v. Grinnell Corp.. 938 Director, Dept, of Public Aid of Illinois v. Jordan................ 904 Director, Dept, of Public Welfare of San Diego County v. Shelton G. 996 Director, Mich. Emp. Sec. Comm’n; Firestone Tire & Rubber Co. v.. 970 Director of penal or correctional institution. See name of director. Director, U. S. Bureau of Prisons; Payton v........................ 916 District Court. See U. S. District Court. District Judge. See U. S. District Judge. District of Columbia; Jenkins v................................ 945,963 Dixon v. United States........................................... 927 Doe v. McMillan.................................................... 969 Doherty v. Internal Revenue Service................................ 906 TABLE OF CASES REPORTED XVII Page Dollar; Long Mfg., N. C., Inc. v................................. 996 Donovan Construction Co. of Minnesota v. Florida Tel. Corp..... 1007 Doran; Michigan v................................................ 967 Doran v. United States........................................... 928 Dotson; Smyzer v................................................. 930 Dougherty County Board of Education v. White..................... 921 Doyle v. Board of Fire & Police Commissioners of Schaumburg.... 970 Doyle v. Chester County Water Resources Authority................ 907 Dudar v. United States........................................... 962 Duden, In re..................................................... 948 Duffey; Harper v................................................. 963 Duhon v. United States........................................... 952 Duke v. United States............................................ 944 Duke v. United States Steel Corp................................. 943 Duran v. New Mexico.............................................. 972 Duren v. Missouri............................................... 1006 Dustin; Massachusetts v.......................................... 943 Eaglin v. United States.......................................... 906 East Detroit; Capri Theatre Co. v............................. 1008 East Detroit v. Llewellyn....................................... 1008 East Detroit v. Vickery......................................... 1008 East Rutherford; Bergen County Associates v..................... 925 Eckert v. Hewitt................................................. 947 Economic Opportunity Atlanta, Inc.; Reeb v...................... 1010 Edwards v. Carter........................................... 965,1005 E. F. I., Inc. v. Marketers International, Inc.................. 1008 E. F. I., Inc. v. M. I. 1....................................... 1008 Egeler; Houston v................................................ 917 Eisenberg v. United States....................................... 995 Elkins; Maryland Public Interest Research Group v............... 1008 Elkins v. Moreno................................................. 647 Elliott v. Illinois.............................................. 973 Ellis; Arunga v.................................................. 910 Ellis v. Oklahoma............................................... 1010 Ellis v. United States........................................... 928 El Paso Natural Gas Co. v. Southland Royalty Co.................. 940 Eminhizer v. Pennsylvania....................................... 1008 Emler v. United States............................................ 927 Ender v. Chrysler Corp............................................ 981 Ennis v. LeFevre.................................................. 976 Enriquez^Palafox v. United States................................. 956 Environmental Improvement Agency v. Albuquerque Pub. Co........ 956 Environmental Protection Agency; American Iron & Steel Inst. v.. 914 XVIII TABLE OF CASES REPORTED Page Epperson; Smalling v............................................. 948 Epstein v. Civil Service Comm’n.................................. 911 Equal Employment Opportunity Comm’n; Bailey Co. v................ 915 Equifax, Inc.; Weinberger v...................................... 918 Escalante; Briscoe v......................................... 901,919 Esposito; United States Navigation, Inc. v....................... 972 Esser, In re..................................................... 949 Estabrook v. Wise................................................ 971 Estate. See name of estate. Estelle; Beard v................................................. 938 Estelle; Burrell v............................................... 999 Estelle; Cedillo v.............................................. 1008 Estelle; Hilliard v.............................................. 947 Estelle; Plenums v............................................... 998 Estelle; Zink v.................................................. 954 Evans v. United States....................................... 945,975 Evans; Welch v................................................... 944 Evanston v. Andruss.............................................. 952 Ewanco v. Commissioner of Patents and Trademarks................. 969 Ex parte. See name of party. Exum v. Perini................................................... 946 Exxon Corp.; Bossard v........................................... 934 Exxon Pipeline Co. v. United States.............................. 903 Fahrig v. Berger................................................. 945 Fairfax; Fairfax Hospital Assn, v.............................. 992 Fairfax Hospital Assn. v. Fairfax................................ 992 Faulkner v. Baldwin Piano & Organ Co............................. 905 Federal Communications Comm’n; Hubbard Broadcasting, Inc. v. 968 Federal Communications Comm’n; National Citizens Comm. v.... 912 Federal Communications Comm’n v. Pacifica Foundation............. 966 Federal Communications Comm’n; Pappas Television, Inc. v....... 995 Federal Energy Regulatory Comm’n; Amerada Hess Corp, v......... 907 Federal Energy Regulatory Comm’n; American Public Gas Assn. v. 907 Federal Energy Regulatory Comm’n; Gulf Oil Corp, v............ 981 Federal Energy Regulatory Comm’n v. Southland Royalty Co....... 940 Federal Maritime Comm’n v. Pacific Maritime Assn.................. 40 Federal Trade Comm’n; Great Atlantic & Pacific Tea Co. v....... 922 Federal Trade Comm’n v. Warner-Lambert Co........................ 950 Federal Trade Comm’n; Warner-Lambert Co. v....................... 950 Feeney v. Securities and Exchange Comm’n......................... 969 Felder v. United States......................................... 954 Felter; General Atomic Co. v..................................... 920 Felts v. United States........................................... 973 TABLE OF CASES REPORTED XIX Page Fermin v. Califano................................................ 1010 Fernandez v. United States......................................... 950 Ferris; Rowe v..............,...................................... 932 Firestone Tire & Rubber Co. v. Taylor.............................. 970 First National Bank of Boston v. Bellotti.......................... 765 First National Bank & Trust Co. of Marquette; Albert v........... 910 First Virginia Bankshares; Walter E. Heller & Co. v................ 952 Fisher v. Ohio.................................................... 1005 Fisher v. United States............................................ 926 Fleer Corp.; Topps Chewing Gum, Inc. v............................. 970 Florida; Backus v.................................................. 975 Florida; Clark v................................................... 910 Florida; Gibson v................................................. 1004 Florida; Haley v............................................... 906,962 Florida; Huffman v................................................ 1014 Florida; Hull v.................................................... 965 Florida; Riley v................................................... 930 Florida; Robinson v................................................ 975 Florida; Surace v.................................................. 998 Florida; Thompson v................................................ 998 Florida; United States v........................................... 940 Florida; Weinstein v............................................... 965 Florida Telephone Corp.; Donovan Construction Co. of Minn. v.... 1007 Foley v. Connelie................................................... 291 Ford Motor Co.; Moore v........................................... 1009 Forge v. Minnesota.................................................. 919 Forrest; Times-Picayune Publishing Co. v............................ 971 Foster v. United States............................................. 952 Founding Church of Scientology v. United States.................... 925 Fowler v. Maryland State Board of Law Examiners.................... 938 Frakes v. United States........................................ 911,942 Franchise Tax Bd. of California; Chase Brass & Copper Co. v.... 910 Franklin v. Atkins............................................... 994 Franklin; Beal v................................................... 913 Franklin v. Georgia................................................ 950 Franklin v. Shields............................................... 1003 Franklin v. United States.......................................... 955 Frank Lyon Co. v. United States.................................... 561 Frazier v. United States........................................... 968 Frey v. United States.............................................. 923 Fribesco S. A. v. Mitsui & Co. (U. S. A.).......................... 915 Friday; Pennsylvania v............................................. 947 Friedman v. Rogers................................................. 967 XX TABLE OF CASES REPORTED Page Friedman; Rogers v............................................... 967 Frivaldo v. Cleland.............................................. 981 Fruehauf Corp.; Internal Revenue Service v....................... 993 Fund of Funds, Ltd. v. Arthur Andersen & Co...................... 940 Fumco Construction Corp. v. Waters........................... 902,940 Furness Withy & Co. v. Bunge Corp................................ 924 G.; Detrich v.................................................... 996 Gable v. Massey.................................................. 975 Gaddis v. Georgia................................................ 981 Gaetano v. Oberdörfer............................................ 967 Gaetano v. Silbert.............................................. 1008 Galante v. Attorney General of United States..................... 921 Galfand; Chestnutt Corp, v....................................... 943 Gambino v. United States......................................... 952 Gannett Co. v. DePasquale....................................... 1006 Gardner v. Superintendent, Virginia State Penitentiary........... 906 Gardner v. Westinghouse Broadcasting Co.......................... 921 Garnatz; Stifel, Nicolaus & Co. v................................ 951 Garrett v. United States..................................... 939,974 Gaston; Bordenkircher v.......................................... 964 Gay v. United States............................................. 999 Gay Lib; Ratchford v............................................. 981 Geisinger v. Board of Comm’rs of Miami County.................... 905 General Atomic Co. v. Felter..................................... 920 General Electric Co.; Raitport v................................. 929 Gentry v. United States.......................................... 951 Georgia; Ballew v................................................ 223 Georgia; Bowden v................................................ 937 Georgia; Franklin v.............................................. 950 Georgia; Gaddis v................................................ 981 Georgia; Meeks v................................................. 916 Georgia; Robinson v.............................................. 991 Georgia; Sewell v................................................ 982 Georgia; Teal v.................................................. 989 Georgia; Thornton v.............................................. 962 Gibbs v. Ohio.................................................... 948 Gibson, In re.................................................... 901 Gibson v. Florida............................................... 1004 Gilbert v. Yalanzon.............................................. 962 Gill v. Gill..................................................... 990 Gillen v. United States.......................................... 974 Ginsberg; Sherard v.............................................. 925 Gish v. United States............................................ 996 TABLE OF CASES REPORTED XXI Page Givhan v. Western Line Consolidated School District.............. 950 Gleichman; Crownover v........................................... 905 G. M. Leasing Corp. v. United States............................. 923 Godin v. United States........................................... 955 Goins; Tyler v................................................... 929 Gonzalez, In re.................................................. 949 Gordon v. Commissioner........................................... 924 Gore Newspapers Co.; Timmins v................................... 910 Government of India; Pfizer Inc. v............................... 910 Government of Virgin Islands v. Vitco, Inc....................... 980 Governor of Illinois v. Little................................... 932 Governor of Kentucky v. Department of HEW...................... 904 Governor of New Hampshire; Brown v...................... 938,993 Governor of Ohio v. Krause....................................... 924 Governor of Ohio; Krause v..................................... 924 Governor of Texas v. Escalante............................... 901,919 Governor of Washington v. Atlantic Richfield Co.................. 151 Grady; Tyler v................................................... 967 Graves v. United States......................................... 923 Gray; Illinois v................................................ 1013 Gray v. United States........................................... 955 Gray-Grimes Tool Co.; Labor Board v.............................. 907 Grayhall, Inc. v. United States................................. 922 Great Atlantic & Pacific Tea Co. v. Federal Trade Comm’n..... 922 Green v. United States........................................... 977 Green v. Warden.................................................. 946 Greer v. United States.......................................... 1009 Griffin; Muncaster v........................................... 974 Griffin v. United States........................................ 1007 Grinnell Corp.; Hackett v........................................ 938 Grismore v. United States....................................... 954 Groomes; Rocca v................................................ 929 Group Life & Health Ins. Co. v. Royal Drug Co........ 903 Group Life & Health Ins. Co. v. Royal Pharmacy of Castle Hills.. 903 Gulf Oil Corp. v. Connecticut Public Utilities Control Authority... 911 Gulf Oil Corp. v. Federal Energy Regulatory Comm’n........... 981 Gulf Oil Corp.; Philadelphia Gas Works v......................... 970 Gunn; Christiansen v............................................ 1009 Gunston v. United States......................................... 976 Hackett v. Grinnell Corp......................................... 938 Haley v. Florida............................................. 906,962 Hall v. United States........................................ 926,942 Hampton v. Alaska................................................ 981 XXII TABLE OF CASES REPORTED Page Hampton; Michigan v............................................. 932 Hampton v. United States........................................ 947 Hanna v. Illinois............................................. 997 Hard’s Estate; International Tracers of America v.............. 1004 Harkins v. United States........................................ 972 Harmon v. United States......................................... 917 Harper v. Duffey................................................ 963 Harrington v. United States..................................... 926 Harris v. Chase................................................. 975 Harris; Miller v................................................ 981 Harris; Payton v................................................ 941 Harris v. United States........................................ 954 Harrison v. Morris.............................................. 928 Hasty; Lake Livingston Washateria, Inc. v..................... 1007 Hatrak; Johnson v............................................... 906 Hatrak; Trantino v.............................................. 928 Hawaii v. Consumer Product Safety Comm’n....................... 943 Hawaiian Telephone Co. v. Hawaii Dept, of Labor & Ind. Reis.... 943 Hawaii Dept, of Labor & Ind. Relations; Hawaiian Tel. Co. v.... 943 Hayes; Bordenkircher v.......................................... 918 Haywood; Sayles v............................................ 929 Hearst v. United States........................................ 1000 Heffron; Muka v................................................. 963 Heflin v. Oregon................................................ 929 Heimann; New York Stock Exchange, Inc. v.................... 942 Helena Marine Service; Sioux City & New Orleans Barge Lines v.. 1006 Helfer v. United States......................................... 951 Heller & Co. v. First Virginia Bankshares....................... 952 Henderson v. United States...................................... 955 Hendrix Trading Co. v. J. Henry Schroeder Banking Corp........ 1007 Herbert v. Lando................................................ 922 Hernandez v. Colorado........................................... 954 Hernandez v. United States...................................... 999 Hess v. Upper Mississippi Towing Corp........................... 924 Hewitt; Eckert v................................................ 947 Hewitt; Himes v................................................. 973 Hicklin v. Orbeck............................................... 902 Hill; Tennessee Valley Authority v..................... 902,920,965 Hilliard v. Estelle............................................. 947 Himes v. Hewitt................................................. 973 Hines v. California............................................ 1010 Hisquierdo v. Hisquierdo........................................ 994 Hocker v. United States......................................... 973 TABLE OF CASES REPORTED XXIII Page Hoffman v. Public Employees’ Retirement Fund..................... 970 Holley; Shang v................................................... 947 Hollis v. New York............................................... 918 Holloway v. Arkansas............................................. 475 Holsey v. Warden................................................ 1010 Holt Civic Club v. Tuscaloosa.................................... 914 Hoppe v. Wisconsin............................................... 974 Hopper; McDaniel v.............................................. 1009 Hopper; Mitchell v............................................... 937 Hopper; Ricks v.................................................. 945 Hopper; Ross v................................................. 1018 Horng v. Immigration and Naturalization Service.................. 927 Hornstein v. United States........................................ 951 Horowitz; Board of Curators of University of Missouri v........ 78 Hotel & Hospital Services Union v. Long Island College Hospital... 996 Houston; Alnoa G. Corp, v........................................ 970 Houston v. Egeler................................................ 917 Howard v. Wyrick................................................. 975 Howze v. United States........................................... 946 Hoyt; Williams v................................................. 946 Hubbard Broadcasting, Inc. v. Federal Communications Comm’n.. 968 Hudson v. United States.......................................... 946 Huffman v. Florida.............................................. 1014 Huffman v. Kentucky.............................................. 991 Hughes v. South Carolina......................................... 905 Hughes Aircraft Co. v. Bell Telephone Laboratories, Inc.......... 924 Hull v. Florida.................................................. 965 Hulse v. United States........................................... 917 Hulver v. United States.......................................... 951 Hundley v. United States..................................... 916,981 Hunter v. Dean................................................... 967 Hunter; Jardan v................................................. 927 Hurd v. Hurd..................................................... 917 Hurst v. United States........................................... 972 Hurt v. Lorton Complex........................................... 917 Hutter v. Korzen............................................ 901,981 lannone v. United States......................................... 942 Uacqua v. United States.................................. 906,917,947 Illinois; Blitz v................................................ 974 Illinois; Cole v................................................. 944 Illinois; Elliott v.............................................. 973 Illinois v. Gray................................................ 1013 Illinois; Hanna v............................................... 997 XXIV TABLE OF CASES REPORTED Page Illinois; Manion v.................................................... 937 Illinois; McGowan v................................................... 975 Illinois; McKinley v.................................................. 975 Illinois; Myers v..................................................... 942 Illinois v. Pendleton................................................. 956 Illinois; Persinger v............................................. 917 Illinois; Rakas v..................................................... 922 Illinois; Riley v................................................... 1000 Illinois; Sheridan v.................................................. 975 Illinois; Smith v.................................................... 1008 Illinois v. Washington................................................ 981 Illinois; Wolf v...................................................... 915 Illinois Central Gulf R. Co.; Chesapeake & Ohio R. Co. v............ 919 Illinois State Board of Elections v. Sangmeister...................... 939 Illinois State Board of Elections v. Socialist Workers Party........ 994 Immigration and Naturalization Service; Homg v........................ 927 Impact v. Dinkie’s Food Mart.......................................... 992 Impact v. Whitworth................................................... 992 Inda; United Air Lines v............................................. 1007 Indiana; Burr v....................................................... 998 Indiana; Campbell v............................................... 931 Indiana; Chapman v............................................... 998 Indiana; Cloudy v..................................................... 945 Indiana; Jackson v.................................................... 975 Indiana; May v....................................................... 1000 In re. See name of party. Insurance Co. of North America v. Mosley......................... 918,1004 Internal Revenue Service; Doherty v................................... 906 Internal Revenue Service v. Fruehauf Corp............................. 993 International Tracers of America v. Hard’s Estate.................... 1004 International Trading, Ltd.; Bell v................................... 941 Investors Diversified Services, Inc.; Lunsford v...................... 925 Iowa; Davis v......................................................... 973 Iowa; Washington v................................................... 1008 Iranian Shipping Lines, S. A. v. Arya Shipping Lines, S. A.......... 905 Ivey v. United States................................................. 971 Jackson v. Indiana.................................................... 975 Jackson v. Overberg................................................... 997 Jackson v. United States............................................. 925 Jackson v. Virginia................................................... 999 Jardan v. Hunter...................................................... 927 Jarvis v. United States............................................... 934 Jenkins v. District of Columbia................................... 945,963 TABLE OF CASES REPORTED XXV Page Jenkins v. Washington Post Co........................... 931 J. Henry Schroeder Banking Corp.; Ben R. Hendrix Trading Co. v. 1007 Jiminez-Valencia v. United States................................ 916 Joe v. Virginia.................................................. 923 John v. Mississippi.............................................. 941 John; United States v............................................ 941 Johnson v. Hatrak................................................ 906 Johnson v. Nimes................................................. 917 Johnson; Tally v................................................ 1007 Johnson v. United States..................................... 931,973 Jones v. McCracken............................................... 917 Jones v. Missouri................................................ 970 Jones; Pennsylvania v............................................ 947 Jones v. United States........................................... 926 Jones v. Virginia................................................ 909 Jones; Vitek v................................................... 949 Jordan; Quern v.................................................. 904 Joyner v. Phelps................................................. 943 Judges of U. S. Court of Appeals; American Assn. Med. Staffs v... 993 Judiciary Comm’n of State of Louisiana; Morial v................ 1013 Kansas; Crawford v............................................... 930 Kansas; Martin v.'............................................... 920 Kansas Power & Light Co.; Quinn v........................ 944 Kaplan v. Whipple................................................ 981 Keefer v. Pennsylvania.......................................... 938 Keeling v. Texas................................................. 998 Kehn v. United States............................................ 906 Keiffer v. United States......................................... 915 Kellogg; In re................................................ 949 Kentucky; Huffman v.............................................. 991 Kentucky; Patterson v............................................ 970 Kentucky; Pevlor v............................................... 954 Kentucky; Potts v................................................ 919 Kentucky; Sherley v.............................................. 999 Kentucky; Trice v................................................ 998 Keogh v. Main XX XVI, Inc........................................ 948 King v. United States............................................ 918 Kirkland v. United States........................................ 918 Kissinger v. Reporters Committee for Freedom of the Press..... 993 Kizer v. United States........................................... 976 Klein v. Decker.................................................. 967 Knapp v. Arizona................................................ 908 Knehans v. Alexander............................................. 995 XXVI TABLE OF CASES REPORTED Page Knight v. U. S. District Court................................ 1006 Koehnen v. United States....................................... 905 Korzen; Hutter v........................................... 901,981 Korzen; Nabisco, Inc. v....................................... 1005 Krause; Del Corso v............................................ 924 Krause v. Rhodes............................................... 924 Krause; Rhodes v............................................... 924 Kreiger; Simpson v............................................. 946 Krentzman; Miami Herald Publishing Co. v....................... 968 Kristensen; Marschall v........................................ 963 K. S. B. Technical Sales Corp. v. North Jersey Dist. Water Comm’n. 982 Ktsanes; Supreme Court of Illinois v........................... 933 Kulas v. United States......................................... 947 Kurek; Pleasure Driveway and Park District of Peoria v........ 992 Labor Board; Beth Israel Hospital v........................... 940 Labor Board; Committee of Interns and Residents v.............. 904 Labor Board; Detroit Edison Co. v.......,...................... 941 Labor Board v. Gray-Grimes Tool Co............................. 907 Labor Board; Lutheran Hospital of Milwaukee, Inc. v............ 941 Labor Union. See name of trade. Ladd v. Alaska................................................. 928 LaFatch v. MM Corp............................................. 971 Lafayette v. Louisiana Power & Light Co........................ 389 Laing v. United States......................................... 906 Lake Livingston Washateria, Inc. v. Hasty..................... 1007 Lakeside v. Oregon............................................ 333 Lalli v. Lalli................................................. 921 Lamont v. United States........................................ 914 Landmark Communications, Inc. v. Virginia..................... 829 Lando; Herbert v,922 Landry; Turner v............................................... 918 Larsen v. Rogers............................................... 966 Lawary v. United States........................................ 930 Lawrence v. United States............................r:........ 930 Lawriw v. United States........................................ 969 Lee v. United States......................................... 972 Leeke; Williams v.............................................. 929 Lee Pharmaceuticals v. Den-Mat, Inc............................ 951 Lee Pharmaceuticals v. U. S. District Court.................... 951 LeFebre v. Wisconsin........................................... 966 LeFevre; Ennis v............................................... 976 LeFevre; McCrary v............................................. 917 Levatino v. United States...................................... 953 TABLE OF CASES REPORTED XXVII Page Lewis v. Chavez.............................................. 916,953 Lewis v. Cowen................................................... 948 Lewis v. United States................................... 917,945,973 Libbey-Owens-Ford Co.; Yuhas v................................... 934 Lieberman v. United States....................................... 931 Liebert v. United States........................................ 972 Lindsay; Townsley v............................................. 1006 Linfield v. Board of Higher Education of New York City........... 915 Lipscomb v. United States........................................ 931 Lipscomb; Wise v......................................... 949,966,993 Little v. Arkansas............................................... 957 Little v. United States.......................................... 969 Little; Walker v................................................. 932 Livestock Marketers, Inc. v. United States....................... 968 Livingston v. Oklahoma........................................... 927 Llewellyn; East Detroit v....................................... 1008 Lloyd Harbor Study Group, Inc.; Long Island Lighting Co. v.... 964 Local. For labor union, see name of trade. Logal v. Cruse................................................... 943 Lombardi v. United States........................................ 905 Long Island College Hospital; Hotel & Hospital Services Union v.. 996 Long Island Lighting Co. v. Lloyd Harbor Study Group, Inc....... 964 Long Island R. Co. v. Aberdeen & Rockfish R. Co.................. 912 Long Mfg., N. C., Inc. v. Dollar................................. 996 Longoria v. United States........................................ 927 Lorton Complex; Hurt v........................................... 917 Los Angeles Dept, of Water and Power v. Manhart.................. 702 Lou Bachrodt Chevrolet, Inc.; Beltone Hearing Aid Center v...... 999 Lou Bachrodt Chevrolet, Inc.; Watkins v.......................... 999 Louisiana; Anderson v........................................... 974 Louisiana; Olinkraft, Inc. v.................................... 924 Louisiana; Smith v.............................................. 920 Louisiana; Tennart v............................................ 945 Louisiana; Turner v............................................ 1009 Louisiana Power & Light Co.; Lafayette v......................... 389 Lowe v. United States............................................ 932 Lowe v. Virginia................................................. 930 Lowther v. Maryland Employees Retirement System.................. 994 Lozada v. New York............................................... 952 Lozano v. Texas Mexican R. Co................................... 971 Lumpkin; Barkley v.............................................. 973 Luna v. United States............................................ 998 Lund v. United States............................................ 995 XXVIII TABLE OF CASES REPORTED Page Lunsford v. Investors Diversified Services, Inc................ 925 Lutheran Hospital of Milwaukee, Inc. v. Labor Board............ 941 Lyle v. Wyrick................................................. 954 Lyon v. United States.......................................... 918 Lyon Co. v. United States...................................... 561 Lyons v. Salve Regina College.................................. 971 Mabery v. New York............................................. 999 Mabry; Smith v................................................. 907 MacDonald; United States v..................................... 850 Machinists v. Compagnie Nationale Air France.................. 1005 Madry v. Sorel................................................. 982 Mageean v. United States....................................... 926 Mahan; Blizzard v.............................................. 951 Main XX XVI, Inc.; Keogh v..................................... 948 Malizia v. United States....................................... 969 Malley; Clark v................................................ 928 Mallis; Bankers Trust Co. v.................................... 381 Malone v. White Motor Corp.................................,.. 497 Manhart; Los Angeles Dept, of Water and Power v................ 702 Manion v. Illinois............................................. 937 Manson v. California........................................... 953 Manson; Carroll v.............................................. 982 Manson; Ralls v................................................ 976 Manufacturers Hanover Trust Co.; Alitalia-Linee Aeree Italiane v. 971 Marco Dental Products, Inc. v. Austin.......................... 918 Marcus v. McGinnis............................................. 975 Marino v. United States........................................ 996 Marketers International, Inc.; E. F. I., Inc. v............... 1008 Markley v. United States....................................... 951 Marschall v. Kristensen........................................ 963 Marsh v. Cupp.................................................. 930 Marshall v. United States...................................... 931 Martin v. Kansas............................................. 920 Martin v. New England Telephone & Telegraph Co................ 1010 Martin v. Wyrick............................................... 975 Martin Linen Supply Co.; United States v....................... 778 Martorano v. United States.................................... 922 Martorella v. United States.................................... 923 Maryland v. Marzullo.......................................... 1011 Maryland; Peterson v......................................... 945 Maryland; Ricks v.............................................. 928 Maryland v. Wheeler............................................ 997 Maryland Employees Retirement System; Lowther v................ 994 TABLE OF CASES REPORTED XXIX Page Maryland Public Interest Research Group v. Elkins................ 1008 Maryland State Board of Law Examiners; Fowler v................... 938 Marzullo; Maryland v............................................. 1011 Mascarenhas v. Meridian Hospital Authority........................ 968 Mase v. United States........................................... 916 Masel v. United States............................................ 927 Massachusetts; Canon v............................................ 933 Massachusetts v. Dustin........................................... 943 Massachusetts v. United States.................................... 444 Massey; Gable v................................................... 975 Mawyer v. Califano................................................ 916 May v. Indiana................................................... 1000 Mayor of Birmingham; Billingsley v................................ 929 Mayor of Dallas v. Lipscomb............................ 949,966,993 McAdams v. Bell................................................... 997 McCracken; Jones v.............................................. 917 McCrary v. LeFevre.............................................. 917 McDaniel v. Hopper.............................................. 1009 McDaniel v. Paty................................................. 618 McDonnell v. United States........................................ 927 McElroy v. Wilson................................................. 931 McFadden; Richardson v............................................ 968 McFayden-Snider v. United States.................................. 995 McGinnis; Marcus v................................................ 975 McGowan v. Illinois............................................... 975 McKinley v. Illinois.............................................. 975 McLennan v. United States......................................... 969 McMillan; Doe v................................................... 969 McNair v. United States........................... ,......... 976,998 Meeks v. Georgia.................................................. 916 Members, House of Representatives v. Carter............... 965,1005 Meridian Hospital Authority; Mascarenhas v........................ 968 Merrill Lynch, Pierce, Fenner & Smith; Bryan v.................... 943 Merrill Lynch, Pierce, Fenner & Smith; St. Louis Union Tr. Co. v.. 925 Meyer; Missouri State Highway Comm’n v........................... 1013 Miami Herald Publishing Co. v. Krentzman.......................... 968 Michigan v. Allensworth........................................... 933 Michigan v. Doran................................................. 967 Michigan v. Hampton............................................... 932 Michigan; Stockler v.............................................. 963 Michigan State Boundary Comm’n; Midland v........................ 1004 Midland v. Michigan State Boundary Comm’n........................ 1004 M. 1.1.; E. F. I., Inc. v........................................ 1008 XXX TABLE OF CASES REPORTED Page Miller v. Harris................................................ 981 Miller v. United States......................................... 931 Minnesota; Forge v.............................................. 919 Minnesota; Ruud v............................................... 996 Mississippi; Boudreaux v..................................... 924 Mississippi; John v............................................. 941 Missouri; Duren v.............................................. 1006 Missouri; Jones v............................................... 970 Missouri; Tippett v............................................. 946 Missouri; Tyler v............>.................................. 928 Missouri Pacific R. Co. v. Palestine............................ 950 Missouri State Highway Comm’n v. Meyer......................... 1013 Mitchell v. Hopper.............................................. 937 Mitsui & Co. (U. S. A.); Fribesco S. A. v....................... 915 Mize v. United States........................................... 974 MM Corp.; LaFatch v............................................. 971 Mobil Alaska Pipeline Co. v. United States...................... 903 Monroe County Conservation Council v. Adams.................... 1006 Monteer v. United States........................................ 902 Montes-Zarate v. United States.................................. 947 Montoya v. United States..................'..................... 955 Montoya-Guerrero v. United States.............................. 1010 Montrym; Panora v............................................... 967 Moody, Ex parte................................................. 969 Moody v. Alabama ex rel. Payne.................................. 969 Moore v. Brierton............................................... 962 Moore v. Cowan.................................................. 929 Moore v. Ford Motor Co....................................... 1009 Moore v. Richmond, Fredericksburg & Potomac Railroad.......... 904 Moore v. United States.......................................... 956 Moorer v. United States......................................... 918 Mora v. United States........................................... 955 Morelock v. NCR Corp............................................ 911 Moreno; Elkins v................................................ 647 Moreno v. United States......................................... 972 Morgan v. Setliff............................................... 999 Morgan v. United States............................ 924,926,974,1018 Morial v. Judiciary Comm’n of State of Louisiana............... 1013 Moroyoqui v. United States...................................... 997 Morris; Aguirre v............................................... 999 Morris; Harrison v.............................................. 928 Morris v. United States..................................... 916,981 Morrison v. Reed................................................ 914 TABLE OF CASES REPORTED XXXI Page Morrison Pump Co.; Beck v...................................... 1013 Morrow v. Calif ano............................................. 962 Mosley; Insurance Co. of North America v................... 918,1004 Moss v. United States........................................... 914 Moynagh v. United States........................................ 917 M. R. T. S., Inc. v. Dept, of Alcoholic Beverage Control of Cal.... 962 Muka v. Heffron.................................................. 963 Mulder; Adams v.................................................. 939 Mullholan v. United States....................................... 956 Mullins v. United States......................................... 906 Muncaster v. Griffin............................................. 974 Municipal Court of Los Cerritos Judicial Dist.; Schroeder v... 990 Murdaugh; Coledanchise v......................................... 976 Murphy v. United States.......................................... 955 Murray v. Calif ano.............................................. 945 Murry v. United States.................................... 915,961 Myers v. Arizona.............................................. 928 Myers v. Illinois............................................. 942 Myers v. United States........................................ 944 Nabisco, Inc. v. Korzen........................................ 1005 Nabisco, Inc.; Namirowski v..................................... 971 Namirowski v. Nabisco, Inc...................................... 971 Narragansett Electric Co.; Burke v............................... 972 National Assn, of Securities Dealers; Whiteside & Co. v......... 942 National Broadcasting Co. v. Niemi.......................... 1000 National Citizens Committee for Broadcasting v. FCC............. 912 National College of Business; Cleland v.......................... 213 National Labor Relations Board. See Labor Board. National Park Serv.; Buffalo River Conserv. & Rec. Council v.. 924,1018 National Railroad Adjustment Board; Skidmore v.................. 928 National Rejectors Industries; Steelworkers v................... 923 National Society of Professional Engineers v. United States... 679 Natural Resources Def. Council; Baltimore Gas & Elec. Co. v.... 964 Natural Resources Def. Council; Vermont Nuclear Power Corp. v.. 519 Naylor v. Superior Court of Arizona............................. 946 Nazario de Toro v. Puerto Rico.................................. 903 NCR Corp.; Morelock v......................................... 911 Neustem v. United States........................................ 947 Newell v. Davis................................................. 907 New England Telephone & Telegraph Co.; Avery v.................. 950 New England Telephone & Telegraph Co.; Martin v................ 1010 New Mexico; Duran v............................................. 972 New Mexico; United States v................................. 940,966 XXXII TABLE OF CASES REPORTED Page New Mexico ex rei. Env. Imp. Agency v. Albuquerque Pub. Co.... 956 Newsome v. United States......................................... 904 New York; Cohen v............................................. 954 New York; Davis v............................................. 998 New York; Hollis v............................................. 918 New York; Lozada v............................................ 952 New York; Mabery v........................................... 999 New York; Selby v............................................. 907 New York City; Perni Central Transportation Co. v........... 913,920 New York State Dept, of Labor; New York Telephone Co. v...... 941 New York State Parole Board v. Coralluzzo...................... 912 New York Stock Exchange, Inc. v. Heimann....................... 942 New York Telephone Co. v. New York State Dept, of Labor.......... 941 Neyra v. United States........................................... 926 Niemeyer; Black v................................................ 932 Niemi; National Broadcasting Co. v.............................. 1000 Nixon v. Warner Communications, Inc............................ 589 Nogueras v. Puerto Rico International Airlines................... 951 Noone v. Szoradi................................................. 930 Norris v. Arkansas............................................... 970 North Carolina; Barbee v......................................... 943 North Carolina ex rei. Morrow v. Califano........................ 962 North Dakota; Ternes v........................................... 944 Northern v. Department of Human Services of Tennessee......... 950 North Jersey Dist. Water Supply Comm’n; K. S. B. Tech. Sales v. 982 Nunes; Johnson v................................................. 917 Nutter v. Perfecto Plumbing Sewer Service, Inc................... 925 Nutter v. Torrez................................................. 925 Nyquist; Quraishi v.............................................. 910 Oakes v. United States........................................... 926 Oberdörfer; Gaetano v............................................ 967 O’Brien v. United States......................................... 976 Odneal v. United States.......................................... 952 O’Haver v. Black................................................. 969 Ohio; Daniels v................................................. 955 Ohio; Fisher v.................................................. 1005 Ohio; Gibbs v................................................. 948 Ohio; Pope v..................................................... 974 Ohio; Ratliff v.................................................. 954 Ohio; Riley v.................................................... 948 Ohio; Smith v.................................................... 905 Ohio v. Teter................................................... 1000 Ohio; Thompson v.............................................. 970 TABLE OF CASES REPORTED mm Page Ohio; Williams v............................................... 998 Oklahoma; Ellis v........................................... 1010 Oklahoma; Livingston v....................................... 927 Oklahoma; Twyman v........................................ 962 Olden v. Community Release Board............................... 928 O’Leary v. Palmer............................................. 901 Olian; Phillips v............................................. 975 Olinkraft, Inc. v. Department of Highways of Louisiana......... 924 Olinkraft, Inc. v. Louisiana................................... 924 Oliphant v. Suquamish Indian Tribe............................. 191 Oliver v. United States........................................ 914 Olivera v. United States...................................... 1010 O’Neal; Simpson v.............................................. 934 O’Neill v. California.......................................... 930 Orbeck; Hicklin v.............................................. 902 Oregon; Heflin v............................................... 929 Oregon; Lakeside v............................................. 333 Ottoboni v. United States...................................... 911 Overberg; Jackson v............................................ 997 Owen; Reed v................................................... 930 Pacifica Foundation; Federal Communications Comm’n v........... 966 Pacific Maritime Assn.; Federal Maritime Comm’n v.. 40 Palanacki v. United States..................................... 927 Palestine; Missouri Pacific R. Co. v........................... 950 Palmer; O’Leary v.............................................. 901 Panora v. Montrym.............................................. 967 Papagianopoulos; Walton v...................................... 981 Pappas Television, Inc. v. Federal Communications Comm’n...... 995 Paradise Homes; Paradise Palms Community Assn, v............... 997 Paradise Palms Community Assn. v. Paradise Homes............... 997 Parke, Davis & Co. v. Califano................................. 942 Parker v. United States........................................ 956 Parklane Hosiery Co. v. Shore................................. 1006 Passarelli v. United States.................................... 915 Patterson v. Kentucky.......................................... 970 Patton v. United States........................................ 918 Paty; McDaniel v............................................... 618 Payne; Moody v................................................. 969 Payton v. Carlson.............................................. 916 Payton v. Harris.............................................. 941 Peach; Tyler v............................................. 906,962 Pederson v. United States...................................... 956 Pendleton; Illinois v.......................................... 956 xxxrv TABLE OF CASES REPORTED Page Penn Central Transportation Co. v. New York City............... 913,920 Pennsylvania; Eminhizer v......................................... 1008 Pennsylvania v. Friday............................................. 947 Pennsylvania v. Jones.............................................. 947 Pennsylvania; Keefer v............................................. 938 Pepsi Cola Co.; Waddell v.......................................... 996 Perez v. United States............................................. 998 Perfecto Plumbing Sewer Service, Inc.; Nutter v.................... 925 Perini; Christian v................................................ 930 Perini; Exum v.................................................... 946 Perkins v. United States........................................... 915 Perry v. United States............................................. 972 Persinger v. Illinois.............................................. 917 Peterson v. Maryland............................................... 945 Peterson v. United States.......................................... 939 Pevlor v. Kentucky................................................. 954 Pfister v. Delta Air Lines......................................... 995 Pfister v. Waddy................................................... 995 Pfizer Inc. v. Government of India................................. 910 Phelps; Armstead v................................................. 997 Phelps; Joyner v................................................... 943 Philadelphia v. Resident Advisory Bd............................... 908 Philadelphia Gas Works v. Gulf Oil Corp............................ 970 Philadelphia Housing Authority v. Resident Advisory Bd........... 908 Phillips v. Benton................................................. 997 Phillips v. Olian.................................................. 975 Phillips v. United States.......................................... 974 Phillips v. Williams............................................... 905 Phillips Petroleum Co. v. Shutts................................... 961 Piccirillo v. United States........................................ 918 Pickens v. Arkansas................................................ 909 Pico-Zazueta v. United States...................................... 946 Pierce v. United States............................................ 923 Pillon v. U. S. District Court..................................... 913 Piphus; Carey v.................................................... 247 Pittman v. United States........................................... 976 Pleasure Driveway and Park District of Peoria v. Kurek............. 992 Plemons v. Estelle................................................. 998 Plumlee v. United States........................................... 938 Poe v. Stetson..................................................... 943 Pomponio v. United States.......................................... 942 Pope v. Ohio....................................................... 974 Potts v. Kentucky.................................................. 919 TABLE OF CASES REPORTED XXXV Page Powell v. United States.......................................... 904 President of the United States; Edwards v................... 965,1005 President, Univ, of Md.; Maryland Public Interest Res. Gp. v.... 1008 President, Univ, of Md. v. Moreno................................ 647 President, Univ, of Mo. v. Gay Lib............................... 981 Proctor v. Warden................................................ 559 Public Employees’ Retirement Fund; Hoffman v..................... 970 Public Service Comm’n of W. Va.; Appalachian Power Co. v....... 901 Puerto Rico; Nazario de Toro v................................... 903 Puerto Rico International Airlines; Nogueras v................... 951 Pugh v. United States........................................... 1010 Puglisi v. United States.......................................... 968 Punch v. United States............................................ 955 Quern v. Jordan................................................... 904 Quilloin v. Walcott.............................................. 918 Quinn v. Kansas Power & Light Co................................. 944 Quraishi v. Nyquist............................................... 910 Railway Clerks v. United States................................... 923 Raines v. Wright.................................................. 933 Raitport v. Acro-Matic, Inc..................................... 1004 Raitport v. Bank & Trust Co. of Old York Road.................... 962 Raitport v. General Electric Co................................... 929 Rakas v. Illinois................................................. 922 Ralls v. Manson................................................... 976 Rapp v. United States............................................. 953 Ratchford v. Gay Lib.............................................. 981 Ratliff v. Ohio................................................... 954 Raupp v. United States............................................ 931 Ray v. Atlantic Richfield Co...................................... 151 Ray v. Cowan.................................................... 1010 REA Express, Inc. v. United States................................ 923 Reda v. United States............................................. 973 Redevelopment Authority of Phila. v. Resident Advisory Bd...... 908 Rediker; Chicago, Rock Island & Pacific R. Co. v............. 922,982 Redmond v. United States.......................................... 995 Reeb v. Economic Opportunity Atlanta, Inc....................... 1010 Reed; Morrison v.................................................. 914 Reed v. Owen...................................................... 930 Reeve v. United States............................................ 914 Regenold v. Baby Fold, Inc....................................... 963 Registrar of Motor Vehicles of Massachusetts v. Montrym........ 967 Renwick v. U. S. Court of Appeals................................ 950 Reporters Committee for Freedom of the Press; Kissinger v...... 993 XXXVI TABLE OF CASES REPORTED Page Resident Advisory Bd.; Philadelphia v........................... 908 Resident Advisory Bd.; Philadelphia Housing Authority v...... 908 Resident Advisory Bd.; Redevelopment Authority of Phila. v...... 908 Resident Advisory Bd.; Whitman Area Improvement Council v.... 908 Reynolds Metals Co. v. Brown.................................... 995 Rhode Island; Demers v....................................... 963 Rhodes v. Krause................................................ 924 Rhodes; Krause v................................................ 924 Ricard v. United States......................................... 916 Richardson v. Blumenthal........................................ 939 Richardson v. McFadden.......................................... 968 Richardson v. Texas............................................. 930 Richmond, Fredericksburg & Potomac Railroad; Moore v............ 904 Ricks v. Collins................................................ 994 Ricks v. Hopper................................................. 945 Ricks v. Maryland............................................... 928 Riddell v. Washington........................................... 974 Riley v. Florida................................................ 930 Riley v. Illinois.............................................. 1000 Riley v. Ohio................................................... 948 Rimar v. United States.......................................... 922 Roach v. United States.......................................... 999 Robertson v. Wegmann............................................ 902 Robinson v. Florida............................................. 975 Robinson v. Georgia............................................. 991 Robinson v. United States....................................... 905 Robles v. United States......................................... 925 Robson v. United States......................................... 973 Rocca v. Groomes................................................ 929 Rock v. United States.......................................... 1009 Rocky Mountain Motor Tariff Bureau, Inc. v. United States.... 1006 Rodriguez v. United States...................................... 944 Rogers v. Friedman.............................................. 967 Rogers; Friedman v.............................................. 967 Rogers; Larsen v................................................ 966 Rogers; Texas Optometric Assn, v............................... 967 Rogers v. Thirty-Seventh Judicial Court......................... 946 Rojas v. United States.......................................... 915 Roots v. Wainwright............................................. 938 Rosenmund v. Virginia........................................... 997 Ross v. Hopper................................................. 1018 Rowe v. Ferris.................................................. 932 Royal Drug Co.; Blue Shield of Texas v.......................... 903 TABLE OF CASES REPORTED XXXVII Page Royal Drug Co.; Group Life & Health Insurance Co. v............... 903 Royal Pharmacy of Castle Hills; Blue Shield of Texas v............ 903 Royal Pharmacy of Castle Hills; Group Life & Health Ins. Co. v.. 903 Royse v. Washington............................................ 1010 Rudolph v. Wisconsin............................................... 944 Ruud v. Minnesota................................................. 996 Sacco v. United States............................................ 999 Sadlowski; Steelworkers v.......................................... 977 St. Louis Union Trust Co. v. Merrill Lynch, Pierce, Fenner & Smith. 925 St. Paul Fire & Marine Insurance Co. v. Barry................. 902,913 Saltzer, In re..................................................... 901 Salve Regina College; Lyons v...................................... 971 Sangmeister; Illinois State Bd. of Elections v.................... 939 Santana v. United States......................................... 1007 Sayles v. Haywood.................................................. 929 Schnitzer v. United States......................................... 907 Schott v. United States............................................ 915 Schoultz v. Sheriff, Carson City, Nevada.......................... 954 Schroeder v. Municipal Court of Los Cerritos Judicial Dist...... 990 Schroeder Banking Corp.; Ben R. Hendrix Trading Co. v........... 1007 Schurgin v. United States......................................... 922 Scott v. United States............................................ 953 Scruggs v. United States.......................................... 931 Seagroves v. Tennessee............................................ 921 Secretary, Florida Department of Offender Rehabilitation; Apel v.. 1009 Secretary of Air Force; Poe v.................................... 943 Secretary of Army; Knehans v...................................... 995 Secretary of Defense; Chrysler Corp, v............................ 914 Secretary of Defense; Reynolds Metals Co. v....................... 995 Secretary of Defense; West v...................................... 926 Secretary of Health, Education, and Welfare v. Aznavorian...... 921 Secretary of Health, Education, and Welfare; Aznavorian v...... 921 Secretary of Health, Education, and Welfare v. Colon................ 1 Secretary of Health, Education, and Welfare; Fermin v........... 1010 Secretary of Health, Education, and Welfare; Mawyer v............ 916 Secretary of Health, Education, and Welfare; Morrow v............ 962 Secretary of Health, Education, and Welfare; Murray v............ 945 Secretary of Health, Education, and Welfare; Parke, Davis & Co. v. 942 Secretary of Health, Education, and Welfare v. Torres.............. 1 Secretary of Health, Education, and Welfare v. White............. 908 Secretary of Housing and Urban Development; Miller v............. 981 Secretary of Interior v. Charlestone Stone Products Co........... 965 XXXVIII TABLE OF CASES REPORTED Page Secretary of Labor; Chalk v....................................... 945 Secretary of Transportation; Monroe Cty. Conservation Council v. 1006 Secretary of Treasury; American Society of Travel Agents v...... 947 Secretary of Treasury; Richardson v............................... 939 Secretary of Welfare of Pennsylvania v. Franklin.................. 913 Securities and Exchange Comm’n; Feeney v.......................... 969 Securities and Exchange Comm’n v. Sloan........................... 920 Securities Comm’r of Arkansas v. International Trading, Ltd..... 941 Seibels; Billingsley v............................................ 929 Selby v. New York................................................. 907 Setliff; Morgan v............................................. 999 Sewell v. Georgia................................................. 982 Seymour v. United States.......................................... 904 Shang v. Holley................................................... 947 Shanks v. United States........................................... 916 Shannon v. United States.......................................... 927 Shaver v. United States........................................... 997 Shelton G.; Detrich v............................................. 996 Sherard v. Ginsberg............................................... 925 Sheridan v. Illinois.............................................. 975 Sheriff, Carson City, Nevada; Schoultz v........................ 954 Sherley v. Kentucky.............................................. 999 Shevin; Sunbeam Television Corp, v........................... 920,1018 Shields; Franklin v.............................................. 1003 Shore; Parklane Hosiery Co. v.................................... 1006 Shutts; Phillips Petroleum Co. v.................................. 961 Siddle v. U. S. District Court................................... 1006 Silberberg v. United States....................................... 953 Silbert; Gaetano v............................................... 1008 Silverton v. California.......................................... 919 Simmons v. United States........................................ 947 Simpkins v. United States......................................... 956 Simpson v. Kreiger.............................................. 946 Simpson v. O’Neal............................................... 934 Simpson v. United States............................................ 6 Sioux City & New Orleans Barge Lines v. Helena Marine Service.. 1006 Skidmore v. National Railroad Adjustment Board.................... 928 Skinner v. Cardwell.............................................. 1009 Sloan; Securities and Exchange Comm’n v........................... 920 Smalling v. Epperson............................................ 948 Smiley v. California.............................................. 910 Smith v. Illinois................................................ 1008 Smith v. Louisiana................................................ 920 TABLE OF CASES REPORTED XXXIX Page Smith v. Mabry.................................................. 907 Smith v. Ohio.................................................... 905 Smith v. United States.......................... 915,946,953,962,972 Smith v. Virginia.............................................. 923 Smolsky v. United States.......................................... 927 Smyzer v. Dotson.................................................. 930 Socialist Workers Party; Illinois State Board of Elections v.... 994 Solem; Thundershield v............................................ 954 Solomon v. California............................................ 1009 Sorel; Madry v.................................................... 982 South Carolina; Hughes v................................‘......... 905 Southfield; DeKam v............................................... 919 Southland Royalty Co.; California v.............................. 940 Southland Royalty Co.; El Paso Natural Gas Co. v.................. 940 Southland Royalty Co.; Federal Energy Regulatory Comm’n v.... 940 Southwestern Life Insurance Co. v. United States................. 995 Spar, In re....................................................... 948 Sparkman; Stump v................................................. 349 Speadling v. United States........................................ 955 Speidel v. United States.......................................... 915 Speir v. United States............................................ 927 Spurlark, In re................................................... 965 Stafford v. Weber................................................. 954 State Compensation Ins. Fund v. Workers’ Comp. App. Bd. of Cal.. 952 State’s Attorney for Baltimore City v. Brady..................... 913 Steelworkers v. National Rejectors Industries..................... 923 Steelworkers v. Sadlowski......................................... 977 Steelworkers v. United States..................................... 914 Stetson; Poe v.................. i7............................. 943 Stevenson v. Young................................................ 929 Stewart v. United States.......................................... 969 Stifel, Nicolaus & Co. v. Gamatz.................................. 951 Stillman v. United States......................................... 972 Stillo, In re..................................................... 948 Stockler v. Michigan............................................. 963 Stump v. Sparkman................................................ 349 Sumlin v. United States........................................... 932 Summers v. Alabama.............................................. 981 Summers v. United States.......................................... 955 Sunbeam Television Corp. v. Shevin........................... 920,1018 Super Athletics Corp. v. Universal Athletic Sales Co.............. 971 Superintendent, Career Development Center of Ky.; Smyzer v.... 930 Superintendent of New York State Police; Foley v.................. 291 XL TABLE OF CASES REPORTED Page Superintendent of penal or correctional institution. See name or state title of superintendent. Superintendent of Unified School Dist. No. 480 v. Epperson.... 948 Superintendent, Virginia State Penitentiary; Gardner v......... 906 Superior Court of Arizona; Naylor v............................ 946 Supreme Court of Illinois v. Ktsanes........................... 933 Suquamish Indian Tribe; Belgarde v............................. 191 Suquamish Indian Tribe; Oliphant v............................. 191 Surace v. Florida.............................................. 998 Surles v. Wirth................................................ 933 Swisher v. Brady............................................... 913 Szoradi; Noone v............................................... 930 Talamas v. United States....................................... 906 Tally v. Johnson.............................................. 1007 Tamano, The v. United States................................... 941 Tamari v. Bache & Co. (Lebanon) S. A. L........................ 905 Tanenbaum; Brown v............................................. 969 Taselli v. Dept, of Alcoholic Beverage Control of California.. 962 Taylor; Firestone Tire & Rubber Co. v.......................... 970 Taylor v. United States........................................ 952 Teal v. Georgia................................................ 989 Tennart v. Louisiana........................................... 945 Tennessee v. Armstrong......................................... 904 Tennessee; Seagroves v......................................... 921 Tennessee Valley Authority v. Hill..................... 902,920,965 Temes v. North Dakota.......................................... 944 Territory. See name of Territory. Teter; Ohio v................................................. 1000 Texaco Inc.; De Mateos v....................................... 904 Texas; Addington v........................................... 967 Texas; Keeling v............................................... 998 Texas; Richardson v............................................ 930 Texas; Turner v................................................ 929 Texas Mexican R. Co.; Lozano v................................. 971 Texas Optometric Assn. v. Rogers............................ 967 Thies v. United States....................................... 995 Thirty-Seventh Judicial Court; Rogers v........................ 946 Thompson v. Florida............................................ 998 Thompson v. Ohio............................................... 970 Thomson; Brown v........................................... 938,993 Thornton v. Delaware.......................................... 1009 Thornton v. Georgia............................................ 962 Thor Power Tool Co. v. Commissioner............................ 914 TABLE OF CASES REPORTED XLI Page Thundershield v. Solem.......................................... 954 Tidwell v. United States........................................ 942 Times-Picayune Publishing Co. v. Forrest........................ 971 Timmins v. Gore Newspapers Co................................. 910 Tippett v. Missouri............................................. 946 Toler v. Wyrick................................................. 907 Toomey; Blum v.................................................. 949 Topps Chewing Gum, Inc. v. Fleer Corp........................... 970 Toro Co. v. Alsop............................................... 952 Torres; Califano v................................................ 1 Torrez; Nutter v................................................ 925 Township. See name of township. Townsley v. Lindsay............................................ 1006 Trachtman v. Anker.............................................. 925 Transok Pipe Line Co.; Darks v.......................... 1004,1006 Trantino v. Hatrak.............................................. 928 Treasurer of Cook County; Hutter v.......................... 901,981 Treasurer of Cook County; Nabisco v............................ 1005 Trevino v. United States........................................ 971 Trice v. Kentucky............................................... 998 Trimont; Breza v................................................ 963 Tsanas v. United States........................................ 995 Turner v. Landry............................................... 918 Turner v. Louisiana........................................... 1009 Turner v. Texas............................................... 929 Tuscaloosa; Holt Civic Club v................................... 914 Twyman v. Oklahoma.............................................. 962 Tyler v. Goins.................................................. 929 Tyler v. Grady.................................................. 967 Tyler v. Missouri............................................... 928 Tyler v. Peach.............................................. 906,962 Tyler v. United States.......................................... 953 Union. For labor union, see name of trade. Union v. United States.......................................... 972 Union Oil Co. of California v. Ashland Oil Co. of California.. 994 United. For labor union, see name of trade. United Air Lines; Condit v...................................... 934 United Air Lines v. Inda....................................... 1007 United California Bank v. United States......................... 922 United States; Abascal v........................................ 953 United States; Adams v.......................................... 931 United States; Adcock v........................................ 954 United States; Akin v.......................................... 933 XLII TABLE OF CASES REPORTED Page United States; Albert v............................................ 953 United States ; Allen v............................................ 926 United States; All Island Delivery Service, Inc. v................ 1007 United States; Alvarez-Tostado v............................... 916 United States; American Biltrite, Inc. v........................... 952 United States; Anderson v.......................................... 996 United States; Angelini v.......................................... 923 United States; Anthony v...................................... 915 United States; Apuzzo v............................................ 916 United States; ARCO Pipe Line Co. v................................ 903 United States; Arias v............................................. 945 United States; Asumansi v..................................... 944 United States; Ayala v........................................ 982 United States; Bailey v............................................ 906 United States; Baker v............................................. 926 United States; Barney v............................................ 955 United States; Barron v. 907 United States; Bass v.............................................. 931 United States; Beachem v........................................... 919 United States; Bell v............................................. 1007 United States; Benel v........................................ 926 United States; Berkley v........................................... 931 United States; Bhongsupatana v............................... 1008 United States; Bibbs v............................................ 1007 United States; Black v........................................ 944 United States; Black Horse v. 999 United States v. Board of Comm’rs of Sheffield..................... 110 United States ; Bobisink v........................................ 926 United States; Boettjer v.......................................... 976 United States; Boord v............................................. 905 United States; Bowers v............................................ 976 United States; BP Pipelines, Inc. v................................ 903 United States; Brackett v.......................................... 968 United States; Bracy v....................................... 965,1301 United States ; Brand v.......................................... 961 United States; Brannon v......................................... 1009 United States; Brown v.................. 904,931,932,948,951,952,973 United States; Bryant v.......................................... 972 United States; Bull v............................................. 946 United States; Bullard v.......................................... 996 United States; Bunkis v.......................................... 976 United States; Burnett v......................................... 1010 United States; Busic v........................................ 964 TABLE OF CASES REPORTED XLIII Page United States; Buthorn v..........................r........... 915,1004 United States; Buttram v........................................... 995 United States; Cady v.............................................. 944 United States; Caldwell v.......................................... 928 United States; California v........................................ 902 United States; Campbell v.......................................... 972 United States; Carbajal v.......................................... 955 United States; Cardarella v........................................ 997 United States; Carey v............................................. 953 United States; Carr v.......................................... 973,996 United States; Carter v............................................ 973 United States v. Ceccolini......................................... 268 United States; Central Illinois Public Service Co. v................ 21 United States; Cerkl v............................................. 955 United States; Chavez-Chapula v.................................... 976 United States; Chiappe v........................................... 941 United States; Clark v............................................. 973 United States; Clemente v......................................... 1006 United States; Clinton Municipal Separate School District v...... 951 United States; Clyburn v...................................... 999 United States; Coastal States Petrochemical Co. v.................. 942 United States; Commercial National Bank of Dallas v................ 923 United States; Constantine v....................................... 926 United States; Cooke v. 974 United States; Coone v............................................. 928 United States; Cornfeld v......................................... 922 United States; Cox v.......................................... 927,1018 United States; Crane v............................................. 918 United States; Crocker v........................................... 974 United States v. Culbert........................................... 371 United States; Daley v............................................ 933 United States; Davidson v......................................... 966 United States; Davis v........................................ 951,954 United States; Deaton v........................................... 917 United States v. Department of Transportation of Georgia......... 964 United States; DeShazo v.......................................... 953 United States; DiCarlo v.......................................... 924 United States; Dillon v............................................ 971 United States; Dixon v.......................................... 927 United States; Doran v....................................... 928 United States; Dudar v....................................... 962 United States; Duhon v............................................ 952 United States; Duke v............................................. 944 XLIV TABLE OF CASES REPORTED Page United States; Eaglin v................................................ 906 United States; Eisenberg v............................................. 995 United States; Ellis v................................................. 928 United States; Emler v................................................. 927 United States; Enriquez-Palafox v.................................. 956 United States; Evans v............................................. 945,975 United States; Exxon Pipeline Co. v.................................. 903 United States; Felder v.............................................. 954 United States; Felts v.............................................. 973 United States; Fernandez v............................................ 950 United States; Fisher v.............................................. 926 United States v. Florida............................................... 940 United States; Foster v.............................................. 952 United States; Founding Church of Scientology v........................ 925 United States; Frakes v............................................ 911,942 United States; Franklin v.............................................. 955 United States; Frank Lyon Co. v.................................. 561 United States; Frazier v............................................... 968 United States; Frey v.................................................. 923 United States; Gambino v............................................... 952 United States; Garrett v........................................... 939,974 United States; Gay v.............................................. 999 United States; Gentry v........................................... 951 United States; Gillen v........................................... 974 United States; Gish v.............................................. 996 United States; G. M. Leasing Corp, v................................. 923 United States; Godin v............................................... 955 United States; Graves v.............................................. 923 United States; Gray v................................................ 955 United States; Grayhall, Inc. v..................................... 922 United States; Green v............................................... 977 United States; Greer v.............................................. 1009 United States; Griffin v............................................ 1007 United States; Grismore v......................................... 954 United States; Gunston v.......................................... 976 United States; Hall v.............................................. 926,942 United States; Hampton v............................................. 947 United States; Harkins v............................................... 972 United States; Harmon v.............................................. 917 United States; Harrington v.......................................... 926 United States; Harris v................................................ 954 United States; Hearst v............................................. 1000 United States; Helfer v.............................................. 951 TABLE OF CASES REPORTED XLV Page United States; Henderson v...................................... 955 United States; Hernandez v........................................ 999 United States; Hocker v............................................ 973 United States; Hornstein v......................................... 951 United States; Howze v............................................ 946 United States; Hudson v........................................... 946 United States; Hulse v............................................ 917 United States; Hulver v............................................ 951 United States; Hundley v...................................... 916,981 United States; Hurst v............................................. 972 United States; lannone v.......................................... 942 United States; Ilacqua v................................... 906,917,947 United States; Ivey v............................................. 971 United States; Jackson v.......................................... 925 United States; Jarvis v............................................ 934 United States; Jiminez-Valencia v................................. 916 United States v. John............................................... 941 United States; Johnson v....................................... 931,973 United States; Jones v............................................ 926 United States; Kehn v............................................ 906 United States; Keiffer v.......................................... 915 United States; King v.............................................. 918 United States; Kirkland v........................................ 918 United States; Kizer v............................................ 976 United States; Koehnen v.......................................... 905 United States; Kulas v............................................ 947 United States; Laing v............................................ 906 United States; Lamont v........................................... 914 United States; Lawary v........................................... 930 United States; Lawrence v.......................................... 930 United States; Lawriw v........................................... 969 United States; Lee v............................................... 972 United States; Levatino v........................................ 953 United States; Lewis v...................................... 917,945,973 United States; Lieberman v...................................... 931 United States; Liebert v....................................... 972 United States; Lipscomb v........................................ 931 United States; Little v.....................................\....... 969 United States; Livestock Marketers, Inc. v.......................... 968 United States; Lombardi v....................................... 905 United States; Longoria v........................................... 927 United States; Lowe v.............................................. 932 United States; Luna v............................................... 998 XLVi TABLE OF CASES REPORTED Page United States; Lund v............................................. 995 United States; Lyon v............................................... 918 United States v. MacDonald.......................................... 850 United States; Mageean v............................................ 926 United States; Malizia v............................................ 969 United States; Marino v............................................. 996 United States; Markley vi.. 951 United States; Marshall v........................................... 931 United States v. Martin Linen Supply Co............................. 778 United States ; Martorano v....................................... 922 United States; Martorella v......................................... 923 United States; Mase v............................................... 916 United States; Masel v.............................................. 927 United States; Massachusetts v...................................... 444 United States; McDonnell v................................... 927 United States; McFayden-Snider v................................. 995 United States; McLennan v........................................... 969 United States; McNair v. 976,998 United States; Miller v............................................ 931 United States ; Mize v...................................... -, 974 United States; Mobil Alaska Pipeline Co. v.......................... 903 United States; Monteer v............................................ 902 United States ; Montes-Zarate v.................................. 947 United States; Montoya v..................................... 955 United States; Montoya-Guerrerov................................... 1010 United States; Moore v...v.. . 956 United States; Moorer v............................................. 918 United States; Mora v. 955 United States; Moreno v. 972 United States; Morgan v................................ 924,926,974,1018 United States; Moroyoqui v. . 997 United States; Morris v......................................... 916,981 United States; Moss v......................................... 914 United States; Moynagh v............................................ 917 United States; Mullholan v.......................................... 956 United States; Mullins v...................................... 906 United States; Murphy v............................................. 955 United States; Murry v.......................................... 915,961 United States; Myers v........................................ 944 United States ; National Society of Professional Engineers v........ 679 United States; Neustem v............................................ 947 United States v. New Mexico..................................... 940,966 United States; Newsome v............................................ 904 TABLE OF CASES REPORTED XLVII Page United States; Neyra v.............................................. 926 United States; Oakes v............................................... 926 United States; O’Brien v............................................. 976 United States; Odneal v.............................................. 952 United States; Oliver v.............................................. 914 United States; Olivera v............................................ 1010 United States; Ottoboni v............................................ 911 United States; Palanacki v........................................... 927 United States; Parker v.............................................. 956 United States; Passarelli v.......................................... 915 United States; Patton v.............................................. 918 United States; Pederson v............................................ 956 United States; Perez v............................................... 998 United States; Perkins v............................................. 915 United States; Perry v............................................... 972 United States; Peterson v............................................ 939 United States; Phillips v............................................ 974 United States; Piccirillo v.......................................... 918 United States; Pico-Zazueta v.................................... 946 United States; Pierce v.............................................. 923 United States; Pittman v...................................... 976 United States; Plumlee v............................................. 938 United States; Pomponio v......................................... 942 United States; Powell v.............................................. 904 United States; Pugh v............................................... 1010 United States; Puglisi v................................;............ 968 United States; Punch v............................................... 955 United States; Railway Clerks v...................................... 923 United States; Rapp v............................................... 953 United States; Raupp v............................................... 931 United States; REA Express, Inc. v................................... 923 United States; Reda v................................................ 973 United States; Redmond v......................................... 995 United States; Reeve v............................................. 914 United States; Ricard v............................................ 916 United States; Rimar v............................................. 922 United States; Roach v............................................... 999 United States; Robinson v......................................... 905 United States; Robles v............................................ 925 United States; Robson v............................................ 973 United States; Rock v............................................. 1009 United States; Rocky Mountain Motor Tariff Bureau, Inc. v.... 1006 United States; Rodriguez v.................................... 944 xlvih TABLE OF CASES REPORTED Page United States; Rojas v............................................... 915 United States; Sacco v............................................... 999 United States; Santana v............................................ 1007 United States; Schnitzer v........................................... 907 United States; Schott v.............................................. 915 United States; Schurgin v........................................... 922 United States; Scott v............................................... 953 United States; Scruggs v............................................. 931 United States; Seymour v........................................... 904 United States; Shanks v.......................................... 916 United States; Shannon v......................................... 927 United States; Shaver v.............................................. 997 United States; Silberberg v...................................... 953 United States; Simmons v..................................... 947 United States; Simpkins v............ 1.............. .......... 956 United States; Simpson v............................................... 6 United States; Smith v......................... 915,946,953,962,972 United States; Smolsky v......................................... 927 United States; Southwestern Life Insurance Co. v.............. 995 United States; Speadling v......................................... 955 United States; Speidel v......................................... 915 United States; Speir v........................................... 927 United States; Steelworkers v.................................... 914 United States; Stewart v........................................... 969 United States; Stillman v................. ........................ 972 United States; Sumlin v....................................... 932 United States; Summers v. i. . . 955 United States; Talamas v............................................. 906 United States; Taylor v. 952 United States; The Tamano v. 941 United States; Thies v........................................... 995 United States; Tidwell v......................................... 942 United States; Trevino v......................................... 971 United States; Tsanas v............................................ 995 United States; Tyler v........................................... 953 United States; Union v........................................... 972 United States; United California Bank v.............................. 922 United States v. United States Gypsum Co............................ 1005 United States; United Steelworkers Justice Committee v............... 914 United States; Van Buren v........................................... 932 United States; Vaughn v.............................................. 969 United States; Velsicol Chemical Corp, v............................. 942 United States; Vernell v............................................ 1007 TABLE OF CASES REPORTED XLIX Page United States; Vice v................................................ 951 United States; Von der Linden v...................................... 974 United States; Walker v.......................................... 916,976 United States; Walking Crow v..................................... 953 United States; Warme v.............................................. 1011 United States; Warner v............................................. 1011 United States; Washington Medical Center, Inc. v.................... 1018 United States; Watkins v............................................. 976 United States; Wegner v.............................................. 914 United States; Welsh v............................................... 997 United States; West v................................................ 922 United States v. Wheeler............................................. 313 United States; Whitefield v.......................................... 918 United States; Whitehead v........................................... 912 United States; Whitney v............................................ 953 United States; Williams v............................................ 998 United States; Wofford v............................................. 916 United States; Woods v........................................... 906,972 United States; Wright v.......................................... 910,974 United States; Wylie v............................................... 944 United States; Young v............................................... 917 United States; Zannino v............................................. 942 United States; Zannis v.............................................. 937 United States; Zenith Radio Corp, v.................................. 966 United States; Zuber v............................................... 927 U. S. Attorney; Gaetano v........................................... 1008 U. S. Court of Appeals; Renwick v.............................. 950 U. S. District Court; Knight v................................. 1006 U. S. District Court; Lee Pharmaceuticals v............. 951 U. S. District Court; Pillon v................... 913 U. S. District Court; Siddle v.................. 1006 U. S. District Court; Vetterli v................. 1304 U. S. District Judge v. Calvert Fire Insurance Co........ 966 U. S. District Judge; Gaetano v................................... 967 U. S. District Judge; Jardan v.................................... 927 U. S. District Judge; Klein v..................................... 967 U. S. District Judge; Miami Herald Publishing Co. v............... 968 U. S. District Judge; Pfister v................................... 995 U. S. District Judge; Toro Co. v................................. 952 United States Gypsum Co.; United States v..............'............ 1005 United States Navigation, Inc. v. Esposito........................... 972 United States Steel Corp.; Duke v.................................... 943 United Steelworkers Justice Committee v. United States............... 914 L TABLE OF CASES REPORTED Page Universal Athletic Sales Co.; Super Athletics Corp, v......... 971 University of Texas System v. kss&i........................... 992 Upper Mississippi Towing Corp.; Hess v........................ 924 Utah; Ward v................................................. 1005 Van Buren v. United States..................................... 932 Vaughn v. United States....................................... 969 Velsicol Chemical Corp. v. United States.................... 942 Vendo Co., In re............................................... 994 Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council. 519 Vernell v. United States..................................... 1007 Vetterli v. U. S. District Court............................. 1304 Vice v. United States......................................... 951 Vickery; East Detroit v.i.................. 1008 Virginia; Bisping v.......................................... 1007 Virginia; Coleman v........................................... 997 Virginia; Jackson v........................................... 999 Virginia; Joe v............................................... 923 Virginia; Jones v............................................. 909 Virginia; Landmark Communications, Inc. v..................... 829 Virginia; Lowe v.............................................. 930 Virginia; Rosenmund v........................................ 997 Virginia; Smith v............................................. 923 Virgin Islands v. Vitco, Inc.................................. 980 Vitco, Inc.; Government of Virgin Islands v................... 980 Vitek v. Jones................................................ 949 Von der Linden v. United States............................... 974 Waddell v. Pepsi Cola Co...................................... 996 Waddy; Pfister v.............................................. 995 Wadsworth v. Whaland.......................................... 980 Wagner v. Burlington Northern, Inc............................ 996 Wahbe Tamari & Sons Co. v. Bache & Co. (Lebanon) S. A. L.... 905 Wainwright; Apel v........................................... 1009 Wainwright; Broomfield v...................................... 945 Wainwright; Roots v........................................... 938 Walcott; Quilloin v........................................... 918 Walker v. Little.............................................. 932 Walker v. United States................................... 916,976 Walking Crow v. United States................................. 953 Walloe v. Cuyler.............................................. 929 Walter E. Heller & Co. v. First Virginia Bankshares........... 952 Walton v. Papagianopoulos..................................... 981 Ward v. Utah................................................. 1005 Warden. See also name of warden. TABLE OF CASES REPORTED LI Page Warden; Green v.......................................... 946 Warden; Holsey v........................................... 1010 Warden; Proctor v........................................... 559 Warden; Wyche v......................................... 907,982 Warme v. United States...................................... 1011 Warner v. United States..................................... 1011 Warner Communications, Inc.; Nixon v.......................... 589 Warner-Lambert Co. v. Federal Trade Comm’n.................... 950 Warner-Lambert Co.; Federal Trade Comm’n v................... 950 Washington v. Confederated Bands of Yakima Indian Nation.... 903 Washington; Illinois v........................................ 981 Washington v. Iowa............................................ 1008 Washington; Riddell v......................................... 974 Washington; Royse v.......................................... 1010 Washington Medical Center, Inc. v. United States............. 1018 Washington Post Co.; Jenkins v............................... 931 Washington Revenue Dept. v. Assn, of Wash. Stevedoring Cos.... 734 Waters; Fumco Construction Corp, v........................ 902,940 Watertown Savings Bank; Anderson v............................ 929 Watkins v. Lou Bachrodt Chevrolet, Inc........................ 999 Watkins v. United States...................................... 976 Weber; Stafford v............................................. 954 Wegmann; Robertson v.......................................... 902 Wegner v. United States....................................... 914 Weinberger v. Equifax, Inc.................................... 918 Weinstein v. Florida.......................................... 965 Welch v. Evans................................................ 944 Welsh v. United States........................................ 997 West v. Brown................................................. 926 West v. United States......................................... 922 Western Chain Co. v. Brownlee................................. 968 Western Line Consolidated School District; Givhan v........... 950 Westinghouse Broadcasting Co.; Gardner v...................... 921 Whaland; Dawson v............................................. 981 Whaland; Wadsworth v.......................................... 980 Wheeler; Maryland v........................................... 997 Wheeler; United States v...................................... 313 Whipple; Kaplan v............................................. 981 White; Califano v............................................. 908 White; Dougherty County Board of Education v.................. 921 Whitefield v. United States.................................. 918 Whitehead v. United States.................................... 912 White Motor Corp.; Malone v................................. 497 Whiteside & Co. v. National Assn, of Securities Dealers....... 942 LII TABLE OF CASES REPORTED Page Whitman Area Improvement Council v. Resident Advisory Bd.... 908 Whitney v. United States........................................ 953 Whitten v. California........................................... 996 Whitworth; Impact v............................................. 992 Will v. Calvert Fire Insurance Co............................... 966 Williams v. Hoyt................................................ 946 Williams v. Leeke............................................... 929 Williams v. Ohio................................................ 998 Williams; Phillips v............................................ 905 Williams v. United States....................................... 998 Wilson; McElroy v............................................... 931 Windham v. American Brands, Inc................................. 968 Winokur v. Bell Federal Savings & Loan Assn..................... 932 Wirth; Surles v................................................. 933 Wisconsin; Hoppe v.............................................. 974 Wisconsin; LeFebre v............................................ 966 Wisconsin; Rudolph v............................................ 944 Wise; Estabrook v............................................... 971 Wise v. Lipscomb........................................ 949,966,993 Wofford v. United States........................................ 916 Wolf v. Illinois................................................ 915 Woods v. United States...................................... 906,972 Workers’ Compensation App. Bd. of Cal.; State Comp. Ins. Fund v. 952 Wright; Raines v................................................ 933 Wright v. United States..................................... 910,974 Wyche v. Warden............................................. 907,982 Wylie v. United States......................................... 944 Wyrick; Howard v................................................ 975 Wyrick; Lyle v.................................................. 954 Wyrick; Martin v................................................ 975 Wyrick; Toler v................................................. 907 Yakima Indian Nation; Washington v.............................. 903 Yalanzon; Gilbert v............................................. 962 Yee v. Yee.................................................. 911,981 Young; Altizer v............................................... 1009 Young v. California............................................. 998 Young; Stevenson v.............................................. 929 Young v. United States.......................................... 917 Yuhas v. Libbey-Owens-Ford Co.................. 934 Zannino v. United States........................................ 942 Zannis v. United States....................................... 937 Zenith Radio Corp. v. United States............................. 966 Zink v. Estelle................................................. 954 Zuber v. United States........................................ 927 TABLE OF CASES CITED Page Abbate v. United States, 359 U. S. 187 316-318 Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289 548,558 Abington School Dist. v. Schempp, 374 U. S. 203 638,641 Abney v. United States, 431 U. S. 651 853-855,857-861 Abood v. Detroit Bd. of Ed., 431 U. S. 209 794, 795, 814, 815, 817, 818 Abrams v. United States, 250 U. S. 616 792 Acacia Mutual Life Ins. Co. v. United States, 272 F. Supp. 188 31 Accardi v. Shaughnessy, 347 U. S. 260 92 Adamo Wrecking Co. v. United States, 434 U. S. 275 15 Adamson v. California, 332 U. S. 46 336 Adickes v. S. H. Kress & Co., 398 U. S. 144 255,258 Advisory Opinion on Constitutionality of 1975 Pub. Act 227, 396 Mich. 465 790 Aero Mayflower Transit Co. v. Board of Railroad Comm’rs, 332 U. S. 495 464 A. G. Spalding & Bros. v. Edwards, 262 U. S. 66 752 A. L. v. G. R. H., 163 Ind. App. 636 358,366 Albemarle Paper Co. v. Moody, 422 U. S. 405 134,719, 722, 723, 729, 732, 733 Aiderman v. United States, 394 • U. S. 165 276,285 Alexander v. Louisiana, 405 U. S. 625 1015 Alfred Dunhill of London, Inc. v. Cuba, 425 U. S. 682 424 Allen v. District Court, 184 Colo. 202 494 Page Allen v. Regents, 304 U. S. 439 457 Allen v. State Bd. of Elections, 393 U. S. 544 118, 122, 123, 125, 131, 136, 139, 146, 148 Allen Bradley Co. v. Electrical Workers, 325 U. S. 797 53 Alyeska Pipeline Co. v. Wilderness Soc., 421 U. S. 240 979,980 Ameeriar v. INS, 438 F. 2d 1028 668 American Ins. Co. v. Canter, 1 Pet. 511 321 American Party of Texas v. White, 415 U. S. 767 775 American Realty Trust v. United States, 498 F. 2d 1194 572,581,587 Anderson v. Pacific Coast S. S. Co., 225 U. S. 187 159 Anglo-Chilean Corp. v. Alabama, 288 U. S. 218 752 Anti-Fascist Comm. v. Mc- Grath, 341U. S.123 102,261,266 Apex Hosiery Co. v. Leader, 310 U. S. 469 407,408,428 Apodaca v. Oregon, 406 U. S. 404 229,241,246 Appalachian Coals, Inc. v. United States, 288 U. S. 344 700 Aptheker v. Secretary of State, 378 U. S. 500 4 Argersinger v. Hamlin, 407 U. S. 25 341 Arizona v. California, 283 U. S. 423 636 Arizona v. California, 373 U. S. 546 131 Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 260 Arnett v. Kennedy, 416 U. S. 134 259 Lin LIV TABLE OF CASES CITED Page Ashby v. White, 1 Bro. P. C. 62 265 Ashe v. Swenson, 397 U. S. 436 910 Asheville Tobacco Bd. of Trade v. FTC, 263 F. 2d 502 431 Ashwander v. TVA, 297 U. S. 288 99,108, 661 Associated Press v. United States, 326 U. S. 1 777,783,790 Atlantic Cleaners & Dyers v. United States, 286 U. S. 427 419 Austin v. Erickson, 477 F. 2d 620 487 Automobile Club of Mich. v. Commissioner, 353 U. S. 180 33, 34,38 Avery v. Midland County, 390 U. S. 474 414,429,430,434 Bachellar v. Maryland, 397 U. S. 564 985 Bailey, In re, 30 Ariz. 407 410 Baity v. Ciccone, 507 F. 2d 717 383 Baker v. Carr, 369 U. S. 186 438 Baker v. Southern Pac. Transp., 542 F. 2d 1123 383 Baldwin v. New York, 399 U. S. 66 229,240 Ball v. State, 9 Ga. App. 162 226 Ballew v. Georgia, 435 U. S. 223 984,991 Balthazar v. Superior Court, 573 F. 2d 698 987 Bank of United States v. Planters’ Bank of Ga., 9 Wheat. 904 424 Bannister v. Monroe, 4 La. App. 182 424 Barker v. Wingo, 407 U. S. 514 858,861,862 Barnard v. Inhabitants of Shelburne, 216 Mass. 19 87,90,105 Barnes v. District of Columbia, 91 U. S. 540 320,430 Bartkus v. Illinois, 359 U. S. 121 316,318 Basista v. Weir, 340 F. 2d 74 257, 264,265,267 Bates v. Little Rock, 361 U. S. 516 786 Bates v. State Bar of Arizona, 433 U. S. 350 410,420,431,701 Page Beasley v. United States, 491 F. 2d 687 1011 Beauharnais v. Illinois, 343 U. S. 250 781 Becher v. United States, 5 F. 2d 45 341,348 Beer v. United States, 425 U. S. 130 123 Bell v. Burson, 402 U. S. 535 102 Bell v. Gayle, 384 F. Supp. 1022 267 Bell v. United States, 349 U. S. 81 15 Bellotti v. Baird, 428 U. S. 132 661,662 Benner v. Porter, 9 How. 235 321 Berry v. Macon County Bd. of Ed., 380 F. Supp. 1244 267 Bethlehem Steel Co. v. New York Labor Bd., 330 U. S. 767 178 Bigelow v. Virginia, 421 U. S. 809 611,784,798 Bi-Metallic Invest. Co. v. State Bd. of Equalization, 239 U. S. 441 542 Binns v. United States, 194 U. S. 486 319 Bishop v. Wood, 426 U. S. 341 83, 84,88,662 Bivens v. Six Fed. Agents, 403 U. S. 388 255,258,259,281,298 Blockburger v. United States, 284 U. S. 299 11,18 Blocker v. United States, 110 U. S. App. D. C. 41 282 Board of Ed. v. Barnette, 319 U. S. 624 805,813 Board of Regents v. Roth, 408 U. S. 564 82,83 Board of Regents of Texas Univ. v. New Left Educ. Project, 414 U. S. 807 992 Boddie v. Connecticut, 401 U. S. 371 266 Bond v. Floyd, 385 U. S. 116 641 Bordenkircher v. Hayes, 434 U. S. 357 964 Bowles v. Willingham, 321 U. S. 503 542 Bradford v. Shreveport, 305 So. 2d 487 429,430 TABLE OF CASES CITED LV Page Bradley v. Fisher, 13 Wall. 335 355-357,359, 363-365, 367, 369, 370 Bradley Co. v. Electrical Work- ers, 325 U. S. 797 53 Branzburg v. Hayes, 408 U. S. 665 802 Braunfeld v. Brown, 366 U. S. 599 631,633 Breard v. Alexandria, 341 U. S. 622 429 Breece Panel Co. v. Commis- sioner, 232 F. 2d 319 585 Brewer v. Watson, 71 Ala. 299 597 Brewer v. Williams, 430 U. S. 387 961 Bridges v. California, 314 U. S. 252 839,842,844,845 Brookins v. Bonnell, 362 F. Supp. 379 106 Brooks v. Tennessee, 406 U. S. 605 339,347 Brown v. Illinois, 422 U. S. 590 276,286,289,936 Brown v. Maryland, 12 Wheat. 419 752 756 Brown v. Ohio, 432 U. S. 161 ’ 11, 18,19,316 Browne v. Cumming, 10 B. & C. 70 597 Brownell v. Carija, 102 U. S. App. D. C. 379 668 Brownell v. Gutnayer, 94 U. S. App. D. C. 90 668 Brown Shoe Co. v. United States, 370 U. S. 294 124 Bruno v. United States, 308 U. S. 287 338,340,348 Buckley v. Valeo, 424 U. S. 1 771, 781, 782, 786-789, 791, 792, 798, 806, 807, 809, 812, 820, 821, 823, 838 Bullock v. Carter, 405 U. S. 134 644,645 Burbank v. Lockheed Air Ter- minal, 411 U. S. 624 158 Burroughs v. United States, 290 U. S. 534 789 Burstyn, Inc. v. Wilson, 343 U. S. 495 778-780 Page Burt v. Edgefield County School Bd., 521 F. 2d 1201 260 Burton v. Reynolds, 110 Mich. 354 598 C. v. C., 320 A. 2d 717 597,598 Cafeteria Workers v. McElroy, 367 U. S. 886 86,102 Califano v. Goldfarb, 430 U. S. 199 5 Califano v. Jobst, 434 U. S. 47 5, 222 California v. FPC, 369 U. S. 482 420 California v. Taylor, 353 U. S. 553 422 California v. United States, 320 U. S. 577 401,442 California Bankers Assn. v. Shultz, 416 U. S. (21 779 California Motor Transport v. Trucking Unlimited, 404 U. S. 508 400,405,792 Calvert Cliffs’ Coordinating Comm. v. AEC, 146 U. S. App. D. C. 33 531 Camp v. Pitts, 411 U. S. 138 549 Cannon v. New Orleans, 20 Wall. 577 468 Canton R. Co. v. Rogan, 340 U. S. 511 741,742,755-758,762 Cantor v. Detroit Edison Co., 428 U. S. 579 410, 411, 416, 420, 424-426, 429, 431, 435, 443 Cantwell v. Connecticut, 310 U. S. 296 626,627,637, 640,643 Caperci v. Huntoon, 397 F. 2d 799 257 Capitol Greyhound Lines v. Brice, 339 U. S. 542 463 Carey v. Piphus, 435 U. S. 247 948 Carnation Co. v. Pacific Conference, 383 U. S. 213 420 Carroll v. United States, 354 U. S. 394 858 Carter v. Jury Comm’n, 396 U.S. 320 237,241,242 Case v. Nebraska, 381 U. S. 336 1017 Cass v. United States, 417 U. S. 72 374 Lvi .TABLE OF CASES CITED Page Castaneda v. Partida, 430 U. S. 482 1015 Caswell, In re, 18 R. I. 835 598, 602,603 C & C Plywood Corp. v. Hanson, 420 F. Supp. 1254 790 Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 742 Central Tablet Mfg. v. United States, 417 U. S. 673 576 Chandler v. Roudebush, 425 U. S. 840 17 Chaney v. Wainwright, 561 F. 2d 1129 1002,1003 Chapman v. California, 386 U. S. 18 489,490 Chastang v. Flynn & Emrich Co., 541 F. 2d 1040 722 Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390 396 Cherokee Intermarriage Cases, 203 U. S. 76 322 Cherokee Nation v. Georgia, 5 Pet. 1 208,209,322,323,326 Chicago Bd. of Trade v. United States, 246 U. S. 231 687,688,691,693,700 Cincinnati Soap Co. v. United States, 301 U. S. 308 321 Citizens to Preserve Overton ‘Park v. Volpe, 401 U. S. 402 549 City. See name of city. CAB v. Hermann, 353 U. S. 322 544 CSC v. Letter Carriers, 413 U. S. 548 789 Cline v. Frink Dairy Co., 274 U. S. 445 986 Clyde Mallory Lines v. Alabama ex rel. State Docks Comm’n, 296 U. S. 261 462, 464,469,474 Cobbledick v. United States, 309 U. S. 323 853,854 Codd v. Velger, 429 U. S. 624 255, 266 Coe v. Armour Fertilizer Works, 237 U. S. 413 266 Coe v. Errol, 116 U. S. 517 752 Cogen v. United States, 278 U. S. 221 860 Page Cohen v. Beneficial Loan Corp., 337 U. S. 541 854-857,859-861 Cohen v. Hurley, 366 U. S. 117 336 Coleman v. Miller, 307 U. S. 433 265 Colgrove v. Battin, 413 U. S. 149 231,232,238 Collector v. Day, 11 Wall. 113 454-456,458 Colliflower v. Garland, 342 F. 2d 369 319 Colonial Pipeline Co. v. Traigle, 421 U. S. 100 742,745,748 Colscott v. King, 154 Ind. 621 598 Columbia Broadcasting System v. Democratic Nat. Comm., 412 U. S. 94 797 Commissioner v. Bagley, 374 F. 2d 204 26 Commissioner v. Brown, 380 U. S. 563 580 Commissioner v. Court Holding Co., 324 U. S. 331 573 Commissioner v. Danielson, 378 F. 2d 771 584 Commissioner v. Duberstein, 363 U. S. 278 573 Commissioner v. Kowalski, 434 U. S. 77 24,26,38,39 Commissioner v. Lincoln Sav- ings & Loan, 403 U. S. 345 577 Commissioner v. LoBue, 351 U. S. 243 28 Commissioner v. National Alfalfa Milling Co., 417 U. S. 134 576 Commissioner v. P. G. Lake, Inc., 356 U. S. 260 573 Commissioner v. Sunnen, 333 U. S. 591 573 Commissioner v. Tower, 327 U. S. 280 573 Commissioner of Internal Revenue. See Commissioner. Committee for Public Education v. Nyquist, 413 U. S. 756 638 Commonwealth. See also name of Commonwealth. Commonwealth v. LaFleur, 1 Mass. App. 327 485 TABLE OF CASES CITED LVII Page Commonwealth v. McCutchen, 463 Pa. 90 1002 Commonwealth v. Webster, 466 Pa. 314 959,1002 Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45 487 Complete Auto Transit v. Brady, 430 U. S. 274 462, 740,743,745-750,762 Connally v. General Constr. Co., 269 U. S. 385 374,986 Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616 61 Consolo v. FMC, 383 U. S. 607 558 Continental Ore Co. v. Union Carbide, 370 U. S. 690 400 Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36 687, 691,696 Cooley v. Board of Wardens, 12 How. 299 179,186,749 Cooper v. Fitzharris, 551 F. 2d 1162 1012 Corliss v. Bowers, 281 U. S. 376 572,586 Correll v. United States, 369 F. 2d 87 26 Cort v. Ash, 422 U. S. 66 792 Cosby Transfer & Storage v. Froehlke, 480 F. 2d 498 383 Costello v. United States, 350 U. S. 359 1302,1303 County. See name of county. Covington & L. T. R. Co. v. Sandford, 164 U. S. 578 780 Cowley v. Pulsifer, 137 Mass. 392 598 Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 608, 609,778,839,840 Coyle v. Oklahoma, 221 U. S. 559 424 Craig v. Harney, 331 U. S. 367 845 Crow Dog, Ex parte, 109 U. S. 556 210,211,322,332 Cubic Corp. v. United States, 541 F. 2d 829 584 Daniels v. State, 226 Ga. 269 960 Dartmouth College v. Woodward, 4 Wheat. 518 823,824 Page Davis v. Wechsler, 263 U. S. 22 1017 De Canas v. Bica, 424 U. S. 351 158,189 DeCoteau v. District County Court, 420 U. S. 425 206,208 DeJonge v. Oregon, 299 U. S. 353 780 De Lima v. Bidwell, 182 U. S. 1 319 Department of Revenue v. James B. Beam Distilling Co., 377 U. S. 341 752 Department of Treasury v. Wood Preserving Corp., 313 U. S. 62 743 Detroit Police Officers Assn. v. Detroit, 385 Mich. 519 300 DiBella v. United States, 369 U. S. 121 853,854,861 Dickey v. Florida, 398 U. S. 30 862 Dixon v. Love, 431 U. S. 105 259 Dixon v. United States, 381 U. S. 68 33,34,38 Dobbins v. Commissioners, 16 Pet. 435 454 Doe v. McMillan, 412 U. S. 306 800 Domenech v. National City Bank, 294 U. S. 199 321 Don E. Williams Co. v. Commissioner, 429 U. S. 569 134,135 Donovan v. Reinbold, 433 F. 2d 738 255 Doran v. Salem Inn, Inc., 422 U. S. 922 430,778 Dorr v. United States, 195 U. S. 138 321 Douglas v. Seacoast Products, 431 U. S. 265 158,164,186 Draper v. United States, 164 U. S. 240 206 Drawbaugh, Ex parte, 2 App. D. C. 404 597 Duke & Co. v. Foerster, 521 F. 2d 1277 403,412 Duncan v. Louisiana, 391 U. S. 145 224,229 Dunhill of London, Inc. v. Cuba, 425 U. S. 682 424 Dunn v. Blumstein, 405 U. S. 330 303,775 Lvin TABLE OF CASES CITED Page Eastern Railroad Presidents Conf. v. Noerr Motor Freight, 365 U. S. 127 399, 426,428, 698,792 East Hartford v. Hartford Bridge Co., 10 How. 511 430 Easton v. Iowa, 188 U. S. 220 779 Edelman v. Jordan, 415 IL S. 651 412,414 Egan, In re, 205 N. Y. 147 597 Elias v. Mayor of New Iberia, 137 La. 691 424 Elrod v. Burns, 427 IL S. 347 309, 310,786 Empresa Siderurgica v. Merced, 337 U. S. 154 752 Endicott Johnson Corp. v. Perkins, 317 U. S. 501 544 Engel v. Vitale, 370 IL S. 421 638 EPA v. Mink, 410 U. S. 73 493 Epperson v. Arkansas, 393 U. S. 97 91,636, 638 Estate. See name of estate. Estes v. Texas, 381 U. S. 532 609, 610 Evansville Airport v. Delta Airlines, 405 IL S. 707 462.464,466 Everson v. Board of Ed., 330 IL S. 1 633,636-639 Examining Board v. Flores de Otero, 426 U. S.572 295,301,303 Ex parte. See name of party. Ezell v. State, 489 P. 2d 781 960 Fairbank v. United States, 181 U. S. 283 756 Fairfax v. Fairfax Hospital Assn., 562 F. 2d 280 411 Fayette County v. Martin, 279 Ky. 387 597 FCC v. Pottsville Broadcasting Co., 309 U. S. 134 525,543 FCC v. Schreiber, 381 U. S. 279 524,543,544 Federal Maritime Bd. v. Is-brandtsen Co., 356 U. S. 481 54, 75 FMC v. Seatrain Lines, Inc., 411 U. S. 726 53,54,66,75,76 FMC v. Svenska Amerika Linien, 390 U. S. 238 54 FPC v. Transcontinental Gas Pipe Line, 423 U. S. 326 544 Page FTC v. Morton Salt Co., 334 U. S. 37 717 Felicia v. United States, 495 F. 2d 353 203 Ferguson v. Skrupa, 372 U. S. 726 439 Ferry v. Williams, 41 N. J. L. 332 598 Fielder v. Cleland, 433 F. Supp. 115 215 Firemen v. Chicago, R. I. & P. R. Co., 393 U. S. 129 187 First Agricultural Bank v. Tax Comm’n, 392 U. S. 339 566 First Nat. Bank of Boston v. Attorney General, 362 Mass. 570 770 Fisher v. District Court, 424 U. S. 382 322 Fitzpatrick v. New York, 414 U. S. 1050 287 Fleck v. Spannaus, 449 F. Supp. 644 515 Fletcher v. Peck, 6 Cranch 87 209, 326 Flexmir, Inc. v. Herman, 40 A. 2d 799 598 Florida Lime Growers v. Paul, 373 U. S. 132 158,168 Foley v. Benedict, 122 Tex. 193 87 Folsom v. Mayor of New Orleans, 109 U. S. 285 413,429 Foman v. Davis, 371 U. S. 178 387 Fox v. Ohio, 5 How. 410 317 Foxworth v. Wainwright, 516 F. 2d 1072 483 Franklin’s Estate v. Commis- sioner, 544 F. 2d 1045 586 Freedman v. Maryland, 380 U. S. 51 785 Freeman v. Hewit, 329 U. S. 249 746 Fry v. United States, 421 U. S. 542 461 Fuentes v. Shevin, 407 U. S. 67 259,260,266 Gagnon v. Scarpelli, 411 U. S. 778 261 Gallegos v. Colorado, 370 U. S. 49 958,959 TABLE OF CASES CITED LIX Page Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217 746 Garner v. Teamsters, 346 U. S. 485 504 Garrison v. Louisiana, 379 U. S. 64 777,842 Gaspar v. Bruton, 513 F. 2d 843 88,91,105 Gault, In re, 387 U. S. 1 560, 958,960,1003 Geders v. United States, 425 U. S. 80 342 Geduldig v. Aiello, 417 U. S. 484 715,723-725 General Electric Co. v. Gilbert, 429 U. S. 125 706,707,714, 715, 719, 723-725, 727 General Motors Corp. v. Wash- ington, 377 U. S. 436 750 Georgia v. Evans, 316 U. S. 159 396,397 Georgia v. United States, 411 U. S. 526 123, 136, 137, 139, 141, 148 Georgia Dept, of Transp. v. United States, 430 F. Supp. 823 453 Gertz v. Robert Welch, Inc., 418 U. S. 323 262,264,267 Gibbons v. Ogden, 9 Wheat. .1 749 Giboney v. Empire Storage & Ice Co., 336 U. S. 490 697 Gibson v. Teller, 34 Ill. App. 2d 372 597 Gideon v. Wainwright, 372 U. S. 335 341,489,1012 Giglio v. United States, 405 U. S. 150 1302 Giles v. Harris, 189 U. S. 475 265 Gillihan v. Rodriguez, 551 F. 2d 1182 1011 Girouard v. United States, 328 U. S. 61 134,135 Gitlow v. New York, 268 U. S. 652 640,780 Glasser v. United States, 315 U. S. 60 481- 484, 488, 489, 491, 492 G. M. Leasing Corp. v. United States, 429 U. S. 338 778 Goldberg v. Kelly, 397 U. S. 254 260 Page Goldfarb v. Virginia State Bar, 421 U. S. 773 393,399,409- 411, 420, 425, 431, 681, 686, 687, 696, 697, 699 Gonzales v. Williams, 192 U. S. 1 321 Gore v. United States, 357 U. S. 386 11,13 Goss v. Lopez, 419 U. S. 565 85, 86, 88-91, 94, 96, 97, 99, 101, 103, 105, 106, 249,251 Gosschalk v. Gosschalk, 28 N. J. 73; 48 N. J. Super. 566 663 Grafton v. United States, 206 U. S. 333 318,321 Graham v. Richardson, 403 U. S. 365 294,295,301 Graver Mfg. Co. v. Linde Co., 336 U. S. 271 273 Graves v. New York ex reL O’Keefe, 306 U. S. 466 458, 459,461 Grayned v. Rockford, 408 U. S. 104 985,988 Greenhill v. Bailey, 519 F. 2d 5 85,88 Gregg v. Georgia, 428 U. S. 153 908, 909, 937, 1004,1018 Gregg Cartage Co. v. United States, 316 U. S. 74 282 Gregory v. Thompson, 500 F. 2d 59 361 Griffin v. Breckenridge, 403 U. S. 88 4 Griffin v. California, 380 U. S. 609 336-339, 343-345 Griffiths, In re, 413 U. S. 717 295, 301,303,306 Griggs v. Duke Power Co., 401 U. S. 424 709,711 Grosjean v. American Press Co., 297 U. S. 233 638, 780,822,824 Gross v. State, 261 Ind. 489 336, 348 Guedry v. Ford, 431 F. 2d 660 364 Hague v. CIO, 307 U. S. 496 780, 825 Haley v. Ohio, 332 U. S. 596 959 Hall v. Cole, 412 U. S. 1 979 Hall v. Shreveport, 157 La. 589 424 LX TABLE OF CASES CITED Page Hall v. State, 63 Wis. 2d 304 487 Hamilton v. Alabama, 368 U. S. 52 489 Hamling v. United States, 418 U. S. 87 490 Hampton v. Mow Sun Wong, 426 U. S. 88 308,309,312 Hannah v. Lärche, 363 U. S. 420 102 Hanson v. Commissioner, 298 F. 2d 391 26 Harman v. Forssenius, 380 U. S. 528 661 Harrington v. California, 395 U. S. 250 488 Harrison v. NAACP, 360 U. S. 167 661 Harrison v. United States, 392 U. S. 219 286 Hart v. Davenport, 478 F. 2d 203 483 Hart v. Lake Providence, 5 La. App. 294 424 Hecht v. Pro-Football, Inc., 144 U. S. App. D. C. 56 403 Heff, In re, 197 U. S. 488 319 Heike v. United States, 217 U. S. 423 860 Helvering v. Clifford, 309 U. S. 331 573 Helvering v. Davis, 301 U. S. 619 5 Helvering v. Gerhardt, 304 U. S. 405 456,458,459 Helvering v. Lazarus & Co., 308 U. S. 252 572-576 Helvering v. Mountain Producers Corp., 303 U. S. 376 456, 458 Helvering v. Powers, 293 U. S. 214 457 Hicks v. Monroe Util. Comm’n, 237 La. 848 424 Hines v. Davidowitz, 312 U. S. 52 158,173,189 Hodgson v. Mach. & Aerospace Workers, 454 F. 2d 545 135,149 Hoffa v. United States, 385 U. S. 293 339 Home Fed. Sav. & Loan v. Republic Ins. Co., 405 F. 2d 18 383 Page Horton v. Orange County Bd. of Ed., 464 F. 2d 536 260 Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U. S. 738 403,420,421 Hostrop v. Board of Jr. College Dist. 515, 523 F. 2d 569 253,260,264,265 Houston v. Moore, 5 Wheat. 1 317 Humble Oil & Ref. Co. v. United States, 194 Ct. Cl. 920 31 Humble Pipe Line Co. v. United States, 194 Ct. Cl. 944 31 Hunter v. Erickson, 393 U. S. 385 127 Hunter v. Pittsburgh, 207 U. S. 161 319,320,429 Huron Portland Cement v. Detroit, 362 U. S. 440 164,165,186 Hynes v. Mayor of Oradell, 425 U. S. 610 374 lanelli v. United States, 420 U. S. 770 11 Illinois v. Garlick, 434 U. S. 988 1013 Illinois v. Pendleton, 435 U. S. 956 1013 Illinois ex rel. McCollum v. Board of Ed., 333 U. S. 203 636, 638,639 Imbler v. Pachtman, 424 U. S. 409 253,257,258,365 Indiana & Michigan Electric Co. v. FPC, 163 U. S. App. D. C. 334 550 Indian Motorcycle Co. v. United States, 283 U. S. 570 455 Indian Towing Co. v. United States, 350 U. S. 61 412,422,433 Ingraham v. Wright, 430 U. S. 651 259 In re. See name of party. International Salt Co. v. United States, 332 U. S. 392 697,698 ICC v. Jersey City, 322 U. S. 503 555 Interstate Pipe Line Co. v. Stone, 337 U. S. 662 741,742 Ivanhoe Irrigation Dist. v. Mc- Cracken, 357 U. S. 275 461 Jackman v. Rosenbaum Co., 260 U. S. 22 88 TABLE OF CASES CITED LXI Page Jackson v. Denno, 378 U. S. 368 477 Jackson v. Metropolitan Edison Co., 419 U. S. 345 424 Jeanty v. McKey & Poague, Inc., 496 F. 2d 1119 264 Jeffers v. United States, 432 U. S. 137 11,12 Jefferson v. Hackney, 406 U. S. 535 5 Johnson v. Louisiana, 406 U. S. 356 231,239,240 Johnson v. MTntosh, 8 Wheat. 543 209,326 Jones v. Hildebrant, 432 U. S. 183 258 Jones v. Meehan, 175 U. S. 1 322 Jones v. Rath Packing Co., 430 U. S. 519 157,158,504 Jones’ Estate, In re, 192 Iowa 78 672 Jordan v. State, 293 So. 2d 131 1014-1016 Joseph v. Carter & Weeks Stevedoring Co., 330 U. S. 422 740, 743, 744-748, 750-752, 759 Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 778-780 Kake Village v. Egan, 369 U. S. 60 200 Kansas Indians, The, 5 Wall. 737 208,331 Katzenbach v. Morgan, 384 U. S. 641 127 Kedroff v. Saint Nicholas Cathedral, 344 U. S. 94 638 Keeble v. United States, 412 U. S. 205 331 Kelly v. Washington, 302 U. S. 1 164-166 Kennedy v. Long Island R. Co., 211 F. Supp. 478 67 Kent v. Dulles, 357 U. S. 116 4 Kenyon, Ex parte, 14 F. Cas. 353 199 Kepner v. United States, 195 U. S. 100 318 Kermit Constr. Corp. v. Banco Credito, 547 F. 2d 1 364 Kidd v. Pearson, 128 U. S. 1 420 Kilboum v. Thompson, 103 U. S. 168 800 Page King v. King, 25 Wyo. 275 598 Kingsley Books, Inc. v. Brown, 354 U. S. 436 779,780 Kingsley Int’l Pictures v. Regents, 360 U. S. 684 778,790 Kirkley v. Maryland, 381 F. Supp. 327 625 Kleppe v. Sierra Club, 427 U. S. 390 548,555 Koerner v. United States, 550 F. 2d 1362 26 Kosydar v. National Cash Register Co., 417 U. S. 62 752 Kunz v. New York, 340 U. S. 290 631,640 Kurek v. Pleasure Driveway & Park Dist., 557 F. 2d 580 411 K. W. B., In re, 500 S. W. 2d 275 959,1002 Kyle v. United States, 211 F. 2d 912 857 Labor Board. See NLRB. Labor Union. See name of trade. Ladner v. United States, 358 U. S.169 15 Lafayette v. Louisiana Power Co., 435 U. S. 389 992 Larkins v. Oswald, 510 F. 2d 583 255 L. B., In re, 33 Colo. App. 1 960 Lemon v. Kurtzman, 403 U. S. 602 636,638 Lemon v. Kurtzman, 411 U. S. 192 638 Levinson v. Commissioner, 45 T. C. 380 584 Levitt v. Committee for Public Education, 413 U. S. 472 638 Lewis v. State, 259 Ind. 431 959, 1002 Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737 393 License Cases, 5 How. 504 752, 760 Life of the Land v. Brinegar, 485 F. 2d 460 551 Lincoln County v. Luning, 133 U. S. 529 412 Linmark Associates v. Willing-boro, 431 U. S. 85 778, 783,791,822,838 LXII TABLE OF CASES CITED Page Linwood v. Board of Ed. of Peoria, 463 F. 2d 763 251 Little v. Arkansas, 435 IT. S. 957 1001,1002 Local. For labor union, see name of trade. Lockport v. Citizens for Community Action, 430 U. S. 259 434 Lollar v. United States, 126 U. S. App. D. C. 200 483 Lone Wolf v. Hitchcock, 187 U. S. 553 319 Lorillard v. Pons, 434 'U. S. 575 911 Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U. S. 285 413,429 Lovell v. Griffin, 303 U. S. 444 800-802 Low v. Austin, 13 Wall. 29 752 Lowenstein v. Evans, 69 F. 908 423,434 LTV Corp. v. Commissioner, 63 T. C. 39 585 Lubin v. Panish, 415 U. S. 709 644 Lustwerk v. Lytron, Inc., 344 Mass. 647 769 Lynch v. Johnson, 420 F. 2d 818 361 Lyons v. Davoren, 402 F. 2d 890 383 Machinists v. Street, 367 U. S. 740 794,795,813-815,818 Machinists v. Wisconsin Employment Rel. Comm’n, 427 U. S. 132 503 Mackey v. Coxe, 18 How. 100 322 MacManaway, In re, [1951] A. C. 161 622 Madison School Dist. v. Wisconsin Employment Rel. Comm’n, 429 U. S. 167 785 Magness v. Commissioner, 247 F. 2d 740 26 Magnett v. Pelletier, 488 F. 2d 33 255,267 Mahavongsanan v. Hall, 529 F. 2d 448 87,88,91,105 Maher v. Roe, 432 U. S. 464 828 Malloy v. Hogan, 378 U. S. 1 336 Manchester v. Massachusetts, 139 U. S. 240 164,186 Page Mandeville Island Farms v. American Crystal Sugar, 334 U. S. 219 398,408 Mansell v. Saunders, 372 F. 2d 573 257 Marine Cooks & Stewards v. FMC, No. 75-2013 (CADC) 73 Martin v. Struthers, 319 U. S. 141 640 Massachusetts v. United States, 435 U. S. 444 964 Mathews v. De Castro, 429 U. S. 181 5,221 Mathews v. Eldridge, 424 U. S. 319 86,99-102,106,259 Maxwell v. Dow, 176 U. S. 581 230 Mayfield, In re, 141 U. S. 107 204 Mayor, The v. Ray, 19 Wall. 468 429,430 McAlester v. Brown, 469 F. 2d 1280 361 McBride v. Jacobs, 101 U. S. App. D. C. 189 960 McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U. S. 645 300 McClanahan v. Arizona Tax Comm’n, 411 U. S. 164 208,323 McCoy v. Providence Journal Co., 190 F. 2d 760 597 McCollum v. Board of Ed., 333 U. S. 203 636,638,639 McCulloch v. Maryland, 4 Wheat. 316 454-456,779,824 McGoldrick v. Berwind-White Co., 309 U. S. 33 744 McGowan v. Maryland, 366 U. S. 420 636,639 McGuire v. United States, 273 U. S. 95 279 McIntyre v. State, 190 Ga. 872 228 Meat Cutters v. Jewel Tea Co., 381 U. S. 676 61 Meek v. Pittenger, 421 U. S. 349 636,638 Memorial Hospital v. Maricopa County, 415 U. S. 250 4 Memphis Gas Co. v. Stone, 335 U. S. 80 750 Mengarelli v. U. S. Marshal ex rel. Nevada, 476 F. 2d 617 336 Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U. S. 117 183 TABLE OF CASES CITED LXIII Page Mescalero Apache Tribe v. Jones, 411 U. S. 145 329 Metcalf & Eddy v. Mitchell, 269 U. S. 514 458,459 Miami Herald Pub. Co. v. Tornillo, 418 U. S. 241 778, 791,796, 797 Michelin Tire Corp. v. Wages, 423 U. S. 276 742, 751-754, 757-764 Michigan v. Allensworth, 435 U. S. 933 1013 Michigan v. Tucker, 417 U. S. 433 278 Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157 748,749 Miller v. California, 413 U. S. 15 241,983 Miller v. United States, 357 U. S. 301 297 Mills v. Alabama, 384 U. S. 214 776,781,838 Mills v. Electric Auto-Lite Co., 396 U. S. 375 979 Mine Workers v. Pennington, 381 U. S. 657 53, 62,77,399,698 Miranda v. Arizona, 384 U. S. 436 493,958 Mitchel v. Reynolds, 1 P. Wms. 181 687-689 Mitchell v. W. T. Grant Co., 416 U. S. 600 260 Mitchum v. Foster, 407 U. S. 225 353 Monroe v. Pape, 365 U. S. 167 253,258,650 Mooney v. Holohan, 294 U. S. 103 1302 Moore v. Illinois, 14 How. 13 317 Moore v. United States, 432 F. 2d 730 1011 Mormon Church v. United States, 136 U. S. 1 319 Morris v. Hitchcock, 194 U. S. 384 206 Morrissey v. Brewer, 408 U. S. 471 102,261 Morton v. Mancari, 417 U. S. 535 196 Motor Coach Employees v. Lockridge, 403 U. S. 274 504 Page Mt. Healthy Bd. of Ed. v. Doyle, 429 U. S. 274 260 Mount Pleasant v. Beckwith, 100 U. S. 514 319,321 Munzer v. Blaisdell, 268 App. Div. 9 598,602 Murchison, In re, 349 U. S. 133 560 Murdock v. Pennsylvania, 319 U. S. 105 626, 631,640 Murphy v. Ramsey, 114 U. S. 15 319 Mustell v. Rose, 282 Ala. 358 87, 105 Myers v. Anderson, 238 U. S. 368 265 Myers v. Sielaff, 381 F. Supp. 840 267 Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 178 Napue v. Illinois, 360 U. S. 264 1302 Nardone v. United States, 308 U. S. 338 274,286,936 Nashville Gas Co. v. Satty, 434 U.S. 136 131,711,716,727 NAACP v. Alabama ex rel. Flowers, 377 U. S. 288 1017 NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 780, 786,825 NAACP v. Button, 371 U. S. 415 780,786,805,822,825 National Bank v. Yankton County, 101 U. S. 129 321 National Cable Television Assn. v. United States, 415 U. S. 336 456 NLRB v. Fainblatt, 306 U. S. 601 420 National League of Cities v. Usery, 426 U. S. 833 413,423, 424, 430, 439, 456, 461 Nationwide Communications, Inc. v. Backus, No. 77-0139-R (ED Va.) 834 Natural Res. Def. Council v. Morton, 148 U. S. App. D. C. 5 551 Near v. Minnesota ex rel. Olson, 283 U. S. 697 801,849 Nebraska Press Assn. v. Stuart, 427 U. S. 539 775,837,845 Lxrv TABLE OF CASES CITED Page Nevada Trust Co. v. Grimes, 29 Nev. 50 597 New Mexico v. American Pe- trofina, Inc., 501 F. 2d 363 403, 432 New Orleans v. Dukes, 427 U. S. 297 439 New State Ice Co. v. Liebmann, 285 U. S. 262 439 New York v. Cathedral Acad- emy, 434 U. S. 125 638 New York v. United States, 326 U. S. 572 457,459,460 New York City v. United States, 394 F. Supp. 641 453 New York Shipping Assn. v. FMC, 495 F. 2d 1215 50, 65, 69,73 New York Times Co. v. Sul- livan, 376 U. S. 254 640,777, 778, 783, 785, 786, 790, 824, 838-840, 842, 849 New York Times Co. v. United States, 403 U. S. 713 778 Nixon v. Administrator of Gen- eral Services, 433 U. S. 425 596, 600,604, 608,613 Nixon v. Condon, 286 U. S. 73 265 Nixon v. Herndon, 273 U. S. 536 265 Nobles v. State, 81 Ga. App. 229 226 North Carolina v. Pearce, 395 U. S. 711 11 Northern Lines Merger Cases, 396 U. S. 491 555 Northern Securities Co. v. United States, 193 U. S. 197 415, 432 Northwest Acceptance Corp. v. Commissioner, 58 T. C. 836 584 Northwestern Cement Co. v. Minnesota, 358 U. S. 450 746, 750 Northwestern Nat. Life Ins. Co. v. Riggs, 203 U. S. 243 822, 824 Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 544 Nowack v. Auditor General, 243 Mich. 200 597 Page Nyquist v. Mauclet, 432 U. S. 1 295,301,303,304,306, 312, 658, 663, 666, 676 O’Brien v. Skinner, 414 U. S. 524 837 Occidental Life Ins. Co. v. EEOC, 432 U. S. 355 722 Ohio v. Helvering, 292 U. S. 360 401,402,422,423,442,457 Oklahoma v. CSC, 330 U. S. 127 461 Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186 544 Old Colony R. Co. v. Commissioner, 284 U. S. 552 577 Old Colony Trust Co. v. Commissioner, 279 U. S. 716 28 Oliphant v. Suquamish Indian Tribe, 435 U. S. 191 323,325,326 Oliver, In re, 333 U. S. 257 610 Oliver v. Udall, 113 U. S. App. D. C. 212 327, 628 Olsen v. Smith, 195 U. S. 332 400 Oneida Indian Nation v. Oneida County, 414 U. S. 661 326 Orloff v. Willoughby, 345 U. S. 83 539 Otte v. United States, 419 U. S. 43 28 Otter Tail Power Co. v. United States, 410 U. S. 366 417 Pacific Gas & Elec. Co. v. Berkeley, 60 Cal. App. 3d 123 790 Packet Co. v. Catlettsburg, 105 U. S. 559 186 Packet Co. v. Keokuk, 95 U. S. 80 462,471,472 Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218 455 Papachristou v. Jacksonville, 405 U. S. 156 986-988 Parden v. Terminal R. Co., 377 U. S. 184 422 Paris Adult Theatre I v. Slaton, 413 U. S. 49 246,989 Park v. Detroit Free Press Co., 72 Mich. 560 598 Parker v. Brown, 317 U. S. 341 391,392, 400, 408, 409, 412, 418, 425, 426, 429, 434, 441 Parker v. Kansas City, 151 Kan. 1 401 TABLE OF CASES CITED LXV Page Parr v. United States, 351 U. S. 513 853 Pasadena Bd. of Ed. v. Spangler, 427 U. S. 424 1304, 1305,1307,1308 Patton v. United States, 281 U. S. 276 230 Pell v. Procunier, 417 U. S. 817 610,798,838 Pennekamp v. Florida, 328 U. S. 331 802,839,842,843,845 Pennsylvania v. Mimms, 434 U. S. 106 297 Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 461 People v. Burton, 6 Cal. 3d 375 1002 People v. Chacon, 69 Cal. 2d 765 483 People v. Hampton, 394 Mich. 437 348 People v. Horrigan, 253 Cal. App. 2d 519 348 People v. Kroeger, 61 Cal. 2d 236 487 People v. Molano, 253 Cal. App. 2d 841 336,348 People v. Woody, 61 Cal. 2d 716 628 People ex rel. Gibson v. Peller, 34 Ill. App. 2d 372 597 Peoples Life Ins. Co. v. United States, 177 Ct. Cl. 318 31 Perkins v. Matthews, 400 U. S. 379 123,131,139,148 Perkins v. Smith, 370 F. Supp. 134 296 Perkins v. United States, 526 F. 2d 688 9,11 Perma Life Mufflers v. International Parts Corp., 392 U. S. 134 440 Perry v. Sindermann, 408 U. S. 593 82 Peters v. Missouri-Pacific R. Co., 483 F. 2d 490 712 Petersburg v. United States, 410 U. S. 962 123 Pierce v. Society of Sisters, 268 U. S. 510 778 Pierson v. Ray, 386 U. S. 547 299, 356,365,368-370 Page Pike v. Bruce Church, Inc., 397 U. S. 137 187 Pipefitters v. United States, 407 U. S. 385 788,812,819 Pittsburgh Press v. Pittsburgh Human Rel. Comm’n, 413 U. S. 376 779 Police Dept, of Chicago v. Mosley, 408 U. S. 92 785 Porter Co. v. NLRB, 397 U. S. 99 70,71 Portland Cement Assn. v. Ruc-kelshaus, 158 U. S. App. D. C. 308 553 Powell v. Alabama, 287 U. S. 45 88,1012 Power Reactor Co. v. Electricians, 367 U. S. 396 546 Preiser v. Rodriguez, 411 U. S. 475 15 Presbyterian Church v. Hull Presbyterian Church, 393 U. S. 440 638 Prince v. United States, 352 U. S. 322 12,15 Puerto Rico v. Shell Co., 302 U. S. 253 318,319 Puget Sound Stevedoring Co. v. State Tax Comm’n, 302 U. S. 90 736,737,739-751 Quick Bear v. Leupp, 210 U. S. 50 639 Railroad Comm’n v. Pullman Co., 312 U. S. 496 661 Randall v. Brigham, 7 Wall. 523 355 Rassmussen v. United States, 197 U. S. 516 230 Ray v. Atlantic Richfield Co., 435 U. S. 151 504 Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 783,789,791 Reetz v. Bozanich, 397 U. S. 82 661 Retail Clerks v. Schermerhorn, 375 U. S. 96 504 Rewis v. United States, 401 U. S. 808 15,379 Reynolds v. Sims, 377 U. S. 533 320,429 Rhoads v. Horvat, 270 F. Supp. 307 265 LXVI TABLE OF CASES CITED Page Rice v. Santa Fe Elevator Corp., 331 U. S. 218 157,168,504 Richfield Oil Corp. v. State Board, 329 U. S. 69 751, 752,756, 759 Richland Trust Co. v. Federal Ins. Co., 480 F. 2d 1212 383 Richmond v. United States, 422 U. S. 358 123,124 Rickenbacker v. Warden, 550 F. 2d 62 1011 Robertson v. King, 225 Ark. 276 961 Robinson v. State, 143 Ga. App. 37 988 Roff v. Burney, 168 U. S. 218 322 Rolle v. Cleland, 435 F. Supp. 260 215 Root v. Cunningham, 344 F. 2d 1 1012 Rosario v. Rockefeller, 410 U. S. 752 775 Rosen v. Public Serv. Elec. Co., 328 F. Supp. 454 722 Roth v. United States, 354 U. S. 476 781 Royster Co. v. United States, 479 F. 2d 387 24,31 Russell v. State, 240 Ark. 97 336, 348 Sackett, In re, 30 C. C. P. A. 1214 (Pat.) 597 Saenz v. University Interscholastic League, 487 F. 2d 1026 392 Sailors v. Board of Education, 387 U. S. 105 438 Sam v. United States, 385 F. 2d 213 203 San Antonio Ind. School Dist. v. Rodriguez, 411 U. S. 1 221 Sanders v. Georgia, 424 U. S. 931 246 Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156 598 Santa Clara County v. Southern Pacific R. Co., 118 U. S. 394 780,822 Sassoon v. United States, 549 F. 2d 983 383 Saunders v. Commissioner, 215 F. 2d 768 26 Page Saunders v. Eyman, No. 75-3485 (CA9) 1012 Saunders v. State, 234 Ga. 586 228 Sawyer, In re, 360 U. S. 622 849 Saxbe v. Washington Post Co., 417 U. S. 843 610,782,838 Scarborough v. United States, 431 U. S. 563 379 Scheuer v. Rhodes, 416 U. S. 232 299,305,310 Schmedding v. May, 85 Mich. 1 598 Schneble v. Florida, 405 U. S. 427 488 Schwartz v. Romnes, 495 F. 2d 844 788,790 Schwegmann Bros. v. Calvert Distillers, 341 U. S. 384 415, 416,431,432,436 Screws v. United States, 325 • U. S. 91 318 Seaton v. Sky Realty Co., 491 F. 2d 634 264 SEC v. Chenery Corp., 318 U. S. 80 549 SEC v. Medical Comm, for Human Rights, 404 U. S. 403 819 Serbian Orthodox Diocese v. Milivojevich, 426 U. S. 696 638 Seren v. Douglas, 30 Colo. App. 110 663 Service v. Dulles, 354 U. S. 363 92,108 Sewell v. Georgia, 435 U. S. 982 990-992 Sexton v. Gibbs, 327 F. Supp. 134 264,265 Shapiro v. Thompson, 394 U. S. 618 4 Shapiro v. United States, 335 U. S. 1 17 Shelton v. Tucker, 364 U. S. 479 786,795 Sheppard v. Maxwell, 384 U. S. 333 839 Sherbert v. Verner, 374 U. S. 398 626,628, 631, 633, 634,639 Shuttle v. Smith, 296 F. Supp. 1315 485 Silver v. Cormier, 529 F. 2d 161 257 TABLE OF CASES CITED LXVII Page Silver v. New York Stock Exch., 373 U. S. 341 183 Silverthorne Lumber Co. v. United States, 251 U. S. 385 287 Simpson v. United States, 435 U. S. 6 912 Skidmore v. Swift & Co., 323 U. S.134 714 Sloan Filter Co. v. El Paso Re- duction Co., 117 F. 504 597 Smith v. Allwright, 321 U. S. 649 265 Smith v. California, 361 U. S. 147 785 Smith v. Maryland, 18 How. 71 164,186 Smith v. Texas, 311 U. S. 128 237, 242 Smith v. United States, 543 F. 2d 1155 26 Smith v. United States, 117 U. S. App. D. C. 1 277,284 Smyth v. Ames, 169 U. S. 466 822 Snyder v. Massachusetts, 291 U. S. 97 88,336 Social Security Bd. v. Nierotko, 327 U. S. 358 28 South Carolina v. Katzenbach, 383 U. S. 301 118, 121,127,141,145 South Carolina v. United States, 199 U. S. 437 457 Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 778 Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761 747 Southern Pacific Co. v. Gallagher, 306 U. S. 167 744 Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 774 Spalding & Bros. v. Edwards, 262 U. S. 66 752 Spector Motor Service v. O’Connor, 340 U. S. 602 740; 745,746 Speiser v. Randall, 357 U. S. 513 785 Spence v. Staras, 507 F. 2d 554 257 Spomer v. Littleton, 414 U. S. 514 775 Page Sprague v. Ticonic Nat. Bank, 307 U. S. 161 979 Spraigue v. Thompson, 118 U. S. 90 159 Sprogis v. United Air Lines, 444 F. 2d 1194 707,711 Stack v. Boyle, 342 U. S. 1 854, 855,857,859,860 Standard Oil Co. v. FTC, 340 U. S. 231 695 Standard Oil Co. v. United States, 221 U. S. 1 428, 687,690,691 Stanley v. Georgia, 394 U. S. 557 783 Starns v. Malkerson, 326 F. Supp. 234 676 State. See also name of State. State v. Brazile, 226 La. 254 485, 486 State v. Caron, 288 N. C. 467 347 State v. Cleaves, 59 Me. 298 345 State v. Davis, 110 Ariz. 29 485, 487 State v. Kennedy, 8 Wash. App. 633 483 State v. Kimball, 176 N. W. 2d 864 336,348 State v. Massey, 229 N. C. 734 628 State v. Patton, 208 Ore. 610 337 State v. White, 285 A. 2d 832 348 State v. Young, 220 Kan. 541 1002 State ex rel. Colscott v. King, 154 Ind. 621 598 State ex rel. Ferry v. Williams, 41 N. J. L. 332 598 State ex rel. Nevada Trust Co. v. Grimes, 29 Nev. 50 597 State ex. rel. Parker v. Kansas City, 151 Kan. 1 401 State ex rel. Swann v. Pack, 527 S. W. 2d 99 628 State ex rel. Williston Herald, Inc. v. O’Connell, 151 N. W. 2d 758 597 State ex rel. Youmans v. Owens, 28 Wis. 2d 672 598,599 Staub v. Baxley, 355 U. S. 313 1015 Stengel v. Belcher, 522 F. 2d 438 257 Steward Machine Co. v. Davis, 301 U. S. 548 282 LXVIII TABLE OF CASES CITED Page Stiff, In re, 32 Ill. App. 3d 971 1003 Stirone v. United States, 361 U. S. 212 373 Stolberg v. Board of Trustees, State Colleges, 474 F. 2d 485 255 Stone v. Powell, 428 U. S. 465 275, 281 285 Stone v. United States, 506 F. 2d 561 330 Storer v. Brown, 415 U. S. 724 775 Strauder v. West Virginia, 100 U. S. 303 237 Stromberg v. California, 283 U. S. 359 780,985,989 Strunk v. United States, 412 U. S. 434 860 Stubbs, Overbeck & Assoc, v. United States, 445 F. 2d 1162 31 Sugarman v. Dougall, 413 U. S. 634 294-297,300,301, 303-305, 309, 310, 312 Sullivan v. Little Hunting Park, 396 U. S. 229 258 Summers, In re, 325 U. S. 561 360 Sun Oil Co. v. Commissioner, 562 F. 2d 258 575,583,587 Sutton v. United States, 267 F. 2d 271 935,936 Swafford v. Templeton, 185 U. S. 487 265 Swaim v. Pack, 527 S. W. 2d 99 628 Talton v. Mayes, 163 U. S. 376 194,319,322,329 Teal v. Georgia, 435 U. S. 989 991 Teamsters v. Oliver, 358 U. S. 283 502, 512,513,516 Tehan v. United States ex rel. Shott, 382 U. S. 406 337 Terminiello v. Chicago, 337 U. S. 1 640 Terry v. Adams, 345 U. S. 461 127 Terry v. Ohio, 392 U. S. 1 297 Thames & Mersey Ins. Co. v. United States, 237 U. S. 19 756 Thomas v. Collins, 323 U. S. 516 786,792 Thomas v. Ward, 529 F. 2d 916 260 Thompson v. Burke, 556 F. 2d 231 267 Page Thompson v. Oklahoma, 429 U. S. 1053 910 Thompson v. Utah, 170 U. S. 343’ 230 Thornhill v. Alabama, 310 U. S. 88 776,791 Tiffany, Ex parte, 252 U. S. 32 384 Time, Inc. v. Firestone, 424 U. S. 448 778,824 Time, Inc. v. Hill, 385 U. S. 374 778,783 Times Film Corp. v. Chicago, 365 U. S. 43 780 Torcaso v. Watkins, 367 U. S. 488 626,627, 632-634, 636, 642, 643 Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 131 Train v. Colorado Pub. Int. Research Gp., 426 U. S. 1 374 Trbovich v. Mine Workers, 404 U. S. 528 977-979 Trenton v. New Jersey, 262 U. S. 182 319,320,429,430 Tripoli Co. v. Wella Corp., 425 F. 2d 932 696 Truax v. Raich, 239 U. S. 33 298 Tumey v. Ohio, 273 U. S. 510 489 Turner v. United States, 248 U. S. 354 323 Twining v. New Jersey, 211 U. S. 78 336 Tyrell v. Speaker, 535 F. 2d 823 255,267 Udall v. Tallman, 380 U. S. 1 131 Union Pacific R. Co. v. United States, 313 U. S. 450 400,415,442 United Jewish Orgs. v. Carey, 430 U. S. 144 123,125 United Public Workers v. Mitchell, 330 U. S. 75 632 United States v. Addyston Pipe & Steel Co., 85 F. 271 689,696 United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742 524 United States v. American Trucking Assns., 310 U. S. 534 17,374 United States v. Antelope, 430 U. S. 641 322,325 TABLE OF CASES CITED LXIX Page United States v. Automobile Workers, 352 U. S. 567 17, 788-790,812,819 United States v. Avalos, 541 F. 2d 1100 862 United States v. Bailey, 512 F. 2d 833 857 United States v. Ballard, 322 U. S. 78 638 United States v. Barrett, 321 F. 2d 911 26 United States v. Bass, 404 U. S. 336 14,379 United States v. Basurto, 497 F. 2d 781 1302 United States v. Bayer, 331 U. S. 532 278 United States v. Beasley, 438 F. 2d 1279 12 United States v. Bramblett, 348 U. S. 503 379 United States v. Brecht, 540 F. 2d 45 373 United States v. Bruno, 105 F. 2d 921 348 United States v. Burka, 289 A. 2d 376 597 United States v. Calandra, 414 U. S. 338 275,285,936,1302 United States v. California, 297 U. S. 175 422-424 United States v. Carolene Products Co., 304 U. S. 144 294 United States v. Carrigan, 543 F. 2d 1053 483,494,495 United States v. Cerilli, 558 F. 2d 697 857 United States v. Chicago B. & Q. R. Co., 412 U. S. 401 581 United States v. CIO, 335 U. S. 106 788-790, 805, 808, 812, 819-821 United States v. Container Corp., 393 U. S. 333 692 United States v. Correll, 389 U. S. 299 25,32,39 United States v. Coulter, 474 F. 2d 1004 12 United States v. Crew, 538 F. 2d 575 9,11 United States v. Dardi, 330 F. 2d 316 487 Page United States v. Davis, 437 F. 2d 928 344 United States v. DeBerry, 487 F. 2d 448 495 United States v. De Coster, 159 U. S. App. D. C. 326 1011 United States v. Donahue, 560 F. 2d 1039 496 United States v. Eagle, 539 F. 2d 1166 9,14 United States v. Easter, 539 F. 2d 663 1011 United States v. E. C. Knight Co., 156 U. S. 1 420 United States v. Edmons, 432 F. 2d 577 935 United States v. Elk, 561 F. 2d 133 316 United States v. Enmons, 410 U. S. 396 376-378 United States v. Fessel, 531 F. 2d 1275 1011 United States v. Florida E. C. R. Co., 410 U. S. 224 524,542 United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227 386 United States v. Foster, 469 F. 2d 1 483,495 United States v. Frazier, 560 F. 2d 884 372 United States v. Fresno, 429 U. S. 452 457,459,460 United States v. Gainey, 380 U. S. 63 338 United States v. Galante, 547 F. 2d 733 935 United States v. Glaxco Group, Ltd., 410 U. S. 52 697 United States v. Gougis, 374 F. 2d 758 487 United States v. Guest, 383 U. S. 745 4 United States v. Haldeman, 181 U. S. App. D. C. 254 592 United States v. Hark, 320 U. S. 531 386 United States v. Harriss, 347 U. S. 612 792 United States v. Hvoslef, 237 U. S. 1 758 United States v. Indrelunas, 411 U. S. 216 385,386 LXX TABLE OF CASES CITED Page United States v. Janis, 428 U. S. 433 281 United States v. Joint Traffic Assn., 171 U. S. 505 689 United States v. Kagama, 118 U. S. 375 211,321-323 United States v. Keeton, 383 F. 2d 429 26 United States v. Kills Plenty, 466 F. 2d 240 316 United States v. Lansdown, 460 F. 2d 164 852,853 United States v. Lanza, 260 U. S. 377 317,320 United States v. Lawriw, 568 F. 2d 98 483 United States v. Lovano, 420 F. 2d 769 483 United States v. Madrid Ramirez, 535 F. 2d 125 1011 United States v. Mardian, 178 U. S. App. D. C. 207 592 United States v. Marigold, 9 How. 560 317 United States v. Marion, 404 U. S. 307 852,856 United States v. Martin Linen Supply, 430 U. S. 564 778 United States v. Mazurie, 419 U. S. 544 323 United States v. McBratney, 104 U. S. 621 325 United States v. McGann, 431 F. 2d 1104 336 United States v. McKesson & Robbins, Inc., 351 U. S. 305 76 United States v. Melville, 309 F. Supp. 774 10 United States v. Mitchell, 377 F. Supp. 1326 592 United States v. Monjar, 154 F. 2d 954 606 United States v. Morelan, 356 F. 2d 199 26 United States v. Morrison, 429 U. S. 1 271 United States v. Morton Salt Co., 338 U. S. 632 779 United States v. National Assn. of Real Estate Bds., 339 U. S. 485 697 United States v. Nice, 241 U. S. 591 208 Page United States v. Nixon, 418 U. S. 683 592,601,603 United States v. O’Brien, 391 U. S. 367 786 United States v. Philadelphia Nat. Bank, 374 U. S. 321 399, 420 United States v. Quiver, 241 U. S. 602 322 United States v. Ramirez, 482 F. 2d 807 10 United States v. Rimanich, 422 F. 2d 817 336 United States v. Rizzo, 409 F. 2d 400 12 United States v. Rogers, 4 How. 567 209 United States v. Rosse, 418 F. 2d 38 306 United States v. San Francisco, 310 U. S. 16 461 United States v. SCRAP, 412 U. S. 669 548 United States v. Smith, 392 F. 2d 302 336,348 United States v. Socony-Vacuum Oil Co., 310 U. S. 150 692 United States v. Southeastern Underwriters, 322 U. S. 533 398 United States v. Sudduth, 457 F. 2d 1198 10 United States v. Swarovski, 557 F. 2d 40 306 United States v. Teamsters, 315 U. S. 521 377 United States v. Topco Associates, 405 U. S. 596 398, 407,408,688 United States v. Trans-Missouri Freight Assn., 166 U. S. 290 689 United States v. Valle-Valdez, 554 F. 2d 911 490 United States v. Viale, 312 F. 2d 595 306 United States v. Walking Crow, 560 F. 2d 386 316 United States v. Warledo, 557 F. 2d 721 372 United States v. Waters, 461 F. 2d 248 11 United States v. Watson, 423 U. S. 411 935 TABLE OF CASES CITED LXXI Page United States v. White, 322 U. S. 694 779,824 United States v. Williams, 429 F. 2d 158 483 United States v. Williams, 172 U. S. App. D. C. 290 336 United States v. Wilson, 420 U. S. 332 271 United States v. Winans, 198 U. S. 371 327 United States v. Woods, 544 F. 2d 242 487 United States v. Yokley, 542 F. 2d 300 372 United States v. Zueca, 351 U. S. 91 546 U. S. ex rel. See name of real party in interest. United States Trust Co. v. New Jersey, 431 U. S. 1 461 Uppercu, Ex parte, 239 U. S. 435 597 Utah Fuel Co. v. National Bitum. Coal Comm’n, 306 U. S. 56 544 Valentine v. Chrestensen, 316 U. S. 52 784 Vaughn v. Rosen, 157 U. S. App. D. C. 340 493 Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623 994 Vendo Co. v. Lektro-Vend Corp., 434 U. S. 425 1307 Vermont Yankee Nuclear Power v. Natural Resources Def. Council, 435 U. S. 519 964 Villines v. State, 492 P. 2d 343 348 Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U. S. 748 783,784,791,825,838 Vlandis v. Kline, 412 U. S. 441 650,657-661,671, 674,675 Volkswagen werk v. FMC, 390 U. S. 261 50, 54-56,64,66-69,76,77 Walder v. United States, 347 U. S. 62 275 Wallace Corp. v. NLRB, 323 U. S. 248 544 Waller v. Florida, 397 U. S. 387 318,321,430 Page Walz v. Tax Comm’n, 397 U. S. 664 629, 639,641 Warren Trading Post v. Arizona Tax Comm’n, 380 U. S. 685 206, 324 Warth v. Seldin, 422 U. S. 490 600 Watson v. Jones, 13 Wall. 679 638 Wayne v. Venable, 260 F. 64 265 Weatherspoon v. State, 328 So. 2d 875 959 Weinberger v. Salii, 422 U. S. 749 650,658-661, 675 Weinstein v. Bradford, 423 U. S. 147 774 Western Live Stock v. Bureau of Revenue, 303 U. S. 250 741, 744,745,748,750 Western Maryland R. Co. v. Rogan, 340 U. S. 520 757 Weston v. Charleston, 2 Pet. 449 455 W. G. Cosby Transfer & Storage v. Froehlke, 480 F. 2d 498 383 White v. Maryland, 373 U. S. 59 489 Whitling v. Russell, 406 Pa. 45 487 Whitney v. California, 274 U. S. 357 791,843 Whitworth v. Perkins, 559 F. 2d 378 438 Wieman v. Updegraff, 344 U. S. 183 632,641 Wiley v. Sinkler, 179 U. S. 58 265 Willcuts v. Bunn, 282 U. S. 216 456 Williams v. Eggleston, 170 U. S. 304 319,321,438 Williams v. Florida, 399 U. S. 78 224,228-232,239 Williams v. Lee, 358 U. S. 217 324 Williams v. Rhodes, 393 U. S. 23 645 Williams v. Twomey, 510 F. 2d 634 1012 Williams v. Williams, 328 F. Supp. 1380 663 Williams Co. v. Commissioner, 429 U. S. 569 134,135 Williamson v. Lee Optical Co., 348 U. S. 483 220 LXXII TABLE OF CASES CITED Page Williamson v. Osenton, 232 U. S. 619 672 Williston Herald, Inc. v. O’Connell, 151 N. W. 2d 758 597 Wilson v. United States, 149 U. S. 60 343 Wilson v. United States, 221 U. S. 361 779 Wilson v. United States, 412 F. 2d 694 26 Winters v. New York, 333 U. S. 507 783 Winton v. Amos, 255 U. S. 373 319 Wirtz v. Glass Bottle Blowers, 389 U. S. 375 979 Wisconsin v. J. C. Penney Co., 311 U. S. 435 750 Wisconsin v. Yoder, 406 U. S. 205 628,635,639 Wong Sun v. United States, 371 U. S. 471 273- 276,285,286,289,936 Wong Yang Sung v. McGrath, 339 U. S. 33 523,547 Wood v. Georgia, 370 U. S. 375 790,792,837,845 Page Wood v. Strickland, 420 U. S. 308 251,252,255 Worcester v. Georgia, 6 Pet. 515 207,295,326,331 Worcester v. Street R. Co., 196 U. S. 539 320,431 World Pub. Co. v. Commis- sioner, 299 F. 2d 614 584 Wright v. Georgia, 373 U. S. 284 1017 Yick Wo v. Hopkins, 118 U. S. 356 302 Youmans v. Owens, 28 Wis. 2d 672 598,599 Young, Ex parte, 209 U. S. 123 157 Young v. American Mini Thea- tres, 427 U. S. 50 779 Zemel v. Rusk, 381 U. S. 1 4,610 Zenith Radio Corp. v. Hazel- tine Research, Inc., 395 U. S. 100 729 Zenith Radio Corp. v. Hazel- tine Research, 401 U. S. 321 134 Zimmerer v. Spencer, 485 F. 2d 176 260 Zorach v. Clauson, 343 U. S. 306 639,640 CASES ADJUDGED IN THE SUPBEME COUBT OF THE UNITED STATES AT OCTOBER TERM, 1977 CALIFANO, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. TORRES ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO No. 77-88. Decided February 27, 1978* The provisions of the Social Security Act making benefits for aged, blind, and disabled persons under the Supplemental Security Income (SSI) program payable only to residents of the United States, defined as the 50 States and the District of Columbia, are not unconstitutional as applied to persons who upon moving to Puerto Rico lost the benefits to which they were entitled while residing in the United States. The constitutional right to travel does not embrace any such doctrine as would require payment of SSI benefits under such circumstances. No. 77-88, 426 F. Supp. 1106, and No. 77-126, reversed. Per Curiam. Certain benefits under the Social Security Act, as amended in 1972, are payable only to residents of the United States, defined as the 50 States and the District of Columbia. The District Court for the District of Puerto Rico held in these *Together with No. 77-126, Califano, Secretary of Health, Education, and Welfare v. Colon et al., also on appeal from the same court. 1 2 OCTOBER TERM, 1977 Per Curiam 435U.S. cases that this geographic limitation is unconstitutional as applied to persons who upon moving to Puerto Rico lost the benefits to which they were entitled while residing in the United States. The Secretary of Health, Education, and Welfare, responsible for the administration of the Social Security Act, has appealed.1 I One of the 1972 amendments to the Social Security Act created a uniform program, known as the Supplemental Security Income (SSI) program, for aid to qualified aged, blind, and disabled persons. 86 Stat. 1465, 42 U. S. C. § 1381 et seq. (1970 ed., Supp. V). This federally administered program replaced the federal-state programs of Old Age Assistance, 49 Stat. 620, 42 U. S. C. § 301 et seq.; Aid to the Blind, 49 Stat. 645, 42 U. S. C. § 1201 et seq.; Aid to the Disabled, 64 Stat. 555, 42 U. S. C. § 1351 et seq.; and Aid to the Aged, Blind, and Disabled, 42 U. S. C. § 1381 et seq. The exclusion of Puerto Rico in the amended program is apparent in the definitional section. Section 1611 (f) of the Act, as set forth in 42 U. S. C. § 1382 (f) (1970 ed., Supp. V), states that no individual is eligible for benefits during any month in which he or she is outside the United States. The Act defines “the United States” as “the 50 States and the District of Columbia.” § 1614 (e), as set forth in 42 U. S. C. § 1382c (e) (1970 ed., Supp. V). The repeal of the pre-existing programs did not apply to Puerto Rico. Thus persons in Puerto Rico are not eligible to receive SSI benefits, but are eligible to receive benefits under the pre-existing programs.1 2 Appellee Torres received SSI benefits while residing in Connecticut; the benefits were discontinued when he moved 1 This Court’s jurisdiction is based on 28 U. S. C. § 1252. 2 The SSI benefits are significantly larger. CALIFANO v. TORRES 3 1 Per Curiam to Puerto Rico. Similarly, appellees Colon and Vega received benefits as residents of Massachusetts and New Jersey, respectively, but lost them on moving to Puerto Rico.3 Torres filed a complaint in the District Court of Puerto Rico claiming that the exclusion of Puerto Rico from the SSI program was unconstitutional, and a three-judge court was convened to adjudicate the suit. Viewing the geographic limitations in the law as an interference with the constitutional right of residents of the 50 States and the District of Columbia to travel, the court searched for a compelling governmental interest to justify such interference. Finding none, the court held §§ 1611 (f) and 1614 (e) unconstitutional as applied to Torres. Torres v. Mathews, 426 F. Supp. 1106.4 Soon after that decision appellees Colon and Vega also sued in the Puerto Rico District Court. Relying on the Torres decision, a single judge enjoined the Social Security Administration from discontinuing their SSI benefits on the basis of their change of residency to Puerto Rico.5 3 The record does not show whether the appellees applied for benefits under the pre-existing programs while in Puerto Rico. 4 The complaint had also relied on the equal protection component of the Due Process Clause of the Fifth Amendment in attacking the exclusion of Puerto Rico from the SSI program. Acceptance of that claim would have meant that all otherwise qualified persons in Puerto Rico are entitled to SSI benefits, not just those who received such benefits before moving to Puerto Rico. But the District Court apparently acknowledged that Congress has the power to treat Puerto Rico differently, and that every federal program does not have to be extended to it. Puerto Rico has a relationship to the United States “that has no parallel in our history.” Examining Board n. Flores de Otero, 426 U. S. 572, 596 (1976). Cf. Balzac v. Porto Rico, 258 U. S. 298 (1922); Dorr v. United States, 195 U. S. 138 (1904); Downes v. Bidwell, 182 U. S. 244 (1901). See Leibowitz, The Applicability of Federal Law to the Commonwealth of Puerto Rico, 56 Geo. L. J. 219 (1967); Hector, Puerto Rico: Colony or Commonwealth?, 6 N. Y. U. J. Int’l L. & Pol. 115 (1973). 5 The opinion of the District Court is unreported. 4 OCTOBER TERM, 1977 Per Curiam 435U.S. II In Shapiro v. Thompson, 394 U. S. 618 (1969), and Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974), this Court held that laws prohibiting newly arrived residents in a State or county from receiving the same vital benefits as other residents unconstitutionally burdened the right of interstate travel. As the Court said in Memorial Hospital, “the right of interstate travel must be seen as insuring new residents the same right to vital governmental benefits and privileges in the States to which they migrate as are enjoyed by other residents.” Id., at 261. In the present cases the District Court altogether transposed that proposition. It held that the Constitution requires that a person who travels to Puerto Rico must be given benefits superior to those enjoyed by other residents of Puerto Rico if the newcomer enjoyed those benefits in the State from which he came. This Court has never held that the constitutional right to travel embraces any such doctrine, and we decline to do so now.6 Such a doctrine would apply with equal force to any benefits a State might provide for its residents, and would require a State to continue to pay those benefits indefinitely to any persons who had once resided there. And the broader implications of such a doctrine in other areas of substantive law would bid fair to destroy the independent power of each 6 The constitutional right of interstate travel is virtually unqualified. United States v. Guest, 383 U. S. 745, 757-758 (1966); Griffin n. Breckenridge, 403 U. S. 88, 105-106 (1971). By contrast the “right” of international travel has been considered to be no more than an aspect of the “liberty” protected by the Due Process Clause of the Fifth Amendment. Kent v. Dulles, 357 U. S. 116, 125 (1958); Aptheker v. Secretary of State, 378 U. S. 500, 505-506 (1964). As such this “right,” the Court has held, can be regulated within the bounds of due process. Zemel v. Rusk, 381 U. S. 1 (1965). For purposes of this opinion we may assume that there is a virtually unqualified constitutional right to travel between Puerto Rico and any of the 50 States of the Union. CALIFANO v. TORRES 5 1 Per Curiam State under our Constitution to enact laws uniformly applicable to all of its residents. If there ever could be a case where a person who has moved from one State to another might be entitled to invoke the law of the State from which he came as a corollary of his constitutional right to travel, this is surely not it. For we deal here with a constitutional attack upon a law providing for governmental payments of monetary benefits. Such a statute “is entitled to a strong presumption of constitutionality.” Mathews v. De Castro, 429 U. S. 181, 185 (1976). “So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket.” Jefferson v. Hackney, 406 U. S. 535, 546 (1972). See also Calif ano v. Jobst, 434 U. S. 47, 53-54; Calif ano v. Goldfarb, 430 U. S. 199, 210 (1977); Helvering v. Davis, 301 U. S. 619, 640 (1937).7 The judgments are reversed. So ordered. Mr. Justice Brennan would affirm. Mr. Justice Marshall would note probable jurisdiction and set these cases for oral argument. 7 At least three reasons have been advanced to explain the exclusion of persons in Puerto Rico from the SSI program. First, because of the unique tax status of Puerto Rico, its residents do not contribute to the public treasury. Second, the cost of including Puerto Rico would be extremely great—an estimated $300 million per year. Third, inclusion in the SSI program might seriously disrupt the Puerto Rican economy. Department of Health, Education, and Welfare, Report of the Undersecretary’s Advisory Group on Puerto Rico, Guam and the Virgin Islands 6 (Oct. 1976). 6 OCTOBER TERM, 1977 Syllabus 435 U.S. SIMPSON ET AL. V. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 76-5761. Argued November 1, 1977—Decided February 28, 1978* The punishment for bank robbery under 18 U. S. C. § 2113 (a) may be enhanced under § 2113 (d) when the robbery is committed “by the use of a dangerous weapon or device.” Title 18 U. S. C. § 924 (c) provides that whoever “uses a firearm to commit any felony for which he may be prosecuted in a court of the United States,” shall be subject to a penalty in addition to the punishment provided for the commission of such felony. Petitioners were convicted of two separate aggravated bank robberies and of using firearms to commit the robberies, in violation of §§2113 (a) and (d) and 924 (c), and were sentenced to consecutive terms of imprisonment on the robbery and firearms counts, the District Court rejecting their contention that the imposition of the cumulative penalties for the two crimes was impermissible because the § 2113 (d) charges merged with the firearms offenses for purposes of sentencing. The Court of Appeals affirmed. Held: In a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced under both §2113 (d) and §924 (c). This construction of those provisions is supported not only by § 924 (c) ’s legislative history but also by the established rules of statutory construction that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,” United States v. Bass, 404 U. S. 336, 347; Rewis v. United States, 401 U. S. 808, 812, and that precedence should be given to the terms of the more specific statute where a general statute and a specific statute speak to the same concern, even if the general provision was enacted later. Pp. 10-16. 542 F. 2d 1177, reversed and remanded. Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. Rehnquist, J., filed a dissenting opinion, post, p. 16. *Together with No. 76-5796, Simpson v. United States, also on certiorari to the same court. SIMPSON v. UNITED STATES 7 6 Opinion of the Court Robert W. Willmott, Jr., by appointment of the Court, 432 U. S. 904, argued the cause and filed a brief for petitioners in both cases. H. Bartow Farr III argued the cause for the United States in both cases. With him on the brief were Acting Solicitor General Friedman, Assistant Attorney General Civilet.ti, and John J. Klein. Mr. Justice Brennan delivered the opinion of the Court. The punishment for bank robbery of a fine of not more than $5,000 and imprisonment for not more than 20 years, or both, 18 U. S. C. § 2113 (a), may be enhanced to a fine of not more than $10,000 and imprisonment for not more than 25 years, or both, when the robbery is committed “by the use of a dangerous weapon or device,” 18 U. S. C. § 2113(d).1 Another statute, 18 U. S. C. § 924 (c), provides that whoever “uses a 1 Title 18 U. S. C. §§2113 (a) and (d) provide: “(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or “Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny— “Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both. “(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.” 8 OCTOBER TERM, 1977 Opinion of the Court 435U.S. firearm to commit any felony for which he may be prosecuted in a court of the United States . . . shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years,” and “[i]n the case of his second or subsequent conviction under this subsection,” to imprisonment for not less than 2 nor more than 25 years; “nor shall the term of imprisonment imposed under this subsection run concurrently with any term of imprisonment imposed for the commission of such felony.” 2 Petitioners were convicted of two separate bank robberies committed with firearms. The question for decision is whether §§2113 (d) and 924 (c) should be construed as intended by Congress to authorize, in the case of a bank robbery committed with firearms, not only the imposition of the increased penalty under § 2113 (d), but also the imposition of an additional consecutive penalty under § 924 (c). I On September 8, 1975, petitioners, using handguns to intimidate the bank’s employees, robbed some $40,000 from the East End Branch of the Commercial Bank of Middlesboro, 2 The complete text of 18 U. S. C. § 924 (c) provides: “(c) Whoever— “(1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or “(2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States, “shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to a term of imprisonment for not less than two nor more than twenty-five years and, notwithstanding any other provision of law, the court shall not suspend the sentence in the case of a second or subsequent conviction of such person or give him a probationary sentence, nor shall the term of imprisonment imposed under this subsection run concurrently with any term of imprisonment imposed for the commission of such felony.” SIMPSON v. UNITED STATES 9 6 Opinion of the Court Ky. App. 20. Less than two months later, on November 4, 1975, petitioners returned to Middlesboro and this time, again using handguns, robbed the West End Branch of the Commercial Bank of about the same amount. Petitioners received a separate jury trial for each robbery. After the trial for the first robbery, they were convicted of both aggravated bank robbery, in violation of 18 U. S. C. §§ 2113 (a) and (d), and of using firearms to commit the robbery, in violation of 18 U. S. C. § 924 (c). They were sentenced to consecutive terms of 25 years’ imprisonment on the robbery count and 10 years’ imprisonment on the firearms count. After the trial for the second robbery, petitioners were again convicted of one count of aggravated bank robbery in violation of §§2113 (a) and (d) and of one count of using firearms to commit the crime in violation of § 924 (c); again each received a 25-year sentence for the robbery and a 10-year sentence for the firearms count, the sentences to run consecutively to each other and to the sentences previously imposed. During the sentencing proceedings following each conviction, counsel for petitioners argued that the imposition of cumulative penalties for the two crimes was impermissible because the § 2113 (d) charge merged with the firearms offense for purposes of sentencing. The District Court disagreed, holding that “the statutes and the legislative history indi-cat[e] an intention [by § 924 (c)] to impose an additional punishment.” App. 17. The Court of Appeals for the Sixth Circuit affirmed without a published opinion, 542 F. 2d 1177 (1976). We granted certiorari, 430 U. S. 964 (1977), to resolve an apparent conflict between the decision below and the decision of the Court of Appeals for the Eighth Circuit in United States v. Eagle, 539 F. 2d 1166 (1976).3 We reverse. 3 In agreement with the Court of Appeals for the Sixth Circuit in these cases are the Court of Appeals for the Fourth Circuit, United States v. Crew, 538 F. 2d 575 (1976), and the Court of Appeals for the Fifth Circuit, Perkins V. United States, 526 F. 2d 688 (1976). 10 OCTOBER TERM, 1977 Opinion of the Court 435U.S. II Quite clearly, §§ 924 (c) and 2113 (d) are addressed to the same concern and designed to combat the same problem: the use of dangerous weapons—most particularly firearms—to commit federal felonies.4 Although we agree with the Court of Appeals that § 924 (c) creates an offense distinct from the underlying federal felony, United States v. Ramirez, 482 F. 2d 807 (CA2 1973); United States v. Sudduth, 457 F. 2d 1198 (CAI 1972), we believe that this is the beginning and not the end of the analysis necessary to answer the question presented for decision. 4 Both the Senate and House Reports on the 1934 Bank Robbery Act, which first made bank robbery a federal offense and which included the provisions of § 2113 (d), state that the legislation was directed at the rash of “gangsterism” by which roving bandits in the Southwest and Northwest would rob banks and then elude capture by state authorities by crossing state lines. S. Rep. No. 537, 73d Cong., 2d Sess., 1 (1934); H. R. Rep. No. 1461, 73d Cong., 2d Sess., 2 (1934). The vast majority of such bank robberies were undoubtedly accomplished by the use of guns of various sorts. Indeed, as originally proposed, the provision that became § 2113 (d) covered only the use of “dangerous weapons.” The “or device” language was added in response to concern expressed on the House floor that the provision would not reach the conduct of a bank robber who walked into a bank with a bottle of nitroglycerin and threatened to blow it up unless his demands were met. 78 Cong. Rec. 8132-8133 (1934). Thus, although § 2113 (d) undoubtedly covers bank robberies with weapons and devices other than firearms, the use of guns to commit bank robbery was the primary evil § 2113 (d) was designed to deter. On the other hand, although the overriding purpose of § 924 (c) was to combat the increasing use of guns to commit federal felonies, the ambit of that provision is broader. The section imposes increased penalties when a “firearm” is used to commit, or is unlawfully carried during the commission of any federal felony. Title 18 U. S. C. § 921 (a) (3) (D) defines “firearm” to include “any destructive device.” A “destructive device,” in turn, is defined by § 921 (a) (4) (A) to include “any explosive, incendiary, or poison gas—(i) bomb, (ii) grenade, (iii) rocket . . . , (iv) missile . . . , (v) mine, or (vi) device similar to any of the devices described in the preceding clauses.” See United States v. Melville, 309 F. Supp. 774 (SDNY 1970). SIMPSON v. UNITED STATES 11 6 Opinion of the Court In Blockburger v. United States, 284 U. S. 299 (1932), this Court set out the test for determining “whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment.” Brown v. Ohio, 432 U. S. 161, 166 (1977). We held that “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, supra, at 304. See also Brown v. Ohio, supra, at 166; lanelli v. United States, 420 U. S. 770 (1975); Gore v. United States, 357 U. S. 386 (1958). The Blockburger test has its primary relevance in the double jeopardy context, where it is a guide for determining when two separately defined crimes constitute the “same offense” for double jeopardy purposes. Brown v. Ohio, supra.5 Cases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing, as here, raise the prospect of double jeopardy and the possible need to evaluate the statutes in light of the Blockburger test. That test, the Government argues, is satisfied in this litigation.6 We need not reach the issue. Before an 5 The Double Jeopardy Clause “protects against multiple punishments for the same offense,” North Carolina v. Pearce, 395 U. S. 711, 717 (1969), and prohibits multiple prosecutions for the “same offense,” Jeffers n. United States, 432 U. S. 137, 150-151 (1977). 6 In its attempt to demonstrate that §§924 (c) and 2113 (d) are distinct and separately punishable offenses under the Blockburger test, the Government apparently reads the phrase “by the use of a dangerous weapon or device” in § 2113 (d) to modify the word “assaults” as well as the phrase “puts in jeopardy the life of any person.” Brief for United States 9-10. The lower courts are divided on this issue. Those of the opinion that § 2113 (d) is to be read as the Government reads it include United States v. Crew, supra, at 577. See Perkins n. United States, supra; United States v. Waters, 461 F. 2d 248 (CAIO 1972). Other courts read the provision disjunctively, and hold that the phrase “by the use of a dangerous weapon or device” modifies only the phrase “puts in jeopardy 12 OCTOBER TERM, 1977 Opinion of the Court 435U.S. examination is made to determine whether cumulative punishments for the two offenses are constitutionally permissible, it is necessary, following our practice of avoiding constitutional decisions where possible, to determine whether Congress intended to subject the defendant to multiple penalties for the single criminal transaction in which he engaged. Jeffers v. United States, 432 U. S. 137, 155 (1977). Indeed, the Government concedes that “there remains at least a possibility that Congress, although constitutionally free to impose additional penalties for violation of 18 U. S. C. § 924 (c) in a case like the present one, has otherwise disclosed its intention not to do so.” Brief for United States 11. We believe that several tools of statutory construction applied to the statutes “in a case like the present one”—where the Government relied on the same proofs to support the convictions under both statutes—require the conclusion that Congress cannot be said to the life of any person” and not the word “assaults.” United States v. Beasley, 438 F. 2d 1279 (CA6 1971); United States v. Rizzo, 409 F. 2d 400 (CA7 1969). See United States v. Coulter, 474 F. 2d 1004 (CA9 1973). Although we have never authoritatively construed §2113 (d), we have implicitly given it the same gloss as the Government. Prince n. United States, 352 U. S. 322, 329 n. 11 (1957). We now expressly adopt this reading of the statute. As Judge McCree observed in Beasley: “(The language of §2113 (d)] clearly requires the commission of something more than the elements of the offense described in § 2113 (a). Subsection (a) punishes an attempt to take 'from the person or presence of another any . . . thing of value ... . in the . . . custody ... of any bank . . .’ when that taking is done 'by force and violence, or by intimidation.’ Force and violence is the traditional language of assault, and something more than an assault must be present to authorize the additional five year penalty under § 2113 (d). ". . . In order to give lawful meaning to Congress’ enactment of the aggravating elements in 18 U. S. C. § 2113 (d), the phrase 'by the use of a dangerous weapon or device’ must be read, regardless of punctuation, as modifying both the assault provision and the putting in jeopardy provision.” 438 F. 2d, at 1283-1284 (concurring in part and dissenting in part). SIMPSON v. UNITED STATES 13 6 Opinion of the Court have authorized the imposition of the additional penalty of § 924 (c) for commission of bank robbery with firearms already subject to enhanced punishment under § 2113 (d). Cf. Gore v. United States, supra. Ill First is the legislative history of § 924 (c). That provision, which was enacted as part of the Gun Control Act of 1968, was not included in the original Gun Control bill, but was offered as an amendment on the House floor by Representative Poff. 114 Cong. Rec. 22231 (1968).7 In his statement immediately following his introduction of the amendment, Representative Poff observed: “For the sake of legislative history, it should be noted that my substitute is not intended to apply to title 18, sections 111, 112, or 113 which already define the penalties for the use of a firearm in assaulting officials, with sections 2113 or 2114 concerning armed robberies of the mail or banks, with section 2231 concerning armed assaults upon process servers or with chapter 44 which defines other firearm felonies.” Id., at 22232. This statement is clearly probative of a legislative judgment that the purpose of § 924 (c) is already served whenever the substantive federal offense provides enhanced punishment for use of a dangerous weapon.8 Although these remarks are of course not dispositive of the issue of § 924 (c)’s reach, they are certainly entitled to weight, coming as they do from the provision’s sponsor. This is especially so because Represent- 7 Because the provision was passed on the same day it was introduced on the House floor, it is the subject of no legislative hearings or commit-tee reports. 8 Title 18 U. S. C. §§ 111, 112, and 2231 provide for an increased maximum penalty where a “deadly or dangerous weapon” is used to commit the substantive offense. Title 18 U. S. C. §§ 113 (c) and 2114 enhance the punishment available for commission of the substantive offense when the defendant employs a “dangerous weapon.” 14 OCTOBER TERM, 1977 Opinion of the Court 435U.S. ative Poff’s explanation of the scope of his amendment is in complete accord with, and gives full play to, the deterrence rationale of § 924 (c). United States v. Eagle, 539 F. 2d, at 1172. Subsequent events in the Senate and the Conference Committee pertaining to the statute buttress our conclusion that Congress’ view of the proper scope of § 924 (c) was that expressed by Representative Poff. Shortly after the House adopted the Poff amendment, the Senate passed an amendment to the Gun Control Act, introduced by Senator Dominick, that also provided for increased punishment whenever a firearm was used to commit a federal offense. 114 Cong. Rec. 27142 (1968). According to the analysis of its sponsor, the Senate amendment, contrary to Mr. Poff’s view of § 924 (c), would have permitted the imposition of an enhanced sentence for the use of a firearm in the commission of any federal crime, even where allowance was already made in the provisions of the substantive offense for augmented punishment where a dangerous weapon is used. Id., at 27143. A Conference Committee, with minor changes,9 subsequently adopted the Poff version of § 924 (c) in preference to the Dominick amendment. H. R. Conf. Rep. No. 1956, 90th Cong., 2d Sess., 31-32 (1968). Second, to construe the statute to allow the additional sentence authorized by § 924 (c) to be pyramided upon a sentence already enhanced under § 2113 (d) would violate the established rule of construction that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” United States v. Bass, 404 U. S. 336, 347 (1971); 9 The prohibitions on suspended sentences and probation were made applicable only to second and subsequent convictions, and restrictions on concurrent sentences were eliminated. Title II of the Omnibus Crime Control Act of 1970, 84 Stat. 1889, amended § 924 (c) by reimposing the restriction that no sentence under that section could be served concurrently with any term imposed for the underlying felony. The amendment also reduced the minimum mandatory sentence of imprisonment for repeat offenders from five to two years. SIMPSON v. UNITED STATES 15 6 Opinion of the Court Rewis v. United States, 401 U. S. 808, 812 (1971). See Adamo Wrecking Co. v. United States, 434 U. S. 275, 284-285 (1978). The legislative history of § 924 (c) is of course sparse, yet what there is—particularly Representative Poff’s statement and the Committee rejection of the Dominick amendment—points in the direction of a congressional view that the section was intended to be unavailable in prosecutions for violations of §2113 (d). Even where the relevant legislative history was not nearly so favorable to the defendant as this, this Court has steadfastly insisted that “doubt will be resolved against turning a single transaction into multiple offenses.” Bell v. United States, 349 U. S. 81, 84 (1955); Ladner v. United States, 358 U. S. 169 (1958). See Prince v. United States, 352 U. S. 322 (1957). As we said in Ladner: “This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” 358 U. S., at 178. If we have something “more than a guess” in this case, that something—Representative Poff’s commentary and the Conference Committee’s rejection of the Dominick amendment—is incremental knowledge that redounds to petitioners’ benefit, not the Government’s. Finally, our result is supported by the principle that gives precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern, even if the general provision was enacted later. See Preiser v. Rodriguez, 411 U. S. 475, 489-490 (1973). Cf. 2A C. Sands, Sutherland, Statutory Construction § 51.05 (4th ed. 1973). This guide to statutory construction has special cogency where a court is called upon to determine the extent of the punishment to which a criminal defendant is subject for his transgressions. In this context, the principle is a corollary of the rule of lenity, an outgrowth of our reluctance to increase or multiply punishments absent a clear and definite legislative 16 OCTOBER TERM, 1977 Rehnquist, J., dissenting 435U.S. directive. Indeed, at one time, the Government was not insensitive to these concerns respecting the availability of the additional penalty under § 924 (c). In 1971, the Department of Justice found the interpretive preference for specific criminal statutes over general criminal statutes of itself sufficient reason to advise all United States Attorneys not to prosecute a defendant under §924 (c)(1) where the substantive statute the defendant was charged with violating already “pro vid [ed] for increased penalties where a firearm is used in the commission of the offense.” 19 U. S. Attys. Bull. 63 (U. S. Dept, of Justice, 1971). Obviously, the Government has since changed its view of the relationship between §§ 924 (c) and 2113 (d). We think its original view was the better view of the congressional understanding as to the proper interaction between the two statutes. Accordingly, we hold that in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced under both § 2113 (d) and § 924 (c). The cases are therefore reversed and remanded to the Court of Appeals for proceedings consistent with this opinion. It is so ordered. Mr. Justice Rehnquist, dissenting. I am unable to agree with the Court’s conclusion in this litigation that petitioners, upon being convicted and sentenced under 18 U. S. C. § 2113 (d) for armed robbery, could not have their sentence enhanced pursuant to the provisions of 18 U. S. C. § 924 (c), which provides that when a defendant uses a firearm in the commission of a felony, he “shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years.” The plain language of the statutes involved certainly confers this sentencing authority upon the District Court. The Court chooses to avoid this SIMPSON v. UNITED STATES 17 6 Rehnquist, J., dissenting plain meaning by resort to a canon of construction with which no one disagrees, “our practice of avoiding constitutional decisions where possible,” ante, at 12. The Court then relies on a statement made on the floor of the House of Representatives by Congressman Poff, who sponsored the amendment which became this part of the Gun Control Act of 1968, to the effect that the amendment would not apply to offenses governed by 18 U. S. C. § 2113. But neither of these proffered rationales justifies the Court’s decision today. The canon of construction which the Court purports to follow is like all other canons, only a guide to enable this Court to perform its function. As the Court said in Shapiro n. United States, 335 U. S. 1, 31 (1948): “The canon of avoidance of constitutional doubts must, like the ‘plain meaning’ rule, give way where its application would produce a futile result, or an unreasonable result ‘plainly at variance with the policy of the legislation as a whole.’ ” While legislative history as well as the language of the statute itself may be used to interpret the meaning of statutory language, United States v. American Trucking Assns., 310 U. S. 534, 543 (1940), the decisions of this Court have established that some types of legislative history are substantially more reliable than others. The report of a joint conference committee of both Houses of Congress, for example, or the report of a Senate or House committee, is accorded a good deal more weight than the remarks even of the sponsor of a particular portion of a bill on the floor of the chamber. See, e. g., Chandler n. Roudebush, 425 U. S. 840, 858 n. 36 (1976); United States v. Automobile Workers, 352 U. S. 567, 585-586 (1957). It is a matter of common knowledge that at any given time during the debate, particularly a prolonged debate, of a bill the members of either House in attendance on the floor may not be great, and it is only these members, or those who later read the remarks in the Congressional 18 OCTOBER TERM, 1977 Rehnquist, J., dissenting 435 U. S. Record, who will have the benefit of the floor remarks. In the last analysis, it is the statutory language embodied in the enrolled bill which Congress enacts, and that must be our first reference point in interpreting its meaning. The Court’s disregard of this plain meaning is inappropriate in this litigation both because of the circumstances under which the Gun Control Act was passed in June 1968, and because of the gauzy nature of the constitutional concerns which apparently underlie its reluctance to read the statutes as they are written. Several different bills dealing with firearms control, which had been bottled up in various stages of the legislative process prior to June 1968, were brought to the floor and enacted with dramatic swiftness following the assassination of Senator Robert F. Kennedy in the early part of that month. Senator Kennedy’s assassination, following by less than three months the similar killing of Reverend Martin Luther King, obviously focused the attention of Congress on the problem of firearms control. It seems to me not only permissible but irresistible, in reading the language of the two statutes, to conclude that Congress intended when it enacted § 924 (c) to authorize the enhancement of the sentence already imposed by virtue of 18 U. S. C. § 2113 (d). The Court expresses concern, however, that if this construction were adopted problems of double jeopardy would be raised by virtue of our decision in Blockburger v. United States, 284 U. S. 299 (1932). Blockburger, of course, was not based on the Double Jeopardy Clause of the Constitution, but simply upon an analysis of relevant principles of statutory construction for determining “whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment.” Brown v. Ohio, 432 U. S. 161,166 (1977); ante, at 11. To speak of a congressional provision for enhanced punishment for an offense, as § 924 (c) clearly is, as raising constitutional doubts under the “Blockburger test” is to use the language of metaphysics, rather than of constitutional law. SIMPSON v. UNITED STATES 19 6 Rehnquist, J., dissenting Brown v. Ohio, supra, decided last Term, provides no more support for the majority’s position. That case involved two entirely separate and distinct prosecutions for the same act, one for the crime of stealing an automobile and the other for the admittedly lesser included offense of operating the same vehicle without the owner’s consent. And even there the Court recognized that: “[T]he double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” 432 U. S., at 165 (footnote omitted). Petitioners in this litigation were separately tried for two separate armed bank robberies, and were found guilty of both aggravated bank robbery in violation of 18 U. S. C. §§ 2113 (a) and (d), and of using firearms to commit the robbery in violation of 18 U. S. C. § 924 (c). In addition to imposing sentences on them authorized under the provisions of § 2113 (d), the court imposed additional sentences which it believed and I believe were clearly authorized by the language of § 924 (c). Certainly the language of the double jeopardy provision of the Fifth Amendment, which prohibits a person from being twice put in jeopardy of life or limb, has not the slightest application to this sort of criminal prosecution. It is only by an overly refined analysis, which first suggests that the double jeopardy prohibition encompasses enhancement of penalty for an offense for which there has been but one trial, and then concludes that the plain language of Congress providing for such enhancement shall not be read in that way in order to avoid this highly theoretical problem, that the Court is able to reach the result it does. 20 OCTOBER TERM, 1977 Rehnquist, J., dissenting 435U.S. The language of § 924 (c), together with the circumstances surrounding its enactment, makes it abundantly clear to me that it was intended to authorize enhancement of punishment in these circumstances. I do not believe that Congressman Poff’s statement on the floor of the House of Representatives is sufficient to overcome the meaning of this language, and I think that § 924(c), so read, is clearly constitutional. I therefore dissent. CENTRAL ILLINOIS PUBLIC SERV. CO. v. UNITED STATES 21 Opinion of the Court CENTRAL ILLINOIS PUBLIC SERVICE CO. v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 76-1058. Argued October 12, 1977—Decided February 28, 1978 Reimbursement for 1963 lunch expenses of employees on nonovernight company travel did not constitute “wages” subject to withholding by their employer within the meaning of § 3401 (a) of the Internal Revenue Code of 1954, which defines “wages” for purposes of the withholding tax provisions to include “all remuneration . . . for services performed by an employee for his employer . . . .” Pp. 24-33. 540 F. 2d 300, reversed. Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, in which Burger, C. J., and Powell, J., joined, post, p. 33. Powell, J., filed a concurring opinion, in which Burger, C. J., joined, post, p. 38. Stewart, J., filed an opinion concurring in the judgment, post, p. 39. Sharon L. King argued the cause and filed briefs for petitioner. Stuart A. Smith argued the cause for the United States. With him on the brief were Solicitor General McCree and Assistant Attorney General Ferguson* Mr. Justice Blackmun delivered the opinion of the Court. This case presents the issue whether an employer, who in 1963 reimbursed lunch expenses of employees who were on company travel but not away overnight, must withhold federal income tax on those reimbursements. Stated another way, the issue is whether the lunch reimbursements qualify as * David W. Richmond filed a brief for the American Gas Assn, as amicus curiae. 22 OCTOBER TERM, 1977 Opinion, of the Court 435U.S. “wages” under § 3401 (a) of the Internal Revenue Code of 1954, 26 U. S. C. § 3401 (a). I The facts are not in any real dispute. Petitioner Central Illinois Public Service Company (Company) is a regulated public utility engaged, in downstate Illinois, in the generation, transmission, distribution, and- sale of electric energy, and in the distribution and sale of natural gas. Its principal office is in Springfield. It serves a geographic area of some size. In order adequately to serve the area, the Company, in accord with long-established policy, reimburses its employees for reasonable, legitimate expenses of transportation, meals, and lodging they incur in travel on the Company’s business. Some of these trips are overnight; on others, the employees return before the end of the business day. In 1963, the tax year in issue, the Company had approximately 1,900 employees. It reimbursed its union employees and the operating employees of its western division (its only nonunionized division) for noon lunches consumed, while on authorized travel, in an amount not to exceed $1.40 per lunch.1 The amount was specified in the Company’s collectivebargaining agreement with the union. Other salaried employees were reimbursed for actual reasonable luncheon expenses up to a specified maximum amount.1 2 An employee on an authorized trip prepared his expense account on a company form. This was turned in to his supervisor for approval. The $1.40 rate sometimes was in excess of the actual lunch cost, but at other times it was insufficient to 1 In 1960 the noon meal reimbursement was $1.30. In 1961 the uninn negotiated an increase to $1.40. Tr. 93. 2 The Company’s controller testified that the expense accounts of employees entitled to reimbursement for actual amounts expended were carefully reviewed, were often regarded as questionable ($2.50, at the trial date, was considered questionable), and were disallowed if deemed not to be reasonable. Id., at 64-66. CENTRAL ILLINOIS PUBLIC SERV. CO. v. UNITED STATES 23 21 Opinion of the Court cover that cost. An employee who took lunch from home with him on a company trip was entitled to reimbursement. If, because of the locality of his work assignment on a particular day, the employee went home for lunch, he was not entitled to reimbursement. Many employees were engaged in open-air labor. Even in 1963 the $1.40 rate was “modest.” 3 The employee on travel status rendered no service to the Company during his lunch. He was off duty and on his own time. He was subject to call, however, as were all employees at any time as emergencies required. The lunch payment was unrelated to the employee’s specific job title, the nature of his work, or his rate of pay. “ [T]his lunch payment arrangement was beneficial and convenient for the company and served its business interest. It saved the company employee time otherwise spent in travelling back and forth as well as the usual travel expenses.” 4 During 1963 the Company paid its employees a total of $139,936.12 in reimbursement for noon lunches consumed while away from normal duty stations on nonovernight trips. It did not withhold federal income tax for its employees with respect to the components of this sum. The Company in 1963, however, did withhold and pay federal income withholding taxes totaling $1,966,489.87 with respect to other employee payments. Upon audit in 1971, the Internal Revenue Service took the position that the lunch reimbursements in 1963 qualified as wages subject to withholding. A deficiency of $25,188.50 in withholding taxes was assessed. The Company promptly paid this deficiency together with $11,427.22 interest thereon, a total of $36,615.72. It then immediately filed its claim for 3 The District Court in its findings, in addition to describing the rate as “modest,” observed: “As a practical matter, it could hardly be considered a money making proposition for an employee.” 405 F. Supp. 748, 749 (SD Hl. 1975). 4 Ibid. 24 OCTOBER TERM, 1977 Opinion of the Court 435U.S. refund of the total amount so paid and, with no action forthcoming on the claim for six months, see 26 U. S. C. § 6532 (a) (1), instituted this suit in the United States District Court for the Southern District of Illinois to recover the amount so paid. The District Court ruled in the Company’s favor, holding that the reimbursements in question were not wages subject to withholding. 405 F. Supp. 748 (1975). The United States Court of Appeals for the Seventh Circuit reversed. 540 F. 2d 300 (1976). Because that decision appeared to be in conflict with the views and decision of the Fourth Circuit in Royster Co. v. United States, 479 F. 2d 387 (1973), we granted certiorari. 431 U. S. 903 (1977). II In Commissioner v. Kowalski, 434 U. S. 77 (1977), decided earlier this Term, the Court held that New Jersey’s cash reimbursements to its highway patrol officers for meals consumed while on patrol duty constituted income to the officers, within the broad definition of gross income under § 61 (a) of the 1954 Code, 26 U. S. C. § 61 (a), and, further, that those cash payments were not excludable under § 119 of the Code, 26 U. S. C. § 119, relating to meals or lodging furnished for the convenience of the employer. Kowalski, however, concerned the federal income tax and the issue of what was income. Its pertinency for the present withholding tax litigation is necessarily confined to the income tax aspects of the lunch reimbursements to the Company’s employees. The income tax issue is not before us in this case. We are confronted here, instead, with the question whether the lunch reimbursements, even though now they may be held to constitute taxable income to the employees who are reimbursed, are or are not “wages” subject to withholding, within the meaning and requirements of §§ 3401-3403 of the Code, 26 U. S. C. §§ 3401-3403 (1970 ed. and Supp. V). These withholding CENTRAL ILLINOIS PUBLIC SERV. CO. v. UNITED STATES 25 21 Opinion of the Court statutes are in Subtitle C of the Code. The income tax provisions constitute Subtitle A. The income tax is imposed on taxable income. 26 U. S. C. § 1. Generally, this is gross income minus allowable deductions. 26 U. S. C. § 63 (a). Section 61 (a) defines as gross income “all income from whatever source derived” including, under § 61 (a)(1), “[c]ompensation for services.” The withholding tax, in some contrast, is confined to wages, § 3402 (a), and § 3401 (a) defines as “wages,” “all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration paid in any medium other than cash.” The two concepts—income and wages—obviously are not necessarily the same. Wages usually are income,5 but many items qualify as income and yet clearly are not wages. Interest, rent, and dividends are ready examples. And the very definition of “wages” in § 3401 (a) itself goes on specifically to exclude certain types of remuneration for an employee’s services to his employer (e. g., combat pay, agricultural labor, certain domestic service). Our task, therefore, is to determine the character of the lunch reimbursements in the light of the definition of “wages” in § 3401 (a), and the Company’s consequent obligation to withhold under § 3402 (a). Before we proceed to the resolution of that issue, however, one further observation about the income tax aspect of lunch reimbursements is in order. Although United States v. Correll, 389 U. S. 299 (1967), restricting to overnight trips the travel expense deduction for meal costs under § 162 (a)(2), dispelled some of the confusion, it is fair to say that until this Court’s very recent decision in Kowalski, the Courts of Appeals have been in disarray on the issue whether, under §§61 and 119 of the 1954 Code or under the respective predecessor sections of the 1939 Code, such reimbursements were income 5 There are exceptions. E. g., 26 U. S. C. § 911 (a). 26 OCTOBER TERM, 1977 Opinion of the Court 435U.S. at all to the recipients.6 Thus, even the income tax character of lunch reimbursements was not yet partially clarified before the end of 1967, four full years after the tax year for which withholding taxes on lunch reimbursements are now being claimed from the Company in the present case, and were not entirely clarified until the Kowalski decision a few weeks ago. Ill The Sixteenth, or income tax, Amendment to the Constitution of the United States became effective in February 1913. The ensuing Tariff Act of October 3, 1913, § HE, 38 Stat. 170, contained, perhaps somewhat surprisingly, a fairly expansive withholding provision.7 This, however, was repealed8 and in due course came to be replaced with the predecessor of the current “information at the source” provisions constituting § 6041 et seq. of the 1954 Code, 26 U. S. C. § 6041 et seq. The present withholding system has a later origin in the Victory Tax imposed by the Revenue Act of 1942, § 172, 56 Stat. 884. This, with its then new § 465 (b) of the 1939 Code, embraced the basic definition of “wages” now contained in 6 E. g., Wilson v. United States, 412 F. 2d 694 (CAI 1969); Commissioner v. Bagley, 374 F. 2d 204 (CAI 1967), cert, denied, 389 U. S. 1046 (1968); Saunders v. Commissioner, 215 F. 2d 768 (CA3 1954); Koerner v. United States, 550 F. 2d 1362 (CA4), cert, denied, 434 U. S. 984 (1977); Smith v. United States, 543 F. 2d 1155 (CA5 1976), vacated and remanded, 434 U. S. 978 (1977); United States v. Barrett, 321 F. 2d 911 (CA5 1963); Magness v. Commissioner, 247 F. 2d 740 (CA5 1957), cert, denied, 355 U. S. 931 (1958); Correll n. United States, 369 F. 2d 87 (CA6 1966), rev’d, 389 U. S. 299 (1967); United States v. Morelan, 356 F. 2d 199 (CA8 1966); Hanson v. Commissioner, 298 F. 2d 391 (CA8 1962); United States n. Keeton, 383 F. 2d 429 (CAIO 1967). 7 “All persons . . . [or] corporations . . . having the control ... or payment of . . . salaries [or] wages ... of another person, exceeding $3,000 for any taxable year . . . are hereby authorized and required to deduct and withhold from such . . . income such sum as will be sufficient to pay the normal tax imposed thereon by this section . . . .” 8 Act of Oct. 3, 1917, § 1204 (2), 40 Stat. 300. CENTRAL ILLINOIS PUBLIC SERV. CO. v. UNITED STATES 27 21 Opinion of the Court § 3401 (a) of the 1954 Code. The Victory Tax was replaced by the Current Tax Payment Act of 1943, 57 Stat. 126, and was repealed by the Individual Income Tax Act of 1944, § 6 (a), 58 Stat. 234. The structure of the 1943 Act survives to the present day. In this legislation of 35 years ago Congress chose not to return to the inclusive language of the Tariff Act of 1913, but, specifically, “in the interest of simplicity and ease of administration,” confined the obligation to withhold to “salaries, wages, and other forms of compensation for personal services.” S. Rep. No. 1631, 77th Cong., 2d Sess., 165 (1942)? The committee reports of the time stated consistently that “wages” meant remuneration “if paid for services performed by an employee for his employer” (emphasis supplied). H. R. Rep. No. 2333, 77th Cong., 2d Sess., 126 (1942); S. Rep. No. 1631, 77th Cong., 2d Sess., 166 (1942); H. R. Rep. No. 401, 78th Cong., 1st Sess., 22 (1943); S. Rep. No. 221, 78th Cong., 1st Sess., 17 (1943); H. R. Rep. No. 510, 78th Cong., 1st Sess., 29 (1943). The current regulations also contain the “if” clause, Treas. Reg. on Employment Taxes, §31.3401 (a)-l(a)(2), 26 CFR §31.3401 (a)-l(a) (2) (1977), and then, in § 31.3401 (a)-l' (b)(2) recite: “Amounts paid specifically—either as advances or reimbursements—for traveling or other bona fide ordinary and necessary expenses incurred or reasonably expected to be incurred in the business of the employer are not wages and are not subject to withholding.” But § 31.3401 (a)-l (b)(9) provides: “The value of any meals or lodging furnished to an employee by his employer is not subject to withholding if the value of the meals or lodging is excludable from the gross income of the employee. . See § 1.110-1 of this chapter (Income Tax Regulations).” 9 The House would have included withholding on dividends and bond interest as well as wages. H. R. Rep. No. 2333, 77th Cong., 2d Sess., 125 (1942). 28 OCTOBER TERM, 1977 Opinion of the Court 435U.S. The Internal Revenue Service by its Regulations thus now would tie the withholding obligation of the employer to the income tax result for the employee. IV The Government, straightforwardly and simplistically, argues that the definition of “wages” in § 3401 (a) corresponds to the first category of gross income set forth in §61 (a)(1), and that the two statutes “although not entirely congruent [in their] relationship,” Brief for United States 11, have “equivalent scope,” id., at 15. It is claimed that the meal allowance was compensatory, for it was paid for the performance of assigned service at the place the employer determined. Thus, it is said, there was a direct causal connection between the receipt of the allowance and the performance of services. The allowance, then, was part of a total package of remuneration designed to attract and hold the employee to the Company. The Government further argues that this is in accord with the Court’s pronouncements as to what is compensation for purposes of the tax statutes. It states that § 3401 (a) broadly defines “wages,” and it cites Old Colony Trust Co. v. Commissioner, 279 U. S. 716 (1929), where the Court held employees taxable for the amount of their income taxes paid by their employers; Commissioner v. LoBue, 351 U. S. 243 (1956), where the transfer of assets to an employee at less than fair market value in order to secure better service was held to result in taxable income to the employee; Social Security Board v. Nierotko, 327 U. S. 358 (1946), where the definition of wages under the Social Security Act was at issue; and Otte v. United States, 419 U. S. 43, 49-50 (1974), which concerned the payment of wage claims by a trustee in bankruptcy. For purposes of the tax law, the Government argues, there is no difference between benefits of this kind and traditional wage or salary payments. Both are “[c]ompensation for services” under §61 (a)(1) and “remuneration ... for CENTRAL ILLINOIS PUBLIC SERV. CO. v. UNITED STATES 29 21 Opinion of the Court services” under § 3401 (a). It would explain away the seemingly pertinent Treas. Reg. § 31.3401 (a)-l(b) (2) on the ground that it relates only to business expenses that are deductible under § 162 (a) of the Code, and that Correll excluded from the benefit of § 162 (a) the cost of meals consumed during nonovernight travel. And it urges that what is important is that the payments at issue were a result of the employment relationship and were a part of the total of the personal benefits that arose out of that relationship. V We do not agree with this rather facile conclusion advanced by the Government. The case, of course, would flow in the Government’s favor if the mere fact that the reimbursements were made in the context of the employer-employee relationship were to govern the withholding tax result. That they were so paid is obvious. But it is one thing to say that the reimbursements constitute income to the employees for income tax purposes, and it is quite another thing to say that it follows therefrom that the reimbursements in 1963 were subject to withholding. There is a gap between the premise and the conclusion and it is a wide one. Considerations that support subjectability to the income tax are not necessarily the same as the considerations that support withholding. To require the employee to carry the risk of his own tax liability is not the same as to require the employer to carry the risk of the tax liability of its employee. Required withholding, therefore, is rightly much narrower than subjectability to income taxation. As we have noted above, withholding, under § 3402, is required only upon wages, and § 3401 (a) defines wages as “all remuneration . . . for services performed by an employee for his employer.” When the withholding system was effectuated in 1942, the obligation was confined to wages, and the like, “in the interest of simplicity and ease of administration.” 30 OCTOBER TERM, 1977 Opinion of the Court 435U.S. S. Rep. No. 1631, 77th Cong., 2d Sess., 165 (1942). And what is now Treas. Reg. § 31.3401 (a)-l (b)(2), applicable to employers and excluding from the concepts of wages and of withholding amounts “paid specifically ... for traveling or other bona fide ordinary and necessary expenses incurred . . . in the business of the employer,” was issued originally—long prior to the Correll decision in 1967—as § 404.14 of T. D. 5277, 1943 Cum. Bull. 927, 941.10 There is nothing in Correll that relates to the withholding provisions, and there is nothing in Treas. Reg. § 31.3401 (a)-l(b) (2) that incorporates any overnight concept. This is so despite the Government’s assertion that “consistently” since 1940, that is, since I. T. 3395, 1940-2 Cum. Bull. 64 (relating to railroad employees and their deducting the cost of room rentals and meals for necessary rest while away from home), it has adhered to the overnight rule in determining income tax liability. Brief for United States 32. Such consistent adherence to the overnight rule in determining income tax liability—together with the consistent absence of any reference to the overnight rule in the withholding regulations—strongly indicates that it was intended that the overnight rule not apply in determining withholding tax obligations. 10 Similarly, Treas. Reg. §31.3401 (a)-l (b)(10), promulgated originally as §404.15 of T. D. 5277, excluded from “wages” facilities and privileges (such as entertainment, medical services, and courtesy discounts) offered by the employer. Yet those, obviously, are also offered in the employer-employee relationship. See S. Rep. No. 830, 88th Cong., 2d Sess., 208 (1964) ; H. R. Rep. No. 1149, 88th Cong., 2d Sess., 22 (1964) ; S. Rep. No. 91-552, p. 110 (1969); H. R. Rep. No. 91-413, p. 77 (1969). See also Rev. Rui. 55-520, 1955-2 Cum. Bull. 393; Rev. Rui. 56-249, 1956-1 Cum. Bull. 488; Rev. Rui. 58-301, 1958-1 Cum. Bull. 23; Rev. Rui. 58-145, 1958-1 Cum. Bull. 360; and Rev. Rui. 59-227, 1959-2 Cum. Bull. 13, modified and superseded prospectively by Rev. Rui. 75-44, 1975-1 Cum. Bull. 15, for other instances of payments made in the employer-employee relationship where withholding was not required despite includability for income tax purposes. CENTRAL ILLINOIS PUBLIC SERV. CO. v. UNITED STATES 31 21 Opinion of the Court Decided cases have made the distinction between wages and income and have refused to equate the two in withholding or similar controversies. Peoples Life Ins. Co. v. United States, 179 Ct. Cl. 318, 332, 373 F. 2d 924, 932 (1967); Humble Pipe Line Co. v. United States, 194 Ct. Cl. 944, 950, 442 F. 2d 1353, 1356 (1971); Humble Oil <& Refining Co. v. United States, 194 Ct. Cl. 920, 442 F. 2d 1362 (1971); Stubbs, Overbeck & Associates v. United States, 445 F. 2d 1142 (CA5 1971); Royster Co. v. United States, 479 F. 2d, at 390;11 Acacia Mutual Life Ins. Co. v. United States, 272 F. Supp. 188 (Md. 1967). The Government would distinguish these cases on the ground that some of them involved overnight travel, the expenses of which would be deductible, and that others were concerned with particularized allowances. We perceive the distinctions but are not persuaded that they blunt the basic difference between the wage and the income concepts the respective courts have emphasized. An expansive and sweeping definition of wages, such as was indulged in by the Court of Appeals, 540 F. 2d, at 302, and is urged by the Government here, is not consistent with the existing withholding system. As noted above, Congress chose simplicity, ease of administration, and confinement to wages., as the standard in 1942. This was a standard that was intentionally narrow and precise. It has not been changed by Congress since 1942, although, of course, as is often the case, administrative and other pressures seek to soften and stretch the definition. Because the employer is in a secondary position as to liability for any tax of the employee, it is a matter of obvious concern that, absent further specific congressional action, the employer’s obligation to withhold be precise and not speculative. See Humble Oil <& Refining Co. v. United 11 In the District Court in the Royster case, the Government abandoned its position that the income tax provisions of the Code were in pari materia with the withholding provisions. See 479 F. 2d, at 388. 32 OCTOBER TERM, 1977 Opinion of the Court 435U.S. States, 194 Ct. Cl., at 933, 442 F. 2d, at 1369-1370. See also H. R. Rep. No. 94r-1515, p. 489 (1976).12 In 1963 not one regulation or ruling required withholding on any travel expense reimbursement. The intimation was quite the other way. See Treas. Reg. § 31-3401 (a)-l(b) (2). No employer, in viewing the regulations in 1963, could reasonably suspect that a withholding obligation existed. The 1940 ruling upon which the Government would erect its case, I. T. 3395, 1940-2 Cum. Bull. 64, predated the withholding regulations of 1943. Apart from the fact that this was a deduction ruling, it is also significant that the Government did not reflect it in its withholding regulations adopted shortly thereafter. With this omission on the part of the Government, it is hardly reasonable to require an employer to fill the gap on its own account. Further, in 1963 and for some time thereafter all judicial decisions were the other way, even on the deductibility issue. Only with Correll, decided by this Court in 1967, was there a ruling of nondeductibility. And until the Court of Appeals’ decision in the present case, no court had ever held lunch reimbursements to be wages for withholding purposes. The first published pronouncement by the Internal Revenue Service with respect to withholding came only in 1969 with Rev. Rui. 69-592, 1969-2 Cum. Bull. 193, shortly after Correll came down. That Ruling’s suggestion that withholding was a possible requirement (when reimbursed travel expenses exceeded travel deductions) contained no reference whatsoever to wages, and thus avoided any mention of the statutory requirement that the payment must be a wage to be subject to withholding. 12 An imposition of withholding responsibility on the Company for the lunch reimbursements as far back as 1963 strikes us as somewhat retroactive in character and almost punitive in the light of the facts of this case. Needless to say, we do not decide today whether a new regulation that, for withholding purposes, would require the treatment of lunch reimbursements as wages under the existing statute would or would not be valid. CENTRAL ILLINOIS PUBLIC SERV. CO. v. UNITED STATES 33 21 Brennan, J., concurring This is not to say, of course, that the Congress may not subject lunch reimbursements to withholding if in its wisdom it chooses to do so by expanding the definition of wages for withholding. It has not done so as yet. And we cannot justify the Government’s attempt to do so by judicial determination. The judgment of the Court of Appeals is reversed. It is so ordered. Mr. Justice Brennan, with whom The Chief Justice and Mr. Justice Powell join, concurring. I join the Court’s opinion, emphasizing that it does not decide “whether a new regulation that, for withholding purposes, would require the treatment of lunch reimbursements as wages under the existing statute would or would not be valid.” Ante, at 32 n. 12. I share the Court’s conclusion that petitioner met its obligations under Treas. Reg. § 31.3401 (a)-1 (b)(2) as that regulation was most reasonably interpreted in 1963. I write separately to state more fully my views on why petitioner cannot be subjected retroactively to withholding tax on the theory—whether correct or not— espoused here by the Government. See ante, at 28-29. I Those who administer the Internal Revenue Code unquestionably have broad authority to make tax rulings and regulations retroactive. See 26 U. S. C. § 7805 (b),1 construed in Dixon v. United States, 381 U. S. 68 (1965); Automobile Club of Michigan v. Commissioner, 353 U. S. 180 1 “ (b) Retroactivity of regulations or rulings.—The Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.” 34 OCTOBER TERM, 1977 Brennan, J., concurring 435U.S. (1957).2 That authority is not unfettered, however, and conditions are present here that would make retroactive application of the withholding tax to petitioner’s lunch payments an abuse of discretion. The legislative history of the Internal Revenue Code does not reveal any evidence of congressional intent to make employers guarantors of the tax liabilities of their employees, which would in all likelihood be the result if withholding taxes can be assessed retroactively.3 Far from it. When Congress has changed the withholding provisions to enlarge the scope of 2 This case is very unlike either Dixon or Automobile Club of Michigan in each of which the Commissioner was held authorized to correct what we characterized as “mistakes of law.” See 381 U. S., at 72; 353 U. 8., at 183, 184. There is no simple sense in which the Commissioner is here merely undoing a mistake of law. Instead, as the Commissioner’s recent withdrawal of his fringe-benefit regulations witnesses, 41 Fed. Reg. 56334 (1976), the bifurcation of payments made to employees by employers into those that are fringe benefits—and hence income and hence taxable—and those that are merely reimbursements of moneys expended by the employee for the benefit of the employer’s business—and hence are a cost of doing business as an employee and hence excludable or deductible from income—is by no means easy. In the field of fringe-benefit taxation, therefore, the fact that something is taxed today that was not taxed yesterday is not so much evidence of mistake corrected as of an evolving understanding of what changed circumstances, equity, and legislative purpose require, And, although I feel no compulsion to insist that fringebenefit law must always have been as it is newly announced on the theory that administrative interpretation must reflect a constant congressional intent, cf. Dixon n. United States, supra, at 73-75, I of course do not suggest that the Commissioner’s power to define income or wages is unfettered. It will be time enough to consider whether any particular fringebenefit regulation is valid when and if such a regulation comes before this Court. 3 It is possible that the employer could sue each of his employees to recover the amount of withholding taxes retroactively assessed by the Government. The chance that such a method of recovery would be either practical or cost effective is remote, however. CENTRAL ILLINOIS PUBLIC SERV. CO. v. UNITED STATES 35 21 Brennan, J., concurring the withholding base or to increase the tax rate, its uniform practice has been to give employers a grace period in which to bring their withholding practices in line with the new law.4 4 One of the first instances of this policy can be found in the Revenue Act of 1942 itself. There, Congress raised the witholding tax rate on payments made to nonresident aliens and foreign corporations, see Internal Revenue Code of 1939, §§ 143-144, 53 Stat. 60-62, but nonetheless delayed the effective date of the increase “until the tenth day after the enactment of the act in order to afford a reasonable period within which withholding agents will be informed of the higher rate applicable to payments made to nonresident aliens or nonresident foreign corporations.” S. Rep. No. 1631, 77th Cong., 2d Sess., 69 (1942) ■ see Revenue Act of 1942, § 108 (c), 56 Stat. 808. Similarly withholding for the Victory Tax did not commence until tax years beginning after December 31, 1942, see id., § 172 (a), 56 Stat. 884, although the Tax was passed in October 1942. Section 2 (c) of the Current Tax Payment Act of 1943, 57 Stat. 139, also delayed imposition of modified withholding obligations for about three weeks. A review of amendments to the withholding provisions of the 1954 Code reveals a uniform practice of prospective application of modifications to the withholding tax that would require an employer to withhold increased amounts from employees’ pay. The first such amendment to § 3401 is found in § 213 of Title II of the Revenue Act of 1964, which clarified and in some cases expanded the tax liability of employees for moving expenses and modified withholding correspondingly. See Tit. II, §§213 (a), 213 (c), 78 Stat. 50-52, adding respectively, 26 U. S. C. §§217 and 3401 (a) (15). Congress, apparently recognizing that additional withholding might be required, stated in § 213 (d): “The amendment made by subsection (c) shall apply with respect to remuneration paid after the seventh day following the date of enactment of this Act.” 78 Stat. 52. By contrast, § 204 of the Act, 78 Stat. 36—which added § 79 of the Internal Revenue Code, 26 U. S. C. § 79, giving deductions to employees for group term life insurance contributions made by employers, and which created a corresponding deduction in the withholding tax (§3401 (a) (14))—actually contracted the wage base and this change in withholding obligation was made retroactive. See § 204 (d) of the Act, 78 Stat. 37. In 1965, Congress modified the treatment of tip income under both the Social Security Act and the withholding provisions of the Code. Although the amending legislation was passed in July 1965, the modifications to 36 OCTOBER TERM, 1977 Brennan, J., concurring 435U.S. In the one instance where this has not been the case,5 Congress has made clear that its retroactive application of withholding tax changes was inadvertent and it has moved promptly to correct its error: “The Tax Reform Act of 1976, enacted on October 4, 1976, made several changes which increased tax liabilities from the beginning of 1976. “In prior legislation (such as the Tax Reform Act of 1969) which the Congress passed late in the year but withholding did not take effect until January 1, 1966. See Social Security Amendments of 1965, Tit. Ill, § 313 (f), 79 Stat. 385. In 1966, Congress amended §§3401 (a)(6) and 3401 (a)(7), specifying that withholding on wages paid to aliens would thereafter be governed by Treasury Regulations. See Foreign Investors Tax Act of 1966, Tit. I, § 103 (k), 80 Stat. 1554. This change could have required increased withholding and Congress, apparently recognizing this, delayed the effective date of the change to 1967. See § 103 (n)(4), 80 Slat. 1555. Similarly, in 1972, Congress modified §3401 (a)(1) of the Code. Again, Congress provided: “The amendments made [to § 3401 (a)(1)] shall apply to wages paid on or after the first day of the first calendar month which begins more than 30 days after the date of enactment of this Act.” Pub. L. No. 92-279, §3 (b), 86 Stat. 125. See also Employee Retirement Income Security Act of 1974, Tit. II, §§2002 (g)(7), 2002 (i) (2), 88 Stat. 970-971. In the Tax Adjustment Act of 1966, Congress made a wholesale modification of the withholding tax tables found in § 3402 of the Code, 26 U. S. C. § 3402. Again, Congress created a grace period—this time of over a month—before the new withholding provisions took effect. See Tax Adjustment Act of 1966, § 101 (g), 80 Stat. 62. Further complex changes in withholding tables that increased withholding for many taxpayers were made in 1969, 1971, and 1976. In each instance but the last, changes were expressly made prospective. See Tax Reform Act of 1969, Tit. VIII, §805 (h), 83 Stat. 709; Revenue Act of 1971, Tit. II, §208 (i), 85 Stat. 517. As explained in the text, injra, Congress’ failure to make the 1976 withholding changes prospective was an oversight and has been corrected. Thus, although the withholding provisions of the Code have been frequently amended, there is only one instance of intentionally retroactive application of an amendment and in that case the amendment scaled down an employer’s withholding obligations. 5 See n. 4, supra. CENTRAL ILLINOIS PUBLIC SERV. CO. v. UNITED STATES 37 21 Brennan, J., concurring which imposed tax increases from the beginning of the year, the Congress, as a matter of equity and custom, has relieved taxpayers of any liability for additions to tax, interest, and penalties with respect to increases in estimated tax resulting from increases in tax liability .... Relying on Congressional assurances that the failure to provide such relief in the 1976 Act was an oversight which would be remedied, the Commissioner [has delayed tax assessments for 1976].... “The committee believes it is appropriate to grant to taxpayers affected by the 1976 legislation relief from additions to tax, interest, and penalties, similar to that which has traditionally been granted in connection with earlier legislation where provisions were enacted with retroactive application. “[Therefore, t]he committee amendment . . . relieves employers of any liability for failure to withhold income tax during 1976, on any type of remuneration which was made taxable by the 1976 Act.” S. Rep. No. 95-66, pp. 85-86 (1977) (emphasis added). See Tax Reduction and Simplification Act of 1977, § 404, 91 Stat. 155-156. The only conclusion that can be drawn from Congress’ consistent practice of avoiding retroactive imposition of withholding tax liability and its recent judgment that “equity and custom” require relief from inadvertent retroactive liability, I submit, is that additional withholding taxes should not, at least without good reason, be assessed against employers who did not know of and who had no reason to know of increased withholding obligations at the time wages had to be withheld. Such notice, as the Court holds, ante, at 25-26, 29-30, was not given petitioner until at least 1967 and, for all that ap 38 OCTOBER TERM, 1977 Powell, J., concurring 435 U. S. pears, possibly not until our decision in Commissioner v. Kowalski, 434 U. S. 77 (1977). Thus, the only question remaining is whether there is here some good reason to depart from customary practice. The United States does not suggest one, arguing instead that petitioner had ample notice of its obligations—a conclusion I join the Court in rejecting. Moreover, unlike the situation in Dixon and Automobile Club of Michigan, imposition of taxes retroactively here would not serve the important function of ensuring that all similarly situated taxpayers are assessed equally. Instead, the likely effect would be that the individual taxpayers who should have reported these meal reimbursements in income will be relieved of all taxes they should have paid, and petitioner will bear the tax directly rather than simply acting as a collection conduit for the United States, a result certainly not intended by Congress. Mr. Justice Powell, with whom The Chief Justice joins, concurring. In addition to joining the Court’s opinion, I also join Mr. Justice Brennan’s concurring opinion addressing the question of retroactive application of the withholding tax. It seems particularly inappropriate for the Commissioner, absent express statutory authority, to impose retroactively a tax with respect to years prior to the date on which taxpayers are clearly put on notice of the liability. In other areas of the law, “notice,” to be legally meaningful, must be sufficiently explicit to inform a reasonably prudent person of the legal consequences of failure to comply with a law or regulation. In view of the complexities of federal taxation, fundamental fairness should prompt the Commissioner to refrain from the retroactive assessment of a tax in the absence of such notice or of clear congressional authorization. As the Court observes, ante, at 32, in 1963—the year in question—no regulation or ruling required withholding on any travel expense reimbursement, and the intimations were to the CENTRAL ILLINOIS PUBLIC SERV. CO. v. UNITED STATES 39 21 Stewart, J., concurring in judgment contrary. It can safely be said that until recently (perhaps until our decision this Term in Commissioner v. Kowalski, 434 U. S. 77 (1977)), neither employers nor employees generally had notice of the asserted tax consequences of lunch reimbursement. In short, as Mr. Justice Brennan’s opinion makes clear, the Commissioner abused his discretion in attempting the retroactive imposition of withholding tax liability. Mr. Justice Stewart, concurring in the judgment. Although agreeing with much that is said in the Court’s opinion, I join only in its judgment. The so-called overnight rule of United States v. Correll, 389 U. S. 299, has nothing whatever to do with the definition of either “income” or “wages.” It is exclusively concerned with what deductions employees may take when they prepare their own tax returns. The obligation of an employer to withhold upon wages depends not at all on what deductions his various employees may eventually report on their individual income tax returns. That is a question about which, as a matter of fact and of law, the employer can neither know nor care. The importation of the Correll rule into this case can do nothing, therefore, but confuse the issues actually before us. I concur in the judgment of the Court because I think the reimbursements here involved were not, at the time they were made, “wages” within the meaning of § 3401 (a) of the Internal Revenue Code of 1954 as interpreted by Treas. Reg. §31.3401 (a)-l (b)(2). 40 OCTOBER TERM, 1977 Syllabus 435 U. S. FEDERAL MARITIME COMMISSION et al. v. PACIFIC MARITIME ASSN, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 76-938. Argued December 7, 1977—Decided March 1, 1978 Respondent Pacific Maritime Association (PMA), a collective-bargaining agent for a multiemployer bargaining unit composed of various employers of Pacific coast dockworkers, entered into a collective-bargaining agreement with respondent Union regarding nonmember use of dockworkers jointly registered and dispatched through PMA-Union hiring halls whereby the nonmembers would participate in all fringe-benefit programs, pay the same dues and assessments as PMA members, use “steady” men in the same way as members, and be treated as members during work stoppages. Various nonmember public ports, which had previously competitively made separate (and assertedly in several respects more advantageous) agreements with the Union and the PMA, filed a petition with petitioner Federal Maritime Commission (FMC) asserting that the collective-bargaining agreement was subject to filing and approval under § 15 of the Shipping Act, 1916 (Act), which requires the filing of agreements between a common carrier by water (or “other person” furnishing facilities in connection with such a carrier) and another such carrier or person, including those agreements “controlling, regulating, preventing, or destroying competition.” The FMC is empowered to “disapprove, cancel, or modify” any such agreement that it finds to be unjustly discriminatory or to be detrimental to commerce or the public interest. Before FMC approval or after disapproval agreements subject to filing are unlawful and may not be implemented. Lawful agreements are excepted from the antitrust laws. The FMC severed for initial determination the issues of its jurisdiction over the challenged agreement and whether there were considerations in the national labor policy that would nevertheless exempt the agreement from the filing and approval requirements of § 15. The FMC found that the purpose of the agreement was to place nonmembers on the same basis as members of the PMA and that its effect was to control or affect competition between members and nonmembers. Applying the standards articulated in United Stevedoring Corp. v. Boston Shipping Assn., 16 F. M. C. 7, the FMC found the agreement to be outside the protection of an FMC-recognized labor exemption and therefore subject to filing FMC v. PACIFIC MARITIME ASSN. 41 40 Syllabus under § 15. The Court of Appeals reversed, ruling that any collectivebargaining agreement, regardless of its impact on competition, was exempt from the § 15 filing requirements. Though recognizing that its holding precluded for collective-bargaining agreements the antitrust immunity that § 15 approval provides, even in cases where shipping considerations would support an exemption, the court felt its holding necessary to implement the collective-bargaining system established by the federal statutes dealing with labor-management relations, including those in the shipping industry. Alternatively, the court held that if its per se rule was infirm the FMC had erred in refusing to exempt the challenged agreement. Held: 1. Collective-bargaining agreements as a class are not categorically exempt from § 15’s filing requirements. Pp. 53-60. (a) Because § 15 provides that an approved agreement will not be subject to the antitrust laws, it is clear that Congress (1) assigned to the FMC, not the courts, the task of initially determining which anticompetitive restraints are to be approved and which are to be disapproved under the general statutory guidelines, and (2) anticipated that various anticompetitive restraints, forbidden by the antitrust laws in other contexts, would be acceptable in the shipping industry. Pp. 53-56. (b) The Court of Appeals’ conclusion that prompt implementation of lawful collective-bargaining agreements could not be realized under the § 15 procedure overlooked the fact that under the Act’s terms the vast majority of collective-bargaining arrangements would not be candidates for disapproval under § 15 and would be routinely approved even if filed. The FMC has determined that it will recognize a “labor exemption” from § 15 filing requirements for collective-bargaining contracts falling within the boundaries of the exemption defined by announced criteria like those applicable to the labor exemption from the antitrust laws. Pp. 56-58. (c) The FMC’s procedure for conditional approval of filed agreements pending a final decision as to their legality is adequate to overcome the Court of Appeals’ concern that the § 15 procedures would prevent “the maintenance or prompt restoration of industrial peace.” Pp. 59-60. 2. The Court of Appeals also erred in its alternative ground of decision that even under a balancing test weighing Shipping Act and labor relations considerations the challenged agreement should be exempt from filing, in support of which view the court suggested that the FMC had failed to realize that the agreement was an effort to force the public ports into a multiemployer bargaining unit against their will, an issue exclusively within the domain of the National Labor Relations Board. Here 42 OCTOBER TERM, 1977 Opinion of the Court 435U.S. there was no effort to change bargaining units but to impose bargaining-unit terms on employers outside the units. Pp. 60-61. 3. The PMC made the requisite findings to sustain its decision. Pp. 61-63. 177 U. S. App. D. C. 248, 543 F. 2d 395, reversed. White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Rehnquist, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 64. Blackmun, J., took no part in the consideration or decision of the case. Deputy 'Solicitor General Friedman argued the cause for petitioners. With him on the briefs were Solicitor General McCree, Acting Assistant Attorney General Shenefield, Marion L. Jetton, Robert B. Nicholson, Robert J. Wiggers, Richard E. Hull, Edward G. Gruis, and Gordon M. Shaw. R. Frederic Fisher argued the cause for respondent Pacific Maritime Assn. With him on the brief were Edward D. Ransom and Gary J. Torre. Norman Leonard argued the cause and filed a brief for respondent International Longshoremen’s and Warehousemen’s Union.* Mr. Justice White delivered the opinion of the Court. Section 15 of the Shipping Act, 1916, 39 Stat. 733, as amended, 46 U. S. C. § 814,1 requires the filing with the * 1 ^Herbert Rubin, Cecelia H. Goetz, and Alan A. D’Ambrosio filed a brief for Wolfsburger Transport-Gesellschaft m. b. H. as amicus curiae urging reversal. 1 Section 15, as set forth in 46 U. S. C. § 814, provides as follows: “Every common carrier by water, or other person subject to this chapter, shall file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement with another such carrier or other person subject to this chapter, or modification or cancellation thereof, to which it may be a party or conform in whole or in part, fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying com FMC v. PACIFIC MARITIME ASSN. 43 40 Opinion of the Court Federal Maritime Commission (Commission) of seven categories of agreements between a common carrier by water, or “other person subject to this chapter” and another such carrier petition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. The term 'agreement’ in this section includes understandings, conferences, and other arrangements. “The Commission shall by order, after notice and hearing, disapprove, cancel or modify any agreement, or any modification or cancellation thereof, whether or not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter, and shall approve all other agreements, modifications, or cancellations. No such agreement shall be approved, nor shall continued approval be permitted for any agreement (1) between carriers not members of the same conference or conferences of carriers serving different trades that would otherwise be naturally competitive, unless in the case of agreements between carriers, each carrier, or in the case of agreement between conferences, each conference, retains the right of independent action, or (2) in respect to any conference agreement, which fails to provide reasonable and equal terms and conditions for admission and readmission to conference membership of other qualified carriers in the trade, or fails to provide that any member may withdraw from membership upon reasonable notice without penalty for such withdrawal. “The Commission shall disapprove any such agreement, after notice and hearing, on a finding of inadequate policing of the obligations under it, or of failure or refusal to adopt and maintain reasonable procedures for promptly and fairly hearing and considering shippers’ requests and complaints. “Any agreement and any modification or cancellation of any agreement not approved, or disapproved, by the Commission shall be unlawful, and agreements, modifications, and cancellations shall be lawful only when and as long as approved by the Commission; before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly 44 OCTOBER TERM, 1977 Opinion of the Court 435U.S. or person.2 Among those agreements that must be filed are those “controlling, regulating, preventing, or destroying competition.” The Commission is empowered to “disapprove, cancel, or modify” any such agreement that it finds to be “unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, ... or to operate to the detriment or indirectly, any such agreement, modification, or cancellation ; except that tariff rates, fares, and charges, and classifications, rules, and regulations explanatory thereof (including changes in special rates and charges covered by section 813a of this title which do not involve a change in the spread between such rates and charges and the rates and charges applicable to noncontract shippers) agreed upon by approved conferences, and changes and amendments thereto, if otherwise in accordance with law, shall be permitted to take effect without prior approval upon compliance with the publication and filing requirements of section 817 (b) of this title and with the provisions of any regulations the Commission may adopt. “Every agreement, modification, or cancellation lawful under this section, or permitted under section 813a of this title, shall be excepted from the provisions of sections 1 to 11 and 15 of Title 15, and amendments and Acts supplementary thereto. “Whoever violates any provision of this section or of section 813a of this title shall be liable to a penalty of not more than $1,000 for each day such violation continues, to be recovered by the United States in a civil action. Provided, however, That the penalty provisions of this section shall not apply to leases, licenses, assignments, or other agreements of similar character for the use of terminal property or facilities which were entered into before the date of enactment of this Act, and, if continued in effect beyond said date, submitted to the Federal Maritime Commission for approval prior to or within ninety days after the enactment of this Act, unless such leases, licenses, assignments, or other agreements for the use of terminal facilities are disapproved, modified, or canceled by the Commission and are continued in operation without regard to the Commission’s action thereon. The Commission shall promptly approve, disapprove, cancel, or modify each such agreement in accordance with the provisions of this section.” 2 Section 1 of the Act, as set forth in 46 U. S. C. § 801, defines the term “other person subject to this chapter” as “any person not included in the term ‘common carrier by water,’ carrying on the business of forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier by water.” FMC v. PACIFIC MARITIME ASSN. 45 40 Opinion of the Court of the commerce of the United States, or to be contrary to the public interest . . and is directed to approve all filed agreements that do not transgress these standards. Before approval or after disapproval, agreements subject to filing are unlawful and may not be implemented.3 Agreements that are “lawful under this section” are excepted from those provisions of the antitrust laws contained in §§ 1-11 and 15 of Title 15 of the United States Code. Violations of the section are punishable by civil fines of not more than $1,000 per day. The issue in this case is whether § 15 of the Shipping Act requires the filing and the Commission’s approval or disapproval of a collective-bargaining agreement between respondent Pacific Maritime Association (PMA), a collective-bargaining agent for a multiemployer bargaining unit made up of various employers of Pacific coast dockworkers,4 and respondent International Longshoremen’s and Warehousemen’s Union (Union). I This case arose when eight municipal corporations, owners and operators of Pacific coast port facilities and not members of the PMA,5 filed a petition with the Commission asserting that a 1972 agreement between PMA and the Union was subject to filing and approval under § 15 and was violative of §§ 15, 16, and 17 of the Shipping Act6 because it was unjust, 3 There are exceptions to this rule, see n. 1, supra, not relevant to this case. 4PMA’s membership includes steamship lines, steamship agents, stevedoring companies, and marine terminal companies operating at Pacific coast ports of the United States. 5 The complaining public ports were Anacortes, Bellingham, Everett, Grays Harbor, Olympia, Port Angeles, Portland, and Tacoma. The Port of Seattle subsequently intervened on their side. 6 Section 16, 39 Stat. 734, as amended, 46 U. S. C. § 815, forbids discriminatory or preferential rates or other acts; and § 17, 39 Stat. 734, as 46 OCTOBER TERM, 1977 Opinion of the Court 435U.S. discriminatory, and contrary to the public interest. Prior to this time, the nonmember ports had negotiated separate agreements with the Union which contained terms and conditions that in some respects differed from those contained in the collective-bargaining contracts between PMA and the Union. Fringe-benefit provisions varied, depending on the result of individual negotiations.7 In some respects the ports enjoyed more flexible work rules than did PMA; the ports, for example, were often permitted to use “steady crews,” whereas, under the PMA contract, rotation of workers among employers was the general rule.8 The existence of separate agreements between the Union and the public ports also enabled the Union to exert negotiating pressure on PMA by striking PMA while continuing to work for the individual ports. The ports, nevertheless, were permitted by virtue of separate agreements with PMA to secure their work force through the PMA-Union hiring halls9 and to make the particular fringe-benefit pay- amended, 46 U. S. C. § 816, empowers the Commission to prescribe reasonable nondiscriminatory rates. 7 For present purposes, the term “fringe benefits” refers to bargained-for plans for vacation pay, pay guarantees, pensions, welfare, and holidays. 8 The Union favors the centralized, rotational hiring system, because such a system equalizes job opportunities by insuring that available work is spread among the registered work force. Employers, however, prefer to use steady gangs, believing that system to be more efficient since new workers are not constantly having to be familiarized with the employer’s operations. 9 Since 1935, PMA employers have been required to hire exclusively from hiring halls jointly financed by PMA and the Union. This hiringhall system was created in an effort to reconcile the fluctuating demand for labor in the Pacific coast longshore industry with the need for stable employment. Union members register for jobs at the halls and from there are dispatched to work assignments. Despite the rotational hiring method used within the industry, registered Union workers receive a single paycheck from PMA. This requires PMA to maintain a central payroll and recordkeeping system for these longshoremen. FMC v. PACIFIC MARITIME ASSN. 47 40 Opinion of the Court ments called for by their individual contracts by contributing to the fringe-benefit funds maintained by PMA.10 11 During contract negotiations between PMA and the Union beginning in November 1970, one of the issues raised was whether nonmembers should continue to be allowed to participate in PMA hiring-hall and fringe-benefit plans. These privileges PMA desired to eliminate.11 Ultimately, the parties arrived at a Supplemental Memorandum of Understanding described as follows by the court below: “In the Supplemental Memorandum the parties agreed that PMA would accept contributions from all nonmembers who executed a uniform participation agreement. This standard agreement, included in the Supplemental Memorandum, would require nonmembers, as a condition of using the joint dispatching halls for jointly registered employees, to participate in all fringe benefit programs, pay the same dues and assessments as PMA members, use steady men ‘in the same way a member may do so,’ and be treated as a member during work stoppages.” 177 U. S. App. D. C. 248, 250-251, 543 F. 2d 395, 397-398 (1976) (footnotes omitted).12 10 The ports paid a participation fee for this privilege. In PMA’s view, allowing nonmembers to participate in the fringe-benefit plans was a great benefit to the nonmembers, for it permitted them to participate in programs funded for thousands of employees, rather than having to establish their own plans for very few employees. On the other hand, PMA thought that having nonmembers participate in some, but not necessarily all, of the benefit plans created additional administrative burdens for it. 11 When contract negotiations began in late 1970, the Union proposed that the contract provide that PMA would accept all fringe-benefit contributions from any employer, whether or not a PMA member. In response PMA proposed that all nonmember participation under the collective-bargaining agreement be eliminated except as applied to those employers who were not permitted by law to become members of PMA. 12 To support this description, the Court of Appeals quoted the following paragraphs from a revision of the Supplemental Memorandum of 48 OCTOBER TERM, 1977 Opinion of the Court 435U.S. It was this agreement that the public ports asserted was subject to filing and Commission action under § 15. In October 1972, the Commission severed for initial deter- Understanding, to be mentioned in the text, which the Commission found was substantially the same as the Supplemental Memorandum of Understanding, 177 U. S. App. D. C., at 250-251, nn. 6-9, 543 F. 2d, at 397-398, nn. 6-9: “6. 7. The nonmember participant shall participate in the ILWU-PMA Pension Plan, the ILWU-PMA Welfare Plan, the PMA Vacation Plans (longshoremen and clerks, and walking bosses/foremen) and the ILWU-PMA Guarantee Plans (longshoremen and clerks/ and walking bosses/foremen) in accordance with the terms applicable to such participation. Such nonmember shall make payments into these Plans at the same rates and at the same times as members of PMA are to make the respective payments. Attached are statements of terms and conditions currently in effect with respect to such participation. Non-member Participants shall be subject to the same audits as members of PMA.” “7. 9. Each nonmember participant shall pay to the PMA an amount equal to the dues and assessments on the same basis that a PMA member would pay. Payments shall be made at the same time the member would pay.” “8. 5. A nonmember participant may obtain and employ a man in the joint work force on a steady basis in the same way a member may do so. When such participant employs a man to work on a steady basis, it shall notify PMA immediately. On request from PMA, each such participant shall furnish to PMA a list of men it is using on a steady basis. Steady men shall participate in the Pay Guarantee Plan in accordance with the rules that are adopted by PMA and ILWU.” “9. 3. A nonmember participant will share in the use of the joint work force upon the same terms as apply to members of PMA. For example “a) the nonmember participant shall obtain men on the same basis as a PMA member from the dispatch hall operated by ILWU and PMA through the allocation system operated by PMA, “b) if a work stoppage by ILWU shuts off the dispatch of men from the dispatch hall to PMA members, nomnember participants shall not obtain men from the dispatch hall, “c) if during a work stoppage by ILWU, PMA and ILWU agree on limited dispatch of men from the dispatch hall for PMA members, such limited dispatch shall be available to nonmember participants. “The essence of b) and c) of this section is the acceptance by nonmem- FMC v. PACIFIC MARITIME ASSN. 49 40 Opinion of the Court mination the issues of its jurisdiction over the challenged agreement, and, if the Supplemental Memorandum of Understanding was otherwise covered by § 15, whether there were considerations rooted in the national labor policy that would nevertheless exempt the agreement from the filing and approval requirements of the section. Thereafter, on June 24, 1973, PMA and the Union arrived at a new collectivebargaining agreement, which included a revised nonmember participation agreement replacing the Supplemental Memorandum of Understanding. By additional order, the Commission extended its jurisdictional inquiry to include the new contract with its nonmember participation provisions, which, although revised, were deemed by the Commission to have essentially the same impact for present purposes as the Supplemental Memorandum of Understanding. In its subsequent report and order, Pacific Maritime Assn.— Cooperative Working Arrangements, 18 F. M. C. 196 (1975), the Commission first rejected the suggestion that because the case called for accommodating the Shipping Act and the labor statutes, as well as determining whether the parties had exceeded the scope of legitimate bargaining, the Commission should not itself decide the issue but should defer to the courts or to the National Labor Relations Board.13 The Com- ber participants of the principle that a work stoppage by ILWU against PMA members is a work stoppage against nonmember participants.” The Court of Appeals went on to point out: “The Revised Agreement also required uniform terms regarding selection of men in the joint work force, continuance of obligation to pay PMA assessments, and use of uniform payment and record forms.” Id., at 251 n. 9, 543 F. 2d, at 398 n. 9. 13 The Commission noted that the complaint before it alleged, not that PMA or the Union had refused to bargain, but rather that they had entered into an agreement in violation of the shipping and antitrust laws. The Commission concluded that the NLRB would be without available procedure to investigate the legality of the nonmember participation agreement. The suggestion that it defer the matter to the courts was also deemed 50 OCTOBER TERM, 1977 Opinion of the Court 435U.S. mission also rejected the argument, as it had rejected similar arguments in New York Shipping Assn.—NY SA-ILA Man-Hour/Tonnage Method of Assessment, 16 F. M. C. 381 (1973), aff’d, 495 F. 2d 1215 (CA2), cert, denied, 419 U. S. 964 (1974), that § 15’s filing requirement was not triggered because some members of PMA were neither carriers nor “other persons subject to the act” or because PMA’s contract was with a labor union, which also was neither a carrier nor “other person.” * 14 The Commission went on to find that the purpose of the nonmember participation agreement was to place nonmembers on the same competitive basis as members of the PMA and that its effect was to control or affect competition between members and nonmembers. The Commission concluded that the agreement was thus subject to filing and approval or disapproval under § 15, unless, because it was part of a collective-bargaining contract, it fell within that category of contracts that the national labor policy placed beyond the reach of the Shipping Act. The Commission had recognized this so-called “labor exemption” in United Stevedoring Corp. v. Boston Shipping Assn., 16 F. M. C. 7 (1972), and it pro- unmeritorious, since the Commission had already intervened in a counterpart antitrust case brought by the ports and had requested a stay of those proceedings, which had been granted pending the Commission’s resolution of the Shipping Act questions. 14 The Commission’s view is that, although the Union is neither a carrier nor “other person,” the agreement nevertheless constitutes an agreement among the contracting carriers—in this case as to how the public ports were to be dealt with—and is therefore a § 15 contract insofar as the identity of the parties is concerned. The Court of Appeals for the Second Circuit agrees with the Commission. New York Shipping Assn. n. FMC, 495 F. 2d 1215, 1220-1221, cert, denied, 419 U. S. 964 (1974). Nor did the Court of Appeals in this case disagree; it simply noted the approach of the Commission and suggested that this Court might have approved it in Volkswagenwerk v. FMC, 390 U. S. 261 (1968). 177 U. S. App. D. C„ at 261 n. 31, 543 F. 2d, at 408 n. 31. FMC v. PACIFIC MARITIME ASSN. 51 40 Opinion of the Court ceeded to adjudicate the status of the instant agreement under the criteria annnounced in that case.15 The Commission’s ultimate conclusion was that the nonmember participation agreement was not entitled to exemption from filing under § 15, primarily because its thrust was to 15 The Commission said, 16 F. M. C., at 12-13: “Hence, from these cases have evolved the various criteria for determining the labor exemption from the antitrust laws and which we herewith adopt for purposes of assisting us in determining the labor exemption from the shipping laws with this caveat. These criteria are by no means meant to be exclusive nor are they determinative in each and every case. Just as in the accommodation of the labor laws and the antitrust laws the courts have resolved each case on an ad hoc basis, so too will we. Each of the following criteria deserves consideration, but it is obvious that each element is not in and of itself controlling. They are rather guidelines or ‘rules of thumb’ for each factual situation. These criteria are as follows: “1. The collective bargaining which gives rise to the activity in question must be in good faith. Other expressions used to characterize this element are ‘arms-length’ or ‘eyeball to eyeball.’ “2. The matter is a mandatory subject of bargaining, e. g. wages, hours or working conditions. The matter must be a proper subject of union concern, i. e., it is intimately related or primarily and commonly associated with a bona fide labor purpose. “3. The result of the collective bargaining does not impose terms on entities outside of the collective bargaining group. “4. The union is not acting at the behest of or in combination with nonlabor groups, i. e., there is no conspiracy with management. “In the final analysis, the nature of the activity must be scrutinized to determine whether it is the type of activity which attempts to affect competition under the antitrust laws or the Shipping Act. The impact upon business which this activity has must then be examined to determine the extent of its possible effect upon competition, and whether any such effect is a direct and probable result of the activity or only remote. Ultimately, the relief requested or the sanction imposed by law must then be weighed against its effect upon the collective bargaining agreement. In balancing the equities, the above criteria will no doubt be of value. We cannot, however, subscribe to the view that collective bargaining agreements be granted a blanket labor exemption from the Shipping Act.” 52 OCTOBER TERM, 1977 Opinion of the Court 435U.S. bring nonmembers into parity with members by requiring employers outside the bargaining unit to submit to bargainingunit terms. The result had “a potentially severe and adverse effect upon competition,” 18 F. M. C., at 208, and only a superficial effect on the collective-bargaining process. The agreement was thus subject to filing and approval under § 15. The Court of Appeals for the District of Columbia Circuit set aside the Commission’s order, holding that the disputed agreement was wholly beyond the Commission’s jurisdiction under § 15. 177 U. S. App. D. C. 248, 543 F. 2d 395 (1976). The Commission’s approach, which extends to labor agreements an exemption from Shipping Act requirements roughly equivalent to the exemption from the antitrust laws that the courts hold the labor statutes require for collective-bargaining contracts, was deemed an inadequate response to the demands of the national labor policy. Without disturbing the Commission’s conclusion that the purpose and effect of the nonmember participation agreement at issue here were “to control or affect competition between members and nonmembers,” 18 F. M. C., at 201, and hence that it was within the literal terms of § 15, and without holding that the agreement would qualify for an antitrust exemption under the relevant cases, the Court of Appeals ruled that any collective-bargaining contract, whatever its impact on competition, was exempt from filing with the Commission. Alternatively, the Court of Appeals held that, even if its per se rule excluding collectivebargaining agreements from the reach of § 15 was infirm, the Commission had erred in refusing to exempt from filing the particular nonmember participation agreement in question here. We granted the petition for certiorari filed by the United States and the Commission, 430 U. S. 905 (1977), which raises two issues: whether the national labor policy requires exempting collective-bargaining contracts as a class from the filing FMC v. PACIFIC MARITIME ASSN. 53 40 Opinion of the Court requirements of § 15 and, if not, whether the agreement at issue here is nevertheless exempt from those requirements. II We cannot agree with the holding below that, whatever their effect on competition might be, collective-bargaining contracts are categorically exempt from the filing requirements of § 15 of the Shipping Act. Section 15 on its face reaches any contract between carriers “controlling, regulating, preventing, or destroying competition.” If a contract is of that nature, it is within the reach of § 15 and subject to the Commission’s jurisdiction, and it is quite untenable to suggest that collective-bargaining contracts never control, regulate, prevent, or destroy competition. See Mine Workers v. Pennington, 381 U. S. 657 (1965) ; Allen Bradley Co. v. Electrical Workers, 325 U. S. 797 (1945). If subject to § 15, a filed agreement must be approved by the Commission unless it is discriminatory or unfair, operates to the detriment of the commerce of the United States, or is contrary to the public interest. Because § 15 provides that an approved agreement will not be subject to the antitrust laws, it is apparent that Congress assigned to- the Commission, not to the courts, the task of initially determining which anticompetitive restraints are to be approved and which are to be disapproved under the general statutory guidelines. It is equally apparent that as a substantive matter, Congress anticipated that various anticompetitive restraints, forbidden by the antitrust laws in other contexts, would be acceptable in the shipping industry. That the Commission is the public arbiter of competition in the shipping industry is reflected in prior holdings that in reaching its decision under § 15 the Commission must “consider the antitrust implications of an agreement before approving it,” FMC v. Seatrain Lines, Inc., 411 U. S. 726, 739 (1973), and should approve an anticompetitive agreement only if it is “ ‘required by a serious transportation need, neces 54 OCTOBER TERM, 1977 Opinion of the Court 435U.S. sary to secure important public benefits or in furtherance of a valid regulatory purpose of the Shipping Act.’ ” FMC v. Svenska Amerika Linieri, 390 U. S. 238, 243 (1968). The Commission, nevertheless, may approve agreements “even though they are violative of the antitrust laws . . . .” Seatrain, supra, at 728. The removal of the task of initially overseeing private restraints on competition from the regime of the antitrust laws and the courts is not a historical anachronism that we are entitled to ignore. Congress responded to Federal Maritime Board v. Isbrandtsen Co., 356 U. S. 481 (1958), which held that a particular system of dual rates adopted by a shipping conference violated § 14 of the Shipping Act, by suspending the effect of that decision pending full study and permanent legislation. After extensive investigation, important amendments were forthcoming in 1961, Pub. L. 87-346, 75 Stat. 763; but the Act’s basic approach—that the regulation of competition in the shipping industry is to be an administrative function, subject to judicial review—was reaffirmed. Indeed, § 15 was amended “by enlarging and clarifying the [Commission’s] powers over agreements filed thereunder” by, among other things, the addition of the public interest standard to § 15. H. R. Rep. No. 498, 87th Cong., 1st Sess., 17-18 (1961). Section 15 was declared by the Antitrust Subcommittee of the House Judiciary Committee, which undertook a three-year study of “the entire gamut of antitrust problems in the ocean freight industry . . . ,” to be “the heart of the Shipping Act.” H. R. Rep. No. 1419, 87th Cong., 2d Sess., 2, 15 (1962). It is appropriate, therefore, that the Court has recognized the broad reach of § 15 and resisted improvident attempts to narrow it. In V olkswagenwerk v. FMC, 390 U. S. 261 (1968), a collective-bargaining agreement between PMA and the Union included a provision requiring PMA to create a sizable fund to be used to mitigate the impact of technological unemployment upon employees. PMA reserved the right to FMC v. PACIFIC MARITIME ASSN. 55 40 Opinion of the Court determine how the fund was to be raised, and thereafter it settled upon a particular method by which its members would contribute to the fund. The issue then arose whether this latter agreement was within the Commission’s jurisdiction under § 15. The Commission held that, although the assessment formula arrived at was within the literal language of the section, it was exempt from filing since § 15 should be applied only to those agreements that affect competition among the carriers in their dealings with the shipping and traveling public.16 The Court of Appeals affirmed; but we reversed, rejecting the Commission’s “extremely narrow view of a statute that uses expansive language.” 390 U. S., at 273. In response to the Commission’s expressed desire to read § 15 narrowly in order to minimize the antitrust exemption, we noted that “antitrust exemption results, not when an agreement is submitted for filing, but only when the agreement is actually approved . . . ,” 390 U. S., at 273, and that “in deciding whether to approve an agreement, the Commission is required under § 15 to consider antitrust implications.” Id., at 273-274. Hence, “[t]o limit § 15 agreements that ‘affect competition,’ as the Commission used that phrase . . . simply [did] not square with the structure of the statute,” id., at 275, and “would [render] virtually meaningless” major parts of § 15’s filing provisions. 390 U. S., at 275 n. 23. Because V olkswagenwerk dealt only with the agreed-upon assessment formula, the Court noted that no question had been raised about the validity of the underlying collectivebargaining contract. The opinion does not, therefore, determine one way or the other whether collective-bargaining contracts are ever within the reach of § 15; but the Court did 16 The Commission concluded that the agreement in question did not affect “outsiders” because there was no express agreement among the PMA members to pass on all or a portion of the assessments to the carriers and shippers served by the terminal operators. Volkswagenwerk Aktiengesellschaft v. Marine Terminals Corp., 9 F. M. C. 77, 82-83 (1965). 56 OCTOBER TERM, 1977 Opinion of the Court 435U.S. emphasize the breadth of the statutory language and the determination of Congress, reflected in § 15, to “subject to the scrutiny of a specialized governmental agency the myriad of restrictive agreements in the maritime industry.” 390 U. S., at 276. At the very least, the opinion counsels against implying broad exemptions for agreements, collective-bargaining contracts or otherwise, whose impact on competition is “neither de minimis nor routine.” Id., at 277. In the present case, the Court of Appeals’ removal from the Commission’s jurisdiction of all collective-bargaining contracts, regardless of how anticompetitive they might be, and whether or not exempt under the antitrust laws, would appear to be contrary to the plain terms of § 15. The Court of Appeals was not unaware that it was depriving the Commission of the power to approve or disapprove anticompetitive contracts that § 15 on its face clearly confers, but it thought its holding necessary to implement the collective-bargaining system established by the federal statutes dealing with labormanagement relations, including those in the shipping industry. While there is no doubt that the courts must give all due effect to each of two seemingly overlapping statutes, we think the Court of Appeals misconceived its task here. The principal objection to Commission jurisdiction over any bargaining agreement was that under § 15 agreements subject to filing cannot be implemented prior to approval or after disapproval. This alone was enough to exempt collectivebargaining contracts from filing under § 15, for, as the Court of Appeals understood the collective-bargaining system mandated by the National Labor Relations Act, one of its essential elements is for the parties to be legally free “to implement promptly the compromise agreements worked out in eleventhhour bargaining sessions . . . .” 177 U. S. App. D. C., at 259, 543 F. 2d, at 406. Subjecting negotiated labor agreements to filing and approval “would make nearly impossible the maintenance or prompt restoration of industrial peace.” Ibid. FMC v. PACIFIC MARITIME ASSN. 57 40 Opinion of the Court Prompt implementation of lawful collective-bargaining agreements is indeed an important consideration, but the fears of the Court of Appeals as to the possible impact of the Commission’s decision on the collective-bargaining process are exaggerated and do not justify the major surgery performed on § 15 by the decision below. In the first place, the Commission’s decision would not require the filing of all or even most of the collective-bargaining contracts entered into in the shipping industry. Because § 15 applies only to agreements between at least two parties subject to the Act, see n. 1, supra, collective-bargaining contracts between the Union and a single employer - would not have to be filed. Moreover, not all collective-bargaining agreements between the Union and PM A would be subject to the requirements of § 15. Under § 15, filed agreements must be approved unless they operate to the detriment of commerce, are contrary to the public interest, or otherwise fail to satisfy the specified standards. Under these standards, it would be difficult to conclude that ordinary collective-bargaining agreements establishing wages, hours, and working conditions in a bargaining unit could or would be disapproved as contrary to the public interest or detrimental to commerce. Such contracts are the product of bargaining compelled by the labor laws, which themselves were enacted pursuant to the power of Congress to regulate commerce in the public interest. They are also the kind of contracts that the courts, because of the collective-bargaining regime established by the labor laws, in the main have declared to be beyond the reach of the antitrust laws, the statutes specifically designed to protect the commerce of the United States from anticompetitive restraints. The Commission has recognized that the vast majority of collective-bargaining arrangements cannot be deemed candidates for disapproval under § 15 and that they would be routinely approved even if filed. Consistent with its power under § 35 of the Shipping Act, 39 Stat. 738, as added, 80 Stat. 58 OCTOBER TERM, 1977 Opinion of the Court 435U.S. 1358, 46 U. S. C. § 833a, in appropriate circumstances to exempt from § 15 filing requirements “any class of agreements between persons subject to this chapter or any specified activity of such persons . . . ,”17 the Commission, by adjudication, has determined that it will recognize a “labor exemption” from the filing requirements of § 15 for collective-bargaining contracts falling within the boundaries of the exemption defined by its announced criteria.18 In doing so, the Commission has been guided by its understanding of our cases, and those of other courts, that recognize and define an exemption from the antitrust laws for certain contracts between management and labor. It appears to be the intention of the Commission to exercise jurisdiction over only those collective-bargaining contracts that in its view would not be exempt from examination under antitrust laws and that should be reviewed under Shipping Act standards. We therefore doubt that the Commission’s decision will have a broad impact on labor-management relations. At least, it has not been demonstrated at this juncture that the collective-bargaining concerns cited by the Court of Appeals are sufficient to require complete exemption for labor agreements and the consequent partial emasculation of the statutory scheme for administrative review of anticompetitive agreements. 17 Section 35, as set forth in 46 U. S. C. §833a, provides: “The Federal Maritime Commission, upon application or on its own motion, may by order or rule exempt for the future any class of agreements between persons subject to this chapter or any specified activity of such persons from any requirement of this chapter, or Intercoastal Shipping Act, 1933, where it finds that such exemption will not substantially impair effective regulation by the Federal Maritime Commission, be unjustly discriminatory, or be detrimental to commerce. “The Commission may attach conditions to any such exemptions and may, by order, revoke any such exemption. “No order or rule of exemption or revocation of exemption shall be issued unless opportunity for hearing has been afforded interested persons.” 18 See n. 15, supra. FMC v. PACIFIC MARITIME ASSN. 59 40 Opinion of the Court Second, the Commission, in any event, claims the authority, which it has exercised, see New York Shipping Assn.—NY SA-ILA Man-Hour/Tonnage Method of Assessment, 16 F. M. C. 381 (1973), aff’d, 495 F. 2d 1215 (CA2), cert, denied, 419 U. S. 964 (1974), to issue conditional approval of filed agreements pending final decision as to their legality; and it is not clear why this mechanism is not amply responsive to the fears of undue delay or why its adequacy should now be debated since the parties could have, but did not, request early, conditional approval. The Court of Appeals did not deny that the Commission could permit implementation of filed agreements prior to a final decision, but it thought the mechanism only a partial alleviation of the problem since the parties still would face the “specter” of a later administrative invalidation of perhaps a crucial part of a collective-bargaining contract. But it is not immediately obvious why provisions of a collective-bargaining contract that appear obviously illegal to the Commission should be immediately implemented pending final decision. Furthermore, if a collective-bargaining contract having serious anticompetitive aspects is not subject to filing under § 15, as the Court of Appeals would have it, the parties would in any event face the uncertainty of possible invalidation and of treble damages after long and difficult litigation in an antitrust court. At least under § 15, it would be possible that an anticompetitive collective-bargaining contract that would not survive scrutiny under the antitrust laws could be approved by the Commission, if it served important regulatory goals, and hence would be insulated from antitrust attack. Indeed, a critical aspect of the regulatory plan devised by Congress is the requirement of administrative judgment with respect to all of the specified contracts required to be filed. It was therefore error for the Court of Appeals to hold that the legality of collective-bargaining contracts, challenged as anticompetitive and nonexempt, must be judicially determined under the antitrust laws without interposition of the admin 60 OCTOBER TERM, 1977 Opinion of the Court 435U.S. istrative judgment and without regard for Shipping Act considerations. Ill The Court of Appeals also ruled that even absent a blanket exemption from § 15 for collective-bargaining agreements, the Commission should not have exercised § 15 jurisdiction in this case but should have exempted the nonmember participation agreement from filing. In doing so, the court appeared to disagree with the Commission’s weighing of the impact on shipping interests of holding the agreement exempt against the impact on collective-bargaining interests of requiring filing and approval under § 15. Perhaps because under the Act this kind of comparison must be the business of the Commission if all collective agreements are not exempt, the Court of Appeals offered little to support this alternative judgment. It suggested that the Commission had failed 'to realize that the nonmember participation agreement in the last analysis was merely an effort to force the public ports into a multiemployer bargaining unit against their will, an issue clearly within the National Labor Relations Board’s authority and one in which the Commission should not intermeddle. The argument is wide of the mark. The Commission has not challenged the power of the Board to determine bargaining units; neither the Commission nor the parties have authority to change a unit certified by the Board. Rather than relying on the Board to resolve any bargaining-unit problem, if there was one, PMA and the Union agreed to impose bargaining-unit terms on employers outside the unit. Furthermore, the Court of Appeals recognized that the “Supreme Court has ruled against primary jurisdiction in the NLRB for anticompetitive agreements,” 177 U. S. App. D. C., at 263, 543 F. 2d, at 410, but went on to conclude that we had removed from all primary administrative cognizance the entire question of accommodating collective-bargaining considerations and the public interest in competition. We doubt that our FMC v. PACIFIC MARITIME ASSN. 61 40 Opinion of the Court opinions should be so broadly read. Congress has not authorized the NLRB to police, modify, or invalidate collectivebargaining contracts aimed at regulating competition or to insulate bargaining agreements from antitrust attack. But here, as we have said, Congress took the different course of committing to the Commission the initial task of approving or disapproving all agreements that control, regulate, prevent, or destroy competition. However much the courts might consider this to be a judicial function, particularly when it is necessary to accommodate the possibly conflicting policies of the labor and shipping laws, we have no warrant to ignore congressional preferences written into § 15 of the Shipping Act. IV Although the Court of Appeals did not otherwise challenge the content or application of the Commission’s guidelines for resolving issues as to its jurisdiction over collective-bargaining agreements, the respondents urge that the Commission has misread the relevant cases. In particular, they fault the Commission’s findings with respect to the competitive impact of the nonmember participation agreement and the failure to find that the terms under challenge constituted serious antitrust violations. These submissions are unsound. It is plain from our cases that an antitrust case need not be tried and a violation found before a determination can be made that a collective-bargaining agreement is not within the labor exemption, just as it is clear that denying the exemption does not mean that there is an antitrust violation.19 Insofar as the asserted exemption for collective-bargaining contracts is con 19 In Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616 (1975), for example, the Court, after concluding that the agreement in question was not entitled to the nonstatutory labor exemption from the antitrust laws, remanded for consideration whether the agreement violated the Sherman Act. See also Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 688-689 (1965) (opinion of White, J.). 62 OCTOBER TERM, 1977 Opinion of the Court 435U.S. cerned, the Commission found all it needed to find to assume jurisdiction and proceed with the case under § 15 when it concluded that PMA and the Union had undertaken to impose employment terms and conditions on employers outside the bargaining unit. As we have previously observed: “[T]here is nothing in the labor policy indicating that the union and the employers in one bargaining unit are free to bargain about the wages, hours and working conditions of other bargaining units or to attempt to settle these matters for the entire industry.” “[A] union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units.” Mine Workers v. Pennington, 381 U. S., at 665-666. Here, both the Commission and the Court of Appeals understood the nonmember participation agreement to require nonmembers to participate in all fringe-benefit plans agreed upon between the PMA and the Union, to observe PMA-determined labor policies in the event of a work stoppage, and to observe the same work rules with respect to the hiring-hall work force. The result, the Commission found, would be higher costs for nonmembers and the elimination of what the PMA considered to be “a competitive disadvantage” ’ to its members.20 Accordingly, the Commission was warranted in finding that “the purpose of the supplemental agreement 20 The PMA thought that the nonmembers enjoyed an advantage in that they were able to “pick and choose fringe benefits on a piecemeal basis . . . [and could] get favored treatment in regard to the utilization of the workforce, the employment of steady men, the privilege of working when members [could not], and [that the nonmembers] even [went] so far as to take advantage of that latter situation and handle cargo which would otherwise be handled by members during strike or stoppage periods.” App. 102. FMC v. PACIFIC MARITIME ASSN. 63 40 Opinion of the Court [was] ... to place nonmembers on the same ‘competitive’ basis as members of the PMA.” 18 F. M. C., at 201. We are thus unpersuaded that the Commission did not make the requisite findings to sustain its view. Nor are we impressed with other arguments that in one guise or another are contentions that the Commission, for lack of ability and experience, should not purport to deal with any collective-bargaining agreement but should leave the entire matter of anticompetitive labor-management contracts to the courts and the antitrust laws. As we have said, Congress has made the Commission the arbiter of competition in the shipping industry; and if there are labor agreements so anticompetitive that they are vulnerable under the antitrust laws, it is difficult to explain why the Commission should not deal with them in the first instance and either approve or disapprove them under the standards specified in § 15. In summary, we think the Commission was true to § 15 and that it has also demonstrated its sensitivity to the national labor policy by exempting from the filing requirements all collective-bargaining contracts that in its view would also be exempt from the antitrust laws. Because the Commission also has the power to approve filed agreements, even though anticompetitive, the Commission may also take into account any special needs of labor-management relationships in the shipping industry. We should add that since the Shipping Act contains its own standards for exempting and for approving and disapproving agreements between carriers, and because the ultimate issue in cases such as this is the accommodation of the Shipping Act and the labor laws, rather than the labor laws and the antitrust laws, it will not necessarily be a misapplication of the statutes if the exemption for collectivebargaining contracts from Shipping Act requirements is not always exactly congruent with the so-called labor exemption from the antitrust laws as understood by the courts. 64 OCTOBER TERM, 1977 Powell, J., dissenting 435 U. S. The judgment of the Court of Appeals is reversed. It is so ordered. Mr. Justice Blackmun took no part in the consideration or decision of this case. Mr. Justice Powell, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting. The Court today holds that collective-bargaining agreements in the maritime industry are subject to the filing and prior approval requirements of § 15 of the Shipping Act, 1916 (Act), 46 U. S. C. §814. Neither statutory language nor legislative history offers specific support for this result. For well over a half a century, the agency responsible for enforcing the Act did not consider § 15 previews of maritime labor contracts to be within its mission,1 even though collective 1 Prior to 1968, the Federal Maritime Commission (Commission) and its predecessors resisted the idea that § 15 reached agreements affecting employer-employee relationships. Three years after this Court’s ruling in Volkswagenwerk v. FMC, 390 U. S. 261 (1968), however, the Commission held that § 15 applied to work-gang allocation and employee-recall provisions developed among members of a multiemployer association. The recall provision had been embodied in a collective-bargaining agreement. United Stevedoring Corp. v. Boston Shipping Assn., 15 F. M. C. 33 (1971). On appeal, the United States, as statutory respondent, incorporating the positions of the Department of Labor and the National Labor Relations Board, objected to the Commission’s decision. The opposition of the United States prompted the Commission to move for a remand for further consideration. The Court of Appeals granted the motion, expressing “astonishment” at the Commission’s failure to recognize the difference “between attaching a separate, Section 15, agreement, in which the union had little interest, to a collective bargaining agreement, and making a multi-employer agreement with a union, eyeball to eyeball, but which, by the very fact that it is multi-employer, has some effect on employer competition.” Boston Shipping Assn. v. United States, 8 SRR 20,828, 20,830 (CAI 1972). On remand, the Commission found that both provisions were entitled to a “labor exemption” derived, by analogy, from this Court’s labor- FMC v. PACIFIC MARITIME ASSN. 65 40 Powell, J., dissenting bargaining is hardly a recent development in the major ports of the Nation.* 2 No intervening legislation explains the Court’s willingness to recognize this belated assertion of jurisdiction.3 This decision would be debatable but unexceptional were it not for the presence of a competing statute. The task confronting the Court is one of reconciling the broad language of §15 with the distinct policy of federal labor law embodied in the Labor Management Relations Act, 1947, 29 U. S. C. § 141 et seq. It seems to me that today’s ruling undercuts federal labor policy, imposing undue burdens on collective bargaining, without advancing significantly any Shipping Act objective. I therefore dissent. antitrust decisions. United Stevedoring Corp. v. Boston Shipping Assn., 16 F. M. C. 7, 14-15 (1972). Aside from the present controversy, the Commission’s only other foray into the labor arena involved an assessment formula for funding a fringebenefit program that was incorporated in a collective-bargaining agreement. New York Shipping Assn.—NY SA-ILA Man-Hour/Tonnage Method of Assessment, 16 F. M. C. 381 (1973). On appeal, the United States supported the Commission, while the Department of Labor and the National Labor Relations Board urged reversal. The Court of Appeals upheld the decision. New York Shipping Assn. v. FMC, 495 F. 2d 1215 (CA2), cert, denied, 419 U. S. 964 (1974). 2 New York longshoremen were sufficiently organized by 1874 to conduct a five-week strike for higher wages. By 1914, New York locals formed the International Longshoremen’s Association (ILA) and, by 1916, the union secured a portwide agreement. On the west coast, District Council 38 of the ILA, in 1915, entered into an agreement providing for wage increases with all employers in the Puget Sound-British Columbia area. C. Larrowe, Shape-Up and Hiring Hall 7-9, 87-89 (1955). 3 The Court notes that the Shipping Act, including § 15, was extensively revised in 1961, Pub. L. 87-346, 75 Stat. 763, see ante, at 54, but offers no evidence that this re-examination of “the entire gamut of antitrust problems in the ocean freight industry,” H. R. Rep. No. 1419, 87th Cong., 2d Sess., 2 (1962), touched upon the possibility of § 15’s application to collective-bargaining agreements. 66 OCTOBER TERM, 1977 Powell, J., dissenting 435U.S. I The sweeping generality of § 15 arguably would enable the statute to be applied to almost any agreement involving a party subject to the Act. But this merely accents the importance of construing its general language in light of the Act’s purposes and the policies of other pertinent statutes. Section 15 has not been interpreted as reaching all agreements related to maritime transportation. See FMC v. Seatrain Lines, Inc., 411 U. S. 726, 731-734 (1973). Although Volkswagen-werk v. FMC, 390 U. S. 261 (1968), referred to today, ante, at 55-56, emphasized the breadth of the statutory language, the Court was careful to limit its holding to avoid any suggestion that collective-bargaining agreements must comply with the requirements of § 15. In subjecting collective-bargaining agreements to prior clearance by the Commission under § 15, the Court goes well beyond the limits established in Volkswagenwerk. There, an earlier agreement between respondent Pacific Maritime Association (PMA) and respondent International Longshoremen’s and Warehousemen’s Union (Union) provided for the introduction of laborsaving devices and the elimination of certain work practices. The agreement required the creation of a “Mechanization and Modernization Fund” (Meeh Fund) of $29 million to be used to mitigate the impact of technological unemployment upon employees. It reserved to the PMA alone the right to determine how to raise the fund from its members. The question before the Court was whether § 15 applied to a subsequent agreement among members of the PMA setting forth various formulas for collecting the Meeh Fund. The Court held that the employers’ “side agreement” would have a substantial impact on stevedoring and terminal charges, and required the prior approval of the Commission. Following the suggestion of the United States,4 the Court 4 “For purposes of deciding this case, we may assume that agreements which relate solely to collective bargaining or labor relations are excepted from the scope of Section 15 of the Shipping Act. Cf. Kennedy v. Long FMC v. PACIFIC MARITIME ASSN. 67 40 Powell, J., dissenting restricted its holding to the “side agreement/’ explicitly disclaiming any intention to reach the underlying collective-bargaining agreement. “It is to be emphasized that the only agreement involved in this case is the one among members of the Association allocating the impact of the Meeh Fund levy. We are not concerned here with the agreement creating the Association or with the collective bargaining agreement between the Association and the ILWU. No claim has been made in this case that either of those agreements was subject to the filing requirements of § 15. Those agreements, reflecting the national labor policy of free collective bargaining by representatives of the parties’ own unfettered choice, fall in an area of concern to the National Labor Relations Board, and nothing we have said in this opinion is to be understood as questioning their continuing validity. But in negotiating with the ILWU, the Association insisted that its members were to have the exclusive right to determine how the Meeh Fund was to be assessed, and a clause to that effect was included in the collective bargaining agreement. That assessment arrangement, affecting only relationships among Association members and their customers, is all that is before us in this case.” 390 U. 8., at 278 (emphasis supplied). Island R. Co., 211 F. Supp. 478 (S. D. N. Y.), affirmed, 319 F. 2d 366 (C. A. 2), certiorari denied, 375 IT. S. 830. The basic agreement to provide a mechanization fund in a certain amount for the benefit of the longshoremen would appear to be of this character. And after the Association agreed to create the fund it had an ancillary obligation to collect it somehow. But at issue here is only the side agreement among the Association’s members prescribing a special assessment on the cargo handled by them. Such an agreement among employers apportioning the cost of the labor contract is not a part of that contract, involves no question of labor relations, and is not subject to the jurisdiction of the Labor Board.” Brief for United States in Volkswagenwerk v. FMC, 0. T. 1967, No. 69, pp. 31-32 (emphasis supplied); see Memorandum for United States in Volkswagenwerk, pp. 7-8. 68 OCTOBER TERM, 1977 Powell, J., dissenting 435U.S. The italicized language makes clear that the Volkswagenwerk Court perceived a distinction, material to Commission authority under § 15, between a collective-bargaining agreement, and implementing agreements among carriers, stevedoring contractors, and marine terminal operators. In this case, I would follow what seems to have been the lead of the Court in Volkswagenwerk. A proper accommodation of the conflicting signals of the Shipping Act and federal labor policy requires that bona fide collective-bargaining agreements, arrived through arm’s-length negotiations,5 do not fall within § 15. As in other collective-bargaining contexts, labor and management in the maritime industry would be free to reach agreement without prior Government approval or control over the substantive terms of the bargain, while the agreement itself or its implementation would be subject to scrutiny under the antitrust laws and the specific prohibitions of § § 166 and 177 of the Act. 5 Petitioners do not challenge the bona tides of the agreement in question. Indeed, they concede that the Union has a legitimate interest in the integrity and work opportunities of the registered work force and in the fringe benefits covered by the agreement. Reply Brief for Petitioners 6. 6 Section 16 of the Act, as set forth in 46 U. S. C. § 815, provides in relevant part: “It shall be unlawful for any common carrier by water, or other person subject to this chapter, either alone or in conjunction with any other person, directly or indirectly— “First. To make or give any undue or unreasonable preference or advantage to any particular person, locality, or description of traffic in any respect whatsoever, or to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . .” See n. 16, infra. 7 Section 17 of the Act, as set forth in 46 U. S. C. § 816, provides in relevant part: “Every such carrier and every other person subject to this chapter shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or FMC v. PACIFIC MARITIME ASSN. 69 40 Powell, J., dissenting II The prospects for peaceful resolution of labor disputes in an industry marked by a history of industrial strife, see C. Larrowe, Shape Up and Hiring Hall 1-48, 83-138 (1955); Volkswagenwerk v. FMC, 390 U. S., at 296-299 (Douglas, J., dissenting in part), are not enhanced by the Court’s imposition of a system of administrative prior restraints. Collective bargaining works best when the parties are free to arrive at negotiated solutions to problems without first having to secure the approval of Government regulators. The legal consequences of a bargain may be assessed after the fact, but the parties should be free to negotiate an agreement within the framework of procedures prescribed by the National Labor Relations Board (Board). Often negotiations are conducted under substantial constraints of time, and agreement is reached at the eleventh hour. If there is no agreement by the expiration date of the previous contract, or if an accord may not be executed because of a requirement of prior governmental approval, labor’s “no contract, no work” tradition suggests the likelihood of a disruptive work stoppage. Moreover, the bargaining process itself may suffer where the parties know that any agreement is simply a tentative accord, subject to pre-implementation review by an administrative agency. As the Board noted in New York Shipping Assn. v. FMC, 495 F. 2d 1215 (CA2), cert, denied, 419 U. S. 964 (1974): “It is extremely difficult for the parties to make a meaningful judgment as to the kind of bargain they are negotiating if one or more of the key provisions on which agreement turns is subject to invalidation by the Com delivering of property. Whenever the Commission finds that any such regulation or practice is unjust or unreasonable it may determine, prescribe, and order enforced a just and reasonable regulation or practice.” This provision may not reach the collective-bargaining agreement, but it would appear to be applicable to the implementation of the agreement by persons subject to the Act. 70 OCTOBER TERM, 1977 Powell, J., dissenting 435U.S. mission. This kind of administrative supervision will impede the process of collective bargaining and could inhibit negotiators’ attempts to arrive at novel solutions to troublesome labor problems. The superimposition of the approval of the FMC over [matters that are] crucial to the agreement is likely to disrupt the process of collective bargaining and deter the speedy resolution of industrial disputes in the maritime industry.” Brief for National Labor Relations Board as Amicus Curiae in Nos. 73-1919 and 73-1991 (CA2), p. 14. Section 15 jurisdiction also entails recognition of a revisory power in the Commission over the substantive terms of collective-bargaining agreements. The Commission is empowered, after notice and hearing, to “disapprove, cancel or modify any agreement” that it finds to be “unjustly discriminatory or unfair,” detrimental to commerce, contrary to the public interest, or otherwise violative of the Act. If—as the Court holds—this power is applicable to collective-bargaining agreements, it would exceed even the broad remedial authority of the Board itself, which falls short of any substantial interference with the “freedom of contract” of the parties. In Porter Co. v. NLRB, 397 U. S. 99 (1970), the Court held that the Board could not order an employer to grant the union a contract checkoff clause as a remedy for an acknowledged violation of the statutory duty to bargain in good faith. “It is implicit in the entire structure of the Act that the Board acts to oversee and referee the process of collective bargaining, leaving the results of the contest to the bargaining strength of the parties. . . . The Board’s remedial powers under § 10 of the Act are broad, but they are limited to carrying out the policies of the Act itself. One of these fundamental policies is freedom of contract. While the parties’ freedom of contract is not absolute under the Act, allowing the Board to compel agreement FMC v. PACIFIC MARITIME ASSN. 71 40 Powell, J., dissenting when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based—private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract.” Id., at 107-108. The parties cannot agree to terms that violate the law, but the remedy that is generally applied is post-execution invalidation and assessment of damages, rather than “official compulsion over the actual terms of the contract.” 8 Hence, the Court’s recognition of such a power reposing in the Commission is fundamentally at odds with national labor policy. The Court insists that concern over “the possible impact of the Commission’s decision on the collective-bargaining process [is] exaggerated and [does] not justify the major surgery performed on § 15 by the decision below.” Ante, at 57. It is suggested that few labor agreements will have to be filed, because § 15 does not apply to contracts between a union and a single employer, and the Commission has forsworn jurisdiction over agreements falling within the uncertain contours of a “labor exemption” to be developed in the course of agency adjudications. Ante, at 57-58. It is by no means clear to me that the Court’s optimism is justified. Labor unions and management groups, following the course of caution, are likely to respond to today’s decision by filing all labor agreements with the Commission. Respondents can take little comfort in the assertion that “routine,” Brief for Petitioners 28, or “ordinary collective-bargaining 8 For example, although § 8 (e) of the National Labor Relations Act, 29 U. S. C. § 158 (e) (1970 ed., Supp. V), prohibits entering into a “hot cargo” agreement, there is no requirement that the parties submit a proposed agreement to the Board for prior clearance. The Board’s remedial authority is limited to the obtaining of a preliminary injunction under § 10 (I), 29 U. S. C. § 160 (Z), and the ultimate issuance of a cease-and-desist order, requiring enforcement by a court of appeals. 72 OCTOBER TERM, 1977 Powell, J., dissenting 435 U. S. agreements” will not “be subject to the requirements of § 15,” ante, at 57.9 Few agreements negotiated between a union and a multiemployer bargaining association for the purpose of governing working relations at a major port are likely to be so “routine” that the parties safely may assume that they enjoy an exemption from § 15. A degree of uncertainty and delay, then, would seem an inevitable byproduct of § 15 jurisdiction over maritime labor relations. Similarly, the possibility that the Commission may find that a particular agreement qualifies for a “labor exemption” does not offer a realistic palliative for the probable impact of the Court’s decision on free collective bargaining. The Court suggests that the Commission may apply its special understanding of the requirements of anticompetitive policy,10 but there is no well-developed corpus of maritime labor-antitrust decisions to guide the formulation of labor agreements in the industry. The Commission has identified four nonexclusive, nondeterminative criteria to inform its “labor exemption” 9 The Court’s discussion on this point is somewhat unclear. The argument appears to be, as observed in the text, that “ordinary collective-bargaining agreements” would not “be subject to the requirements of § 15,” ante, at 57, apparently because their conformity with antitrust and Shipping Act policies may be presumed. If the Court is simply saying, however, that such agreements are likely to be “routinely approved even if filed,” ibid., this is no answer to respondents’ contention that compliance with § 15 prevents the prompt implementation of compromise agreements worked out in eleventh-hour bargaining sessions that often is necessary to the preservation of labor peace. 10 “We should add that since the Shipping Act contains its own standards for exempting and for approving' and disapproving agreements between carriers, and because the ultimate issue in cases such as this is the accommodation of the Shipping Act and the labor laws, rather than the labor laws and the antitrust laws, it will not necessarily be a misapplication of the statutes if the exemption for collective-bargaining contracts from Shipping Act requirements is not always exactly congruent with the so-called labor exemption from the antitrust laws as understood by the courts.” Ante, at 63. FMC v. PACIFIC MARITIME ASSN. 73 40 Powell, J., dissenting 435U.S. rulings.11 The brief history of the Commission’s entry into the maritime labor field, however, see n. 1, supra, offers little basis for hope that its assertion of § 15 jurisdiction will not impair the collective-bargaining process. In the final analysis, the substantial penalties provided by the Act11 12 for “guessing wrong” make it unlikely that the disruption and uncertainty inherent in this prior-restraint scheme will be allayed significantly by the rulings of a federal agency inexpert in labor and labor-antitrust matters.13 Ill I cannot agree that either the statutory language or the 11 “These criteria are by no means meant to be exclusive nor are they determinative in each and every case. Just as in the accommodation of the labor laws and the antitrust laws the courts have resolved each case on an ad hoc basis, so too will we. Each of the following criteria deserves consideration, but it is obvious that each element is not in and of itself controlling. They are rather guidelines or ‘rules of thumb’ for each factual situation.” United Stevedoring Corp. v. Boston Shipping Assn., 16 F. M. C., at 12. Although the Commission has promised to undertake a rulemaking proceeding to promulgate more precise standards for its “labor exemption,” id., at 15, no regulations have been forthcoming. 12 Noncompliance with § 15 exposes the offending party to a civil penalty of not more than $1,000 for each day of violation. If the agreement, or its implementation, is ultimately held to violate § 16 as well, the party also may be guilty of a misdemeanor punishable by a fine of not more than $5,000 for each offense. 13 The power of the Commission to grant temporary approvals under § 15, e. g., New York Shipping Assn. v. FMC, 495 F. 2d, at 1218, has not been passed on by a federal court, see Marine Cooks & Stewards n. FMC, No. 75-2013 (CADC Feb. 4, 1977) (dismissing appeal). In any event, this dispensation is a matter of administrative grace. The problems of uncertainty and delays are not likely to disappear because there is a chance that the Commission may be persuaded to issue a temporary approval. And, as the Court of Appeals recognized, even if such a power and its frequent exercise are assumed, interim approval “does not remove the possibility of later unilateral modification by the Commission . . . .” 177 U. S. App. D. C. 248, 260, 543 F. 2d 395, 407 (1976). 74 OCTOBER TERM, 1977 Powell, J., dissenting 435U.S. legislative history14 of § 15 requires that it be made applicable to collective-bargaining agreements. Neither contains any reference to labor agreements. Although § 15 reaches a broad spectrum of arrangements, its terms apply only to agreements among “common carriers by water” or “other persons subject to this chapter.” 15 Unions are not persons subject to the Act. One would have thought that if Congress had wished to include collective-bargaining agreements within the scope of § 15, it would have done so specifically or, at least, 14 Petitioners concede that “[t]he legislative history of the Shipping Act is unilluminating concerning Congress’ specific intent where a labor union is a signatory to an agreement otherwise subject to the Act. . . .” Brief for Petitioners 24 n. 25. Legislative developments after the passage of the Shipping Act highlight the improbability of § 15 jurisdiction over labor agreements. In 1938, Congress created a Maritime Labor Board (MLB) for the purpose of encouraging collective bargaining and assisting in the peaceful settlement of disputes through mediation. A provision of the 1938 measure, § 1005, 52 Stat. 967, required every maritime employer to file with the MLB a copy of every contract with any group of its employees covering wages, hours, and working conditions. A 1941 House Committee Report on a bill providing for a two-year extension of the 1938 machinery noted: “This is the only Government agency with which copies of all labor agreements are required to be filed and these have been studied by the Board with a view to promoting stable labor relations in the maritime industry. “One of the most unique provisions . . . requires the filing with the Board of all maritime labor agreements. The 4,303 collective agreements filed with the Maritime Labor Board represent the most complete file of collective agreements in the maritime industry, as employers are not required to file agreements, covering their maritime employees, with any other Federal agency.” H. R. Rep. No. 354, 77th Cong., 1st Sess., 5 (1941) (emphasis supplied). The MLB ultimately was discontinued. 15 The term “other person subject to this chapter” “means any person not included in the term ‘common carrier by water,’ carrying on the business of forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier by water.” 46 U. S. C. § 801. FMC v. PACIFIC MARITIME ASSN. 75 40 Powell, J., dissenting it would have provided for jurisdiction over the indispensable party to such an agreement—the labor union.16 The terms of § 15 must be construed in light of the considerations that led to federal regulation of the maritime industry17 and encouraged Congress to empower the Commission to immunize restrictive agreements among shippers and others subject to the Act from all antitrust scrutiny.18 The Court’s ruling abstracts this power of approval from the particular context that prompted Congress to accord certain agreements an immunity premised on Shipping Act policies which did not necessarily reflect antitrust principles.19 In 16 By contrast, § 16 bars certain discriminatory acts engaged in by “any common carrier by water, or other person subject to this chapter, either alone or in conjunction with any other person . . . .” The term “person” “includes corporations, partnerships, and associations, existing under or authorized by the laws of the United States, or any State, Territory, District or possession thereof, or of any foreign country.” 46 U. S. C. § 801. 17 The guiding force in the development of the Shipping Act was the House Committee that issued the “Alexander Report.” House Committee on Merchant Marine and Fisheries, Report on Steamship Agreements and Affiliations, H. R. Doc. No. 805, 63d Cong., 2d Sess. (1914). See Federal Maritime Board v. Isbrandtsen Co., 356 U. S. 481, 490 (1958). The Alexander Committee principally addressed the methods for control of competition employed by steamship lines and water carriers that had cartelized much of the industry. Alexander Report 409-412, 415, 421-422. To ensure Government surveillance of these practices, the Committee recommended that all carriers engaged in the foreign and domestic trade of the United States file with the Government all agreements entered into with any other carrier, shipper, railroad, or other transportation agencies. Id., at 419-420, 422-423. 18 Concluding that outright prohibition of steamship agreements and conference arrangements would result only in rate wars and anticompetitive mergers, the Alexander Committee “chose to permit continuation of the conference system, but to curb its abuses by requiring government approval of conference agreements.” FMC v. Seatrain Lines, Inc., 411 U. S. 726,738 (1973). 19 At least until 1961, it was an open question whether the Commission could take antitrust policies into account when ruling on proposed agreements. Id., at 739. Apparently, the approval of an agreement, premised 76 OCTOBER TERM, 1977 Powell, J., dissenting 435 U.S. Volkswagenwerk, the Court recognized § 15 jurisdiction over an agreement among members of respondent Association, to which a grant of immunity, after Commission study and approval, would have been understandable. That agreement presented only Shipping Act considerations. As the Government pointed out in that case, the assessment formula was “not a part of [the labor] contract, involve[d] no question of labor relations, and [was] not subject to the jurisdiction of the Labor Board.” See n. 4, supra. I find it difficult to believe, however, that Congress in 1916 intended to empower the Commission to approve, and thereby immunize from the reach of the antitrust laws, the varied terms of collectivebargaining agreements. The Commission in this case found that the agreement fell within the third category of § 15—which concerns agreements “controlling, regulating, preventing, or destroying competition.” Pacific Maritime Assn.—Cooperative Working Arrangements, 18 F. M. C. 196 (1975). Undoubtedly, some maritime labor agreements will pose antitrust problems. But we must recognize, as we did in FMC v. Seatrain Lines, Inc., that a broad “reading of the Commission’s jurisdiction would increase the number of cases subject to potential antitrust immunity,” and “conflict with our frequently expressed view that exemptions from antitrust laws are strictly construed, see, e. g., United States v. McKesson & Robbins, Inc., 351 U. S. 305, 316 (1956) ...” 411 U.S., at 733, and n. 8. Plenary review by the Commission of all maritime labor agreements that now will have to be filed in their entirety may be avoided only by retroactive, piecemeal grants of a “labor exemption.”20 The better course would be to recognize that on a consideration of Shipping Act policies alone, was sufficient to confer an immunity from the antitrust laws. 20 The Commission’s assertion of power to accord a “labor exemption” after filing to particular collective-bargaining agreements, or portions thereof, does not fit neatly within the authorization of § 35 of the Act, FMC v. PACIFIC MARITIME ASSN. 77 40 Powell, J., dissenting bona fide collective-bargaining agreements, as a class, do not come within § 15. IV An exemption from the filing and prior-clearance regime of § 15 would not shield collective-bargaining agreements from all scrutiny under the Shipping Act. It would remain open to the Commission to determine that a particular agreement was not the product of arm’s-length negotiations, but rather was an effort to circumvent § 15 by clothing a restrictive arrangement otherwise subject to the filing requirement with the trappings of a labor accord. Moreover, even a bona fide collective-bargaining agreement, or at least action taken in its implementation, may be reviewed under §§16 and 17. Petitioners have not demonstrated that vindication of Shipping Act policies requires the application of § 15, in the first instance, to genuine collective-bargaining agreements. Indeed, the Commission’s recognition of a “labor exemption” and its unreviewed assertion of power to accord “interim approval” to labor agreements, see n. 13, supra, suggest that the proposed remedy for an occasional evasion of the Shipping Act through the device of the collective-bargaining agreement may be likened to using “a sledge hammer to fix a watch.” Volks-wagenwerk v. FMC, 390 U. S., at 296 (Douglas, J., dissenting in part).21 I respectfully dissent. 46 U. S. C. § 833a. That provision contemplates action “for the future,” after opportunity for a hearing, exempting “any class of agreements between persons subject to this chapter or any specified activity of such persons . . . .” 21 Because of my conclusion that § 15, properly read, does not apply to bona fide collective-bargaining agreements, I do not reach the question of whether the Commission interpreted correctly Mine Workers v. Pennington, 381 U. S. 657 (1965), to deny a “labor exemption” from the Shipping Act to the agreement in question. 78 OCTOBER TERM, 1977 Syllabus 435 U. S. BOARD OF CURATORS OF THE UNIVERSITY OF MISSOURI et al. v. HOROWITZ CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 76-695. Argued November 7, 1977—Decided March 1, 1978 The academic performance of students at the University of Missouri-Kansas City Medical School is periodically assessed by the Council of Evaluation, a faculty-student body that can recommend various actions, including probation and dismissal; its recommendations are reviewed by the faculty Coordinating Committee, with ultimate approval by the Dean. After several faculty members had expressed dissatisfaction with the clinical performance of respondent medical student during a pediatrics rotation, the Council recommended that she be advanced to her final year on a probationary basis. Following further faculty dissatisfaction with respondent’s clinical performance that year, the Council in the middle of the year again evaluated her academic progress and concluded that she should not be considered for graduation in June of that year and that, absent “radical improvement,” she be dropped as a student. As an “appeal” of that decision, respondent was allowed to take examinations under the supervision of seven practicing physicians, only two of whom thereafter recommended that respondent be allowed to graduate on schedule. Two others recommended that she be dropped from the school immediately; and three recommended that she not be allowed to graduate as scheduled but that she be continued on probation. The Council then reaffirmed its prior position. At a subsequent meeting, having noted that respondent’s recent surgery rotation had been rated “low-satisfactory,” the Council concluded that, barring reports of radical improvement, respondent should not be allowed to re-enroll; and when a report on another rotation turned out to be negative, the Council recommended that respondent be dropped. When notified of that decision, which the Coordinating Committee and Dean had approved, respondent appealed to the Provost, who after review sustained the decision. Respondent thereafter brought this action against petitioner officials under 42 U. S. C. § 1983, contending, inter alia, that she had not been accorded due process prior to her dismissal. The District Court, after a full trial, concluded that respondent had been afforded all rights guaranteed by the Fourteenth Amendment. The Court of Appeals reversed. Held: BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 79 78 Opinion of the Court 1. The procedures leading to respondent’s dismissal for academic deficiencies, under which respondent was fully informed of faculty dissatisfaction with her clinical progress and the consequent threat to respondent’s graduation and continued enrollment, did not violate the Due Process Clause of the Fourteenth Amendment. Dismissals for academic (as opposed to disciplinary) cause do not necessitate a hearing before the school’s decisionmaking body. Goss v. Lopez, 419 U. S. 565, distinguished. Pp. 84-91. 2. Though respondent contends that the case should be remanded to the Court of Appeals for consideration of her claim of deprivation of substantive due process, this case, as the District Court correctly concluded, reveals no showing of arbitrariness or capriciousness that would warrant such a disposition, even if it were deemed appropriate for courts to review under an arbitrariness standard an academic decision of a public educational institution. Pp. 91-92. 538 F. 2d 1317, reversed. Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Stevens, JJ., joined, and in Parts I, H-A, and III of which White, J., joined. Powell, J., filed a concurring opinion, post, p. 92. White, J., filed an opinion concurring in part and concurring in the judgment, post, p. 96. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 97. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which Brennan, J., joined, post, p. 108. Marvin E. Wright argued the cause for petitioners. With him on the brief were Jackson A. Wright and Fred Wilkins. Arthur A. Benson II argued the cause and filed a brief for respondent.* Mr. Justice Rehnquist delivered the opinion of the Court. Respondent, a student at the University of Missouri-Kansas City Medical School, was dismissed by petitioner officials of the school during her final year of study for failure to meet academic standards. Respondent sued petitioners under 42 *Joel M. Gora filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance. 80 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. U. S. C. § 1983 in the United States District Court for the Western District of Missouri alleging, among other constitutional violations, that petitioners had not accorded her procedural due process prior to her dismissal. The District Court, after conducting a full trial, concluded that respondent had been afforded all of the rights guaranteed her by the Fourteenth Amendment to the United States Constitution and dismissed her complaint. The Court of Appeals for the Eighth Circuit reversed, 538 F. 2d 1317 (1976), and a petition for rehearing en banc was denied by a divided court. 542 F. 2d 1335 (1976). We granted certiorari, 430 U. S. 964, to consider what procedures must be accorded to a student at a state educational institution whose dismissal may constitute a deprivation of “liberty” or “property” within the meaning of the Fourteenth Amendment. We reverse the judgment of the Court of Appeals. I Respondent was admitted with advanced standing to the Medical School in the fall of 1971. During the final years of a student’s education at the school, the student is required to pursue in “rotational units” academic and clinical studies pertaining to various medical disciplines such as obstetricsgynecology, pediatrics, and surgery. Each student’s academic performance at the School is evaluated on a periodic basis by the Council on Evaluation, a body composed of both faculty and students, which can recommend various actions including probation and dismissal. The recommendations of the Council are reviewed by the Coordinating Committee, a body composed solely of faculty members, and must ultimately be approved by the Dean. Students are not typically allowed to appear before either the Council or the Coordinating Committee on the occasion of their review of the student’s academic performance. In the spring of respondent’s first year of study, several faculty members expressed dissatisfaction with her clinical BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 81 78 Opinion, of the Court performance during a pediatrics rotation. The faculty members noted that respondent’s “performance was below that of her peers in all clinical patient-oriented settings,” that she was erratic in her attendance at clinical sessions, and that she lacked a critical concern for personal hygiene. Upon the recommendation of the Council on Evaluation, respondent was advanced to her second and final year on a probationary basis. Faculty dissatisfaction with respondent’s clinical performance continued during the following year. For example, respondent’s docent, or faculty adviser, rated her clinical skills as “unsatisfactory.” In the middle of the year, the Council again reviewed respondent’s academic progress and concluded that respondent should not be considered for graduation in June of that year; furthermore, the Council recommended that, absent “radical improvement,” respondent be dropped from the school. Respondent was permitted to take a set of oral and practical examinations as an “appeal” of the decision not to permit her to graduate. Pursuant to this “appeal,” respondent spent a substantial portion of time with seven practicing physicians in the area who enjoyed a good reputation among their peers. The physicians were asked to recommend whether respondent should be allowed to graduate on schedule and, if not, whether she should be dropped immediately or allowed to remain on probation. Only two of the doctors recommended that respondent be graduated on schedule. Of the other five, two recommended that she be immediately dropped from the school. The remaining three recommended that she not be allowed to graduate in June and be continued on probation pending further reports on her clinical progress. Upon receipt of these recommendations, the Council on Evaluation reaffirmed its prior position. The Council met again in mid-May to consider whether respondent should be allowed to remain in school beyond June 82 OCTOBER TERM, 1977 Opinion of the Court 435U.S. of that year. Noting that the report on respondent’s recent surgery rotation rated her performance as “low-satisfactory,” the Council unanimously recommended that “barring receipt of any reports that Miss Horowitz has improved radically, [she] not be allowed to re-enroll in the . . . School of Medicine.” The Council delayed making its recommendation official until receiving reports on other rotations; when a report on respondent’s emergency rotation also turned out to be negative, the Council unanimously reaffirmed its recommendation that respondent be dropped from the school. The Coordinating Committee and the Dean approved the recommendation and notified respondent, who appealed the decision in writing to the University’s Provost for Health Sciences. The Provost sustained the school’s actions after reviewing the record compiled during the earlier proceedings. II A To be entitled to the procedural protections of the Fourteenth Amendment, respondent must in a case such as this demonstrate that her dismissal from the school deprived her of either a “liberty” or a “property” interest. Respondent has never alleged that she was deprived of a property interest. Because property interests are creatures of state law, Perry v. Sindermann, 408 U. S. 593, 599-603 (1972), respondent would have been required to show at trial that her seat at the Medical School was a “property” interest recognized by Missouri state law. Instead, respondent argued that her dismissal deprived her of “liberty” by substantially impairing her opportunities to continue her medical education or to return to employment in a medically related field. The Court of Appeals agreed, citing this Court’s opinion in Board of Regents v. Roth, 408 U. S. 564 (1972) ? In that case, 1 Respondent concedes that petitioners have not “invoke[d] any regulations to bar” her from seeking out employment in the medical BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 83 78 Opinion of the Court we held that the State had not deprived a teacher of any liberty or property interest in dismissing the teacher from a nontenured position, but noted: “[T]here is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities.” Id., at 573. We have recently had an opportunity to elaborate upon the circumstances under which an employment termination might infringe a protected liberty interest. In Bishop v. Wood, 426 U. S. 341 (1976), we upheld the dismissal of a policeman without a hearing; we rejected the theory that the mere fact of dismissal, absent some publicizing of the reasons for the action, could amount to a stigma infringing one’s liberty: “In Board of Regents v. Roth, 408 U. S. 564, we recognized that the nonretention of an untenured college teacher might make him somewhat less attractive to other employers, but nevertheless concluded that it would field or from finishing her medical education at a different institution. Brief for Respondent 21. Cf. Board of Regents v. Roth, 408 U. S., at 573. Indeed, the Coordinating Committee in accepting the recommendation of the Council that respondent be dismissed, noted that “as with all students, should sufficient improvement take place, she could be considered for readmission to the School of Medicine.” The Court of Appeals, however, relied on the testimony of a doctor employed by the Kansas City Veterans’ Administration to the effect that respondent’s dismissal would be “a significant black mark.” On the Medical School side, it was the doctor’s view that respondent “would have great difficulty to get into another medical school, if at all.” As for employment, if two people were applying for a position with the Veterans’ Administration with “otherwise . . . equal qualifications, roughly, I would lean heavily to the other person who was not dismissed from a graduate school.” 538 F. 2d 1317, 1320-1321, n. 3 (1976). 84 OCTOBER TERM, 1977 Opinion of the Court 435U.S. stretch the concept too far ‘to suggest that a person is deprived of “liberty” when he simply is not rehired in one job but remains as free as before to seek another.’ Id., at 575. This same conclusion applies to the discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge. “In this case the asserted reasons for the City Manager’s decision were communicated orally to the petitioner in private and also were stated in writing in answer to interrogatories after this litigation commenced. Since the former communication was not made public, it cannot properly form the basis for a claim that petitioner’s interest in his ‘good name, reputation, honor, or integrity’ was thereby impaired.” Id., at 348 (footnote omitted). The opinion of the Court of Appeals, decided only five weeks after we issued our opinion in Bishop, does not discuss whether a state university infringes a liberty interest when it dismisses a student without publicizing allegations harmful to the student’s reputation. Three judges of the Court of Appeals for the Eighth Circuit dissented from the denial of rehearing en banc on the ground that “the reasons for Horowitz’s dismissal were not released to the public but were communicated to her directly by school officials.” Citing Bishop, the judges concluded that “[a]bsent such public disclosure, there is no deprivation of a liberty interest.” 542 F. 2d, at 1335. Petitioners urge us to adopt the view of these judges and hold that respondent has not been deprived of a liberty interest. B We need not decide, however, whether respondent’s dismissal deprived her of a liberty interest in pursuing a medical career. Nor need we decide whether respondent’s dismissal infringed any other interest constitutionally protected against deprivation without procedural due process. Assuming the BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 85 78 Opinion of the Court existence of a liberty or property interest, respondent has been awarded at least as much due process as the Fourteenth Amendment requires. The school fully informed respondent of the faculty’s dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment. The ultimate decision to dismiss respondent was careful and deliberate. These procedures were sufficient under the Due Process Clause of the Fourteenth Amendment. We agree with the District Court that respondent “was afforded full procedural due process by the [school]. In fact, the Court is of the opinion, and so finds, that the school went beyond [constitutionally required] procedural due process by affording [respondent] the opportunity to be examined by seven independent physicians in order to be absolutely certain that their grading of the [respondent] in her medical skills was correct.” App. 47. In Goss v. Lopez, 419 U. S. 565 (1975), we held that due process requires, in connection with the suspension of a student from public school for disciplinary reasons, “that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” Id., at 581. The Court of Appeals apparently read Goss as requiring some type of formal hearing at which respondent could defend her academic ability and performance.2 All 2 The Court of Appeals held without elaboration that the dismissal had been “effected without the hearing required by the fourteenth amendment.” 538 F. 2d, at 1321. No express indication was given as to what the minimum requirements of such a hearing would be. One can assume, however, that the contours of the hearing would be much the same as those set forth in Greenhill v. Bailey, 519 F. 2d 5 (CA8 1975), which also involved an academic dismissal and upon which the Court of Appeals principally relied. Greenhill held that the student must be “accorded an opportunity to appear personally to contest [the allegations of academic deficiency]. We stop short, however, of requiring full trial-type procedures in such situations. A graduate or professional school is, after all, 86 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. that Goss required was an “informal give-and-take” between the student and the administrative body dismissing him that would, at least, give the student “the opportunity to characterize his conduct and put it in what he deems the proper context.” Id., at 584. But we have frequently emphasized that “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961). The need for flexibility is well illustrated by the significant difference between the failure of a student to meet academic standards and the violation by a student of valid rules of conduct. This difference calls for far less stringent procedural requirements in the case of an academic dismissal.3 the best judge of its students’ academic performance and their ability to master the required curriculum. The presence of attorneys or the imposition of rigid rules of cross-examination at a hearing for a student . . . would serve no useful purpose, notwithstanding that the dismissal in question may be of permanent duration. But an ‘informal give-and-take’ between the student and the administrative body dismissing him . . . would not unduly burden the educational process and would, at least, give the student ‘the opportunity to characterize his conduct and put it in what he deems the proper context.’” Id., at 9 (footnote omitted), quoting Goss v. Lopez, 419 U. S., at 584. Respondent urges us to go even further than the Court of Appeals and require “the fundamental safeguards of representation by counsel, confrontation, and cross-examination of witnesses.” Brief for Respondent 36. 3 We fully recognize that the deprivation to which respondent was subjected—dismissal from a graduate medical school—was more severe than the 10-day suspension to which the high school students were subjected in Goss. And a relevant factor in determining the nature of the requisite due process is “the private interest that [was] affected by the official action.” Mathews n. Eldridge, 424 U. S. 319, 335 (1976). But the severity of the deprivation is only one of several factors that must be weighed in deciding the exact due process owed. Ibid. We conclude that considering all relevant factors, including the evaluative nature of the inquiry and the significant and historically supported interest of the school in preserving its present framework for academic evaluations, a hearing is not required by the Due Process Clause of the Fourteenth Amendment. BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 87 78 Opinion of the Court Since the issue first arose 50 years ago, state and lower federal courts have recognized that there are distinct differences between decisions to suspend or dismiss a student for disciplinary purposes and similar actions taken for academic reasons which may call for hearings in connection with the former but not the latter. Thus, in Barnard v. Inhabitants of Shelburne, 216 Mass. 19, 102 N. E. 1095 (1913), the Supreme Judicial Court of Massachusetts rejected an argument, based on several earlier decisions requiring a hearing in disciplinary contexts, that school officials must also grant a hearing before excluding a student on academic grounds. According to the court, disciplinary cases have “no application. . . . Misconduct is a very different matter from failure to attain a standard of excellence in studies. A determination as to the fact involves investigation of a quite different kind. A public hearing may be regarded as helpful to the ascertainment of misconduct and useless or harmful in finding out the truth as to scholarship.” Id., at 22-23, 102 N. E., at 1097. A similar conclusion has been reached by the other state courts to consider the issue. See, e. g., Mustell v. Rose, 282 Ala. 358, 367, 211 So. 2d 489, 498, cert, denied, 393 U. S. 936 (1968); cf. Foley v. Benedict, 122 Tex. 193, 55 S. W. 2d 805 (1932). Indeed, until the instant decision by the Court of Appeals for the Eighth Circuit, the Courts of Appeals were also unanimous in concluding that dismissals for academic (as opposed to disciplinary) cause do not necessitate a hearing before the school’s decisionmaking body. See Mahavongsanan v. Hall, 529 F. 2d 448 (CA5 1976);4 Gaspar v. Bruton, 513 4 “The district court’s grant of relief is based on a confusion of the court’s power to review disciplinary actions by educational institutions on the one hand, and academic decisions on the other hand. This Court has been in the vanguard of the legal development of due process protections for students ever since Dixon n. Alabama State Board of Education, 5 Cir. 1961, 294 F. 2d 150, cert, denied 1961, 368 U. S. 930 ... . However, 88 OCTOBER TERM, 1977 Opinion of the Court 435U.S. F. 2d 843 (CAIO 1975).5 These prior decisions of state and federal courts, over a period of 60 years, unanimously holding that formal hearings before decisionmaking bodies need not be held in the case of academic dismissals, cannot be rejected lightly. Cf. Snyder v. Massachusetts, 291 U. S. 97, 118-119, 131-132 (1934); Powell v. Alabama, 287 U. S. 45, 69-71 (1932); Jackman v. Rosenbaum Co., 260 U. S. 22, 31 (1922). Reason, furthermore, clearly supports the perception of these decisions. A school is an academic institution, not a courtroom or administrative hearing room. In Goss, this Court felt that suspensions of students for disciplinary reasons have a sufficient resemblance to traditional judicial and ad-the due process requirements of notice and hearing developed in the Dixon line of cases have been carefully limited to disciplinary decisions. When we explained that 'the student at the tax supported institution cannot be arbitrarily disciplined without the benefit of the ordinary, well recognized principles of fair play’, we went on to declare that '[w]e know of no case which holds that colleges and universities are subject to the supervision or review of the courts in the uniform application of their academic standards. Indeed, Dixon infers to the contrary.’ Wright v. Texas Southern University, 5 Cir. 1968, 392 F. 2d 728, 729. Misconduct and failure to attain a standard of scholarship cannot be equated. A hearing may be required to determine charges of misconduct, but a hearing may be useless or harmful in finding out the truth concerning scholarship. There is a clear dichotomy between a student’s due process rights in disciplinary dismissals and in academic dismissals.” 529 F. 2d, at 449-450. 5 In Greenhill n. Bailey, supra, the Court of Appeals held that a hearing had been necessary where a medical school not only dismissed a student for academic reasons but also sent a letter to the Liaison Committee of the Association of the American Medical Colleges suggesting that the student either lacked “intellectual ability” or had insufficiently prepared his course work. The court specifically noted that “there has long been a distinction between cases concerning disciplinary dismissals, on the one hand, and academic dismissals, on the other” and emphasized that it did not wish to “blur that distinction.” 519 F. 2d, at 8. In the court’s opinion, the publicizing of an alleged deficiency in the student’s intellectual ability removed the case from the typical instance of academic dismissal and called for greater procedural protections. Cf. Bishop n. Wood, 426 U. S. 341 (1976). BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 89 78 Opinion of the Court ministrative factfinding to call for a “hearing” before the relevant school authority. While recognizing that school authorities must be afforded the necessary tools to maintain discipline, the Court concluded: *‘[I]t would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done. “•[R] equiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect.” 419 U. S., at 580, 583-584. Even in the context of a school disciplinary proceeding, however, the Court stopped short of requiring a formal hearing since “further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as a part of the teaching process.” Id., at 583. Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative factfinding proceedings to which we have traditionally attached a full-hearing requirement. In Goss, the school’s decision to suspend the students rested on factual conclusions that the individual students had participated in demonstrations that had disrupted classes, attacked a police officer, or caused physical damage to school property. The requirement of a hearing, where the student could present his side of the factual issue, could under such circumstances “provide a meaningful hedge against erroneous action.” Ibid. The decision to dismiss respondent, by comparison, rested on the academic judgment of school officials that she did not have 90 OCTOBER TERM, 1977 Opinion of the Court 435U.S. the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal. Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of-judicial or administrative decisionmaking. Under such circumstances, we decline to ignore the historic judgment of .educators and thereby formalize the academic dismissal process by requiring a hearing. The educational process is not by nature adversary; instead it centers around a continuing relationship between faculty and students, “one in which the teacher must occupy many roles—educator, adviser, friend, and, at times, parent-substitute.” Goss v. Lopez, 419 U. S., at 594 (Powell, J., dissenting). This is especially true as one advances through the varying regimes of the educational system, and the instruction becomes both more individualized and more specialized. In Goss, this Court concluded that the value of some form of hearing in a disciplinary context outweighs any resulting harm to the academic environment. Influencing this conclusion was clearly the belief that disciplinary proceedings, in which the teacher must decide whether to punish a student for disruptive or insubordinate behavior, may automatically bring an adversary flavor to the normal student-teacher relationship. The same conclusion does not follow in the academic context. We decline to further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship. We recognize, as did the Massachusetts Supreme Judicial Court over 60 years ago, that a hearing may be “useless or harmful in finding out the truth as to scholarship.” Barnard v. Inhabitants of Shelburne, 216 Mass., at 23,102 N. E., at 1097. BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 91 78 Opinion of the Court “Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities.” Epperson v. Arkansas, 393 U. S. 97, 104 (1968). We see no reason to intrude on that historic control in this case.6 Ill In reversing the District Court on procedural due process grounds, the Court of Appeals expressly failed to “reach the substantive due process ground advanced by Horowitz.” 538 F. 2d, at 1321 n. 5. Respondent urges that we remand the cause to the Court of Appeals for consideration of this additional claim. In this regard, a number of lower courts have implied in dictum that academic dismissals from state institutions can be enjoined if “shown to be clearly arbitrary or capricious.” Mahavongsanan v. Hall, 529 F. 2d, at 449. See Gaspar v. Bruton, 513 F. 2d, at 850, and citations therein. Even assuming that the courts can review under such a standard an academic decision of a public educational 6 Respondent contends in passing that she was not dismissed because of “clinical incompetence,” an academic inquiry, but for disciplinary reasons similar to those involved in Goss. Thus, as in Goss, a hearing must be conducted. In this regard, respondent notes that the school warned her that significant improvement was needed not only in the area of clinical performance but also in her personal hygiene and in keeping to her clinical schedules. The record, however, leaves no doubt that respondent was dismissed for purely academic reasons, a fact assumed without discussion by the lower courts. Personal hygiene and timeliness may be as important factors in a school’s determination of whether a student will make a good medical doctor as the student’s ability to take a case history or diagnose an illness. Questions of personal hygiene and timeliness, of course, may seem more analogous to traditional factfinding than other inquiries that a school may make in academically evaluating a student. But in so evaluating the student, the school considers and weighs a variety of factors, not all of which, as noted earlier, are adaptable to the factfinding hearing. And the critical faculty-student relationship may still be injured if a hearing is required. 92 OCTOBER TERM, 1977 Powell, J., concurring 435U.S. institution, we agree with the District Court that no showing of arbitrariness or capriciousness has been made in this case.7 Courts are particularly ill-equipped to evaluate academic performance. The factors discussed in Part II with respect to procedural due process speak a fortiori here and warn against any such judicial intrusion into academic decisionmaking.8 The judgment of the Court of Appeals is therefore Reversed. Mr. Justice Powell, concurring. I join the Court’s opinion because I read it as upholding the District Court’s view that respondent was dismissed for academic deficiencies rather than for unsatisfactory personal 7 Respondent alleges that the school applied more stringent standards in evaluating her performance than that of other students because of her sex, religion, and physical appearance. The District Court, however, found: “There was no evidence that [respondent] was in any manner evaluated differently from other students because of her sex or because of her religion. With regard to [respondent’s] physical appearance, this in and of itself did not cause [her] to be evaluated any differently than any of the other students.” App. 45. 8 Respondent also contends that petitioners failed to follow their own rules respecting evaluation of medical students and that this failure amounted to a constitutional violation under Service v. Dulles, 354 U. S. 363 (1957). We disagree with both respondent’s factual and legal contentions. As for the facts, the record clearly shows that the school followed its established rules, except where new rules had to be designed in an effort to further protect respondent, as with the practical “appeal” that petitioners allowed respondent to take. The District Court specifically found that “the progress status of [respondent] in the medical school was evaluated in a manner similar to and consistent with the evaluation of other similarly situated students, with the exception that [respondent’s] docent . . . went to even greater lengths to assist [respondent] in an effort for her to obtain her M. D. degree, than he did for any of his other students.” App. 45. As for the legal conclusion that respondent draws, both Service and Accardi v. Shaughnessy, 347 U. S. 260 (1954), upon which Service relied, enunciate principles of federal administrative law rather than of constitutional law binding upon the States. BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 93 78 Powell, J., concurring conduct, and that in these circumstances she was accorded due process. In the numerous meetings and discussions respondent had with her teachers and advisers, see opinion of Mr. Justice Marshall, post, at 98-99, culminating in the special clinical examination administered by seven physicians,1 a/nte, at 81, respondent was warned of her clinical deficiencies and given every opportunity to demonstrate improvement or question the evaluations. The primary focus of these discussions and examinations was on respondent’s competence as a physician. Mr. Justice Marshall nevertheless states that respondent’s dismissal was based “largely” on “her conduct”: “It may nevertheless be true, as the Court implies, ante, at 91 n. 6, that the school decided that respondent’s inadequacies in such areas as personal hygiene, peer and patient relations, and timeliness would impair her ability to be ‘a good medical doctor.’ Whether these inadequacies can be termed ‘purely academic reasons,’ as the Court calls them, ibid., is ultimately an irrelevant question, and one placing an undue emphasis on words rather than functional considerations. The relevant point is that 1 As a safeguard against erroneous judgment, and at respondent’s request, App. 185, the Medical School submitted the question of respondent’s clinical competency to a panel of “seven experienced physicians.” Panel members were requested “to provide a careful, detailed, and thorough assessment of [respondent’s] abilities at this time.” Ibid. The Dean’s letter to respondent of March 15, 1973, advised her quite specifically of the “general topic [s] in the curriculum about which we are asking [the panel] to evaluate your performance . . . .” Ibid. Each member of the examining panel was requested to “evaluate the extent of [respondent’s] mastery of relevant concepts, knowledge, skills, and competence to function as a physician.” Id., at 209. The examinations by members of the panel were conducted separately. Two of the doctors recommended that respondent be graduated although one added that “she would not qualify to intern at the hospital where he worked.” Id., at 40. Each of the other five doctors submitted negative recommendations, although they varied as to whether respondent should be dropped from school immediately. Ibid. 94 OCTOBER TERM, 1977 Powell, J., concurring 435U.S. respondent was dismissed largely because of her conduct, just as the students in Goss were suspended because of their conduct.” Post, at 104 (emphasis added; footnotes omitted). This conclusion is explicitly contrary to the District Court’s undisturbed findings of fact. In one sense, the term “conduct” could be used to embrace a poor academic performance as well as unsatisfactory personal conduct. But I do not understand Mr. Justice Marshall to use the term in that undifferentiated sense.2 His opinion likens the dismissal of respondent to the suspension of the students in Goss v. Lopez, 419 U. S. 565 (1975), for personal misbehavior. There is evidence that respondent’s personal conduct may have been viewed as eccentric, but—quite unlike the suspensions in Goss—respondent’s dismissal was not based on her personal behavior. The findings of the District Court conclusively show that respondent was dismissed for failure to meet the academic standards of the Medical School. The court, after reviewing the evidence in some detail, concluded: “The evidence presented in this case totally failed to 2 Indeed, in view of Mr. Justice Marshall’s apparent conclusion that respondent was dismissed because of some objectively determinable conduct, it is difficult to understand his conclusion that the special examination administered by the seven practicing physicians “may have been, better than ... a formal hearing.” Post, at 102. That examination did not purport to determine whether, in the past, respondent had engaged in conduct that would warrant dismissal. Respondent apparently was not called upon to argue that she had not done certain things in the past. There were no facts found on that point. Nor did the doctors who administered the examination address themselves to respondent’s conduct at the time, apart from her ability to perform the clinical tasks physicians must master. Mr. Justice Marshall says that this evaluation tested the truth of the assertions that respondent could not function as a doctor. Post, at 102-103, n. 14. This is a tacit recognition that the issue was an academic one, rather than one limited to whether respondent simply engaged in improper conduct. BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 95 78 Powell, J., concurring establish that plaintiff [respondent] was expelled for any reason other than the quality of her work.” App. 44.3 It is well to bear in mind that respondent was attending a medical school where competence in clinical courses is as much of a prerequisite to graduation as satisfactory grades in other courses. Respondent was dismissed because she was as deficient in her clinical work as she was proficient in the “booklearning” portion of the curriculum.4 Evaluation of her performance in the former area is no less an “academic” judgment because it involves observation of her skills and techniques in actual conditions of practice, rather than assigning a grade to her written answers on an essay question.5 3 The District Court also found: “Considering all of the evidence presented, the Court finds that the grading and evaluating system of the medical school was applied fairly and reasonably to plaintiff, but plaintiff did not satisfy the requirements of the medical school to graduate from the medical school in June 1973.” App. 45. 4 Dr. William Sirridge was the faculty member assigned to respondent as her “chief docent” (faculty adviser). A portion of his testimony was summarized by the District Court as follows: “He [Dr. Sirridge] emphasized that plaintiff’s [respondent’s] problem was that she thought she could learn to be a medical doctor by reading books, and he advised her [that] the clinical skills were equally as important for obtaining the M. D. degree. He further testified that plaintiff cannot perform many of the necessary basic skills required of a practicing physician . . ..” Id., at 35. 5 Mr. Justice Marshall insists that calling this an academic judgment is an exercise in futility. Post, at 104-105, n. 18. As the Court points out, however, the distinction between dismissal for academic deficiency and dismissal for misconduct may be decisive as to the process that is due. Ante, at 89-90. A decision relating to the misconduct of a student requires a factual determination as to whether the conduct took place or not. The accuracy of that determination can be safeguarded by the sorts of procedural protections traditionally imposed under the Due Process Clause. An academic judgment also involves this type of objectively determinable fact—e. g., whether the student gave certain answers on an examination. But the critical decision requires a subjective, expert evaluation as to 96 OCTOBER TERM, 1977 Opinion of White, J. 435U.S. Because it is clear from the findings of fact by the District Court that respondent was dismissed solely on academic grounds, and because the standards of procedural due process were abundantly met before dismissal occurred,* 6 I join the Court’s opinion. Mr. Justice White, concurring in part and concurring in the judgment. I join Parts I, II-A, and III of the Court’s opinion and concur in the judgment. I agree with my Brother Blackmun that it is unnecessary to decide whether respondent had a constitutionally protected property or liberty interest or precisely what minimum procedures were required to divest her of that interest if it is assumed she had one. Whatever that minimum is, the procedures accorded her satisfied or exceeded that minimum. The Court nevertheless assumes the existence of a protected interest, proceeds to classify repondent’s expulsion as an “academic dismissal,” and concludes that no hearing of any kind or any opportunity to respond is required in connection with such an action. Because I disagree with this conclusion, whether that performance satisfies some predetermined standard of academic competence. That standard, in turn, is set by a similarly expert judgment. These evaluations, which go far beyond questions of mere “conduct,” are not susceptible of the same sorts of procedural safeguards that are appropriate to determining facts relating to misconduct. Thus, the conclusion that a particular dismissal is academic—that it entails these expert evaluations—is likely to have controlling significance in determining how much and what sort of process is due. 6 University faculties must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation. Contrary to the suggestion of* Mr. Justice Marshall, post, at 104—105, n. 18, the fact that a particular procedure is possible or available does not mean that it is required under the Due Process Clause. Goss v. Lopez, 419 U. S. 565 (1975), simply does not speak to that point. BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 97 78 Opinion of Marshall, J. I feel constrained to say so and to concur only in the judgment. As I see it, assuming a protected interest, respondent was at the minimum entitled to be informed of the reasons for her dismissal and to an opportunity personally to state her side of the story. Of course, she had all this, and more. I also suspect that expelled graduate or college students normally have the opportunity to talk with their expellers and that this sort of minimum requirement will impose no burden that is not already being shouldered and discharged by responsible institutions. Mr. Justice Marshall, concurring in part and dissenting in part. I agree with the Court that, “[a]ssuming the existence of a liberty or property interest, respondent has been awarded at least as much due process as the Fourteenth Amendment requires.” Ante, at 84—85. I cannot join the Court’s opinion, however, because it contains dictum suggesting that respondent was entitled to even less procedural protection than she received. I also differ from the Court in its assumption that characterization of the reasons for a dismissal as “academic” or “disciplinary” is relevant to resolution of the question of what procedures are required by the Due Process Clause. Finally, I disagree with the Court’s decision not to remand to the Court of Appeals for consideration of respondent’s substantive due process claim. I We held in Goss v. Lopez, 419 U. S. 565 (1975), that “due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” Id., at 581. 98 OCTOBER TERM, 1977 Opinion of Marshall, J. 435U.S. There is no question that respondent received these protections, and more.1 According to the stipulation of facts filed in the District Court, respondent had a “discussion” with the Dean of the Medical School in mid-1972, at the close of her first year in school, during which she was notified of her unsatisfactory performance.1 2 The Dean testified that he explained the nature of her problems co respondent twice at this meeting, so that she would fully understand them.3 A letter from the Dean followed shortly thereafter, in which respondent was advised that she was being placed on probation because of, inter alia, “a major deficiency” in her “relationships with others,” and her failure to “keefp] to established schedules” and “attenfd] carefully to personal appearance.”4 The Dean again met with respondent in October 1972 “to call attention in a direct and supportive way to the fact that her performance was not then strong.” 5 In January 1973, there was still another meeting between respondent and the Dean, who was accompanied by respondent’s docent and the chairman of the Council on Evaluation. Respondent was there notified of the Council’s recommendation that she not graduate and that she be dropped from school unless there was “radical improvement” in her “clinical competence, peer and patient relations, personal hygiene, and ability to accept criticism.”6 A letter from the Dean again 1 It is necessary to recount the facts underlying this conclusion in some detail, because the Court’s opinion does not provide the relevant facts with regard to the notice and opportunity to reply given to respondent. 2 App. 15. It is likely that respondent was less formally notified of these deficiencies several months earlier, in March 1972. See id., at 100-101 (testimony of respondent’s docent). 8 Id., at 146. *Id., at 15-16. 5 Id., at 147. 6 Id., at 18. BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 99 78 Opinion of Marshall, J. followed the meeting; the letter summarized respondent’s problem areas and noted that they had been discussed with her “several times.” 7 These meetings and letters plainly gave respondent all that Goss requires: several notices and explanations, and at least three opportunities “to present [her] side of the story.” 419 U. S., at 581. I do not read the Court’s opinion to disagree with this conclusion. Hence I do not understand why the Court indicates that even the “informal give-and-take” mandated by Goss, id., at 584, need not have been provided here. See ante, at 85-86, 89-91. This case simply provides no legitimate opportunity to consider whether “far less stringent procedural requirements,” ante, at 86, than those required in Goss are appropriate in other school contexts. While I disagree with the Court’s conclusion that “far less” is adequate, as discussed infra, it is equally disturbing that the Court decides an issue not presented by the case before us. As Mr. Justice Brandeis warned over 40 years ago, the “ ‘great gravity and delicacy’ ” of our task in constitutional cases should cause us to “ ‘shrink’ ” from “ ‘anticipat [ing] a question of constitutional law in advance of the necessity of deciding it,’ ” and from “ ‘formulatfing] a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ ” Ashwander v. TV A, 297 U. S. 288, 345-347 (1936) (concurring opinion). II In view of the Court’s dictum to the effect that even the minimum procedures required in Goss need not have been provided to respondent, I feel compelled to comment on the extent of procedural protection mandated here. I do so within a framework largely ignored by the Court, a framework derived from our traditional approach to these problems. According to our prior decisions, as summarized in Mathews n. i Id., at 182-183. 100 OCTOBER TERM, 1977 Opinion of Marshall, J. 435U.S. Eldridge, 424 U. S. 319 (1976), three factors are of principal relevance in determining what process is due: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., at 335. As the Court recognizes, the “private interest” involved here is a weighty one: “the deprivation to which respondent was subjected—dismissal from a graduate medical school— was more severe than the 10-day suspension to which the high school students were subjected in Goss.” Ante, at 86 n. 3. One example of the loss suffered by respondent is contained in the stipulation of facts: Respondent had a job offer from the psychiatry department of another university to begin work in September 1973; the offer was contingent on her receiving the M. D. degree.8 In summary, as the Court of Appeals noted: “The unrefuted evidence here establishes that Horowitz has been stigmatized by her dismissal in such a way that she will be unable to continue her medical education, and her chances of returning to employment in a medically related field are severely damaged.” 538 F. 2d 1317, 1321 (CA8 1976). As Judge Friendly has written in a related context, when the State seeks “to deprive a person of a way of life to which [s]he has devoted years of preparation and on which [s]he ... ha[s] come to rely,” it should be required first to provide a “high level of procedural protection.” 9 8 Id., at 16. 9 “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267, 1296-1297 (1975) (revocation of professional licenses). BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 101 78 Opinion of Marshall, J. Neither of the other two factors mentioned in Mathews justifies moving from a high level to the lower level of protection involved in Goss. There was at least some risk of error inherent in the evidence on which the Dean relied in his meetings with and letters to respondent; faculty evaluations of such matters as personal hygiene and patient and peer rapport are neither as “sharply focused” nor as “easily documented” as was, e. g., the disability determination involved in Mathews, supra, at 343. See Goss v. Lopez, 419 U. S., at 580 (when decisionmaker “act[s] on the reports and advice of others ... [t]he risk of error is not at all trivial”).10 11 Nor can it be said that the university had any greater interest in summary proceedings here than did the school in Goss. Certainly the allegedly disruptive and disobedient students involved there, see id., at 569-571, posed more of an immediate threat to orderly school administration than did respondent. As we noted in Goss, moreover, “it disserves . . . the interest of the State if [the student’s] suspension is in fact unwarranted.” Id., at 579.11 Under these circumstances— with respondent having much more at stake than did the students in Goss, the administration at best having no more at stake, and the meetings between respondent and the Dean leaving some possibility of erroneous dismissal—I believe that respondent was entitled to more procedural protection than is provided by “informal give-and-take” before the school could dismiss her. The contours of the additional procedural protection to which respondent was entitled need not be defined in terms of the traditional adversary system so familiar to lawyers and 10 The inquiry about risk of error cannot be separated from the first inquiry about the private interest at stake. The more serious the consequences for the individual, the smaller the risk of error that will be acceptable. 11 The statements and letters of the Medical School Dean reflect a genuine concern that respondent not be wrongfully dismissed. See App. 147-150, 180-183, 185-187. 102 OCTOBER TERM, 1977 Opinion of Marshall, J. 435 U. S. judges. See Mathews v. Eldridge, 424 U. S., at 348. We have emphasized many times that “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961); see, e. g., ante, at 86; Goss v. Lopez, supra, at 578. In other words, what process is due will vary “according to specific factual contexts.” Hannah v. Larche, 363 U. S. 420, 442 (1960); see, e. g., Mathews v. Eldridge, supra, at 334; Morrissey v. Brewer, 408 U. S. 471,481 (1972); Bell v. Burson, 402 U. S. 535, 540 (1971). See also* Anti-Fascist Comm. v. McGrath, 341 U. S. 123, 162-163 (1951) (Frankfurter, J., concurring). In the instant factual context the “appeal” provided to respondent, see ante, at 81, served the same purposes as, and in some respects may have been better than, a formal hearing. In establishing the procedure under which respondent was evaluated separately by seven physicians who had had little or no previous contact with her, it appears that the Medical School placed emphasis on obtaining “a fair and neutral and impartial assessment.”12 In order to evaluate respondent, each of the seven physicians spent approximately half a day observing her as she performed various clinical duties and then submitted a report on her performance to the Dean.13 It is difficult to imagine a better procedure for determining whether the school’s allegations against respondent had any substance to them.14 Cf. Mathews v. Eldridge, supra, at 12 Id., at 150 (testimony of Dean); see id., at 185, 187, 208, 210 (letters to respondent and seven physicians). 13 See id., at 190-207. 14 Respondent appears to argue that her sex and her religion were underlying reasons for her dismissal and that a hearing would have helped to resolve the “factual dispute” between her and the school on these issues. Brief for Respondent 30; see id., at 51-52. See also ante, at 92 n. 7. But the only express grounds for respondent’s dismissal related to deficiencies in personal hygiene, patient rapport, and the like, and, as a matter of procedural due process, respondent was entitled to no more than a BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 103 78 Opinion of Marshall, J. 337-338, 344 (use of independent physician to examine disability applicant and report to decisionmaker). I therefore believe that the appeal procedure utilized by respondent, together with her earlier notices from and meetings with the Dean, provided respondent with as much procedural protection as the Due Process Clause requires.15 Ill The analysis in Parts I and II of this opinion illustrates that resolution of this case under our traditional approach does not turn on whether the dismissal of respondent is characterized as one for “academic” or “disciplinary” reasons. In my view, the effort to apply such labels does little to advance the due process inquiry, as is indicated by examination of the facts of this case. The minutes of the meeting at which it was first decided that respondent should not graduate contain the following: “This issue is not one of academic achievement, but of performance, relationship to people and ability to communicate.” App; 218 (emphasis added). By the customary measures of academic progress, moreover, no deficiency was apparent at the time that the authorities decided respondent could not graduate; prior to this time, according to the stipulation of facts, respondent had received forum to contest the factual underpinnings of these grounds. The appeal procedure here gave respondent such a forum—an opportunity to demonstrate that the school’s charges were “unfair or mistaken,” Goss v. Lopez, 419 U. S. 565, 581 (1975). 15 Like a hearing, the appeal procedure and the meetings “represent [ed] ... a valued human interaction in which the affected person experience^] at least the satisfaction of participating in the decision that vitally concern [ed] her .... [T]hese rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one.” L. Tribe, American Constitutional Law § 10-7, p. 503 (1978) (emphasis in original). 104 OCTOBER TERM, 1977 Opinion of Marshall, J. 435U.S. “credit” and “satisfactory grades” in all of her courses, including clinical courses.16 It may nevertheless be true, as the Court implies, ante, at 91 n. 6, that the school decided that respondent’s inadequacies in such areas as personal hygiene, peer and patient relations, and timeliness would impair her ability to be “a good medical doctor.” Whether these inadequacies can be termed “purely academic reasons,” as the Court calls them, ibid., is ultimately an irrelevant question, and one placing an undue emphasis on words rather than functional considerations. The relevant point is that respondent was dismissed largely because of her conduct,17 just as the students in Goss were suspended because of their conduct.18 16App. 12. Respondent later received “no credit” for her emergencyroom rotation, the only course in which her grade was less than satisfactory. Ibid. This grade was not recorded, according to the District Court, until after the decision had been made that respondent could not graduate. Id., at 31. When the Coordinating Committee made this decision, moreover, it apparently had not seen any evaluation of respondent’s emergency-room performance. See id., at 229 (minutes of Coordinating Committee meeting). 17 Only one of the reasons voiced by the school for deciding not to graduate respondent had any arguable nonconduct aspects, and that reason, “clinical competence,” was plainly related to perceived deficiencies in respondent’s personal hygiene and relationships with colleagues and patients. See id., at 219. See also id., at 181, 182-183, 210. 18 The futility of trying to draw a workable distinction between “academic” and “disciplinary” dismissals is further illustrated by my Brother Powell’s concurring opinion. The opinion states that the conclusion in the text supra, “is explicitly contrary to the District Court’s undisturbed findings of fact,” ante, at 94, but it cites no District Court finding indicating that respondent’s dismissal was based on other than conduct-related considerations. No such finding exists. The District Court’s statement that respondent was dismissed because of “ 'the quality of her work,’ ” quoted ante, at 95, like statements to the effect that the dismissal was “solely on academic grounds,” ante, at 96, is ultimately irrelevant to the due process inquiry. It provides no information on the critical question whether “the facts disputed are of a type susceptible of determination by third parties.” Infra, at 106. Nor does BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 105 78 Opinion of Marshall, J. The Court makes much of decisions from state and lower federal courts to support its point that “dismissals for academic . . . cause do not necessitate a hearing.” Ante, at 87. The decisions on which the Court relies, however, plainly use the term “academic” in a much narrower sense than does the Court, distinguishing “academic” dismissals from ones based on “misconduct” and holding that, when a student is dismissed for failing grades, a hearing would serve no purpose.19 These cases may be viewed as consistent with the District Court’s finding that “‘the grading and evaluating system of the medical school was applied fairly,’ ” quoted ante, at 95 n. 3, advance resolution of this case, especially in view of the fact, noted supra, that respondent’s grades in clinical courses, as in all other courses, were satisfactory when the decision was made that she could not graduate. This fact further indicates, contrary to Mr. Justice Powell’s intimation, ante, at 95, that the school found the deficiencies in respondent’s clinical performance to be different from the deficiencies that lead to unsatisfactory grades in more traditional scholastic subjects. Mr. Justice Powell is correct, of course, in suggesting that the kind of conduct here involved is different from that involved in Goss v. Lopez, supra. Ante, at 94, and n. 2. The question facing the Medical School authorities was not solely whether respondent had misbehaved in the past, but rather whether her past, present, and likely future conduct indicated that she would not be “a good medical doctor,” ante, at 91 n. 6. The appeal procedure of the school was well suited to aid in resolution of this question, since it involved “observation of her skills and techniques in actual conditions of practice,” ante, at 95. It matters not at all whether the result of such observation is labeled “an ‘academic’ judgment,” ibid., so long as it is recognized that the school authorities, having an efficient procedure available to determine whether their decision to dismiss respondent was “unfair or mistaken,” Goss v. Lopez, supra, at 581, were constitutionally required to give respondent a chance to invoke the procedure, as they did, before depriving her of a substantial liberty or property interest. See supra, at 100-102. 19 See Mahavongsanan v. Hall, 529 F. 2d 448, 450 (CA5 1970); Gaspar v. Bruton, 513 F. 2d 843, 849-851 (CAIO 1975); Mustell v. Rose, 282 Ala. 358, 367, 211 So. 2d 489, 497-498, cert, denied, 393 U. S. 936 (1968); Barnard v. Inhabitants of Shelburne, 216 Mass. 19, 19-20, 22-23, 102 N. E. 1095, 1096-1097 (1913). 106 OCTOBER TERM, 1977 Opinion of Marshall, J. 435U.S. our statement in Mathews v. Eldridge that “the probable value ... of additional. . . procedural safeguards” is a factor relevant to the due process inquiry. 424 U. S., at 335, quoted supra, at 100; see 424 U. S., at 343-347. But they provide little assistance in resolving cases like the present one, where the dismissal is based not on failing grades but on conduct-related considerations.20 In such cases a talismanic reliance on labels should not be a substitute for sensitive consideration of the procedures required by due process.21 When the facts disputed are of a type susceptible of determination by third parties, as the allegations about respondent plainly were, see ante, at 91 n. 6, there is no more reason to deny all procedural protection to one who will suffer a serious loss than there was in Goss v. Lopez, and indeed there may be good reason to provide even more protection, as discussed in Part II, supra. A court’s 20 See Brookins v. Bonnell, 362 F. Supp. 379, 383 (ED Pa. 1973): “This case is not the traditional disciplinary situation where a student violates the law or a school regulation by actively engaging in prohibited activities. Plaintiff has allegedly failed to act and comply with school regulations for admission and class attendance by passively ignoring these regulations. These alleged failures do not constitute misconduct in the sense that plaintiff is subject to disciplinary procedures. They do constitute misconduct in the sense that plaintiff was required to do something. Plaintiff contends that he did comply with the requirements. Like the traditional disciplinary case, the determination of whether plaintiff did or did not comply with the school regulations is a question of fact. Most importantly, in determining this factual question, reference is not made to a standard of achievement in an esoteric academic field. Scholastic standards are not involved, but rather disputed facts concerning whether plaintiff did or did not comply with certain school regulations. These issues adapt themselves readily to determination by a fair and impartial 'due process’ hearing.” 21 The Court’s reliance on labels, moreover, may give those school administrators who are reluctant to accord due process to their students an excuse for not doing so. See generally Kirp, Proceduralism and Bureaucracy: Due Process in the School Setting, 28 Stan. L. Rev. 841 (1976). BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 107 78 Opinion of Marshall, J. characterization of the reasons for a student’s dismissal adds nothing to the effort to find procedures that are fair to the student and the school, and that promote the elusive goal of determining the truth in a manner consistent with both individual dignity and society’s limited resources. IV While I agree with the Court that respondent received adequate procedural due process, I cannot join the Court’s judgment because it is based on resolution of an issue never reached by the Court of Appeals. That court, taking a properly limited view of its role in constitutional cases, refused to offer dictum on respondent’s substantive due process claim when it decided the case on procedural due process grounds. See 538 F. 2d, at 1321 n. 5, quoted ante, at 91. Petitioners therefore presented to us only questions relating to the procedural issue. Pet. for Cert. 2. Our normal course in such a case is to reverse on the questions decided below and presented in the petition, and then to remand to the Court of Appeals for consideration of any remaining issues. Rather than taking this course, the Court here decides on its own that the record will not support a substantive due process claim, thereby “agree [ing]” with the District Court. Ante, at 92. I would allow the Court of Appeals to provide the first level of appellate review on this question. Not only would a remand give us the benefit of the lower court’s thoughts,22 it 22 It would be useful, for example, to have more careful assessments of whether the school followed its own rules in dismissing respondent and of what the legal consequences should be if it did not. The Court states that it “disagree[s] with both respondent’s factual and legal contentions.” Ante, at 92 n. 8. It then asserts that “the record clearly shows” compliance with the rules, ibid., but it provides neither elaboration of this conclusion nor discussion of the specific ways in which respondent contends that the rules were not followed, Brief for Respondent 42-46, contentions accompanied by citations to the same record that the Court finds so “clear.” The statement of the District Court quoted by the Court, ante, 108 OCTOBER TERM, 1977 Opinion of Blackmun, J. 435U.S. would also allow us to maintain consistency with our own Rule 23 (l)(c), which states that “[o]nly the questions set forth in the petition or fairly comprised therein will be considered by the court.” By bypassing the courts of appeals on questions of this nature, we do no service to those courts that refuse to speculate in dictum on a wide range of issues and instead follow the more prudential, preferred course of avoiding decision—particularly constitutional decision—until “ 'absolutely necessary’ ” to resolution of a case. Ashwander v. TV A, 297 U. S., at 347 (Brandeis, J., concurring). I would reverse the judgment of the Court of Appeals and remand for further proceedings. Mr. Justice Blackmun, with whom Mr. Justice Brennan joins, concurring in part and dissenting in part. The Court’s opinion, and that of Mr. Justice Marshall, together demonstrate conclusively that, assuming the existence of a liberty or property interest, respondent received all the procedural process that was due her under the Fourteenth at 92 n. 8, is not inconsistent on its face with respondent’s claim that the rules were not followed, nor is there anything about the context of the statement to indicate that it was addressed to this claim, see App. 45. Review by the Court of Appeals would clarify these factual issues, which rarely warrant the expenditure of this Court’s time. If the Court’s view of the record is correct, however, then I do not understand why the Court goes on to comment on the legal consequences of a state of facts that the Court has just said does not exist. Like other aspects of the Court’s opinion, discussed supra, the legal comments on this issue are nothing more than confusing dictum. It is true, as the Court notes, ante, at 92 n. 8, that the decision from this Co.urt cited by respondent was not expressly grounded in the Due Process Clause. Service v. Dudes, 354 U. S. 363 (1957). But that fact, which amounts to the only legal analysis offered by the Court on this question, hardly answers respondent’s point that some compliance with previously established rules—particularly rules providing procedural safeguards—is constitutionally required before the State or one of its agencies may deprive a citizen of a valuable liberty or property interest. BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ 109 78 Opinion of Blackmun, J. Amendment. That, for me, disposes of this case, and compels the reversal of the judgment of the Court of Appeals. I find it unnecessary, therefore, to indulge in the arguments and counterarguments contained in the two opinions as to the extent or type of procedural protection that the Fourteenth Amendment requires in the graduate-school-dismissal situation. Similarly, I also find it unnecessary to choose between the arguments as to whether respondent’s dismissal was for academic or disciplinary reasons (or, indeed, whether such a distinction is relevant). I do agree with Mr. Justice Marshall, however, that we should leave to the District Court and to the Court of Appeals in the first instance the resolution of respondent’s substantive due process claim and of any other claim presented to, but not decided by, those courts. Accordingly, I, too, would reverse the judgment of the Court of Appeals and remand the case for further proceedings. 110 OCTOBER TERM, 1977 Syllabus 435 U.S. UNITED STATES v. BOARD OF COMMISSIONERS OF SHEFFIELD, ALABAMA, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA No. 76-1662. Argued October 11, 1977—Decided March 6, 1978 Section 5 of the Voting Rights Act of 1965 provides that whenever “a State or political subdivision with respect to which” § 4 of the Act is in effect shall enact any voting qualification or standard, practice, or procedure with respect to voting different from that in force on November 1, 1964, the change has no effect as law unless such State or subdivision obtains, as specified in the statute, a declaratory judgment that the change does not have a racially discriminatory purpose or effect. Alternatively, the change may be enforced if it is submitted to the Attorney General and he has interposed no objection to it within 60 days after the submission, or has advised that objection will not be made. The city of Sheffield, Ala., on November 1, 1964, had a commission form of government. Some months later it sought to put to a referendum the question whether the city should adopt a mayor-council form of government, and respondent Board of Commissioners for the city gave the Attorney General written notice of the referendum proposal, Alabama being a State covered under § 4 of the Act. The referendum was held and the voters approved the change. Thereafter, the Attorney General replied that he did not object to the holding of the referendum but that since the voters had elected to adopt the mayorcouncil form of government, “the change is also subject to the preclearance requirement of Section 5” and that detailed information should be submitted if preclearance was sought through the Attorney General. Following his receipt of such information, the Attorney General made objection to a phase of the change that involved the at-large election of city councilmen. After the city nevertheless scheduled an at-large council election, the United States brought this suit to enforce the § 5 objection. The District Court denied relief, holding that Sheffield was not covered by § 5 because it was not a “political subdivision” as that term is defined in § 14 (c) (2) of the Act, which provides that “ 'political subdivision’ shall mean any county or parish, except that where registration for voting is not conducted imder the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting,” and that therefore Sheffield was not a UNITED STATES v. SHEFFIELD BOARD OF COMM’RS 111 110 Syllabus political subdivision because in Alabama registration is conducted by the counties. The court also held that by approving the referendum, the Attorney General had approved the mayor-council form of government in which councilmen were elected at large, notwithstanding his statement regarding preclearance. Held: 1. Section 5 of the Act applies to all entities having power over any aspect of the electoral process within designated jurisdictions, not only to counties or other units of state government that perform the function of registering voters, and the District Court therefore erred in holding that Sheffield is not subject to § 5. Pp. 117-135. (a) The District Court’s interpretation of the Act does not comport with the Act’s structure, makes § 5 coverage depend upon a factor completely irrelevant to the Act’s purposes, and thereby permits precisely the kind of circumvention of congressional policy that § 5 was designed to prevent. Section 5 “was structured to assure the effectiveness of the dramatic step Congress [took] in § 4” and “is clearly designed to march in lock-step with § 4.” Allen v. State Board of Elections, 393 U. S. 544, 584 (Harlan, J., concurring and dissenting). Since jurisdictions may be designated under § 4 (b) by reason of the actions of election officials who do not register voters and since § 4 (a) imposes duties on all election officials, whether or not they are involved in voter registration, it follows from the very structure of the Act that § 5 must apply to all entities exercising control over the electoral process within the covered States or subdivisions. The Act’s terms and decisions of this Court clearly indicate that § 5 was not intended to apply only to voting changes occurring within the registration process or only to the changes of specific entities. Pp. 118-125. (b) The Act’s language does not require such a crippling construction as that given by the District Court. In view of the explicit relationship between § 4 and § 5 and the critical role that § 5 is to play in securing the promise of § 4 (a), it is wholly logical to interpret “State ... with respect to which” § 4 (a) is in effect as referring to all political units within it. Pp. 126-129. (c) The contemporaneous administrative construction of § 5 by the Attorney General and the legislative history of the enactment and re-erfhctments of the Act compel the conclusion that Congress always understood that § 5 covers all political units within designated jurisdictions like Alabama. Pp. 129-135. 2. The Attorney General’s failure to object to the holding of the referendum did not constitute clearance under § 5 of the method of electing city councilmen under the new government. Since Sheffield sought approval only for the holding of the referendum, not for pre 112 OCTOBER TERM, 1977 Opinion of the Court 435U.S. clearance of the change in the city’s form of government, and the Attorney General had warned the city that the change itself required prior federal scrutiny and advised what detailed information would be necessary for that purpose, it is irrelevant that he might have been on notice that if the referendum passed, Sheffield would under state law have had to adopt an at-large system of councilmanic elections. Pp. 135-138. 430 F. Supp. 786, reversed. Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, and Blackmun, JJ., joined, and in Part III of which Powell, J., joined. Blackmun, J., filed a concurring opinion, post, p. 138. Powell, J., filed an opinion concurring in part and concurring in the judgment, post, p. 139. Stevens, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 140. Assistant Attorney General Days argued the cause for the United States. With him on the brief were Solicitor General McCree, Allan A. Ryan, Jr., Walter W. Barnett, and Judith E. Wolf. Vincent McAlister argued the cause for appellees. With him on the brief was Braxton W. Ashe* Mr. Justice Brennan delivered the opinion of the Court. Section 5 of the Voting Rights Act of 1965 (Act), 79 Stat. 439, as amended, 42 U. S. C. § 1973c (1970 ed., Supp. V),* 1 *Brian J. O’Neill, Vilma S. Martinez, and Joaquin G. Avila filed a brief for the Mexican American Legal Defense and Educational Fund et al. urging reversal. James E. Ross filed a brief for Westheimer Independent School District as amicus curiae. 1 Section 5, as set forth in 42 U. S. C. § 1973c (1970 8. H. Kress & Co., 398 U. S., at 231-232 (Brennan, J., concurring and dissenting). In other cases, the interests protected by a particular constitutional right may not also be protected by an analogous branch of the common law of torts. See Monroe v. Pape, 365 U. S., at 196, and n. 5 (Harlan, J., concurring); id., at 250-251 (Frankfurter, J., dissenting in part); Adickes v. >8. H. Kress & Co., supra, at 232 (Brennan, J., concurring and dissenting); Bivens v. Six Unknown Fed. Narcotic Agents, 403 U. S., at 394; id., at 408-409 (Harlan, J., concurring in judgment). In those cases, the task will be the more difficult one of adapting common-law rules of damages to provide fair compensation for injuries caused by the deprivation of a constitutional right. Although this task of adaptation will be one of some delicacy—as this case demonstrates—it must be undertaken. The purpose of § 1983 would be defeated if injuries caused by the deprivation of constitutional rights went uncompensated simply because the common law does not recognize an analogous cause of action. Cf. Jones v. Hildebrant, 432 U. S. 183, 190-191 (1977) (White, J., dissenting); Sullivan v. Little Hunting Park, 396 U. S. 229, 240 (1969). In order to further 13 The Court has looked to the common law of torts in similar fashion in constructing immunities under § 1983. See Imbler v. Pachtman, 424 U. S. 409, 417-419 (1976), and cases there discussed. Title 42 U. S. C. § 1988 authorizes courts to look to the common law of the States where this is “necessary to furnish suitable remedies” under § 1983. CAREY v. PIPHUS 259 247 Opinion of the Court the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question—just as the common-law rules of damages themselves were defined by the interests protected in the various branches of tort law. We agree with Mr. Justice Harlan that “the experience of judges in dealing with private [tort] claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of [constitutional] rights.” Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 409 (Harlan, J., concurring in judgment). With these principles in mind, we now turn to the problem of compensation in the case at hand. C The Due Process Clause of the Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .” This Clause “raises no impenetrable barrier to the taking of a person’s possessions,” or liberty, or life. Fuentes v. Shevin, 407 U. S. 67, 81 (1972). Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property. Thus, in deciding what process constitutionally is due in various contexts, the Court repeatedly has emphasized that “procedural due process rules are shaped by the risk of error inherent in the truth-finding process . . . .” Mathews v. Eldridge, 424 U. S. 319, 344 (1976).14 Such rules “mini 14 See, e. g., Dixon v. Love, 431 U. S. 105, 112-114 (1977); Ingraham v. Wright, 430 U. S. 651, 675, 677-678, 682 (1977); Arnett v. Kennedy, 416 U. S. 134,170 (1974) (Powell, J., concurring in part and in result in part); id., at 201 (White, J., concurring and dissenting); id., at 214-215 260 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. mize substantively unfair or mistaken deprivations of” life, liberty, or property by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. Fuentes v. Shevin, supra, at 81. In this case, the Court of Appeals held that if petitioners can prove on remand that “[respondents] would have been suspended even if a proper hearing had been held,” 545 F. 2d, at 32, then respondents will not be entitled to recover damages to compensate them for injuries caused by the suspensions. The court thought that in such a case, the failure to accord procedural due process could not properly be viewed as the cause of the suspensions. Ibid.; cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 285-287 (1977); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 270-271, n. 21 (1977). The court suggested that in such circumstances, an award of damages for injuries caused by the suspensions would constitute a windfall, rather than compensation, to respondents. 545 F. 2d, at 32, citing Hostrop v. Board of Junior College Dist. No. 515, 523 F. 2d, at 579; cf. Mt. Healthy City Board of Ed. v. Doyle, supra, at 285-286. We do not understand the parties to disagree with this conclusion. Nor do we.15 The parties do disagree as to the further holding of the Court of Appeals that respondents are entitled to recover substantial—although unspecified—damages to compensate them for “the injury which is ‘inherent in the nature of the (Marshall, J., dissenting) ; Mitchell v. W. T. Grant Co., 416 U. S. 600, 609-610, 618 (1974); Goldberg v. Kelly, 397 U. S. 254, 266 (1970). 15 A few courts appear to have taken a contrary view in cases where public employees holding property interests in their jobs were discharged with cause but without procedural due process. E. g., Thomas n. Ward, 529 F. 2d 916, 920 (CA4 1975) ; Zimmerer v. Spencer, 485 F. 2d 176, 178-179 (CA5 1973) ; Horton v. Orange County Bd. of Ed., 464 F. 2d 536, 537-538 (CA4 1972). See also Burt v. Board of Trustees of Edgefield County School Dist., 521 F. 2d 1201, 1207-1208 (CA4 1975) (opinion of Winter, J.). CAREY v. PIPHUS 261 247 Opinion of the Court wrong,’ ” 545 F. 2d, at 31, even if their suspensions were justified and even if they fail to prove that the denial of procedural due process actually caused them some real, if intangible, injury. Respondents, elaborating on this theme, submit that the holding is correct because injury fairly may be “presumed” to flow from every denial of procedural due process. Their argument is that in addition to protecting against unjustified deprivations, the Due Process Clause also guarantees the “feeling of just treatment” by the government. Anti-Fascist Committee v. McGrath, 341 U. S. 123,162 (1951) (Frankfurter, J., concurring). They contend that the deprivation of protected interests without procedural due process, even where the premise for the deprivation is not erroneous, inevitably arouses strong feelings of mental and emotional distress in the individual who is denied this “feeling of just treatment.” They analogize their case to that of defamation per se, in which “the plaintiff is relieved from the necessity of producing any proof whatsoever that he has been injured” in order to recover substantial compensatory damages. C. McCormick, Law of Damages § 116, p. 423 (1935).16 16 Respondents also contend that injury should be presumed because, even if they were guilty of the conduct charged, they were deprived of the chance to present facts or arguments in mitigation to the initial decisionmaker. Cf. Gagnon v. Scarpelli, 411 U. S. 778, 784-785 (1973); Morrissey v. Brewer, 408 U. S. 471, 479-480, 488 (1972). They claim that “[i]t can never be known . . . what, if anything, the exercise of such an opportunity to plead one’s cause on judgmental or discretionary grounds would have availed.” Brief for Respondents 28. But, as previously indicated, the Court of Appeals held that respondents cannot recover damages for injuries caused by their suspensions if the District Court determines that “[respondents] would have been suspended even if a proper hearing had been held.” 545 F. 2d, at 32. This holding, which respondents do not challenge, necessarily assumes that the District Court can determine what the outcome would have been if respondents had received their hearing. We presume that this determination will include consideration of the likelihood that any mitigating circumstances to which respondents can point would have swayed the initial decisionmakers. 262 OCTOBER TERM, 1977 Opinion of the Court 435U.S. Petitioners do not deny that a purpose of procedural due process is to convey to the individual a feeling that the government has dealt with him fairly, as well as to minimize the risk of mistaken deprivations of protected interests. They go so far as to concede that, in a proper case, persons in respondents’ position might well recover damages for mental and emotional distress caused by the denial of procedural due process. Petitioners’ argument is the more limited one that such injury cannot be presumed to occur, and that plaintiffs at least should be put to their proof on the issue, as plaintiffs are in most tort actions. We agree with petitioners in this respect. As we have observed in another context, the doctrine of presumed damages in the common law of defamation per se “is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 349 (1974). The doctrine has been defended on the grounds that those forms of defamation that are actionable per se are virtually certain to cause serious injury to reputation, and that this kind of injury is extremely difficult to prove. See id., at 373, 376 (White, J., dissenting).17 Moreover, statements that are defamatory per se by their very nature are likely to cause mental and emotional distress, as well as injury to reputation, so there arguably is little reason to require proof of this kind of injury either.18 17 “By the very nature of harm resulting from defamatory publications, it is frequently not susceptible of objective proof. Libel and slander work their evil in ways that are invidious and subtle.” 1 F. Harper & F. James, Law of Torts § 5.30, p. 468 (1956); see also Restatement of Torts § 621, comment a, p. 314 (1938). 18 The essence of libel per se is the publication in writing of false statements that tend to injure a person’s reputation. The essence of slander per se is the publication by spoken words of false statements imputing to a person a criminal offense; a loathsome disease; matter affecting adversely a person’s fitness for trade, business, or profession; or serious sexual mis-conduct. 1 F. Harper & F. James, Law of Torts §§5.9-5.13 (1956); CAREY v. PIPHUS 263 247 Opinion of the Court But these considerations do not support respondents’ contention that damages should be presumed to flow from every deprivation of procedural due process. First, it is not reasonable to assume that every departure from procedural due process, no matter what the circumstances or how minor, inherently is as likely to cause distress as the publication of defamation per se is to cause injury to reputation and distress. Where the deprivation of a protected interest is substantively justified but procedures are deficient in some respect, there may well be those who suffer no distress over the procedural irregularities. Indeed, in contrast to the immediately distressing effect of defamation per se, a person may not even know that procedures were deficient until he enlists the aid of counsel to challenge a perceived substantive deprivation. Moreover, where a deprivation is justified but procedures are deficient, whatever distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure. But as the Court of Appeals held, the injury caused by a justified deprivation, including distress, is not properly compensable under § 1983.19 This ambiguity in causation, which is absent in the case of defamation per se, provides additional need for requiring the plaintiff to convince the trier of fact that he actually suffered distress because of the denial of procedural due process itelf. Finally, we foresee no particular difficulty in producing evidence that mental and emotional distress actually was caused by the denial of procedural due process itself. Distress is a personal injury familiar to the law, customarily proved by Restatement (Second) of Torts §§558, 559, 569-574 (1977); W. Prosser, Law of Torts § 112 (4th ed. 1971). 19 In this case, for example, respondents denied the allegations against them. They may well have been distressed that their denials were not believed. They might have been equally distressed if they had been disbelieved only after a full-dress hearing, but in that instance they would have no cause of action against petitioners. 264 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. showing the nature and circumstances of the wrong and its effect on the plaintiff.20 In sum, then, although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused. D The Court of Appeals believed, and respondents urge, that cases dealing with awards of damages for racial discrimination, the denial of voting rights, and the denial of Fourth Amendment rights support a presumption of damages where procedural due process is denied.21 Many of the cases relied upon do not help respondents because they held or implied that some actual, if intangible, injury must be proved before compensatory damages may be recovered. Others simply did not address the issue.22 More importantly, the elements and 20 We use the term “distress” to include mental suffering or emotional anguish. Although essentially subjective, genuine injury in this respect may be evidenced by one’s conduct and observed by others. Juries must be guided by appropriate instructions, and an award of damages must be supported by competent evidence concerning the injury. See Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974). 21 See cases cited in Hostrop v. Board of Junior College Dist. No. 515, 523 F. 2d 569, 579 (CA7 1975), cert, denied, 425 U. S. 963 (1976). 22 In Jeanty v. McKey & Poague, Inc., 496 F. 2d 1119 (CA7 1974), and Seaton v. Sky Realty Co., 491 F. 2d 634 (CA7 1974), cited in Hostrop, supra, at 579, the court held that damages may be awarded for humiliation and distress caused by discriminatory refusals to lease housing to plaintiffs. The court’s comment in Seaton that “[h]umiliation can be inferred from the circumstances as well as established by the testimony,” 491 F. 2d, at 636, suggests that the court considered the question of actual injury to be one of fact. See generally Annot., Recovery of Damages for Emotional Distress Resulting from Racial, Ethnic, or Religious Abuse or Discrimination, 40 A. L. R. 3d 1290 (1971). In Basista v. Weir, 340 F. 2d 74 (CA3 1965); Sexton v. Gibbs, 327 F. Supp. 134 (ND Tex. 1970), aff’d, 446 F. 2d 904 (CA5 1971), cert, denied, CAREY v. PIPHUS 265 247 Opinion of the Court prerequisites for recovery of damages appropriate to compensate injuries caused by the deprivation of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another. As we have said, supra, at 258-259, these issues must be considered with reference to the nature of the interests protected by the particular constitutional right in question. For this reason, and without intimating an opinion as to their merits, we do not deem the cases relied upon to be controlling. 404 U. S. 1062 (1972); and Rhoads v. Horvat, 270 F. Supp. 307 (Colo. 1967), cited in Hostrop, supra, at 579, the courts indicated that damages may be awarded for humiliation and distress caused by unlawful arrests, searches, and seizures. In Basista v. Weir, the court held that nominal damages could be awarded for an illegal arrest even if compensatory damages were waived; and that such nominal damages would, in an appropriate case, support an award of punitive damages. 340 F. 2d, at 87-88. Because it was unclear whether the plaintiff had waived his claim for compensatory damages, that issue was left open upon remand. Id., at 88. In Sexton v. Gibbs, where the court found “that Plaintiff suffered humiliation, embarrassment and discomfort,” substantial compensatory damages were awarded. 327 F. Supp., at 143. In Rhoads v. Horvat, the court allowed a jury award of $5,000 in compensatory damages for an illegal arrest to stand, stating that it did “not doubt that the plaintiff was outraged by the arrest.” 270 F. Supp., at 311. Wayne v. Venable, 260 F. 64 (CA8 1919), cited in Hostrop, supra, at 579, and Ashby v. White, 1 Bro. P. C. 62, 1 Eng. Rep. 417 (H. L. 1703), rev’g 2 Ld. Raym. 938, 92 Eng. Rep. 126 (K. B. 1703), do appear to support the award of substantial damages simply upon a showing that a plaintiff was wrongfully deprived of the right to vote. Citing Ashby v. JFAzie, this Court has held that actions for damages may be maintained for wrongful deprivations of the right to vote, but it has not considered the prerequisites for recovery. Nixon n. Herndon, 273 U. S. 536, 540 (1927); see also Smith v. Allwright, 321 U. S. 649 (1944); Coleman v. Miller, 307 U. S. 433, 469 (1939) (opinion of Frankfurter, J.); Nixon v. Condon, 286 U. S. 73 (1932); Myers n. Anderson, 238 U. S. 368 (1915); Giles v. Harris, 189 U. S. 475 (1903); Swafford v. Templeton, 185 U. S. 487 (1902); Wiley v. Sinkler, 179 U. S. 58 (1900). The common-law rule of damages for wrongful deprivations of voting rights embodied in Ashby v. White would, of course, be quite relevant to the analogous question under § 1983. 266 OCTOBER TERM, 1977 Opinion of the Court 435U.S. Ill Even if respondents’ suspensions were justified, and even if they did not suffer any other actual injury, the fact remains that they were deprived of their right to procedural due process. “It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing . . . .” Fuentes v. Shevin, 407 U. S., at 87; see Codd v. Velger, 429 U. S., at 632 (Stevens, J., dissenting); Coe v. Armour Fertilizer Works, 237 U. S. 413, 424 (1915). Common-law courts traditionally have vindicated deprivations of certain “absolute” rights that are not shown to have caused actual injury through the award of a nominal sum of money.23 By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights. Because the right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, see Boddie v. Connecticut, 401 U. S. 371, 375 (1971); Anti-Fascist Committee v. McGrath, 341 U. 8., at 171-172 (Frankfurter, J., concurring), we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury.24 We therefore hold that 23 See D. Dobbs, Law of Remedies §3.8, pp. 191-193 (1973); C. McCormick, Law of Damages §§20-22 (1935); Restatement of Torts §907 (1939). 24 A number of lower federal courts have approved the award of nominal damages under § 1983 where deprivations of constitutional rights are not CAREY v. PIPHUS 267 247 Opinion of the Court if, upon remand, the District Court determines that respondents’ suspensions were justified, respondents nevertheless will be entitled to recover nominal damages not to exceed one dollar from petitioners.25 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. Mr. Justice Marshall concurs in the result. Mr. Justice Blackmun took no part in the consideration or decision of this case. shown to have caused actual injury. E. g., Thompson v. Burke, 556 F. 2d 231, 240 (CA3 1977); United States ex rel. Tyrrell n. Speaker, 535 F. 2d, at 829-830; Magnett v. Pelletier, 488 F. 2d 33, 35 (CAI 1973); Basista v. Weir, 340 F. 2d, at 87; Bell v. Gayle, 384 F. Supp. 1022, 1026-1027 (ND Tex. 1974); United States ex rel. Myers v. Sielaff, 381 F. Supp. 840, 844 (ED Pa. 1974); Berry v. Macon County Bd. of Ed., 380 F. Supp. 1244, 1248 (MD Ala. 1971). 25 Respondents contend that the Court of Appeals’ holding could be affirmed on the ground that the District Court held them to too high a standard of proof of the amount of damages appropriate to compensate intangible injuries that are proved to have been suffered. Brief for Respondents 49-52. It is true that plaintiffs ordinarily are not required to prove with exactitude the amount of damages that should be awarded to compensate intangible injury. See Gertz v. Robert Welch, Inc., 418 U. S., at 350. But, as the Court of Appeals said, “in the case at bar, there is no proof of individualized injury to [respondents], such as mental distress . . . .” 545 F. 2d, at 31. With the case in this posture, there is no occasion to consider the quantum of proof required to support a particular damages award where actual injury is proved. 268 OCTOBER TERM, 1977 Syllabus 435 U. S. UNITED STATES v. CECCOLINI CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 76-1151. Argued December 5, 1977—Decided March 21, 1978 A police officer (Biro), while taking a break in respondent’s flower shop and conversing with an employee of the shop (Hennessey), noticed an envelope with money protruding therefrom lying on the cash register. Upon examination, he found it contained not only money but policy slips. Biro then placed the envelope back on the register and without telling Hennessey what he had found asked her to whom the envelope belonged. She told him it belonged to respondent. Biro’s finding was reported to local detectives and to the FBI, who interviewed Hennessey some four months later without referring to the incident involving Biro. About six months after that incident respondent was summoned before a federal grand jury where he testified that he had never taken policy bets at his shop, but Hennessey testified to the contrary, and shortly thereafter respondent was indicted for perjury. Hennessey testified against respondent at his trial, but after a finding of guilt the District Court granted respondent’s motion to suppress Hennessey’s testimony and set aside that finding. The Court of Appeals affirmed, noting that the “road” to that testimony from the concededly unconstitutional search was “both straight and uninterrupted.” Held: The Court of Appeals erred in concluding that the degree of attenuation between Biro’s search of the envelope and Hennessey’s testimony at the trial was not sufficient to dissipate the connection between the illegality of the search and challenged testimony. Pp. 273-280. (a) In determining whether the exclusionary rule with its deterrent purpose should be applied, its benefits should be balanced against its costs, and, in evaluating the standards for application of the rule to live-witness testimony in light of this balance, material factors to be considered are the length of the “road” between the Fourth Amendment violation and the witness’ testimony; the degree of free will exercised by the witness; and the fact that exclusion of the witness’ testimony would perpetually disable the witness from testifying about relevant and material facts regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Pp. 273-279. (b) Here, where the evidence indicates overwhelmingly that Hennesey’s UNITED STATES v. CECCOLINI 269 268 Opinion of the Court testimony was an act of her own free will in no way coerced or induced by official authority as a result of Biro’s discovery of the policy slips,, where substantial time elapsed between the illegal search and the initial contact with the witness and between the latter and her trial testimony, and where both Hennessey’s identity and her relationship with respondent were well known to the investigating officers, and there is no evidence that Biro entered the shop or picked up the envelope with the intent of finding evidence of an illicit gambling operation, application of the exclusionary rule could not have the slightest deterrent effect on the behavior of an officer such as Biro, and the cost of permanently silencing Hennessey is too great for an evenhanded system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect. Pp. 279-280. (c) The exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object. P. 280. 542 F. 2d 136, reversed. Rehnquist, J., delivered the opinion of the Court, in which Stewart, White, Powell, and Stevens, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, post, p. 280. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 285. Blackmun, J., took no part in the consideration or decision of the case. Richard A. Allen argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, Deputy Solicitor General Frey, and Sidney M. Glazer. Leon J. Greenspan argued the cause and filed a brief for respondent. Mr. Justice Rehnquist delivered the opinion of the Court. In December 1974, Ronald Biro, a uniformed police officer on assignment to patrol school crossings, entered respondent’s place of business, the Sleepy Hollow Flower Shop, in North Tarrytown, N. Y. He went behind the customer counter and, in the words of Ichabod Crane, one of Tarrytown’s more 270 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. illustrious inhabitants of days gone past, “tarried,” spending his short break engaged in conversation with his friend Lois Hennessey, an employee of the shop. During the course of the conversation he noticed an envelope with money sticking out of it lying on the drawer of the cash register behind the counter. Biro picked up the envelope and, upon examining its contents, discovered that it contained not only money but policy slips. He placed the envelope back on the register, and, without telling Hennessey what he had seen, asked her to whom the envelope belonged. She replied that the envelope belonged to respondent Ceccolini, and that he had instructed her to give it to someone. The next day, Officer Biro mentioned his discovery to North Tarrytown detectives who in turn told Lance Emory, an FBI agent. This very ordinary incident in the lives of Biro and Hennessey requires us, over three years later, to decide whether Hennessey’s testimony against respondent Ceccolini should have been suppressed in his trial for perjury. Respondent was charged with that offense because he denied that he knew anything of, or was in any way involved with, gambling operations. Respondent was found guilty after a bench trial in the United States District Court for the Southern District of New York, but immediately after the finding of guilt the District Court granted respondent’s motion to “suppress” the testimony of Hennessey because the court concluded that the testimony was a “fruit of the poisonous tree”; assuming respondent’s motion for a directed verdict included a motion to set aside the verdict of guilty, the District Court granted the motion because it concluded that without Hennessey’s testimony there was insufficient evidence of respondent’s guilt. The Government appealed these rulings to the Court of Appeals for the Second Circuit. That court rightly concluded that the Government was entitled to appeal both the order granting the motion to suppress and the order setting aside the verdict of guilty, since UNITED STATES v. CECCOLINI 271 268 Opinion of the Court further proceedings if the Government were successful on the appeal would not be barred by the Double Jeopardy Clause.1 542 F. 2d 136, 139-140 (1976). The District Court had sensibly first made its finding on the factual question of guilt or innocence, and then ruled on the motion to suppress; a reversal of these rulings would require no further proceedings in the District Court, but merely a reinstatement of the finding of guilt. United States v. Morrison, 429 U. S. 1 (1976); United States v. Wilson, 420 U. S. 332, 352-353 (1975). The Government, however, was not successful on the merits of its appeal; the Court of Appeals by a divided vote affirmed the District Court’s suppression ruling. 542 F. 2d, at 140-142. We granted certiorari to consider the correctness of this ruling of the Court of Appeals. 431 U. S. 903 (1977). I During the latter part of 1973, the Federal Bureau of Investigation was exploring suspected gambling operations in North Tarrytown. Among the establishments under surveillance was respondent’s place of business, which was a frequent and regular stop of one Francis Millow, himself a suspect in the investigation. While the investigation continued on a reduced scale after December 1973,1 2 surveillance of the flower 1 Appeal from the suppression order is, of course, authorized by the clear language of 18 U. S. C. §3731 (1976 ed.). That section permits “[a]n appeal by the United States . . . from a decision or order of a district courts [sic] suppressing or excluding evidence . . . , not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information . . . .” If Congress had intended only pretrial suppression orders to be appealable, it would not have added the phrase “and before the verdict or finding on an indictment or information.” 2 The extent of the continued investigation is not made clear on the record but we do know at least that on December 3, 1974, a telephone conversation between Millow and Ceccolini, which implicated the latter in a policy betting operation, was intercepted by local police participating in a combined federal-state gambling investigation. 272 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. shop was curtailed at that time. It was thus a full year after this discontinuance of FBI surveillance that Biro spent his patrol break behind the counter with Hennessey. When Biro’s discovery of the policy slips was reported the following day to Emory, Emory was not fully informed of the manner in which Biro had obtained the information. Four months later, Emory interviewed Hennessey at her home for about half an hour in the presence of her mother and two sisters. He identified himself, indicated that he had learned through the local police department that she worked for respondent, and told her that the Government would appreciate any information regarding respondent’s activities that she had acquired in the shop. Emory did not specifically refer to the incident involving Officer Biro. Hennessey told Emory that she was studying police science in college and would be willing to help. She then related the events which had occurred during her visit with Officer Biro. In May 1975, respondent was summoned before a federal grand jury where he testified that he had never taken policy bets for Francis Millow at the flower shop. The next week Hennessey testified to the contrary, and shortly thereafter respondent was indicted for perjury.3 Respondent waived a jury, and with the consent of all parties the District Court considered simultaneously with the trial on the merits respondent’s motion to suppress both the policy slips and the testimony of Hennessey. At the conclusion of the evidence, the District Court excluded from its consideration “the envelope and the contents of the envelope,” but nonetheless found respondent guilty of the offense charged. The court then, as previously 3 Respondent was also indicted on a second count which charged that he had knowingly made a false statement when he testified that he did not know Hank Bucci was involved in gambling operations. The judge found respondent not guilty on this count, however, because “although there is evidence to support this charge the government has not met its burden of proof beyond a reasonable doubt.” App. to Pet. for Cert. 28a. UNITED STATES v. CECCOLINI 273 268 Opinion of the Court described, granted respondent’s motion to suppress the testimony of Hennessey, because she “first came directly to the attention of the government as a result of an illegal search” and the Government had not “sustained its burden of showing that Lois Henness[e]y’s testimony definitely would have been obtained without the illegal search.” App. to Pet. for Cert. 28a-29a. The Court of Appeals affirmed this ruling on the Government’s appeal, reasoning that “the road to Miss Henness[e]y’s testimony from Officer Biro’s concededly unconstitutional search is both straight and uninterrupted.” 542 F. 2d, at 142. The Court of Appeals also concluded that there was support in the record for the District Court’s finding that the ongoing investigation would not have inevitably led to the evidence in question without Biro’s discovery of the two policy slips. Id., at 141. Because of our traditional deference to the “two court rule,” Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275 (1949), and the fact that the Government has not sought review of this latter ruling, we leave undisturbed this part of the Court of Appeals’ decision. Because we decide that the Court of Appeals was wrong in concluding that there was insufficient attenuation between Officer Biro’s search and Hennessey’s testimony at the trial, we also do not reach the Government’s contention that the exclusionary rule should not be applied when the evidence derived from the search is being used to prove a subsequent crime such as perjury. II The “road” to which the Court of Appeals analogized the train of events from Biro’s discovery of the policy slips to Hennessey’s testimony at respondent’s trial for perjury is one of literally thousands of such roads traveled periodically between an original investigative discovery and the ultimate trial of the accused. The constitutional question under the Fourth Amendment was phrased in Wong Sun v. United States, 371 U. S. 471 (1963), as whether “the connection 274 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. between the lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’ ” Id., at 487, 491. The question was in turn derived from the Court’s earlier decision in Nardone v. United States, 308 U. S. 338, 341 (1939), where Mr. Justice Frankfurter stated for the Court: “Here, as in the Silverthorne case [Silverthorne Lumber Co. v. United States}, the facts improperly obtained do not ‘become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it’ simply because it is used derivatively. 251 U. S. 385, 392. “In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.” This, of course, makes it perfectly clear, if indeed ever there was any doubt about the matter, that the question of causal connection in this setting, as in so many other questions with which the law concerns itself, is not to be determined solely through the sort of analysis which would be applicable in the physical sciences. The issue cannot be decided on the basis of causation in the logical sense alone, but necessarily includes other elements as well. And our cases subsequent to Nardone, supra, have laid out the fundamental tenets of the exclusionary rule, from which the elements that are relevant to the causal inquiry can be divined. An examination of these cases leads us to reject the Government’s suggestion that we adopt what would in practice amount to a per se rule that the testimony of a live witness should not be excluded at trial no matter how close and proxi- UNITED STATES v. CECCOLINI 275 268 Opinion of the Court mate the connection between it and a violation of the Fourth Amendment. We also reaffirm the holding of Wong Sun, supra, at 485, that “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” We are of the view, however, that cases decided since Wong Sun significantly qualify its further observation that “the policies underlying the exclusionary rule [do not] invite any logical distinction between physical and verbal evidence.” 371 U. S., at 486. Rather, at least in a case such as this, where not only was the alleged “fruit of the poisonous tree” the testimony of a live witness, but unlike Wong Sun the witness was not a putative defendant, an examination of our cases persuades us that the Court of Appeals was simply wrong in concluding that if the road were uninterrupted, its length was immaterial. Its length, we hold, is material, as are certain other factors enumerated below to which the court gave insufficient weight. In Stone v. Powell, 428 U. S. 465, 486 (1976), we observed that “despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons.” Recognizing not only the benefits but the costs, which are often substantial, of the exclusionary rule, we have said that “application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served,” United States v. Calandra, 414 U. S. 338, 348 (1974). In that case, we refused to require that illegally seized evidence be excluded from presentation to a grand jury. We have likewise declined to prohibit the use of such evidence for the purpose of impeaching a defendant who testifies in his own behalf. Walder v. United States, 347 U. S. 62 ( 1954). We have limited the standing requirement in the exclusionary rule context because the “additional benefits of extending 276 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. the . . . rule” to persons other than the ones subject to the illegal search are outweighed by the “further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.” Aiderman v. United States, 394 U. S. 165, 17A-175 (1969). Even in situations where the exclusionary rule is plainly applicable, we have declined to adopt a “per se or ‘but for’ rule” that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U. S. 590, 603 (1975). Evaluating the standards for application of the exclusionary rule to live-witness testimony in light of this balance, we are first impelled to conclude that the degree of free will exercised by the witness is not irrelevant in determining the extent to which the basic purpose of the'exclusionary rule will be advanced by its application. This is certainly true when the challenged statements are made by a putative defendant after arrest, Wong Sun, supra, at 491; Brown v. Illinois, supra, and a fortiori is true of testimony given by nondefendants. The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness.4 Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony 4 Of course, the analysis might be different where the search was conducted by the police for the specific purpose of discovering potential witnesses. UNITED STATES v. CECCOLINI 277 268 Opinion of the Court than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness’ willingness to testify. “The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.” Smith n. United States, 117 U. S. App. D. C. 1, 3-4, 324 F. 2d 879, 881-882 (1963) (Burger, J.) (footnotes omitted), cert, denied, 377 U. S. 954 (1964). Another factor which not only is relevant in determining the usefulness of the exclusionary rule in a particular context, but also seems to us to differentiate the testimony of all live witnesses—even putative defendants—from the exclusion of the typical documentary evidence, is that such exclusion would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Rules which disqualify knowledgeable witnesses from testifying at trial are, in the words of Professor McCormick, “serious obstructions to the ascertainment of truth”; accordingly, “[f]or a century the course of legal evolution has been in the direction of sweeping away these obstructions.” C. McCormick, Law of Evidence §71 (1954). Alluding to the enormous cost engendered by 278 OCTOBER TERM, 1977 Opinion of the Court 435U.S. such a permanent disability in an analogous context, we have specifically refused to hold that “making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.” United States v. Bayer, 331 U. S. 532, 541 (1947). For many of these same reasons, the Court has also held admissible at trial testimony of a witness whose identity was disclosed by the defendant’s statement given after inadequate Miranda warnings. Michigan v. Tucker, 417 U. S. 433, 450-451 (1974). “For, when balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce. . . . Here respondent’s own statement, which might have helped the prosecution show respondent’s guilty conscience at trial, had already been excised from the prosecution’s case pursuant to this Court’s Johnson [v. New Jersey, 384 U. S. 719 (1966) ] decision. To extend the excision further under the circumstances of this case and exclude relevant testimony of a third-party witness would require far more persuasive arguments than those advanced by respondent.” In short, since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required. This is not to say, of course, that live-witness testimony is always or even usually more reliable or dependable than inanimate evidence. Indeed, just the opposite may be true. But a determination that the discovery of certain evidence is sufficiently unrelated to or independent of the constitutional violation to permit its introduction at trial is not a determination which rests on the comparative reliability of that evidence. Attenuation analysis, appropriately concerned with the differences between live-witness testimony and inanimate evi- UNITED STATES v. CECCOLINI 279 268 Opinion of the Court dence, can consistently focus on the factors enumerated above with respect to the former, but on different factors with respect to the latter. In holding that considerations relating to the exclusionary rule and the constitutional principles which it is designed to protect must play a factor in the attenuation analysis, we do no more than reaffirm an observation made by this Court half a century ago: “A criminal prosecution is more than a game in which the Government may be checkmated and the game lost merely because its officers have not placed according to rule.” McGuire v. United States, 273 U. S. 95, 99 (1927). The penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve. Ill Viewing this case in the light of the principles just discussed, we hold that the Court of Appeals erred in holding that the degree of attenuation was not sufficient to dissipate the connection between the illegality and the testimony. The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority as a result of Biro’s discovery of the policy slips. Nor were the slips themselves used in questioning Hennessey. Substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness, on the one hand, and between the latter and the testimony at trial on the other. While the particular knowledge to which Hennessey testified at trial can be logically traced back to Biro’s discovery of the policy slips, both the identity of Hennessey and her relationship with the respondent were well known to those investigating the case. There is, in addition, not the slightest evidence to sug 280 OCTOBER TERM, 1977 Burger, C. J., concurring in judgment 435 U. S. gest that Biro entered the shop or picked up the envelope with the intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he entered the shop and searched with the intent of finding a willing and knowledgeable witness to testify against respondent. Application of the exclusionary rule in this situation could not have the slightest deterrent effect on the behavior of an officer such as Biro. The cost of permanently silencing Hennessey is too great for an evenhanded system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect. Obviously no mathematical weight can be assigned to any of the factors which we have discussed, but just as obviously they all point to the conclusion that the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object. The judgment of the Court of Appeals is accordingly Reversed. Mr. Justice Blackmun took no part in the consideration or decision of this case. Mr. Chief Justice Burger, concurring in the judgment. I agree with the Court’s ultimate conclusion that there is a fundamental difference, for purposes of the exclusionary rule, between live-witness testimony and other types of evidence. I perceive this distinction to be so fundamental, however, that I would not prevent a factfinder from hearing and considering the relevant statements of any witness, except perhaps under the most remarkable of circumstances—although none such have ever been postulated that would lead me to exclude the testimony of a live witness. UNITED STATES v. CECCOLINI 281 268 Burger, C. J., concurring in judgment To appreciate this position., it is essential to bear in mind the purported justification for employing the exclusionary rule in a Fourth Amendment context: deterrence of official misconduct. See Stone v. Powell, 428 U. S. 465, 486 (1976); United States v. Janis, 428 U. S. 433, 458-459, n. 35 (1976). As an abstract intellectual proposition this can be buttressed by a plausible rationale since there is at least some comprehensible connection—albeit largely and dubiously speculative—between the exclusion of evidence and the deterrence of intentional illegality on the part of a police officer.1 But if that is the purpose of the rule, it seems to me that the appropriate inquiry in every case in which a defendant seeks the exclusion of otherwise admissible and reliable evidence is whether official conduct in reality will be measurably altered by taking such a course. On the facts of this case the Court is, of course, correct in holding that the “ [a] pplication of the exclusionary rule in this situation could not have the slightest deterrent effect on the behavior of an officer such as Biro.” Ante, at 280. Reaching this result, however, requires no judicial excursion into an area about which “philosophers have been able to argue endlessly,” 1 2 namely, the degree of “free will” excercised by a person when engaging in an act such as speaking. In the history of ideas many thinkers have maintained with persuasion that there is no such thing as “free will,” in the sense that the term implies the independent ability of an actor to regulate his or her conduct. Others have steadfastly maintained the opposite, arguing that the human personality is one innately free to choose among alternatives. Still a third group 1 Empirically speaking, though, I have the gravest doubts as to whether the exclusion of evidence, in and of itself, has any direct appreciable effect on a policeman’s behavior in most situations—emergency actions in particular. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 410^417,426-427 (1971) (Burger, C. J., dissenting). 2 J. Sartre, Being and Nothingness 433 (Barnes trans. 1956). 282 OCTOBER TERM, 1977 Burger, C. J., concurring in judgment 435U.S. would deny that the very term “free will” has coherent meaning. These are only a few of the many perspectives on a subject which lies at the core of our intellectual and religious heritage. While this ancient debate will undoubtedly continue, “society and the law have no choice in the matter. We must proceed ... on the scientifically unprovable assumption that human beings make choices in the regulation of their conduct and that they are influenced by society’s standards as well as by personal standards.” Blocker v. United States, 110 U. S. App. D. C. 41, 53, 288 F. 2d 853, 865 (1961) (Burger, J., concurring in result). Mr. Justice Jackson expressed this in Gregg Cartage & Storage Co. v. United States, 316 U. S. 74, 80 (1942): “[T]he practical business of government and administration of the law is obliged to proceed on more or less rough and ready judgments based on the assumption that mature and rational persons are in control of their own conduct.” And in Steward Machine Co. v. Davis, 301 U. S. 548, 590 (1937), Mr. Justice Cardozo put it thus: “Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems.” We are nonetheless cognizant of the fact that this assumption must continually confront the inherent practical obstacle of one person’s being unable to know with certainty the content of another’s mind. We cross this barrier daily, of course, in the process of determining criminal culpability.3 Yet in criminal trials we are willing to bear the risk of error—substantially diminished by the requirement of proof beyond a reasonable doubt—in order to effectuate the common-law tradition of 3 A somewhat similar hurdle is presented in civil cases, which may rest decision on the standard of a “reasonable man’s” actions. In those circumstances we assume that a person is ordinarily capable of conforming conduct to an objective standard of reasonableness. Consequently, while the assumption is indulged that the person possesses control over his actions, there is generally no need to inquire into mental processes as such. UNITED STATES v. CECCOLINI 283 268 Burger, C. J., concurring in judgment imposing punishment only upon those who can be said to be morally responsible for their acts. There is no analogue to this concern, however, in the area of Fourth Amendment exclusion, which has an admitted pragmatic purpose—based as I suggested on speculative hypotheses which ought to lead us to apply it with reasoned discrimination, not as an automatic response. In short, the results achieved from current exclusionary rule standards are bizarre enough without steering the analysis in the direction of areas which offer no reasonable hope of a comprehensible framework for inquiry. It would be obvious nonsense to postulate that during his brief encounter in the florist shop Officer Biro was making a painstaking analysis of the extent to which Lois Hennessey’s “free will” would affect her disposition to testify against respondent at some future point. It is one thing to engage in scholastic hindsight, particularly as the dissent has done here, in which speculation proceeds from unfounded hypotheses as to the probable explanations for the decision of a live witness to come forward and testify. But it is quite another to suppose that the police officer, assuming he is contemplating illegal action, will, or would be able to, engage in a similar inquiry. There are several reasons which support this analysis, which, I might add, is found acceptable in every other legal system in the world. Initially, I would point out that the concept of effective deterrence assumes that the police officer consciously realizes the probable consequences of a presumably impermissible course of conduct. The officer must be cognizant of at least the possibility that his actions—because of possible suppression—will undermine the chances of convicting a known criminal. I strongly suspect that in the vast majority of instances in this setting the officer accused of a Fourth Amendment violation will not be even remotely aware of the existence of a witness, as for example, where seizure of an item of evidence guides official inquiry to an eye 284 OCTOBER TERM, 1977 Burger, C. J., concurring in judgment 435 U. S. witness. Of course, an officer conducting a search later held illegal may have some hope that his inquiry will lead to persons who can come forward with testimony. It is not plausible, however, that a police officer would consciously engage in illegal action simply to gain access to a witness, knowing full well that under prevailing legal doctrine the result will be the certain exclusion of whatever tangible evidence might be found.4 Even if we suppose that the officer suspects that his illegal actions will produce a lead to a witness, he faces the intractable problem of understanding how valuable that person will be to his investigation. As one philosopher has aptly stated the matter, “[t]he freedom of the will consists in the impossibility of knowing actions that still lie in the future.” L. Wittgenstein, Tractatus Logico-Philosophicus If 5.1362 (Pears & McGuinness trans. 1961). In Smith v. United States, 117 U. S. App. D. C. 1, 3-4, 324 F. 2d 879, 881-882 (1963), cert, denied, 377 U. S. 954 (1964), this point was applied to the case of a live witness testifying under oath: “The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what 4 Perhaps a case might arise in which the police conducted a search only for the purpose of obtaining the names of witnesses. In such a circumstance it is possibly arguable that the exclusion of any testimony gained as a result of the search would have an effect on official behavior. This clearly did not occur here, nor can I conceive of many instances in which it would. In any event, the decision to exclude such testimony should depend on the officers’ motivation and not on the “free will” of the witnesses. I would not want to speculate, however, as to whether such an unlikely case would justify modifying a per se approach to this general problem. UNITED STATES v. CECCOLINI 285 268 Marshall, J., dissenting testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a [living] witness from the relative immutability of inanimate evidence.” (Emphasis added.) (Footnotes omitted.) It can, of course, be argued, that the prospect of finding a helpful witness may play some role in a policeman’s decision to be indifferent about Fourth Amendment procedures. The answer to this point, however, is that we have never insisted on employing the exclusionary rule whenever there is some possibility, no matter how remote, of deterring police misconduct. Rather, we balance the cost to society of losing perfectly competent evidence against the prospect of incrementally enhancing Fourth Amendment values. See, e. g., Stone, 428 U. S., at 486; United States v. Calandra, 414 U. S. 338, 350-351 (1974); Aiderman v. United States, 394 U. S. 165, 174-175 (1969). Using this approach it strikes me as evident that the permanent silencing of a witness—who, after all, is appearing under oath—is not worth the high price the exclusionary rule exacts. Any rule of law which operates to keep an eyewitness to a crime—a murder, for example—from telling the jury what that person saw has a rational basis roughly comparable to the primitive rituals of human sacrifice. I would, therefore, resolve the case of a living witness on a per se basis, holding that such testimony is always admissible, provided it meets all other traditional evidentiary requirements. At very least this solution would alleviate the burden—now squarely thrust upon courts—of determining in each instance whether the witness possessed that elusive quality characterized by the term “free will.” Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting. While “reaffirm [ing]” the holding of Wong Sun v. United States, 371 U. S. 471, 485 (1963), that verbal evidence, like 286 OCTOBER TERM, 1977 Marshall, J., dissenting 435U.S. physical evidence, may be “fruit of the poisonous tree,” the Court today “significantly qualifies]” Wong Sun’s further conclusion, id., at 486, that no “ ‘logical distinction’ ” can be drawn between verbal and physical evidence for purposes of the exclusionary rule. Ante, at 275. In my view, the distinction that the Court attempts to draw cannot withstand close analysis. To extend “a time-worn metaphor,” Harrison v. United States, 392 U. S. 219, 222 (1968), I do not believe that the same tree, having its roots in an unconstitutional search or seizure, can bear two different kinds of fruit, with one kind less susceptible than the other of exclusion on Fourth Amendment grounds. I therefore dissent. The Court correctly states the question before us: whether the connection between the police officer’s concededly unconstitutional search and Hennessey’s disputed testimony was “so attenuated as to dissipate the taint,” Nardone v. United States, 308 U. S. 338, 341 (1939). See ante, at 274. In resolving questions of attenuation, courts typically scrutinize the facts of the individual case, with particular attention to such matters as the “temporal proximity” of the official illegality and the discovery of the evidence, “the presence of intervening circumstances,” and “the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U. S. 590, 603-604 (1975). The Court retains this general framework, but states that “[a]ttenuation analysis” should be “concerned with the differences between live-witness testimony and inanimate evidence.” Ante, at 278-279. The differences noted by the Court, however, have to a large extent already been accommodated by current doctrine. Where they have not been so accommodated, it is because the differences asserted are either illusory or of no relevance to the issue of attenuation. One difference mentioned by the Court is that witnesses, unlike inanimate objects, “can, and often do, come forward and offer evidence entirely of their own volition.” Ante, at 276. Recognition of this obvious fact does nothing to advance UNITED STATES v. CECCOLINI 287 268 Marshall, J., dissenting the attenuation inquiry. We long ago held that, if knowledge of evidence is gained from a source independent of police illegality, the evidence should be admitted. Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 (1920) (Holmes, J.). This “independent source” rule would plainly apply to a witness whose identity is discovered in an illegal search but who later comes to the police for reasons unrelated to the official misconduct. In the instant case, however, as the Court recognizes, ante, at 273, there is a “ ‘straight and uninterrupted’ ” road between the illegal search and the disputed testimony. Even where the road is uninterrupted, in some cases the Government may be able to show that the illegally discovered evidence would inevitably have come to light in the normal course of a legal police investigation. Assuming such evidence is admissible—a proposition that has been questioned, Fitzpatrick v. New York, 414 U. S. 1050 (1973) (White, J., dissenting from denial of certiorari)—this “inevitable discovery” rule would apply to admit the testimony of a witness who, in the absence of police misconduct, would have come forward “entirely of [his or her] own volition.” Again, however, no such situation is presented by this case, since the Court accepts the findings of the two lower courts that Hennessey’s testimony would not inevitably have been discovered. Ante, at 273. Both the independent-source and inevitable-discovery rules, moreover, can apply to physical evidence as well as to verbal evidence. The police may show, for example, that they learned from an independent source, or would inevitably have discovered through legal means, the location of an object that they also knew about as a result of illegal police activity. It may be that verbal evidence is more likely to have an independent source, because live witnesses can indeed come forward of their own volition, but this simply underscores the degree to which the Court’s approach involves a form of judicial “double counting.” The Court would apparently first 288 OCTOBER TERM, 1977 Marshall, J., dissenting 435U.S. determine whether the evidence stemmed from an independent source or would inevitably have been discovered; if neither of these rules was found to apply, as here, the Court would still somehow take into account the fact that, as a general proposition (but not in the particular case), witnesses sometimes do come forward of their own volition. The Court makes a related point that “[t]he greater the willingness of the witness to freely testify, . . . the smaller the incentive to conduct an illegal search to discover the witness.” Ante, at 276. The somewhat incredible premise of this statement is that the police in fact refrain from illegal behavior in which they would otherwise engage because they know in advance both that a witness will be willing to testify and that he or she “will be discovered by legal means.” Ibid. This reasoning surely reverses the normal sequence of events; the instances must be very few in which a witness’ willingness to testify is known before he or she is discovered. In this case, for example, the police did not even know th'at Hennessey was a potentially valuable witness, much less whether she would be willing to testify, prior to conducting the illegal search. See ante, at 279-280. When the police are certain that a witness “will be discovered by legal means,” ante, at 276—if they ever can be certain about such a fact—they of course have no incentive to find him or her by illegal means, but the same can be said about physical objects that the police know will be discovered legally. The only other point made by the Court is that exclusion of testimony “perpetually disable [s] a witness from testifying about relevant and material facts.” Ante, at 277. The “perpetual ... disable[ment]” of which the Court speaks, however, applies as much to physical as to verbal evidence. When excluded, both types of evidence are lost for the duration of the particular trial, despite their being “relevant and material . . . [and] unrelated ... to the purpose of the originally UNITED STATES v. CECCOLINI 289 268 Marshall, J., dissenting illegal search.” Ibid. Moreover, while it is true that “often” the exclusion of testimony will be very costly to society, ante, at 278, at least as often the exclusion of physical evidence— such as heroin in a narcotics possession case or business records in a tax case—will be as costly to the same societal interests. But other, more important societal interests, see Brown n. Illinois, 422 U. S., at 599-600; Wong Sun v. United States, 371 U. S., at 486, have led to the rule, which the Court today reaffirms, that “fruits of the poisonous tree” must be excluded despite their probative value, unless the facts of the case justify a finding of sufficient attenuation. The facts of this case do not justify such a finding. Although, as the Court notes, ante, at 272; see ante, at 279, four months elapsed between the illegal search and the FBI’s first contact with Hennessey, the critical evidence was provided at the time and place of the search, when the police officer questioned Hennessey and she identified respondent, ante, at 270. The time that elapsed thereafter is of no more relevance than would be a similar time period between the discovery of an object during an illegal search and its later introduction into evidence at trial. In this case, moreover, there were no intervening circumstances between Hennessey’s statement at the time of the search and her later testimony. She did not come to the authorities and ask to testify, despite being a student of police science; an FBI agent had to go to her home and interrogate her. Ante, at 272. Finally, whatever the police officer’s purpose in the flower shop on the day of the search, the search itself was not even of arguable legality, as was conceded by the Government below. 542 F. 2d 136, 140 n. 5 (CA2 1976). It is also undisputed that the shop had been under surveillance as part of an ongoing gambling investigation in which the local police force had actively participated; its participation included interception of at least one of respondent’s telephone conversations 290 OCTOBER TERM, 1977 Marshall, J., dissenting 435 U. S. in the very month of the search. Ante, at 271-272, and n. 2. Under all of the circumstances, the connection here between the official illegality and the disputed testimony cannot be deemed “so attenuated as to dissipate the taint.” The District Court therefore properly excluded the testimony. I would affirm the judgment of the Court of Appeals. FOLEY v. CONNELIE 291 Syllabus FOLEY v. CONNELIE, SUPERINTENDENT OF NEW YORK STATE POLICE, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK No. 76-839. Argued November 8, 1977—Decided March 22, 1978 New York statute limiting appointment of members of state police force to citizens of the United States held not to violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 294-300. (a) Citizenship may be a relevant qualification for fulfilling those “important nonelective . . . positions” held by “officers who participate directly in the formulation, execution, or review of broad public policy,” Sugarman v. Dougall, 413 U. S. 634, 647. Strict equal protection scrutiny is not required to justify classifications applicable to such positions; a State need only show some rational relationship between the interest sought to be protected and the limiting classification. In deciding what level of scrutiny is to be applied, each position in question must be examined to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community. Pp. 294-297. (b) Police officials are clothed with authority to exercise an almost infinite variety of discretionary powers, calling for a very high degree of judgment and discretion, the exercise of which can seriously affect individuals. Police officers fall within the category of “important nonelective . . . officers who participate directly in the . . . execution . . . of broad public policy.” Dougall, supra, at 647 (emphasis added). In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position, and a State may therefore confine the performance of this important public responsibility to those who are citizens. Pp. 297-300. 419 F. Supp. 889, affirmed. Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Powell, and Rehnquist, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 300. Blackmun, J., filed an opinion concurring in the result, post, p. 300. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 302. Stevens, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 307. 292 OCTOBER TERM, 1977 Opinion of the Court 435U.S. Jonathan A. Weiss argued the cause for appellant. With him on the briefs was David S. Preminger. Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellees. With her on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirsho-witz, First Assistant Attorney General.* Mr. Chief Justice Burger delivered the opinion of the Court. We noted probable jurisdiction in this case to consider whether a State may constitutionally limit the appointment of members of its police force to citizens of the United States. 430 U. S. 944 (1977). The appellant, Edmund Foley, is an alien eligible in due course to become a naturalized citizen, who is lawfully in this country as a permanent resident. He applied for appointment as a New York State trooper, a position which is filled on the basis of competitive examinations. Pursuant to a New York statute, N. Y. Exec. Law § 215 (3) (McKinney 1972), state authorities refused to allow Foley to take the examination. The statute provides: “No person shall be appointed to the New York state police force unless he shall be a citizen of the United States.” Appellant then brought this action in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the State’s exclusion of aliens from its police force violates the Equal Protection Clause of the Fourteenth Amendment. After Foley was certified as representative of a class of those similarly situated, a three-judge * Vilma S. Martinez and Morris J. Baller filed a brief for the Mexican American Legal Defense and Educational Fund, Inc., et al. as amici curiae urging reversal. FOLEY v. CONNELIE 293 291 Opinion of the Court District Court was convened to consider the merits of the claim. The District Court held the statute to be constitutional. 419 F. Supp. 889 (1976). We affirm. I The essential facts in this case are uncontroverted. New York Exec. Law § 215 (3) (McKinney 1972) prohibits appellant and his class from becoming state troopers. It is not disputed that the State has uniformly complied with this restriction since the statute was enacted in 1927. Under it, an alien who desires to compete for a position as a New York State trooper must relinquish his foreign citizenship and become an American citizen. Some members of the class, including appellant, are not currently eligible for American citizenship due to waiting periods imposed by congressional enactment.1 A trooper in New York is a member of the state police force, a law enforcement body which exercises broad police authority throughout the State. The powers of troopers are generally described in the relevant statutes as including those functions traditionally associated with a peace officer. Like most peace officers, they are charged with the prevention and detection of crime, the apprehension of suspected criminals, investigation of suspect conduct, execution of warrants and have powers of search, seizure and arrest without a formal warrant under limited circumstances. In the course of carrying out these responsibilities an officer is empowered by New York law to resort to lawful force, which may include the use of any weapon that he is required to carry while on duty. All troopers are on call 24 hours a day and are required to take appropriate action whenever criminal activity is observed. 1 We recognize that New York’s statute may effectively prevent some class members from ever becoming troopers since state law limits eligibility for these positions to those between the age of 21 and 29 years. N. Y. Exec. Law §215 (3) (McKinney 1972). 294 OCTOBER TERM, 1977 Opinion of the Court 435U.S. Perhaps the best shorthand description of the role of the New York State trooper was that advanced by the District Court: “State police are charged with the enforcement of the law, not in a private profession and for the benefit of themselves and their clients, but for the benefit of the people at large of the State of New York.” 419 F. Supp., at 896. II Appellant claims that the relevant New York statute violates his rights under the Equal Protection Clause. The decisions of this Court with regard to the rights of aliens living in our society have reflected fine, and often difficult, questions of values. As a Nation we exhibit extraordinary hospitality to those who come to our country,2 which is not surprising for we have often been described as “a nation of immigrants.” Indeed, aliens lawfully residing in this society have many rights which are accorded to noncitizens by few other countries. Our cases generally reflect a close scrutiny of restraints imposed by States on aliens. But we have never suggested that such legislation is inherently invalid, nor have we held that all limitations on aliens are suspect. See Sugarman v. Dougall, 413 U. S. 634, 648 (1973). Rather, beginning with a case which involved the denial of welfare assistance essential to life itself, the Court has treated certain restrictions on aliens with “heightened judicial solicitude,” Graham v. Richardson, 403 U. S. 365, 372 (1971), a treatment deemed necessary since aliens—pending their eligibility for citizenship—have no direct voice in the political processes. See United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938).3 2 One indication of this attitude is Congress’ determination to make it relatively easy for immigrants to become naturalized citizens. See 8 U. S. C. § 1427 (1976 ed.). 3 The alien’s status is, at least for a time, beyond his control since FOLEY v. CONNELIE 295 291 Opinion of the Court Following Graham, a series of decisions has resulted requiring state action to meet close scrutiny to exclude aliens as a class from educational benefits, Nyquist v. Mauclet, 432 U. S. 1 (1977); eligibility for a broad range of public employment, Sugarman v. Dougall, supra; or the practice of licensed professions, Examining Board v. Flores de Otero, 426 U. S. 572 (1976); In re Griffiths, 413 U. S. 717 (1973). These exclusions struck at the noncitizens’ ability to exist in the community, a position seemingly inconsistent with the congressional determination to admit the alien to permanent residence. See Graham, supra, at 377-378; Barrett, Judicial Supervision of Legislative Classifications—A More Modest Role For Equal Protection?, 1976 B. Y. U. L. Rev. 89, 101.4 It would be inappropriate, however, to require every statutory exclusion of aliens to clear the high hurdle of “strict scrutiny,” because to do so would “obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship.” Mauclet, supra, at 14 (Burger, C. J., dissenting). The act of becoming a citizen is more than a ritual with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. Cf. Worcester v. Georgia, 6 Pet. 515, 559 (1832). The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized “a State’s historical power to exclude aliens from participation in its democratic political institutions,” Dougall, supra, at 648, as Congress has imposed durational residency requirements for the attainment of citizenship. Federal law generally requires an alien to lawfully reside in this country for five years as a prerequisite to applying for naturalization. 8 U. S. C. § 1427 (a) (1976 ed.). 4 In Mauclet, for example, New York State policy reflected a legislative judgment that higher education was “ ‘no longer ... a luxury; it is a necessity for strength, fulfillment and survival.’ ” 432 U. S., at 8 n. 9. 296 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. part of the sovereign’s obligation “ ‘to preserve the basic conception of a political community.’ ” 413 U. S., at 647. The practical consequence of this theory is that “our scrutiny will not be so demanding where we deal with matters firmly within a State’s constitutional prerogatives.” Dougall, supra, at 648. The State need only justify its classification by a showing of some rational relationship between the interest sought to be protected and the limiting classification. This is not intended to denigrate the valuable contribution of aliens who benefit from our traditional hospitality. It is no more than recognition of the fact that a democratic society is ruled by its people. Thus, it is clear that a State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions. See 413 U. S., at 647-649. Similar considerations support a legislative determination to exclude aliens from jury service. See Perkins v. Smith, 370 F. Supp. 134 (Md. 1974), aff’d, 426 U. S. 913 (1976). Likewise, we have recognized that citizenship may be a relevant qualification for fulfilling those “important nonelective executive, legislative, and judicial positions,” held by “officers who participate directly in the formulation, execution, or review of broad public policy.” Dougall, supra, at 647. This is not because our society seeks to reserve the better jobs to its members. Rather, it is because this country entrusts many of its most important policy responsibilities to these officers, the discretionary exercise of which can often more immediately affect the lives of citizens than even the ballot of a voter or the choice of a legislator. In sum, then, it represents the choice, and right, of the people to be governed by their citizen peers. To effectuate this result, we must necessarily examine each position in question to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community.5 5 This is not to say, of course, that a State may accomplish this end with FOLEY v. CONNELIE 297 291 Opinion of the Court The essence of our holdings to date is that although we extend to aliens the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens. Ill A discussion of the police function is essentially a description of one of the basic functions of government, especially in a complex modern society where police presence is pervasive. The police function fulfills a most fundamental obligation of government to its constituency. Police officers in the ranks do not formulate policy, per se, but they are clothed with authority to exercise an almost infinite variety of discretionary powers.* 6 The execution of the broad powers vested in them affects members of the public significantly and often in the most sensitive areas of daily life. Our Constitution, of course, provides safeguards to persons, homes and possessions, as well as guidance to police officers. And few countries, if any, provide more protection to individuals by limitations on the power and discretion of the police. Nonetheless, police may, in the exercise of their discretion, invade the privacy of an individual in public places, e. g., Terry v. Ohio, 392 U. S. 1 (1968). They may under some conditions break down a door to enter a dwelling or other building in the execution of a warrant, e. g., Miller v. United States, 357 U. S. 301 (1958), or without a formal warrant in very limited circumstances; they may stop vehicles traveling on public highways, e. g., Pennsylvania v. Mimms, 434 U. S. 106 (1977). a citizenship restriction that “sweeps indiscriminately,” Dougall, 413 U. S., at 643, without regard to the differences in the positions involved. 6 See ABA Project on Standards for Criminal Justice, The Urban Police Function 119 (App. Draft 1973) ; National Advisory Commission on Criminal Justice Standards and Goals, Police 22-23 (1973); President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 10 (1967). 298 OCTOBER TERM, 1977 Opinion of the Court 435U.S. An arrest, the function most commonly associated with the police, is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority, as when an officer observes a criminal act in progress or suspects that felonious activity is afoot. Even the routine traffic arrests made by the state trooper—for speeding, weaving, reckless driving, improper license plates, absence of inspection stickers, or dangerous physical condition of a vehicle, to describe only a few of the more obvious common violations—can intrude on the privacy of the individual. In stopping cars, they may, within limits, require a driver or passengers to disembark and even search them for weapons, depending on time, place and circumstances. That this prophylactic authority is essential is attested by the number of police officers wounded or killed in the process of making inquiry in borderline, seemingly minor violation situations—for example, where the initial stop is made for a traffic offense but, unknown to the officer at the time, the vehicle occupants are armed and engaged in or embarked on serious criminal conduct. Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals.7 The office of a policeman is in no sense one of “the common occupations of the community” that the then Mr. Justice Hughes referred to in Truax v. Raich, 239 U. S. 33, 41 (1915). A policeman vested with the plenary discretionary powers we have described is not to be equated with a private person engaged in routine public employment or other “common occupations of the community” who exercises no broad power over people gen 7 After the event, some abuses of power may be subject to remedies by one showing injury. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). And conclusive evidence of criminal conduct may be kept from the knowledge of a jury because of police error or misconduct. FOLEY v. CONNELIE 299 291 Opinion of the Court erally. Indeed, the rationale for the qualified immunity historically granted to the police rests on the difficult and delicate judgments these officers must often make. See Pierson v. Ray, 386 U. S. 547, 555-557 (1967); cf. Scheuer v. Rhodes, 416 U. S. 232, 245-246 (1974). In short, it would be as anomalous to conclude that citizens may be subjected to the broad discretionary powers of noncitizen police officers as it would be to say that judicial officers and jurors with power to judge citizens can be aliens. It is not surprising, therefore, that most States expressly confine the employment of police officers to citizens,8 whom the State may reasonably presume to be more familiar with and sym 8 Twenty-four States besides New York specifically require United States citizenship as a prerequisite for becoming a member of a statewide law enforcement agency: see Ark. Stat. Ann. §42-406 (1964); Cal. Govt. Code Ann. § 1031 (West Supp. 1978); Fla. Stat. Aim. § 943.13 (2) (West Supp. 1976); Ga. Code § 92A-214 (Supp. 1977); Ill. Rev. Stat., ch. 121, §307.9 (1975); Ind. Rules & Regs., Tit. 10, Art. 1, ch. 1, §4-7 (1976); Iowa Code §80.15 (1977); Kan. Stat. Ann. §74-2113 (c) (Supp. 197B); Ky. Rev. Stat. § 16.040 (2)(c) (1971); Mich. Comp. Laws §28.4 (1967); Miss. Code Ann. §45-3-9 (Supp. 1977); Mo. Rev. Stat. §43.060 (1969); Mont. Rev. Codes Ann. § 31-105 (3) (a) (v) (Supp. 1977); Nev. Rev. Stat. §281.060 (1) (1975); N. H. Rev. Stat. Ann. § 106-B:20 (Supp. 1975); N. J. Stat. Ann. §53:1-9 (West Supp. 1977); N. M. Stat. Ann. §39-2-6 (1972); N. D. Cent. Code §394)3-04(4) (Supp. 1977); Ore. Rev. Stat. § 181.260 (1) (a) (1977); Pa. Stat. Ann., Tit. 71, § 1193 (Purdon 1962); R. I. Gen. Laws §42-28-10 (1970); S. D. Comp. Laws Ann. §3-7-9 and §3-1-4 (1974); Tex. Rev. Civ. Stat. Ann., Art. 4413 (9) (2) (Vernon 1976); Utah Code Ann. §27-11-11 (1976). Oklahoma requires its officers to be citizens of the State. See Okla. Stat., Tit. 47, § 2-105 (a) (Supp. 1976). Nine other States require American citizenship as part of a general requirement applicable to all types of state officers or employees: see Ala. Code, Tit. 36, § 2-1 (a) (1) (1977); Ariz. Rev. Stat. Ann. § 38-201 (1974); Haw. Rev. Stat. § 78-1 (1976); Idaho Code §59-101 (1976) and Idaho Const., Art. 6, § 2; Me. Rev. Stat. Ann., Tit. 5, § 556 (Supp. 1977); Mass. Gen. Laws Ann., ch. 31, § 12 (West Supp. 1977); Ohio Rev. Code Ann. § 124.22 (1978); Tenn. Code Ann. §8-1801 (Supp. 1977); Vt. Stet. Ann., Tit. 3, §262 (1972); W. Va. Const., Art. 4, §4. 300 OCTOBER TERM, 1977 Blackmun, J., concurring in result 435U.S. pathetic to American traditions.9 Police officers very clearly fall within the category of “important nonelective . . . officers who participate directly in the . . . execution ... of broad public policy.” Dougall, 413 U. S., at 647 (emphasis added). In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position. A State may, therefore, consonant with the Constitution, confine the performance of this important public responsibility to citizens of the United States.10 Accordingly, the judgment of the District Court is Affirmed. Mr. Justice Stewart, concurring. The dissenting opinions convincingly demonstrate that it is difficult if not impossible to reconcile the Court’s judgment in this case with the full sweep of the reasoning and authority of some of our past decisions. It is only because I have become increasingly doubtful about the validity of those decisions (in at least some of which I concurred) that I join the opinion of the Court in this case. Mr. Justice Blackmun, concurring in the result. Once again the Court is called upon to adjudicate the constitutionality of one of New York’s many statutes that impose 9 Police powers in many countries are exercised in ways that we would find intolerable and indeed violative of constitutional rights. To take only one example, a large number of nations do not share our belief in the freedom of movement and travel, requiring persons to carry identification cards at all times. This, inter cilia, affords a rational basis for States to require that those entrusted with the execution of the laws be individuals who, even if not native Americans, have indicated acceptance and allegiance to our Constitution by becoming citizens. 10 Cf. McCarthy v. Philadelphia Civil Service Comm’n, 424 U. S. 645 (1976); Detroit Police Officers Assn. v. Detroit, 385 Mich. 519, 190 N. W. 2d 97 (1971), dismissed for want of substantial federal question, 405 U. S. 950 (1972). FOLEY v. CONNELIE 301 291 Blackmun, J., concurring in result a requirement of citizenship for occupational activity.* Although I have joined the Court in striking down citizenship requirements of this kind, see Graham v. Richardson, 403 U. S. 365 (1971); In re Griffiths, 413 U. S. 717 (1973); Examining Board v. Flores de Otero, 426 U. S. 572 (1976), including, specifically, some imposed by the State of New York, see Sugarman v. Dougall, 413 U. S. 634 (1973); and Nyquist v. Mauclet, 432 U. S. 1 (1977), I have no difficulty in agreeing with the result the Court reaches here. The Court’s prior cases clearly establish the standards to be applied in this one. Mauclet, of course, decided just last Term, is our most recent pronouncement in this area of constitutional law. There, citing Graham v. Richardson, 403 U. S., at 372, we observed once again that a State’s classifications based on alienage “are inherently suspect and subject to close judicial scrutiny,” and, citing Flores de Otero, 426 U. S., at 605, we went on to say that “ ‘the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.’ ” 432 U. S., at 7. In the same opinion, however, limitations were intimated when, citing Sugarman v. Dougall, 413 U. S., at 642 and 647, we said: “[T]he State’s interest ‘in establishing its own form of government, and in limiting participation in that government to those who are within “the basic conception of a *0ne of the appellees in Nyquist n. Mauclet, 432 U. S. 1 (1977), listed a succession of New York statutes requiring citizenship, or a declaration of intent to become a citizen, for no fewer than 37 occupations. Brief for Appellee Mauclet, 0. T. 1976, No. 76-208, pp. 19-22, nn. 8-44, inclusive. Some of the statutes have been legislatively repealed or modified, or judicially invalidated. Others, apparently, are still in effect; among them are those relating to the occupations of inspector, certified shorthand reporter, funeral director, masseur, physical therapist, and animal health technician. 302 OCTOBER TERM, 1977 Marshall, J., dissenting 435U.S. political community” ’ might justify some consideration of alienage. But as Sugarman makes quite clear, the Court had in mind a State’s historical and constitutional powers to define the qualifications of voters, or of ‘elective or important nonelective’ officials ‘who participate directly in the formulation, execution, or review of broad public policy.’ [413 U. S.]> at 647. See id., at 648.” 432 U. S., at 11. When the State is so acting, it need justify its discriminatory classifications only by showing some rational relationship between its interest in preserving the political community and the classification it employs. I agree with the Court’s conclusion that the State of New York has vested its state troopers with powers and duties that are basic to the function of state government. The State may rationally conclude that those who are to execute these duties should be limited to persons who can be presumed to share in the values of its political community as, for example, those who possess citizenship status. New York, therefore, consistent with the Federal Constitution, may preclude aliens from serving as state troopers. Mr. Justice Marshall, with whom Mr. Justice Brennan and Mr. Justice Stevens join, dissenting. Almost a century ago, in the landmark case of Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886), this Court recognized that aliens are “persons” within the meaning of the Fourteenth Amendment. Eighty-five years later, in Graham v. Richardson, 403 U. S. 365 (1971), the Court concluded that aliens constitute a “ ‘discrete and insular’ minority,” and that laws singling them out for unfavorable treatment “are therefore subject to strict judicial scrutiny.” Id., at 372, 376. During the ensuing six Terms, we have invalidated state laws discriminating against aliens on four separate occasions, finding FOLEY v. CONNELIE 303 291 Marshall, J., dissenting that such discrimination could not survive strict scrutiny. Sugarman v. Dougall, 413 U. S. 634 (1973) (competitive civil service); In re Griffiths, 413 U. S. 717 (1973) (attorneys); Examining Board v. Flores de Otero, 426 U. S. 572 (1976) (civil engineers); Nyquist v. Mauclet, 432 U. S. 1 (1977) (financial assistance for higher education). Today the Court upholds a law excluding aliens from public employment as state troopers. It bases its decision largely on dictum from Sugarman v. Dougall, supra, to the effect that aliens may be barred from holding “state elective or important nonelective executive, legislative, and judicial positions,” because persons in these positions “participate directly in the formulation, execution, or review of broad public policy.” 413 U. S., at 647.1 I do not agree with the Court that state troopers perform functions placing them within this “narrofw] . . . exception,” Nyquist v. Mauclet, supra, at 11, to our usual rule that discrimination against aliens is presumptively unconstitutional. Accordingly I dissent. In one sense, of course, it is true that state troopers participate in the execution of public policy. Just as firefighters 1 In Sugarman, the Court indicated that, if the State were to exclude aliens from these positions, the exclusion would be scrutinized under a standard less demanding than that normally accorded classifications involving a “ ‘discrete and insular’ minority.” 413 U. S., at 642. The Court did not explain why the level of scrutiny should vary with the nature of the job from which aliens are being excluded, and the focus of this part of the opinion was on the State’s interest in preserving “ ‘the basic conception of a political community.’ ” Ibid., quoting Dunn v. Blum-stein, 405 U. S. 330, 344 (1972); see 413 U. S., at 647-648. Sugarman may thus be viewed as defining the circumstances under which laws excluding aliens from state jobs would further a compelling state interest, rather than as defining the circumstances under which lesser scrutiny is applicable. Regardless of which approach is followed, however, the question in this case remains the same: Is the job of state trooper a position involving direct participation “in the formulation, execution, or review of broad public policy”? 304 OCTOBER TERM, 1977 Marshall, J., dissenting 435 U. S. execute the public policy that fires should be extinguished, and sanitation workers execute the public policy that streets should be kept clean, state troopers execute the public policy that persons believed to have committed crimes should be arrested. But this fact simply demonstrates that the Sugarman exception, if read without regard to its context, “would swallow the rule.” Nyquist, supra, at 11. Although every state employee is charged with the “execution” of public policy, Sugarman unambiguously holds that a blanket exclusion of aliens from state jobs is unconstitutional. Thus the phrase “execution of broad public policy” in Sugarman cannot be read to mean simply the carrying out of government programs, but rather must be interpreted to include responsibility for actually setting government policy pursuant to a delegation of substantial authority from the legislature. The head of an executive agency, for example, charged with promulgating complex regulations under a statute, executes broad public policy in a sense that file clerks in the agency clearly do not. In short, as Sugarman indicates, those “elective or important nonelective” positions that involve broad policymaking responsibilities are the only state jobs from which aliens as a group may constitutionally be excluded. 413 U. S., at 647. In my view, the job of state trooper is not one of those positions. There is a vast difference between the formulation and execution of broad public policy and the application of that policy to specific factual settings. While the Court is correct that “the exercise of police authority calls for a very high degree of judgment and discretion,” ante, at 298, the judgments required are factual in nature; the policy judgments that govern an officer’s conduct are contained in the Federal and State Constitutions, statutes, and regulations.2 The officer 2 If the state exclusion here were limited to the job of Superintendent of the State Police, a different case would be presented to the extent that FOLEY v. CONNELIE 305 291 Marshall, J., dissenting responding to a particular situation is only applying the basic policy choices—which he has no role in shaping—to the facts as he perceives them.3 We have previously recognized this distinction between the broad policy responsibilities exercised by high executive officials and the more limited responsibilities of police officers and found it relevant in defining the scope of immunity afforded under 42 U. S. C. § 1983: “When a court evaluates police conduct relating to an arrest its guideline is ‘good faith and probable cause.’ In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices—whether the formulation of policy, of legislation, of budgets, or of day-to-day decisions—is virtually infinite. . . . [S]ince the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad.” Scheuer v. Rhodes, 416 U. S. 232, 245-247 (1974) (citation omitted). The Court places great reliance on the fact that policemen make arrests and perform searches, often “without prior judicial authority.” Ante, at 298. I certainly agree that “[an] arrest is a serious matter,” ibid., and that we should be this official executes broad public policy in deciding how to deploy officers and in formulating rules governing police conduct. 3 This view of the differences between those who apply policy and those with policymaking responsibilities was rejected by Mr. Justice Rehnquist in his lone dissenting opinion in Sugarman. His position was that “ ‘low level’ civil servants . . . who apply facts to individual cases are as much ‘governors’ as those who write the laws or regulations the ‘low-level’ administrator must ‘apply.’ ” 413 U. 8., at 661. The eight-justice Sugarman majority, in holding as it did, necessarily took the opposite position: that those “who apply facts to individual cases” do not have responsibility for broad policy execution that is in any way comparable to the responsibility exercised by “those who write the laws or regulations.” 306 OCTOBER TERM, 1977 Marshall, J., dissenting 435U.S. concerned about all “intru[sions] on the privacy of the individual.” Ibid. But these concerns do not in any way make it “anomalous” for citizens to be arrested and searched by “noncitizen police officers,” ante, at 299, at least not in New York State. By statute, New York authorizes “any person” to arrest another who has actually committed a felony or who has committed any other offense in the arresting person’s presence. N. Y. Crim. Proc. Law § 140.30 (McKinney 1971). Moreover, a person making an arrest pursuant to this statute is authorized to make a search incident to the arrest.4 While law enforcement is primarily the responsibility of state troopers, it is nevertheless difficult to understand how the Court can imply that the troopers’ arrest and search authority justifies excluding aliens from the police force when the State has given all private persons, including aliens, such authority. In Griffiths we held that the State could not limit the practice of law to citizens, “despite a recognition of the vital public and political role of attorneys,” Nyquist v. Mauclet, 432 U. S., at 11. It is similarly not a denigration of the important public role of the state trooper—who, as the Court notes, ante, at 297, operates “in the most sensitive areas of daily life”—to find that his law enforcement responsibilities do not “make him a formulator of government policy.” In re Griffiths, 413 U. S., at 729. Since no other rational reason, let alone a compelling state interest, has been advanced in sup 4 See United States v. Rosse, 418 F. 2d 38, 39-40 (CA2 1969); United States v. Viale, 312 F. 2d 595, 599, 600 (CA2 1963). Although many of the cases discussing the right of a private individual to make arrests and searches refer to a “citizen” taking the action, see United States v. Swarovski, 557 F. 2d 40 (CA2 1977), cert, denied, 434 U. S. 1045 (1978); United States v. Rosse, supra, at 39; United States v. Viale, supra, it is clear from the context and from the plain language of the statutory provision that the right to arrest is not limited to citizens but applies to “any person.” FOLEY v. CONNELIE 307 291 Stevens, J., dissenting port of the statute here at issue,51 would hold that the statute’s exclusion of aliens from state trooper positions violates the Equal Protection Clause of the Fourteenth Amendment. Mr. Justice Stevens, with whom Mr. Justice Brennan joins, dissenting. A State should, of course, scrutinize closely the qualifications of those who perform professional services within its borders. Police officers, like lawyers, must be qualified in their field of expertise and must be trustworthy. Detailed review of each individual’s application for employment is therefore appropriate. Conversely, a rule which disqualifies an entire class of persons from professional employment is doubly objectionable. It denies the State access to unique individual talent; it also denies opportunity to individuals on the basis of characteristics that the group is thought to possess. The first objection poses a question of policy rather than 5 One other justification for the statute was proffered by the appellee, see App. D-30 (affidavit of Superintendent of State Police), and accepted by the court below: "The state quite rightly observes that conflicts of allegiance would be most glaring with respect to the alien’s duty as a state policeman to make arrests of violators of the federal immigration laws, to participate in the Governor’s Detail which provides protection for the Governor and visiting foreign dignitaries, to conduct investigations into matters having to do with government security, and to provide security at events involving foreign visitors such as the 1980 Winter Olympics to be held in Lake Placid, New York.” 419 F. Supp. 889,898 (SDNY 1976). Not surprisingly, the appellee does not rely on this argument in his brief here, and the Court does not mention it. The suggestion that alien troopers would refuse to enforce the law against other aliens is highly offensive. This rationale would justify the State’s refusal to hire members of any group on the basis that the individuals could not be trusted to faithfully enforce the law against other members of their race, nationality, or sex. I would have thought that the day had long since passed when a court would accept such a justification for exclusion of a group from public employment. 308 OCTOBER TERM, 1977 Stevens, J., dissenting 435U.S. constitutional law. The wisdom of a rule denying a law enforcement agency the services of Hercule Poirot or Sherlock Holmes is thus for New York, not this Court, to decide. But the second objection raises a question of a different kind and a satisfactory answer to this question is essential to the validity of the rule: What is the group characteristic that justifies the unfavorable treatment of an otherwise qualified individual simply because he is an alien? No one suggests that aliens as a class lack the intelligence or the courage to serve the public as police officers. The disqualifying characteristic is apparently a foreign allegiance which raises a doubt concerning trustworthiness and loyalty so pervasive that a flat ban against the employment of any alien in any law enforcement position is thought to be justified. But if the integrity of all aliens is suspect, why may not a State deny aliens the right to practice law? Are untrustworthy or disloyal lawyers more tolerable than untrustworthy or disloyal policemen? Or is the legal profession better able to detect such characteristics on an individual basis than is the police department? Unless the Court repudiates its holding in In re Griffiths, 413 U. S. 717, it must reject any conclusive presumption that aliens, as a class, are disloyal or untrustworthy.1 * 111 A characteristic that all members of the class do possess may provide the historical explanation for their exclusion from some categories of public employment. Aliens do not vote. Aliens and their families were therefore unlikely to have been beneficiaries of the patronage system which controlled access to public employment during so much of our history. The widespread exclusion of aliens from such positions today may 1 It is worth reiterating that “one need not be a citizen in order to take in good conscience an oath to support the Constitution,. See In re Griffiths, 413 U. S., at 726 n. 18.” Hampton v. Mow Sun Wong, 426 U. S. 88, 111 n. 43. FOLEY v. CONNELIE 309 291 Stevens, J., dissenting well be nothing more than a vestige of the historical relationship between nonvoting aliens and a system of distributing the spoils of victory to the party faithful.2 If that be true, it might explain, but cannot justify, the discrimination. Even if patronage never influenced the selection of police officers in New York, reference to the law governing denial of public employment for political reasons is nevertheless instructive. In Elrod v. Burns, 427 U. S. 347, the Court held that most public employees are protected from discharge because of their political beliefs but recognized that an exception was required for policymaking officials.3 The exception identified in Burns was essentially the same as the category of “officers who participate in the formulation, execution, or review of broad public policy” described in Sugarman v. Dougall, 413 U. S. 634, 647. In both cases the special nature of the policy-making position was recognized as justifying a form of discriminatory treatment that could not be applied to regular employees. 2 “In its historical context, the assumption that only citizens would be employed in the federal service is easily understood. The new system of merit appointment, based on competitive examination, was replacing a patronage system in which appointment had often been treated as a method of rewarding support at the polls; since such rewards were presumably reserved for voters (or members of their families) who' would necessarily be citizens, citizenship must have characterized most, if not all, federal employees at that time. The assumption that such a requirement would survive the enactment of the new statute is by no means equivalent to a considered judgment that it should do so.” Id., at 107. 3 “A second interest advanced in support of patronage is the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate. The justification is not without force, but is nevertheless inadequate to validate patronage wholesale. Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end.” Elrod v. Bums, 427 U. S., at 367. 310 OCTOBER TERM, 1977 Stevens, J., dissenting 435 U. S. The Court should draw the line between policymaking and nonpolicymaking positions in as consistent and intelligible a fashion as possible. As Mr. Justice Marshall points out, ante, at 305, in the context of immunity from liability under 42 U. S. C. § 1983, the Court placed the police officer in a different category from the Governor of Ohio. See Scheuer v. Rhodes, 416 U. S. 232, 245-247. And under Elrod v. Burns, supra, the Court would unquestionably condemn the dismissal of a citizen state trooper because his political affiliation differed from that of his superiors. Yet, inexplicably, every state trooper is transformed into a high ranking, policymaking official when the question presented is whether persons may be excluded from all positions in the police force simply because they are aliens. Since the Court does not purport to disturb the teaching of Sugarman, this transformation must rest on the unarticulated premise that the police function is at “the heart of representative government” and therefore all persons employed by the institutions performing that function “participate directly in the formulation, execution, or review of broad public policy . . . .” Sugarman v. Dougall, supra, at 647. In my judgment, to state the premise is to refute it. Respect for the law enforcement profession and its essential function, like respect for the military, should not cause us to lose sight of the fact that in our representative democracy neither the constabulary nor the military is vested with broad policymaking responsibility. Instead, each implements the basic policies formulated directly or indirectly by the citizenry. Under the standards announced in Sugarman, therefore, a blanket exclusion of aliens from this particular governmental institution is especially inappropriate. The Court’s misapprehension of the role of the institutionalized police function in a democratic society obfuscates the true significance of the distinction between citizenship and alienage. The privilege of participating in the formulation FOLEY v. CONNELIE 311 291 Stevens, J., dissenting of broad public policy—a privilege largely denied to the institutions exercising the police function in our society—is the essence of individual citizenship. It is this privilege which gives dramatic meaning to the naturalization ceremony.4 * 6 The transition from alienage to citizenship is a fundamental change in the status of a person. This change is qualitatively different from any incremental increase in economic benefits that may accrue to holders of citizenship papers. The new citizen’s right to vote and to participate in the democratic decisionmaking process is the honorable prerogative which no alien has a constitutional right to enjoy. In final analysis, therefore, our society is governed by its citizens. But it is a government of and for all persons subject to its jurisdiction, and the Constitution commands their equal treatment. Although a State may deny the alien the right to participate in the making of policy, it may not deny him equal access to employment opportunities without a good and relevant reason. Sugarman plainly teaches us that the burgeoning public employment market cannot be totally foreclosed to aliens. Since the police officer is not a policymaker in this country, the total exclusion of aliens from the police force must fall. Even if the Court rejects this analysis, it should not uphold a statutory discrimination against aliens, as a class, without expressly identifying the group characteristic that justifies the 4 As the Court eloquently points out: “The act of becoming a citizen is more than a ritual with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. Cf. Worcester v. Georgia, 6 Pet. 515, 559 (1832). The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized ‘a State’s historical power to exclude aliens from participation in its democratic political institutions.’ Dougall, supra, at 648, as part of the sovereign’s obligation ‘to preserve the basic conception of a political community.’ 413 U. S., at 647.” Ante, at 295-296. 312 OCTOBER TERM, 1977 Stevens, J., dissenting 435 U. S. discrimination. If the unarticulated characteristic is concern about possible disloyalty, it must equally disqualify aliens from the practice of law; yet the Court does not question the continuing vitality of its decision in Griffiths. Or if that characteristic is the fact that aliens do not participate in our democratic decisionmaking process, it is irrelevant to eligibility for this category of public service. If there is no group characteristic that explains the discrimination, one can only conclude that it is without any justification that has not already been rejected by the Court.8 Because the Court’s unique decision fails either to apply or to reject established rules of law, and for the reasons stated by Mr. Justice Marshall, I respectfully dissent. 5 The Court has squarely held that a State may not treat employment as a scarce resource to be reserved for its own citizens. Sugarman v. Dougall, 413 U. S. 634, 641-645. Nor may a State impose special burdens on aliens to provide them with an incentive to become naturalized citizens. Nyquist n. Mauclet, 432 U. S. 1, 9-11. For it is the Federal Government that exercises plenary control over naturalization and immigration. Hampton v. Mow Sun Wong, 426 U. S., at 100-101. The Court’s understanding that “most States expressly confine the employment of police officers to citizens,” ante, at 299, is not persuasive. Most of the statutes cited to support that understanding were enacted before the Court had decided Sugarman. Some of the cited statutes are patently invalid as a result of Sugarman, and there is no evidence that most of the States referred to by the Court have decided to continue enforcement of their citizenship requirement for police officers after deliberate consideration of Sugarman’s teaching that only policymaking officials would be unaffected by the holding. UNITED STATES v. WHEELER 313 Syllabus UNITED STATES v. WHEELER CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 76-1629. Argued January 11, 1978—Decided March 22, 1978 Respondent, a member of the Navajo Tribe, pleaded guilty in Tribal Court to a charge of contributing to the delinquency of a minor and was sentenced. Subsequently, he was indicted by a federal grand jury for statutory rape arising out of the same incident. He moved to dismiss the indictment on the ground that since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape, the Tribal Court proceeding barred the subsequent federal prosecution. The District Court granted the motion, and the Court of Appeals affirmed, holding that since tribal courts and federal district courts are not “arms of separate sovereigns,” the Double Jeopardy Clause of the Fifth Amendment barred respondent’s federal trial. Held: The Double Jeopardy Clause does not bar the federal prosecution. Pp. 316-332. (a) The controlling question is the source of an Indian tribe’s power to punish tribal offenders, i. e., whether it is a part of inherent tribal sovereignty or an aspect of the sovereignty of the Federal Government that has been delegated to the tribes by Congress. Pp. 316-322. (b) Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. Pp. 322-323. (c) Here, it is evident from the treaties between the Navajo Tribe and the United States and from the various statutes establishing federal criminal jurisdiction over crimes involving Indians, that the Navajo Tribe has never given up its sovereign power to punish tribal offenders, nor has that power implicitly been lost by virtue of the Indians’ dependent status; thus, tribal exercise of that power is presently the continued exercise of retained tribal sovereignty. Pp. 323-326. (d) Moreover, such power is not attributable to any delegation of federal authority. Pp. 326-328. (e) When an Indian tribe criminally punishes a tribe member for violating tribal law, the tribe acts as an independent sovereign, and not as an arm of the Federal Government, Talton v. Mayes, 163 U. S. 376, and since tribal and federal prosecutions are brought by separate sover 314 OCTOBER TERM, 1977 Opinion of the Court 435U.S. eigns, they are not “for the same offence” and the Double Jeopardy Clause thus does not bar one when the other has occurred. Pp. 328-330. (f) To limit the “dual sovereignty” concept to successive state and federal prosecutions, as respondent urges, would result, in a case such as this, in the “undesirable consequences” of having a tribal prosecution for a relatively minor offense bar a federal prosecution for a much graver one, thus depriving the Federal Government of the right to enforce its own laws; while Congress could solve this problem by depriving Indian tribes of criminal jurisdiction altogether, this abridgment of the tribes’ sovereign powers might be equally undesirable. See Abbate v. United States, 359 U. S. 187. Pp. 330-332. 545 F. 2d 1255, reversed and remanded. Stewart, J., delivered the opinion of the Court, in which all other Members joined except Brennan, J., who took no part in the consideration or decision of the case. Stephen L. Urbanczyk argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, Deputy Solicitor General Barnett, Jerome M. Feit, and Michael W. Farrell. Thomas W. O'Toole argued the cause and filed a brief for respondent. Mr. Justice Stewart delivered the opinion of the Court. The question presented in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars the prosecution of an Indian in a federal district court under the Major Crimes Act, 18 U. S. C. § 1153, when he has previously been convicted in a tribal court of a lesser included offense arising out of the same incident. I On October 16, 1974, the respondent, a member of the Navajo Tribe, was arrested by a tribal police officer at the Bureau of Indian Affairs High School in Many Farms, Ariz., on the Navajo Indian Reservation.1 He was taken to the 1The record does not make clear the details of the incident that led UNITED STATES v. WHEELER 315 313 Opinion of the Court tribal jail in Chinle, Ariz., and charged with disorderly conduct, in violation of Title 17, § 351, of the Navajo Tribal Code (1969). On October 18, two days after his arrest, the respondent pleaded guilty to disorderly conduct and a further charge of contributing to the delinquency of a minor, in violation of Title 17, § 321, of the Navajo Tribal Code (1969). He was sentenced to 15 days in jail or a fine of $30 on the first charge and to 60 days in jail (to be served concurrently with the other jail term) or a fine of $120 on the second.* 2 Over a year later, on November 19, 1975, an indictment charging the respondent with statutory rape was returned by a grand jury in the United States District Court for the District of Arizona.3 The respondent moved to dismiss this to the respondent’s arrest. After the bringing of the federal indictment an evidentiary hearing was held on the respondent’s motion to suppress statements he had made to police officers. This hearing revealed only that the respondent had been intoxicated at the time of his arrest; that his clothing had been disheveled and he had had a bloodstain on his face; that the incident had involved a Navajo girl; and that the respondent claimed that he had been trying to help the girl, who had been attacked by several other boys. 2 The record does not reveal how the sentence of the Navajo Tribal Court was carried out. 3 The indictment charged that “[o]n or about the 16th day of October, 1974, in the District of Arizona, on and within the Navajo Indian Reservation, Indian Country, ANTHONY ROBERT WHEELER, an Indian male, did carnally know a female Indian . . . not his wife, who had not then attained the age of sixteen years but was fifteen years of age. In violation of Title 18, United States Code, Sections 1153 and 2032.” At the time of the indictment, 18 U. S. C. § 1153 provided in relevant part: “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, . . . carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, . . . within the Indian country, shall be subject to the same 316 OCTOBER TERM, 1977 Opinion of the Court 435U.S. indictment, claiming that since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape,4 the proceedings that had taken place in the Tribal Court barred a subsequent federal prosecution. See Brown n. Ohio, 432 U. S. 161. The District Court, rejecting the prosecutor’s argument that “there is not an identity of sovereignties between the Navajo Tribal Courts and the courts of the United States,” dismissed the indictment.5 The Court of Appeals for the Ninth Circuit affirmed the judgment of dismissal, concluding that since “Indian tribal courts and United States district courts are not arms of separate sovereigns,” the Double Jeopardy Clause barred the respondent’s trial. 545 F. 2d 1255, 1258. We granted certiorari to resolve an intercircuit conflict. 434 U. S. 816.6 II In Bartkus v. Illinois, 359 U. S. 121, and Abbate v. United States, 359 U. S. 187, this Court reaffirmed the well-established laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” The Major Crimes Act has since been amended in respects not relevant here. Indian Crimes Act of 1976, § 2, 90 Stat. 585. Title 18 U. S. C. §2032 (1976 ed.), applicable within areas of exclusive federal jurisdiction, punishes carnal knowledge of any female under 16 years of age who is not the defendant’s wife by imprisonment for up to 15 years. 4 The holding of the District Court and the Court of Appeals that the tribal offense of contributing to the delinquency of a minor was included within the federal offense of statutory rape is not challenged here by the Government. 5 The decision of the District Court is unreported. 6 In a later case, the Court of Appeals for the Eighth Circuit held that the Double Jeopardy Clause does not bar successive tribal and federal prosecutions for the same offense, expressly rejecting the view of the Ninth Circuit in the present case. United States v. Walking Crow, 560 F. 2d 386. See also United States v. Elk, 561 F. 2d 133 (CA8); United States v. Kills Plenty, 466 F. 2d 240,243 n. 3 (CA8). UNITED STATES v. WHEELER 317 313 Opinion of the Court principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one.7 The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, “subject [the defendant] for the same offence to be twice put in jeopardy”: “An offence, in its legal signification, means the transgression of a law. . . . Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.” Moore v. Illinois, 14 How. 13, 19-20. It was noted in Abb ate, supra, at 195, that the “undesirable consequences” that would result from the imposition of a double jeopardy bar in such circumstances further support the 7 Although the problems arising from concurrent federal and state criminal jurisdiction had been noted earlier, see Houston n. Moore, 5 Wheat. 1, the Court did not clearly address the issue until Fox v. Ohio, 5 How. 410, United States v. Marigold, 9 How. 560, and Moore n. Illinois, 14 How. 13, in the mid-19th century. Those cases upheld the power of States and the Federal Government to make the same act criminal; in each case the possibility of consecutive state and federal prosecutions was raised as an objection to concurrent jurisdiction, and was rejected by the Court on the ground that such multiple prosecutions, if they occurred, would not constitute double jeopardy. The first case in which actual multiple prosecutions were upheld was United States v. Lanza, 260 U. S. 377, involving a prosecution for violation of the Volstead Act, ch. 85, 41 Stat. 305, after a conviction for criminal violation of liquor laws of the State of Washington. 318 OCTOBER TERM, 1977 Opinion of the Court 435U.S. “dual sovereignty” concept. Prosecution by one sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws.8 While, the Court said, conflict might be eliminated by making federal jurisdiction exclusive where it exists, such a “marked change in the distribution of powers to administer criminal justice” would not be desirable. Ibid. The “dual sovereignty” concept does not apply, however, in every instance where successive cases are brought by nominally different prosecuting entities. Grafton v. United States, 206 U. S. 333, held that a soldier who had been acquitted of murder by a federal court-martial could not be retried for the same offense by a territorial court in the Philippines.9 And Puerto Rico v. Shell Co., 302 U. S. 253, 264-266, reiterated that successive prosecutions by federal and territorial courts are impermissible because such courts are “creations emanating from the same sovereignty.” Similarly, in Waller v. Florida, 397 U. S. 387, we held that a city and the State of which it 8 In Abbate itself the petitioners had received prison terms of three months on their state convictions, but faced up to five years’ imprisonment on the federal charge. 359 U. S., at 195. And in Bartkus the Court referred to Screws v. United States, 325 U. S. 91, in which the same facts could give rise to a federal prosecution under what are now 18 U. 8. C. §§ 242 and 371 (1976 ed.) (which then carried maximum penalties of one and two years’ imprisonment) and a state prosecution for murder, a capital offense. “Were the federal prosecution of a comparatively minor offense to prevent state prosecution of so grave an infraction of state law, the result would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines.” Bartkus v. Illinois, 359 U. S. 121, 137. 9 The prohibition against double jeopardy had been made applicable to the Philippines by Act of Congress. Act of July 1, 1902, § 5, 32 Stat. 692. In a previous case, the Court had held it unnecessary to decide whether the Double Jeopardy Clause would have applied within the Philippines of its own force in the absence of this statute. Kepner v. United States, 195 U. S. 100,124-125. UNITED STATES v. WHEELER 319 313 Opinion of the Court is a political subdivision could not bring successive prosecutions for unlawful conduct growing out of the same episode, despite the fact that state law treated the two as separate sovereignties. The respondent contends, and the Court of Appeals held, that the “dual sovereignty” concept should not apply to successive prosecutions by an Indian tribe and the United States because the Indian tribes are not themselves sovereigns, but derive their power to punish crimes from the Federal Government. This argument relies on the undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government. Winton v. Amos, 255 U. S. 373, 391-392; In re Heft, 197 U. S. 488, 498-499; Lone Wolf v. Hitchcock, 187 U. S. 553; Talton v. Mayes, 163 U. S. 376, 384. Because of this all-encompassing federal power, the respondent argues that the tribes are merely “arms of the federal government” 10 11 which, in the words of his brief, “owe their existence and vitality solely to the political department of the federal government.” We think that the respondent and the Court of Appeals, in relying on federal control over Indian tribes, have misconceived the distinction between those cases in which the “dual sovereignty” concept is applicable and those in which it is not. It is true that Territories are subject to the ultimate control of Congress,11 and cities to the control of the State which created them.12 But that fact was not relied upon as the basis for the decisions in Grafton, Shell Co.,13 and Waller. 10 Colli flower v. Garland, 342 F. 2d 369,379 (CA9). 11 Binns v. United States, 194 U. S. 486, 491; De Lima v. Bidwell, 182 U. S. 1, 196-197; Mormon Church v. United States, 136 U. S. 1, 42; Murphy v. Ramsey, 114 U. S. 15, 44-45. 12 Trenton v. New Jersey, 262 U. S. 182, 187; Hunter n. Pittsburgh, 207 U. S. 161, 178-179; Williams v. Eggleston, 170 U. S. 304, 310; Mount Pleasant v. Beckwith, 100 U. S. 514, 529; see 2 E. McQuillin, Law of Municipal Corporations § 4.03 (3d ed. 1966). 13 Indeed, in the Shell Co. case the Court noted that Congress had 320 OCTOBER TERM, 1977 Opinion of the Court 435U.S. What differentiated those cases from Bartkus and Abbate was not the extent of control exercised by one prosecuting authority over the other but rather the ultimate source of the power under which the respective prosecutions were undertaken. Bartkus and Abbate rest on the basic structure of our federal system, in which States and the National Government are separate political communities. State and Federal Governments “[derive] power from different sources,” each from the organic law that established it. United States v. Lanza, 260 U. S. 377, 382. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each “is exercising its own sovereignty, not that of the other.” Ibid. And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State’s own sovereignty which is the origin of its power.14 By contrast, cities are not sovereign entities. “Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” Reynolds v. Sims, 377 U. S. 533, 575.15 A city is nothing more than “an agency of given Puerto Rico “an autonomy similar to that of the states . . . .” 302 U. S., at 262. 14 Cf. United States v. Lanza, 260 U. S., at 379-382, holding that a State’s power to enact prohibition laws did not derive from the Eighteenth Amendment’s provision that Congress and the States should have concurrent jurisdiction in that area, but rather from the State’s inherent sovereignty. 15 See also Trenton v. New Jersey, supra, at 185-186; Hunter v. Pittsburgh, supra, at 178; Worcester v. Street R. Co., 196 U. S. 539, 548; Barnes v. District of Columbia, 91 U. S. 540, 544. UNITED STATES v. WHEELER 321 313 Opinion of the Court the State.” Williams n. Eggleston, 170 U. S. 304, 310. Any power it has to define and punish crimes exists only because such power has been granted by the State; the power “derive [s] . . . from the source of [its] creation.” Mount Pleasant v. Beckwith, 100 U. S. 514, 524. As we said in Waller v. Florida, supra, at 393, “the judicial power to try petitioner ... in municipal court springs from the same organic law that created the state court of general jurisdiction.” Similarly, a territorial government is entirely the creation of Congress, “and its judicial tribunals exert all their powers by authority of the United States.” Grafton v. United States, supra, at 354; see Cincinnati Soap Co. v. United States, 301 U. S. 308, 317; United States v. Kagama, 118 U. S. 375, 380; American Ins. Co. v. Canter, 1 Pet. 511, 542.16 When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as “an agency of the federal government.” Domenech v. National City Bank, 294 U. S. 199, 204-205. Thus, in a federal Territory and the Nation, as in a city and a State, “[t]here is but one system of government, or of laws operating within [its] limits.” Benner v. Porter, 9 How. 235, 242. City and State, or Territory and Nation, are not two separate sovereigns to whom the citizen owes separate allegiance in any meaningful sense, but one alone.17 And the “dual sovereignty” concept of Bartkus and Abbate does not permit a single sovereign to impose multiple punishment for 16 Indeed, the relationship of a Territory to the Federal Government has been accurately compared to the relationship between a city and a State. Dorr v. United States, 195 U. S. 138, 147-148, quoting T. Cooley, General Principles of Constitutional Law 164-165 (1880); see National Bank v. County of Yankton, 101 U. S. 129, 133. 17 Cf. Gonzales v. Williams, 192 U.S. 1, 13; American Ins. Co. v. Canter, 1 Pet. 511, 542. 322 OCTOBER PERM, 1977 Opinion of the Court 435U.S. a single offense merely by the expedient of establishing multiple political subdivisions with the power to punish crimes. Ill It is undisputed that Indian tribes have power to enforce their criminal laws against tribe members. Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain “a separate people, with the power of regulating their internal and social relations.” United States v. Kagama, supra, at 381-382; Cherokee Nation v. Georgia, 5 Pet. 1, 16.18 Their right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions. United States v. Antelope, 430 U. S. 641, 643 n. 2; Talton v. Mayes, 163 U. S., at 380; Ex parte Crow Dog, 109 U. S. 556, 571-572; see 18 U. S. C. § 1152 (1976 ed.), infra, n. 21. As discussed above in Part II, the controlling question in this case is the source of this power to punish tribal offenders: Is it a part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress? A The powers of Indian tribes are, in general, “inherent powers oj a limited sovereignty which has never been extinguished.” F. Cohen, Handbook of Federal Indian Law 122 (1945) (emphasis in original). Before the coming of the Europeans, the tribes were self-governing sovereign political 18 Thus, unless limited by treaty or statute, a tribe has the power to determine tribe membership, Cherokee Intermarriage Cases, 203 U. S. 76; Roff v. Burney, 168 U. S. 218, 222-223; to regulate domestic relations among tribe members, Fisher v. District Court, 424 U. S. 382; cf. United States v. Quiver, 241 U. S. 602; and to prescribe rules for the inheritance of property. Jones N. Meehan, 175 U. 8. 1, 29; United States ex rel. Mackey v. Coxe, 18 How. 100. UNITED STATES v. WHEELER 323 313 Opinion of the Court communities. See McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 172. Like all sovereign bodies, they then had the inherent power to prescribe laws for their members and to punish infractions of those laws. Indian tribes are, of course, no longer “possessed of the full attributes of sovereignty.” United States v. Kagama, supra, at 381. Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised.19 By specific treaty provision they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others. But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said: “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory .... [They] are a good deal more than ‘private, voluntary organizations.’ ” United States v. Mazurie, 419 U. S. 544, 557; see also Turner v. United States, 248 U. S. 354, 354-355; Cherokee Nation n. Georgia, supra, at 16-17. The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. See Oliphant v. Suquamish Indian Tribe, ante, p. 191. B It is evident that the sovereign power to punish tribal offenders has never been given up by the Navajo Tribe and that tribal exercise of that power today is therefore the con- 19 See infra, at 326. 324 OCTOBER TERM, 1977 Opinion of the Court 435U.S. tinned exercise of retained tribal sovereignty. Although both of the treaties executed by the Tribe with the United States20 provided for punishment by the United States of Navajos who commit crimes against non-Indians, nothing in either of them deprived the Tribe of its own jurisdiction to charge, try, and punish members of the Tribe for violations of tribal law. On the contrary, we have said that u[i]mplicit in these treaty terms . . . was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed.” Williams v. Lee, 358 U. S. 217, 221-222; see also Warren Trading Post v. Tax Comm’n, 380 U. S. 685. Similarly, statutes establishing federal criminal jurisdiction over crimes involving Indians have recognized an Indian tribe’s jurisdiction over its members. The first Indian Trade and Intercourse Act, Act of July 22, 1790, § 5, 1 Stat. 138, provided only that the Federal Government would punish offenses committed against Indians by “any citizen or inhabitant of the United States”; it did not mention crimes committed by Indians. In 1817 federal criminal jurisdiction was extended to crimes committed within the Indian country by “any Indian, or other person or persons,” but “any offence committed by one Indian against another, within any Indian boundary” was excluded. Act of Mar. 3, 1817, ch. 92, 3 Stat. 383. In the Indian Trade and Intercourse Act of 1834, § 25, 4 Stat. 733, Congress enacted the direct progenitor of the General Crimes Act, now 18 U. S. C. § 1152 (1976 ed.), which makes federal enclave criminal law generally applicable to crimes in “Indian country.”21 In this statute Congress car- 20 The first treaty was signed at Canyon de Chelly in 1849, and ratified by Congress in 1850. 9 Stat. 974. The second treaty was signed and ratified in 1868. 15 Stat. 667. 21 Title 18 U. S. C. § 1152 (1976 ed.) now provides: “Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place UNITED STATES v. WHEELER 325 313 Opinion of the Court ried forward the intra-Indian offense exception because “the tribes have exclusive jurisdiction” of such offenses and “we can [not] with any justice or propriety extend our laws to” them. H. R. Rep. No. 474, 23d Cong., 1st Sess., 13 (1834). And in 1854 Congress expressly recognized the jurisdiction of tribal courts when it added another exception to the General Crimes Act, providing that federal courts would not try an Indian “who has been punished by the local law of the tribe.” Act of Mar. 27,1854, § 3,10 Stat. 270.* 22 Thus, far from depriving Indian tribes of their sovereign power to punish offenses against tribal law by members of a tribe, Congress has repeatedly recognized that power and declined to disturb it.23 within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. “This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulation, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.” Despite the statute’s broad language, it does not apply to crimes committed by non-Indians against non-Indians, which are subject to state jurisdiction. United States v. McBratney, 104 U. S. 621. 22 This statute is not applicable to the present case. The Major Crimes Act, under which the instant prosecution was brought, was enacted in 1885. Act of Mar. 3, 1885, § 9, 23 Stat. 385. It does not contain any exception for Indians punished under tribal law. We need not decide whether this “ ‘carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land,’ ” United States v. Antelope, 430 U. S. 641, 643 n. 1, deprives a tribal court of jurisdiction over the enumerated offenses, since the crimes to which the respondent pleaded guilty in the Navajo Tribal Court are not among those enumerated in the Major Crimes Act. Cf. Oliphant v. Suquamish Indian Tribe, ante, at 203-204, n. 14. 23 See S. Rep. No. 268,41st Cong., 3d Sess., 10 (1870): “Their right of self government, and to administer justice among themselves, after their rude fashion, even to the extent of inflicting the death penalty, has never been questioned; and . . . the Government has care 326 OCTOBER TERM, 1977 Opinion of the Court 435U.S. Moreover, the sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 667-668; Johnson v. M’Intosh, 8 Wheat. 543, 574. They cannot enter into direct commercial or governmental relations with foreign nations. Worcester v. Georgia, 6 Pet. 515, 559; Cherokee Nation v. Georgia, 5 Pet., at 17-18; Fletcher v. Peck, 6 Cranch 87, 147 (Johnson, J., concurring). And, as we have recently held, they cannot try nonmembers in tribal courts. Oliphant n. Suquamish Indian Tribe, ante, p. 191. These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe’s dependent status. “[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self government, by associating with a stronger, and taking its protection.” Worcester v. Georgia, supra, at 560-561. C That the Navajo Tribe’s power to punish offenses against tribal law committed by its members is an aspect of its fully abstained from attempting to regulate their domestic affairs, and from punishing crimes committed by one Indian against another in the Indian country.” UNITED STATES v. WHEELER 327 313 Opinion of the Court retained sovereignty is further supported by the absence of any federal grant of such power. If Navajo self-government were merely the exercise of delegated federal sovereignty, such a delegation should logically appear somewhere. But no provision in the relevant treaties or statutes confers the right of self-government in general, or the power to punish crimes in particular, upon the Tribe.24 It is true that in the exercise of the powers of self-government, as in all other matters, the Navajo Tribe, like all Indian tribes, remains subject to ultimate federal control. Thus, before the Navajo Tribal Council created the present Tribal Code and tribal courts,25 the Bureau of Indian Affairs established a Code of Indian Tribal Offenses and a Court of Indian Offenses for the reservation. See 25 CFR Part 11 (1977); cf. 25 U. S. Q. § 1311.26 Pursuant to federal regulations, the present Tribal Code was approved by the Secretary of the Interior before becoming effective. See 25 CFR § 11.1 (e) (1977). Moreover, the Indian Reorganization Act of 1934, § 16, 48 Stat. 987, 25 U. S. C. § 476, and the Act of Apr. 19, 1950, § 6, 64 Stat. 46, 25 U. S. C. § 636, each authorized the Tribe to adopt a constitution for self-government. And the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U. S. C. § 1302, 24 This Court has referred to treaties made with the Indians as “not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted.” United States v. Winans, 198 U. S. 371, 381. 25 The tribal courts were established in 1958, and the law-and-order provisions of the Tribal Code in 1959, by resolution of the Navajo Tribal Council. See Titles 7 and 17 of the Navajo Tribal Code; Oliver v. Udall, 113 U. S. App. D. C. 212, 306 F. 2d 819. 26 Such Courts of Indian Offenses, or “CFR Courts,” still exist on approximately 30 reservations “in which traditional agencies for the enforcement of tribal law and custom have broken down [and] no adequate substitute has been provided.” 25 CFR § 11.1 (b) (1977). We need not decide today whether such a court is an arm of the Federal Government or, like the Navajo Tribal Court, derives its powers from the inherent sovereignty of the tribe. 328 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. made most of the provisions of the Bill of Rights applicable to the Indian tribes and limited the punishment tribal courts could impose to imprisonment for six months, or a fine of $500, or both. But none of these laws created the Indians’ power to govern themselves and their right to punish crimes committed by tribal offenders. Indeed, the Wheeler-Howard Act and the Navajo-Hopi Rehabilitation Act both recognized that Indian tribes already had such power under “existing law.” See Powers of Indian Tribes, 55 I. D. 14 (1934). That Congress has in certain ways regulated the manner and extent of the tribal power of self-government does not mean that Congress is the source of that power. In sum, the power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos’ primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority.27 It follows that when the Navajo Tribe exercises this power, it does so as part of its retained sovereignty and not as an arm of the Federal Government.28 D The conclusion that an Indian tribe’s power to punish tribal offenders is part of its own retained sovereignty is clearly 27 The Department of Interior, charged by statute with the responsibility for “the management of all Indian affairs and of all matters arising out of Indian relations,” 25 U. S. C. § 2, clearly is of the view that tribal self-government is a matter of retained sovereignty rather than congressional grant. Department of the Interior, Federal Indian Law 398 (1958); Powers of Indian Tribes, 55 I. D. 14, 56 (1934). See also 1 Final Report of the American Indian Policy Review Commission 99-100, 126 (1977). 28 By emphasizing that the Navajo Tribe never lost its sovereign power to try tribal criminals, we do not mean to imply that a tribe which was deprived of that right by statute or treaty and then regained it by Act of Congress would necessarily be an arm of the Federal Government. That interesting question is not before us, and we express no opinion thereon. UNITED STATES v. WHEELER 329 313 Opinion of the Court reflected in a case decided by this Court more than 80 years ago, Talton v. Mayes, 163 U. S. 376. There a Cherokee Indian charged with murdering another Cherokee in the Indian Territory claimed that his indictment by the Tribe was defective under the Grand Jury Clause of the Fifth Amendment. In holding that the Fifth Amendment did not apply to tribal prosecutions, the Court stated: “The case ... depends upon whether the powers of local government exercised by the Cherokee nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by the Constitution, although subject to its general provisions and the paramount authority of Congress. The repeated adjudications of this Court have long since answered the former question in the negative.... “True it is that in many adjudications of this court the fact has been fully recognized, that although possessed of these attributes of local self government, when exercising their tribal functions, all such rights are subject to the supreme legislative authority of the United States. . . . But the existence of the right in Congress to regulate the manner in which the local powers of the Cherokee nation shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States.” Id., at 382-384. The relevance of Talton v. Mayes to the present case is clear. The Court there held that when an Indian tribe criminally punishes a tribe member for violating tribal law, the tribe acts as an independent sovereign, and not as an arm of the Federal Government.29 Since tribal and federal prosecutions are 29 Cf. Mescalero Apache Tribe v. Jones, 411 U. S. 145, holding that a 330 OCTOBER TERM, 1977 Opinion of the Court 435U.S. brought by separate sovereigns, they are not “for the same offence,” and the Double Jeopardy Clause thus does not bar one when the other has occurred. IV The respondent contends that, despite the fact that successive tribal and federal prosecutions are not “for the same offence,” the “dual sovereignty” concept should be limited to successive state and federal prosecutions. But we cannot accept so restrictive a view of that concept, a view which, as has been noted, would require disregard of the very words of the Double Jeopardy Clause. Moreover, the same sort of “undesirable consequences” identified in Abbate could occur if successive tribal and federal prosecutions were barred despite the fact that tribal and federal courts are arms of separate sovereigns. Tribal courts can impose no punishment in excess of six months’ imprisonment or a $500 fine. 25 U. S. C. § 1302 (7). On the other hand, federal jurisdiction over crimes committed by Indians includes many major offenses. 18 U. S. C. § 1153 (1976 ed.).* 30 Thus, when both a federal prosecution for a major crime and a tribal prosecution for a lesser included offense are possible, the defendant will often face the potential of a mild tribal punishment and a federal punishment of substantial severity. Indeed, the respondent in the present case faced the possibility of a federal sentence of 15 years in prison, but received a tribal sentence of no more than 75 days and a small fine. In such a case, the prospect business enterprise operated off the reservation by a tribe was not a “federal instrumentality” free from state taxation. 30 Federal jurisdiction also extends to crimes committed by an Indian against a non-Indian which have not been punished in tribal court, 18 U. S. C. § 1152 (1976 ed.); see n. 21, supra, and to crimes over which there is federal jurisdiction regardless of whether an Indian is involved, such as assaulting a federal officer, 18 U. S. C. § 111 (1976 ed.). Stone v. United States, 506 F. 2d 561 (CA8). UNITED STATES v. WHEELER 331 313 Opinion of the Court of avoiding more severe federal punishment would surely motivate-a member of a tribe charged with the commission of an offense to seek to stand trial first in a tribal court. Were the tribal prosecution held to bar the federal one, important federal interests in the prosecution of major offenses on Indian reservations31 would be frustrated.32 This problem would, of course, be solved if Congress, in the exercise of its plenary power over the tribes, chose to deprive them of criminal jurisdiction altogether. But such a fundamental abridgment of the powers of Indian tribes might be thought as undesirable as the federal pre-emption of state criminal jurisdiction that would have avoided conflict in Bartkus and Abbate. The Indian tribes are “distinct political communities” with their own mores and laws, Worcester v. Georgia, 6 Pet., at 557; The Kansas Indians, 5 Wall. 737, 756,33 which can be enforced by formal criminal proceedings in tribal courts as well as by less formal means. They have a significant interest in maintaining orderly relations among their members and in preserving tribal customs and traditions, apart from the federal interest in law and order on the reservation. Tribal laws and procedures are often influenced by tribal 31 See Keeble v. United States, 412 U. S. 205, 209-212, describing the reasons for enactment of the Major Crimes Act, 18 U. S. C. § 1153 (1976 ed.). 32 Moreover, since federal criminal jurisdiction over Indians extends as well to offenses as to which there is an independent federal interest to be protected, see n. 30, supra, the Federal Government could be deprived of the power to protect those interests as well. 33 “ ‘Navaho’ is not their own word for themselves. In their own language, they are dine, The People.’ . . . This term is a constant reminder that the Navahos still constitute a society in which each individual has a strong sense of belonging with the others who speak the same language and, by the same token, a strong sense of difference and isolation from the rest of humanity.” C. Kluckhohn & D. Leighton, The Navaho 23 (Rev. ed. 1974). 332 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. custom and can differ greatly from our own. See Ex parte Crow Dog, 109 U. S., at 571.34 Thus, tribal courts are important mechanisms for protecting significant tribal interests.35 Federal pre-emption of a tribe’s jurisdiction to punish its members for infractions of tribal law would detract substantially from tribal self-government, just as federal pre-emption of state criminal jurisdiction would trench upon important state interests. Thus, just as in Bartkus and Abbate, there are persuasive reasons to reject the respondent’s argument that we should arbitrarily ignore the settled “dual sovereignty” concept as it applies to successive tribal and federal prosecutions. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Brennan took no part in the consideration or decision of this case. 34 Traditional tribal justice tends to be informal and consensual rather than adjudicative, and often emphasizes restitution, rather than punishment. See 1 Final Report of the American Indian Policy Review Commission 160-166 (1977); W. Hagan, Indian Police and Judges 11-17 (1966); Van Valkenburgh, Navajo Common Law, 9 Museum of Northern Arizona Notes 17 (1936); id., at 51 (1937); 10 id., at 37 (1938). See generally materials in M. Price, Law and the American Indian 133-150, 712-716 (1973). 35 Tribal courts of all kinds, including Courts of Indian Offenses, see n. 26, supra, handled an estimated 70,000 cases in 1973. 1 Final Report of the American Indian Policy Review Commission 163-164 (1977). LAKESIDE v. OREGON 333 Syllabus LAKESIDE v. OREGON CERTIORARI TO THE SUPREME COURT OF OREGON No. 76-6942. Argued January 18, 1978—Decided March 22, 1978 1. The giving by a state trial judge, over a criminal defendant’s objection, of a cautionary instruction that the jury is not to draw any adverse inference from the defendant’s decision not to testify in his behalf does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments. Pp. 336-341. (a) Though in Griffin v. California, 380 U. S. 609, the Court stated that “comment on the refusal to testify” violates the constitutional privilege, the Court was there concerned only with adverse comment, whereas here the very purpose of the instruction is to remove from the jury’s deliberations any influence of unspoken adverse inferences. Pp. 338-339. (b) Petitioner’s contention that such an instruction may encourage adverse inferences in a trial like his, where the defense was presented through several witnesses, would require indulgence, on which federal constitutional law cannot rest, in the dubious speculative assumptions (1) that the jurors have not noticed defendant’s failure to testify and will not therefore draw adverse inferences on their own; and (2) that the jurors will totally disregard the trial judge’s instruction. Pp. 339-340. 2. The challenged instruction does not deprive the objecting defendant of his right to counsel by interfering with his attorney’s trial strategy. To hold otherwise would implicate the right to counsel in almost every permissible ruling of a trial judge if made over the objection of the defendant’s lawyer. Pp. 341-342. 277 Ore. 569, 561 P. 2d 612, affirmed. Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined in part, post, p. 342. Brennan, J., took no part in the consideration or decision of the case. Phillip M. Margolin, by appointment of the Court, 434 U. S. 918, argued the cause and filed a brief for petitioner. Thomas H. Denney, Assistant Attorney General of Ore 334 OCTOBER TERM, 1977 Opinion of the Court 435U.S. gon, argued the cause for respondent. With him on the brief were James A. Redden, Attorney General, and Al J. Laue, Solicitor General. Mr. Justice Stewart delivered the opinion of the Court. The petitioner did not take the witness stand at his trial on a criminal charge in a state court. Over his objection the trial judge instructed the jury not to draw any adverse inference from the petitioner’s decision not to testify. The question before us is whether the giving of such an instruction over the defendant’s objection violated the Constitution. I The petitioner was brought to trial in an Oregon court on a charge of escape in the second degree.1 The evidence showed that he had been an inmate of the Multnomah County Correctional Institution, a minimum-security facility in Multnomah County, Ore. On June 16, 1975, he received a special overnight pass requiring him to return by 10 o’clock the following evening. He did not return. The theory of the defense, supported by the testimony of a psychiatrist and three lay witnesses, was that the petitioner was not criminally responsible for his failure to return to the institution.1 2 1 Section 162.155 of Ore. Rev. Stat. (1977) provides, in pertinent part: “(1) A person commits the crime of escape in the second degree if: “(c) He escapes from a correctional facility.” 2 Section 161.295 of Ore. Rev. Stat. (1977) provides: “(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. “(2) . . . [T]he terms 'mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” LAKESIDE v. OREGON 335 333 Opinion of the Court At the conclusion of the evidence, the trial judge informed counsel in chambers that he intended to include the following instruction in his charge to the jury : “Under the laws of this State a defendant has the option to take the witness stand to testify in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence.” Defense counsel objected to the giving of that instruction, and, after it was given, the following colloquy took place in chambers: “[Defense Counsel]: ... I have one exception. “I made this in Chambers prior to the closing statement. I told the Court that I did not want an instruction to the effect that the defendant doesn’t have to take the stand, because I felt that that’s like waving a red flag in front of the jury.... “THE COURT: The defendant did orally request the Court just prior to instructing that the Court not give the usual instruction to the effect that there are no inferences to be drawn against the defendant for failing to take the stand in his own behalf. “The Court felt that it was necessary to, give that instruction in order to properly protect the defendant, and therefore, the defendant may have his exception.” The Oregon Court of Appeals reversed the petitioner’s conviction and ordered a new trial on the ground that “the better rule is to not give instructions ostensibly designed for defendant’s benefit over the knowledgeable objection of competent defense counsel.” 25 Ore. App. 539, 542, 549 P. 2d 128.7,1288. The Oregon Supreme Court reinstated the conviction, holding that the giving of the instruction over the objection of counsel 336 OCTOBER TERM, 1977 Opinion of the Court 435U.S. did not violate the constitutional rights of the defendant. 277 Ore. 569, 561 P. 2d 612. The petitioner then sought review in this Court, claiming that the instruction infringed upon both his constitutional privilege not to be compelled to incriminate himself, and his constitutional right to the assistance of counsel. Because of conflicting decisions in several other courts,3 we granted certiorari, 434 U. S. 889. II A The Fifth Amendment commands that no person “shall be compelled in any criminal case to be a witness against himself.” This guarantee was held to be applicable against the States through the Fourteenth Amendment in Malloy v. Hogan, 378 U. S. I.4 That case, decided in 1964, established that “the same standards” must attach to the privilege “in either a federal or state proceeding.” Id., at 11. Less than a year 3 The federal courts have generally held that giving the protective instruction over the defendant’s objection is not a constitutional violation. See, e. g., United States v. Williams, 172 U. S. App. D. C. 290, 295, 521 F. 2d 950, 955; United States v. McGann, 431 F. 2d 1104, 1109 (CA5); United States v. Rimanich, 422 F. 2d 817, 818 (CA7); but cf. Mengarelli v. United States Marshal ex rel. Dist. of Nevada, 476 F. 2d 617 (CA9); United States v. Smith, 392 F. 2d 302 (CA4). By contrast, several state courts have held, although not always in constitutional terms, that the giving of such an instruction in these circumstances is prejudicial error. See, e. g., Russell v. State, 240 Ark. 97, 398 S. W. 2d 213 (reversible error); People v. Molano, 253 Cal. App. 2d 841, 61 Cal. Rptr. 821 (proscribed by Griffin v. California, 380 U. S. 609); Gross v. State, 261 Ind. 489, 306 N. E. 2d 371 (violates Fifth Amendment); State v. Kimball, 176 N. W. 2d 864 (Iowa) (may violate spirit of Griffin). 4 The Malloy decision overruled the long-settled doctrine of Twining v. New Jersey, 211 U. S. 78, and Adamson v. California, 332 U. S. 46. See Snyder v. Massachusetts, 291 U. S. 97, 105; Cohen v. Hurley, 366 U. S. 117, 127-129. LAKESIDE v. OREGON 337 333 Opinion of the Court later the Court held in Griffin v. California, 380 U. S. 609, that it is a violation of this constitutional guarantee to tell a jury in a state criminal trial that a defendant’s failure to testify supports an unfavorable inference against him.5 In Griffin, the prosecutor had encouraged the jury to draw adverse inferences from the defendant’s failure to respond to the testimony against him. And the trial judge had instructed the jury that as to evidence which the defendant might be expected to explain, his failure to testify could be taken “ ‘into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.’ ” Id., at 610. In setting aside the judgment of conviction, the Court held that the Constitution “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615.6 The Griffin opinion expressly reserved decision “on whether an accused can require . . . that the jury be instructed that his silence must be disregarded.” Id., at 615 n. 6. It is settled in Oregon, however, that a defendant has an absolute right to require such an instruction. State v. Patton, 208 Ore. 6 The practice held unconstitutional in Griffin had previously been the subject of considerable academic and professional controversy. See, e. g., Note, Comment on Defendant’s Failure to Take the Stand, 57 Yale L. J. 145 (1947); Bruce, The Right to Comment on the Failure of the Defendant to Testify, 31 Mich. L. Rev. 226 (1932). Indeed, at one time the practice had enjoyed the approval of the American Law Institute and the American Bar Association. 9 ALI Proceedings 202, 203 (1931); 56 A. B. A. Rep. 137-159 (1931); 59 A. B. A. Rep. 130-141 (1934). And instructions similar to those at issue in Griffin had been sanctioned by the Model Code of Evidence and the Uniform Rules of Evidence. ALI Model Code of Evidence, Rule 201 (1942); Uniform Rules of Evidence, Rule 23 (4) (1953). 6 In Tehan v. United States ex rel. Shott, 382 U. S. 406, it was held that the rule of Griffin v. California was not to be given retrospective application. 338 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. 610, 303 P. 2d 513.7 The petitioner in the present case does not question this rule, nor does he assert that the instruction actually given was in any respect an erroneous statement of the law. His argument is, quite simply, that this protective instruction becomes constitutionally impermissible when given over the defendant’s objection. In the Griffin case, the petitioner argues, the Court said that “comment on the refusal to testify” violates the constitutional privilege against compulsory self-incrimination, 380 U. S., at 614, and thus the “comment” made by the trial judge over the defendant’s objection in the present case was a literal violation of the language of the Griffin opinion.8 Quite apart from this semantic argument, the petitioner contends that it is an invasion of the privilege against compulsory self-incrimination, as that privilege was perceived in the Griffin case, for a trial judge to draw the jury’s attention in any way to a defendant’s failure to testify unless the defendant acquiesces. We cannot accept this argument, either in terms of the language of the Griffin opinion or in terms of the basic postulates of the Fifth and Fourteenth Amendments. It is clear from even a cursory review of the facts and the square holding of the Griffin case that the Court was there concerned only with adverse comment, whether by the prosecutor or the trial judge—“comment by the prosecution on the accused’s silence or instructions by the court that such silence 7 It has long been established that a defendant in a federal criminal trial has that right as a matter of statutory law. Bruna v. United States, 308 U. S. 287. 8 The petitioner also relies upon a remark in the dissenting opinion in United States v. Gainey, 380 U. S. 63, 73: “or, if the defendant sees fit, he may choose to have no mention made of his silence by anyone.” This reliance is misplaced. The Gainey case did not involve the Fifth Amendment; the statement in the dissenting opinion expressed the author’s understanding of a federal statute, not the Constitution; and, perhaps most important, the statement was subscribed to by no other Member of the Court. LAKESIDE v. OREGON 339 333 Opinion of the Court is evidence of guilt.” Id., at 615. The Court reasoned that such adverse comment amounted to “a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” Id., at 614. By definition, “a necessary element of compulsory selfincrimination is some kind of compulsion.” Hoffa v. United States, 385 U. S. 293, 304. The Court concluded in Griffin that unconstitutional compulsion was inherent in a trial where prosecutor and judge were free to ask the jury to draw adverse inferences from a defendant’s failure to take the witness stand.9 But a judge’s instruction that the jury must draw no adverse inferences of any kind from the defendant’s exercise of his privilege not to testify is “comment” of an entirely different order. Such an instruction cannot provide the pressure oir a defendant found impermissible in Griffin. On the contrary, its very purpose is to remove from the jury’s deliberations any influence of unspoken adverse inferences. It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect. The petitioner maintains, however, that whatever beneficent effect such an instruction may have in most cases, it may in some cases encourage the jury to draw adverse inferences from a defendant’s silence, and, therefore, it cannot constitutionally be given in any case when a defendant objects to it. Specifically, the petitioner contends that in a trial such as this one, where the defense was presented through several witnesses, the defendant can reasonably hope that the jury will not notice that he himself did not testify. In such cir 9 Compulsion was also found to be present in Brooks v. Tennessee, 406 U. S. 605, where the State required a defendant who chose to testify to take the witness stand ahead of any other defense witnesses. Thus a defendant was compelled to make his decision—whether or not to testify—at a point in the trial when he could not know if his testimony would be necessary or even helpful to his case. Id., at 610-611. 340 OCTOBER TERM, 1977 Opinion of the Court 435U.S. cumstances, the giving of the cautionary instruction, he says, is like “waving a red flag in front of the jury.” The petitioner’s argument would require indulgence in two very doubtful assumptions: First, that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own;10 11 second, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all.11 Federal constitutional law cannot rest on speculative assumptions so dubious as these. Moreover, even if the petitioner’s simile be accepted, it does not follow that the cautionary instruction in these circumstances violates the privilege against compulsory selfincrimination. The very purpose of a jury charge is to flag the jurors’ attention to concepts that must not be misunderstood, such as reasonable doubt and burden of proof. To instruct them in the meaning of the privilege against compulsory self-incrimination is no different. It may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection. And each State is, of course, free to forbid its trial judges from doing so as a matter of state law. We hold only that the giving of such an 10 It has often been noted that such inferences may be inevitable. Jeremy Bentham wrote more than 150 years ago: “[B]etween delinquency on the one hand, and silence under inquiry on the other, there is a manifest connexion; a connexion too natural not to be constant and inseparable.” 5 J. Bentham, Rationale of Judicial Evidence 209 (1827). And Wigmore, among many others, made the same point: “What inference does a plea of privilege support? The layman’s natural first suggestion would probably be that the resort to privilege in each instance is a clear confession of crime.” 8 J. Wigmore, Evidence §2272, p. 426 (McNaughton rev. 1961). 11 As this Court has remarked before: “[W]e have not yet attained that certitude about the human mind which would justify us in ... a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court . . . .” Bruno v. United States, supra, at 294. LAKESIDE v. OREGON 341 333 Opinion of the Court instruction over the defendant’s objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments.12 B The petitioner’s second argument is based upon his constitutional right to counsel. Gideon v. Wainwright, 372 U. S. 335; Argersinger v. Hamlin, 407 U. S. 25. That right was violated, he says, when the trial judge refused his lawyer’s request not to give the instruction in question, thus interfering with counsel’s trial strategy. That strategy assertedly was based upon studious avoidance of any mention of the fact that the defendant had not testified. The argument is an ingenious one, but, as a matter of federal constitutional law, it falls of its own weight once the petitioner’s primary argument has been rejected. In sum, if the instruction was itself constitutionally accurate, and if the giving of it over counsel’s objection did not violate the Fifth and Fourteenth Amendments, then the petitioner’s right to the assistance of counsel was not denied when the judge gave the instruction. To hold otherwise would mean that the constitutional right to counsel would be implicated in almost every wholly permissible ruling of a trial judge, if it is made over the objection of the defendant’s lawyer. In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel. But that right has never been understood to confer upon defense counsel the power to veto the wholly permissible actions of the trial judge. It is the judge, not counsel, who has the ultimate responsibility for the conduct of a fair and 12 More than 50 years ago, Judge Learned Hand dealt with this question in a single sentence: “It is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it; but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity.” Becher v. United States, 5 F. 2d 45, 49 (CA2). 342 OCTOBER TERM, 1977 Stevens, J., dissenting 435 U. S. lawful trial. “ ‘[T]he judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law? Quercia v. United States, 289 U. S. 466, 469 (1933).” Geders v. United States, 425 U. S. 80, 86. The trial judge in this case determined in the exercise of his duty to give the protective instruction in the defendant’s interest. We have held that it was no violation of the defendant’s constitutional privilege for him to do so, even over the objection of defense counsel. Yet the petitioner argues that his constitutional right to counsel means that this instruction could constitutionally be given only if his lawyer did not object to it. We cannot accept the proposition that the right to counsel, precious though it be, can operate to prevent a court from instructing a jury in the basic constitutional principles that govern the administration of criminal justice. For the reasons discussed in this opinion, the judgment of the Supreme Court of Oregon is affirmed. It is so ordered. Mr. Justice Brennan took no part in the consideration or decision of this case. Mr. Justice Stevens, dissenting. Experience teaches us that most people formally charged with crime are guilty; yet we presume innocence until the trial is over. Experience also justifies the inference that most people who remain silent in the face of serious accusation have something to hide and are therefore probably guilty; yet we forbid trial judges or juries to draw that inference. The presumption of innocence and the protections afforded by the Due Process Clause impose a significant cost on the prosecutor who must prove the defendant’s guilt beyond a reasonable doubt without the aid of his testimony. That cost is justified LAKESIDE v. OREGON 343 333 Stevens, J., dissenting by the paramount importance of protecting a small minority of accused persons—those who are actually innocent—from wrongful conviction. The Fifth Amendment itself is predicated on the assumption that there are innocent persons who might be found guilty if they could be compelled to testify at their own trials.1 Every trial lawyer knows that some truthful denials of guilt may be considered incredible by a jury—either because of their inherent improbability or because their explanation, under cross-examination, will reveal unfavorable facts about the witness or his associates. The Constitution therefore gives the defendant and his lawyer the absolute right to decide that the accused shall not become a witness against himself. Even if the judge is convinced that the defendant’s testimony would exonerate him, and even if he is motivated only by a desire to protect the defendant from the risk of an erroneous convic 1 “But the act was framed with a due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be a witness, particularly when they may have been in some degree compromised by their association with others, declares that the failure of the defendant in a criminal action to request to be a witness shall not create any presumption against him.” Wilson v. United States, 149 U. S. 60, 66. The Court was there referring to the statutory prohibition against comment on the failure of the accused to testify. But, as we stated in Griffin v. Califomia, 380 U. S. 609, 613-614: “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute,’ the spirit of the SelfIncrimination Clause is reflected.” 344 OCTOBER TERM, 1977 Stevens, J., dissenting 435 U. S. tion, the judge has no power to override counsel’s judgment about what is in his client’s best interest.2 The Constitution wisely commits the critical decision of whether the defendant shall take the stand to the defendant and his lawyer, rather than the judge, for at least two reasons. First, they have greater access to information bearing on the decision than the judge can normally have. Second, they are motivated solely by concern for the defendant’s interests; the judge inevitably is concerned with society’s interest in convicting the guilty as well as protecting the innocent. The choice, therefore, to testify or not to testify is for the defendant and his lawyer, not the judge, to make. The Constitution commands that the decision be made free of any compulsion by the State. In Griffin v. California, 380 U. S. 609, the Court held that fair and accurate comment by the trial judge on the defendant’s failure to take the witness stand was a form of compulsion forbidden by the Constitution.3 By making silence “costly,” the Court ruled, the trial judge’s comments had an effect similar in kind, though not in degree, to a contempt ruling or a thumbscrew. Id., at 614. Of course, a defendant’s silence at his own trial is “almost certain to prejudice the defense no matter what else happens in the courtroom” ; 4 for the jury will probably draw an unfavorable inference despite instructions to the contrary. Although this “cost” can never be eliminated, Griffin stands for the proposition that the government may not add unnecessarily to the risk taken by a defendant who stands mute. Reasonable men may differ 2 Moreover, there are defendants who prefer to risk a finding of guilt rather than being required to incriminate others whom they either love or fear. 3 Griffin was decided over the dissent of Mr. Justice Stewart and Mr. Justice White. I cannot believe that any Member of the Griffin majority would join today’s opinion. 4 United States v. Davis, 437 F. 2d 928, 933 (CA7 1971). LAKESIDE v. OREGON 345 333 Stevens, J., dissenting about the wisdom of that holding.5 But if it is still the law, this conviction should be overturned. In some trials, the defendant’s silence will be like “the sun . . . shining with full blaze on the open eye.” State v. Cleaves, 59 Me. 298, 301 (1871). But in other trials—perhaps when the whole story has been told by other witnesses or when the prosecutor’s case is especially weak—the jury may not focus on the defendant’s failure to testify. For the judge or prosecutor to call it to the jury’s attention has an undeniably adverse effect on the defendant. Even if jurors try faithfully to obey their instructions, the connection between silence and guilt is often too direct and too natural to be resisted. When the jurors have in fact overlooked it, telling them to ignore the defendant’s silence is like telling them not to think of a white bear. The Court thinks it “would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.” Ante, at 339. Unless the same words mean different things in different mouths, this holding also applies to statements made by the prosecutor in his closing argument. Yet I wonder if the Court would find petitioner’s argument as strange if the pros- 5 The Court today cites the same scholarly materials, prepared in the 1930’s and 1940’s, that Mr. Justice Stewart cited in his dissent in Griffin. Compare ante, at 337 n. 5 with 380 U. S., at 622 nn. 6-8. The list could have been much longer. In fact, the roster of scholars and judges with reservations about expanding the Fifth Amendment privilege reads like an honor roll of the legal profession. See, e. g., Wigmore, Nemo Tenetur Seipsum Prodere, 5 Harv. L. Rev. 71, 75-88 (1891); Corwin, The Supreme Court’s Construction of the Self-Incrimination Clause, 29 Mich. L. Rev. 191, 207 (1930); Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. Crim. L. C. & P. S. 1014 (1934); Friendly, The Fifth Amendment Tomorrow: The Case For Constitutional Change, 37 U. Cin. L. Rev. 671 (1968); W. Schaefer, The Suspect and Society 59-76 (1967); Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U. Chi. L. Rev. 657, 677 (1966). 346 OCTOBER TERM, 1977 Stevens, J., dissenting 435 U. S. ecu tor, or even the judge, had given the instruction three or four times, in slightly different form, just to make sure the jury knew that silence, like killing Caesar, is consistent with honor.6 6 Cf. W. Shakespeare, Julius Caesar, Act III, Sc. II: “Here, under leave of Brutus and the rest (For Brutus is an honourable man; So are they all, all honourable men) Come I to speak in Caesar’s funeral. He was my friend, faithful and just to me: But Brutus says he was ambitious; And Brutus is an honourable man. He hath brought many captives home to Rome, Whose ransoms did the general coffers fill: Did this in Caesar seem ambitious? When that the poor have cried, Caesar hath wept: Ambition should be made of sterner stuff: Yet Brutus says he was ambitious; And Brutus is an honourable man. You all did see that on the Lupercal I thrice presented him a kingly crown, Which he did thrice refuse: was this ambition? Yet Brutus says he was ambitious; And, sure, he is an honourable man.” For the sake of comparison, here is a charge actually given in one reported case: “ ‘I recall that the defendant, even though he offered evidence, he did not take the stand and testify in his own behalf. Now, I make mention of that fact for this purpose. I have told you that he had no responsibility to offer any evidence, had a right to but no responsibility to; that he owed you no duty to offer any evidence; that the State had the whole burden and has the whole burden of proof throughout this case. Now that being so, he had an absolute right under the law to try his lawsuit in the fashion that he decided that it ought to be tried. He had a right to offer no evidence. If he offered any, he had a right to remain off the stand. You can’t punish any man for exercising a lawful right. So I give emphasis to this fact: The fact that the defendant did not testify does not permit you to speculate about why he did not. I have told you why he did not. He has exercised a lawful right. You may not take the position during LAKESIDE v. OREGON 347 333 Stevens, J., dissenting It is unrealistic to assume that instructions on the right to silence always have a benign effect.7 At times the instruction will make the defendant’s silence costly indeed. So long as Griffin is good law, the State must have a strong reason for ignoring the defendant’s request that the instruction not be given. Remarkably, the Court fails to identify any reason for overriding the defendant’s choice.8 Eliminating the instruction on request costs the State nothing, other than the advantage of calling attention to the defendant’s silence. A defendant may waive his Fifth Amendment right to silence, and a judge who thinks his decision unwise may not overrule it. The defendant should also be able to waive, without leave of court, his lesser right to an instruction about his Fifth your deliberations did he have something he didn’t want us to know. He has exercised the lawful right and you may not hold it against him to any extent the fact that he did not testify. You must deal with what you have before you in this evidence and you may not hold against the defendant a’tall the fact that he did not testify.’ ” State v. Caron, 288 N. C. 467, 471-472, 219 S. E. 2d 68, 71 (1975), cert, denied, 425 U. S. 971. 7 Deciding when the instruction will do more harm than good is not an easy task. But the same may be said of deciding whether to take the stand at all. 8 How far the Court deviates from the course charted in Griffin may be seen by comparing its reasoning to the analysis in an earlier case that followed Griffin more faithfully. In Brooks v. Tennessee, 406 U. S. 605, state law required the defendant to be the first defense witness if he wanted to testify at all. Since defendants may not be sequestered like other witnesses, this rule was the only way to prevent opportunistic defendants from shading their testimony to match that of other defense witnesses. Despite the substantial state interest in avoiding perjury, this Court struck down the rule, relying on Griffin. 406 U. S., at 611. The Brooks court thought that a defendant who planned to take the stand only if his case was weak, but who could not judge its weakness in advance, might be unnecessarily compelled to testify under the Tennessee law. In Brooks, the State had a good reason for its action; here the State has none. In Brooks, the compulsive force of the rule was speculative at best; here it is direct and plain. If today we are true to Griffin, as the Court asserts, then Brooks was surely wrong. 348 OCTOBER TERM, 1977 Stevens, J., dissenting 435U.S. Amendment right to silence.9 Many state courts have accepted this conclusion by ruling that no self-incrimination instruction should be given over the defendant’s objection.10 An ungrudging application of Griffin requires that we do the same. I respectfully dissent. Mr. Justice Marshall joins this opinion, with the exception of the first paragraph and footnote 5. 9 It is true that Learned Hand thought it absurd to find a violation of the Fifth Amendment when an instruction of this sort was given over the defendant’s objection. Ante, at 341 n. 12. See Becher n. United States, 5 F. 2d 45, 49 (CA2 1924). But Judge Hand did not foresee Griffin, just as he did not foresee developments that were nearer at hand. In United States v. Bruno, 105 F. 2d 921 (CA2 1939), for example, he joined an opinion affirming a conviction even though the trial judge had refused to instruct the jury not to penalize the defendants for remaining silent. This Court granted certiorari and reversed. 308 U. S. 287. Now that Griffin has been decided, the more significant portion of Judge Hand’s statement is his belief that “ [i]t is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it.” 5 F. 2d, at 49. 10 See People v. Hampton, 394 Mich. 437, 231 N. W. 2d 654 (1975); Gross v. State, 261 Ind. 489, 306 N. E. 2d 371 (1974) ; State v. White, 285 A. 2d 832 (Me. 1972) ; Villines v. State, 492 P. 2d 343 (Okla. Crim. App. 1971) ; State v. Kimball, 176 N. W. 2d 864 (Iowa 1970) ; Russell n. State, 240 Ark. 97, 398 S. W. 2d 213 (1966) ; People n. Horrigan, 253 Cal. App. 2d 519, 61 Cal. Rptr. 403 (1967) ; People v. Molano, 253 Cal. App. 2d 841, 61 Cal. Rptr. 821 (1967). See also United States v. Smith, 392 F. 2d 302 (CA4 1968). STUMP v. SPARKMAN 349 Syllabus STUMP et al. v. SPARKMAN et vir CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 76-1750. Argued January 10, 1978—Decided March 28,1978 A mother filed a petition in affidavit form in an Indiana Circuit Court, a court of general jurisdiction under an Indiana statute, for authority to have her “somewhat retarded” 15-year-old daughter (a respondent here) sterilized, and petitioner Circuit Judge approved the petition the same day in an ex parte proceeding without a hearing and without notice to the daughter or appointment of a guardian ad litem. The operation was performed shortly thereafter, the daughter having been told that she was to have her appendix removed. About two years later she was married, and her inability to become pregnant led her to discover that she had been sterilized. As a result she and her husband (also a respondent here) filed suit in Federal District Court pursuant to 42 U. S. C. § 1983 against her mother, the mother’s attorney, the Circuit Judge, the doctors who performed or assisted in the sterilization, and the hospital where it was performed, seeking damages for the alleged violation of her constitutional rights. Holding that the constitutional claims required a showing of state action and that the only state action alleged was the Circuit Judge’s approval of the sterilization petition, the District Court held that no federal action would lie against any of the defendants because the Circuit Judge, the only state agent, was absolutely immune from suit under the doctrine of judicial immunity. The Court of Appeals reversed, holding that the “crucial issue” was whether the Circuit Judge acted within his jurisdiction, that he had not, that accordingly he was not immune from damages liability, and that in any event he had forfeited his immunity “because of his failure to comply with elementary principles of procedural due process.” Held: The Indiana law vested in the Circuit Judge the power to entertain and act upon the petition for sterilization, and he is, therefore, immune from damages liability even if his approval of the petition was in error. Pp. 355-364. (a) A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority, but rather he will be subject to liability only when he has acted in the “clear absence of all jurisdiction,” Bradley v. Fisher, 13 Wall. 335, 351. Pp. 355-357. 350 OCTOBER TERM, 1077 Syllabus 435 U.S. (b) Here there was not “clear absence of all jurisdiction” in the Circuit Court to consider the sterilization petition. That court had jurisdiction under the Indiana statute granting it broad general jurisdiction, it appearing that neither by statute nor by case law had such jurisdiction been circumscribed to foreclose consideration of the petition. Pp. 357-358. (c) Because the Circuit Court is a court of general jurisdiction, neither the procedual errors the Circuit Judge may have committed nor the lack of a specific statute authorizing his approval of the petition in question rendered him liable in damages for the consequences of his actions. Pp. 358-360. (d) The factors determining whether an act by a judge is “judicial” relate to the nature of the act itself (whether it is a function normally performed by a judge) and the expectation of the parties (whether they dealt with the judge in his judicial capacity), and here both of these elements indicate that the Circuit Judge’s approval of the sterilization petition was a judicial act, even though he may have proceeded with informality. Pp. 360-363. (e) Disagreement with the action taken by a judge does not justify depriving him of his immunity, and thus the fact that in this case tragic consequences ensued from the judge’s action does not deprive him of his immunity; moreover, the fact that the issue before the judge is a controversial one, as here, is all the more reason that he should be able to act without fear of suit. Pp. 363-364. 552 F. 2d 172, reversed and remanded. White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Rehnquist, and Stevens, JJ., joined. Stewart, J., filed a dissenting opinion, in which Marshall and Powell, J J., joined, post, p. 364. Powell, J., filed a dissenting opinion, post, p. 369. Brennan, J., took no part in the consideration or decision of the case. George E. Fruechtenicht argued the cause and filed briefs for petitioners. Richard H. Finley argued the cause for respondents. With him on the brief was Eugene Gressman* *Briefs of amici curiae urging affirmance were filed by Robert L. Burgdorf, Jr., for the American Coalition of Citizens with Disabilities et al.; by Bruce J. Ennis, Joel M. Gora, Paul Friedman, and Lawrence M. STUMP v. SPARKMAN 351 349 Opinion of the Court Mr. Justice White delivered the opinion of the Court. This case requires us to consider the scope of a judge’s immunity from damages liability when sued under 42 U. S. C. §1983. I The relevant facts underlying respondents’ suit are not in dispute. On July 9, 1971, Ora Spitler McFarlin, the mother of respondent Linda Kay Spitler Sparkman, presented to Judge Harold D. Stump of the Circuit Court of DeKalb County, Ind., a document captioned “Petition To Have Tubal Ligation Performed On Minor and Indemnity Agreement.” The document had been drafted by her attorney, a petitioner here. In this petition Mrs. McFarlin stated under oath that her daughter was 15 years of age and was “somewhat retarded,” although she attended public school and had been promoted each year with her class. The petition further stated that Linda had been associating with “older youth or young men” and had stayed out overnight with them on several occasions. As a result of this behavior and Linda’s mental capabilities, it was stated that it would be in the daughter’s best interest if she underwent a tubal ligation in order “to prevent unfortunate circumstances . . . .” In the same document Mrs. McFarlin also undertook to indemnify and hold harmless Dr. John Hines, who was to perform the operation, and the DeKalb Memorial Hospital, where the operation was to take place, against all causes of action that might arise as a result of the performance of the tubal ligation.* 1 Reuben for the American Civil Liberties Union et al.; and by Ronald M. Soskin for the National Center for Law and the Handicapped, Inc. 1 The full text of the petition presented to Judge Stump read as follows: “State of Indiana 1 County of DeKalb | “PETITION TO HAVE TUBAL LIGATION PERFORMED ON MINOR AND INDEMNITY AGREEMENT “Ora Spitler McFarlin, being duly sworn upon her oath states that she 352 OCTOBER TERM, 1977 Opinion of the Court 435U.S. The petition was approved by Judge Stump on the same day. He affixed his signature as “Judge, DeKalb Circuit Court,” to the statement that he did “hereby approve the is the natural mother of and has custody of her daughter, Linda Spitler, age fifteen (15) being bom January 24, 1956 and said daughter resides with her at 108 Iwo Street, Auburn, DeKalb County, Indiana. “Affiant states that her daughter’s mentality is such that she is considered to be somewhat retarded although she is attending or has attended the public schools in DeKalb Central School System and has been passed along with other children in her age level even though she does not have what is considered normal mental capabilities and intelligence. Further, that said affiant has had problems in the home of said child as a result of said daughter leaving the home on several occasions to associate with older youth or young men and as a matter of fact having stayed overnight with said youth or men and about which incidents said affiant did not become aware of until after such incidents occurred. As a result of this behavior and the mental capabilities of said daughter, affiant believes that it is to the best interest of said child that a Tubal Ligation be performed on said minor daughter to prevent unfortunate circumstances to occur and since it is impossible for the affiant as mother of said minor child to maintain and control a continuous observation of the activities of said daughter each and every day. “Said affiant does hereby in consideration of the Court of the DeKalb Circuit Court approving the Tubal Ligation being performed upon her minor daughter does hereby [sic] covenant and agree to indemnify and keep indemnified and hold Dr. John Hines, Auburn, Indiana, who-said affiant is requesting perform said operation and the DeKalb Memorial Hospital, Auburn, Indiana, whereas [sic] said operation will be performed, harmless from and against all or any matters or causes of action that could or might arise as a result of the performing of said Tubal Ligation. “In witness whereof, said affiant, Ora Spitler McFarlin, has hereunto subscribed her name this 9th day of July, 1971. “/s/ Ora Spitler McFarlin Ora Spitler McFarlin Petitioner “Subscribed and sworn to before me this 9th day of July, 1971. “/s/ Warren G. Sunday Warren G. Sunday Notary Public [Footnote 1 is continued on p. 353] STUMP v. SPARKMAN 353 349 Opinion of the Court above Petition by affidavit form on behalf of Ora Spitler McFarlin, to have Tubal Ligation performed upon her minor daughter, Linda Spitler, subject to said Ora Spitler McFarlin covenanting and agreeing to indemnify and keep indemnified Dr. John Hines and the DeKalb Memorial Hospital from any matters or causes of action arising therefrom.” On July 15, 1971, Linda Spitler entered the DeKalb Memorial Hospital, having been told that she was to have her appendix removed. The following day a tubal ligation was performed upon her. She was released several days later, unaware of the true nature of her surgery. Approximately two years after the operation, Linda Spitler was married to respondent Leo Sparkman. Her inability to become pregnant led her to »discover that she had been sterilized during the 1971 operation. As a result of this revelation, the Sparkmans filed suit in the United States District Court for the Northern District of Indiana against Mrs. McFarlin, her attorney, Judge Stump, the doctors who had performed and assisted in the tubal ligation, and the DeKalb Memorial Hospital. Respondents sought damages for the alleged violation of Linda Sparkman’s constitutional rights;2 also asserted were pendent state claims for assault “My commission expires January 4, 1975. “I, Harold D. Stump, Judge of the DeKalb Circuit Court, do hereby approve the above Petition by affidavit form on behalf of Ora Spitler McFarlin, to have Tubal Ligation performed upon her minor daughter, Linda Spitler, subject to said Ora Spitler McFarlin covenanting and agreeing to indemnify and keep indemnified Dr. John Hines and the DeKalb Memorial Hospital from any matters or causes of action arising therefrom. ‘7s/ Harold D. Stump Judge, DeKalb Circuit Court “Dated July 9, 1971” 2 The District Court gave the following summary of the constitutional claims asserted by the Sparkmans: “Whether laid under section 1331 or 1343 (3) and whether asserted 354 OCTOBER TERM, 1977 Opinion of the Court 435U.S. and battery, medical malpractice, and loss of potential fatherhood. Ruling upon the defendants’ various motions to dismiss the complaint, the District Court concluded that each of the constitutional claims asserted by respondents required a showing of state action and that the only state action alleged in the complaint was the approval by Judge Stump, acting as Circuit Court Judge, of the petition presented to him by Mrs. McFarlin. The Sparkmans sought to hold the private defendants liable on a theory that they had conspired with Judge Stump to bring about the allegedly unconstitutional acts. The District Court, however, held that no federal action would lie against any of the defendants because Judge Stump, the only state agent, was absolutely immune from suit under the doctrine of judicial immunity. The court stated that “whether or not Judge Stump’s ‘approval’ of the petition may in retrospect appear to have been premised on an erroneous directly or via section 1983 and 1985, plaintiffs’ grounds for recovery are asserted to rest on the violation of constitutional rights. Plaintiffs urge that defendants violated the following constitutional guarantees: “1. that the actions were arbitrary and thus in violation of the due process clause of the Fourteenth Amendment; “2. that Linda was denied procedural safeguards required by the Fourteenth Amendment; “3. that the sterilization was permitted without the promulgation of standards; “4. that the sterilization was an invasion of privacy; “5. that the sterilization violated Linda’s right to procreate; “6. that the sterilization was cruel and unusual punishment; “7. that the use of sterilization as punishment for her alleged retardation or lack of self-discipline violated various constitutional guarantees; “8. that the defendants failed to follow certain Indiana statutes, thus depriving Linda of due process of law; and “9. that defendants violated the equal protection clause, because of the differential treatment accorded Linda on account of her sex, marital status, and allegedly low mental capacity.” Sparkman N. McFarlin, Civ. No. F 75-129 (ND Ind., May 13, 1976). STUMP v. SPARKMAN 355 349 Opinion of the Court view of the law, Judge Stump surely had jurisdiction to consider the petition and to act thereon.” Sparkman v. McFarlin, Civ. No. F 75-129 (ND Ind., May 13, 1976). Accordingly, under Bradley v. Fisher, 13 Wall. 335, 351 (1872), Judge Stump was entitled to judicial immunity.3 On appeal, the Court of Appeals for the Seventh Circuit reversed the judgment of the District Court,4 holding that the “crucial issue” was “whether Judge Stump acted within his jurisdiction” and concluding that he had not. 552 F. 2d, at 174. He was accordingly not immune from damages liability under the controlling authorities. The Court of Appeals also held that the judge had forfeited his immunity “because of his failure to comply with elementary principles of procedural due process.” Id., at 176. We granted certiorari, 434 U. S. 815 (1977), to consider the correctness of this ruling. We reverse. II The governing principle of law is well established and is not questioned by the parties. As early as 1872, the Court recognized that it was “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, supra, at 347.5 For that reason the Court held that “judges 3 The District Court granted the defendants’ motion to dismiss the federal claims for that reason and dismissed the remaining pendent state claims for lack of subject-matter jurisdiction. 4 Sparkman v. McFarlin, 552 F. 2d 172 (CA7 1977). 5 Even earlier, in Randall v. Brigham, 7 Wall. 523 (1869), the Court stated that judges are not responsible “to private parties in civil actions for their judicial acts, however injurious may be those acts, and however much they may deserve condemnation, unless perhaps where the acts are palpably in excess of the jurisdiction of the judges, and are done maliciously or corruptly.” Id., at 537. In Bradley the Court reconsidered that earlier 356 OCTOBER TERM, 1977 Opinion of the Court 435U.S. of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.”* 6 13 Wall., at 351. Later we held that this doctrine of judicial immunity was applicable in suits under § 1 of the Civil Rights Act of 1871, 42 U. S. C. § 1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle. Pierson n. Ray, 386 U. S. 547 (1967). The Court of Appeals correctly recognized that the necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him. Because “some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction . . . ,” Bradley, supra, at 352, the scope of the judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only statement and concluded that “the qualifying words used were not necessary to a correct statement of the law . . . .” 13 Wall., at 351. 6 In holding that a judge was immune for his judicial acts, even when such acts were performed in excess of his jurisdiction, the Court in Bradley stated: “A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the maimer and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend.” Id., at 351-352. STUMP v. SPARKMAN 357 349 Opinion of the Court when he has acted in the “clear absence of all jurisdiction.” 7 13 Wall., at 351. We cannot agree that there was a “clear absence of all jurisdiction” in the DeKalb County Circuit Court to consider the petition presented by Mrs. McFarlin. As an Indiana Circuit Court Judge, Judge Stump had “original exclusive jurisdiction in all cases at law and in equity whatsoever . . . ,” jurisdiction over the settlement of estates and over guardianships, appellate jurisdiction as conferred by law, and jurisdiction over “all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer.” Ind. Code § 33 4-4-3 (1975).8 This is indeed a broad jurisdictional grant; yet the Court of Appeals concluded that Judge Stump did not have jurisdiction over the petition authorizing Linda Sparkman’s sterilization. 7 Tn Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. Id., at 352. 8 Indiana Code § 33-4-4-3 (1975) states as follows: “Jurisdiction.—Said court shall have original exclusive jurisdiction in all cases at law and in equity whatsoever, and in criminal cases and actions for divorce, except where exclusive or concurrent jurisdiction is, or may be conferred by law upon justices of the peace. It shall also have exclusive jurisdiction of the settlement of decedents’ estates and of guardianships: Provided, however, That in counties in which criminal or superior courts exist or may be organized, nothing in this section shall be construed to deprive such courts of the jurisdiction conferred upon them by laws, and it shall have such appellate jurisdiction as may be conferred by law, and it shall have jurisdiction of all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer.” 358 OCTOBER TERM, 1977 Opinion of the Court 435U.S. In so doing, the Court of Appeals noted that the Indiana statutes provided for the sterilization of institutionalized persons under certain circumstances, see Ind. Code §§ 16-13-13-1 through 16-13-13-4 (1973), but otherwise contained no express authority for judicial approval of tubal ligations. It is true that the statutory grant of general jurisdiction to the Indiana circuit courts does not itemize types of cases those courts may hear and hence does not expressly mention sterilization petitions presented by the parents of a minor. But in our view, it is more significant that there was no Indiana statute and no case law in 1971 prohibiting a circuit court, a court of general jurisdiction, from considering a petition of the type presented to Judge Stump. The statutory authority for the sterilization of institutionalized persons in the custody of the State does not warrant the inference that a court of general jurisdiction has no power to act on a petition for sterilization of a minor in the custody of her parents, particularly where the parents have authority under the Indiana statutes to “consent to and contract for medical or hospital care or treatment of [the minor] including surgery.” Ind. Code § 16-8-4-2 (1973). The District Court concluded that Judge Stump had jurisdiction under § 33-4-4-3 to entertain and act upon Mrs. McFarlin’s petition. We agree with the District Court, it appearing that neither by statute nor by case law has the broad jurisdiction granted to the circuit courts of Indiana been circumscribed to foreclose consideration of a petition for authorization of a minor’s sterilization. The Court of Appeals also concluded that support for Judge Stump’s actions could not be found in the common law of Indiana, relying in particular on the Indiana Court of Appeals’ intervening decision in A. L. v. G. R. H., 163 Ind. App. 636, 325 N. E. 2d 501 (1975). In that case the Indiana court held that a parent does not have a common-law right to have a minor child sterilized, even though the parent might “sincerely believe the child’s adulthood would benefit therefrom.” Id., at 638, 325 N. E. 2d, at 502. The opinion, however, STUMP v. SPARKMAN 359 349 Opinion of the Court speaks only of the rights of the parents to consent to the sterilization of their child and does not question the jurisdiction of a circuit judge who is presented with such a petition from a parent. Although under that case a circuit judge would err as a matter of law if he were to approve a parent’s petition seeking the sterilization of a child, the opinion in A. L. n. G. R. H. does not indicate that a circuit judge is without jurisdiction to entertain the petition. Indeed, the clear implication of the opinion is that, when presented with such a petition, the circuit judge should deny it on its merits rather than dismiss it for lack of jurisdiction. Perhaps realizing the broad scope of Judge Stump’s jurisdiction, the Court of Appeals stated that, even if the action taken by him was not foreclosed under the Indiana statutory scheme, it would still be “an illegitimate exercise of his common law power because of his failure to comply with elementary principles of procedural due process.” 552 F. 2d, at 176. This misconceives the doctrine of judicial immunity. A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors. The Court made this point clear in Bradley, 13 Wall., at 357, where it stated: “[T]his erroneous manner in which [the court’s] jurisdiction was exercised, however it may have affected the validity of the act, did not make the act any less a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever We conclude that the Court of Appeals, employing an unduly restrictive view of the scope of Judge Stump’s jurisdiction, erred in holding that he was not entitled to judicial immunity. Because the court over which Judge Stump presides is one of general jurisdiction, neither the procedural errors he may have committed nor the lack of a specific statute authorizing his approval of the petition in question ren- 360 OCTOBER TERM, 1977 Opinion of the Court 435U.S. dered him liable in damages for the consequences of his actions. The respondents argue that even if Judge Stump had jurisdiction to consider the petition presented to him by Mrs. McFarlin, he is still not entitled to judicial immunity because his approval of the petition did not constitute a “judicial” act. It is only for acts performed in his “judicial” capacity that a judge is absolutely immune, they say. We do not disagree with this statement of the law, but we cannot characterize the approval of the petition as a non judicial act. Respondents themselves stated in their pleadings before the District Court that Judge Stump was “clothed with the authority of the state” at the time that he approved the petition and that “he was acting as a county circuit court judge.” Plaintiffs’ Reply Brief to Memorandum Filed on Behalf of Harold D. Stump in Support of his Motion to Dismiss in Civ. No. F 75-129, p. 6. They nevertheless now argue that Judge Stump’s approval of the petition was not a judicial act because the petition was not given a docket number, was not placed on file with the clerk’s office, and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem. This Court has not had occasion to consider, for purposes of the judicial immunity doctrine, the necessary attributes of a judicial act; but it has previously rejected the argument, somewhat similar to the one raised here, that the lack of formality involved in the Illinois Supreme Court’s consideration of a petitioner’s application for admission to the state bar prevented it from being a “judicial proceeding” and from presenting a case or controversy that could be reviewed by this Court. In re Summers, 325 U. S. 561 (1945). Of particular significance to the present case, the Court in Summers noted the following: “The record does not show that any process issued or that any appearance was made. . . . While no entry was placed by the Clerk in the file, on a docket, or in a judgment roll, the Court took cognizance of the petition and STUMP v. SPARKMAN 361 349 Opinion of the Court passed an order which is validated by the signature of the presiding officer.” Id., at 567. Because the Illinois court took cognizance of the petition for admission and acted upon it, the Court held that a case or controversy was presented. Similarly, the Court of Appeals for the Fifth Circuit has held that a state district judge was entitled to judicial immunity, even though “at the time of the altercation [giving rise to the suit] Judge Brown was not in his judge’s robes, he was not in the courtroom itself, and he may well have violated state and/or federal procedural requirements regarding contempt citations.” McAlester v. Brown, 469 F. 2d 1280, 1282 (1972).9 10 Among the factors relied upon by the Court of Appeals in deciding that the judge was acting within his judicial capacity was the fact that “the confrontation arose directly and immediately out of a visit to the judge in his official capacity.” Ibid™ 9 In MeAlester the plaintiffs alleged that they had gone to the courthouse where their son was to be tried by the defendant in order to give the son a fresh set of clothes. When they went into the defendant judge’s office, he allegedly ordered them out and had a deputy arrest one of them and place him in jail for the rest of the day. Several months later, the judge issued an order holding the plaintiff in contempt of court, nunc pro tunc. 10 Other Courts of Appeals, presented with different fact situations, have concluded that the challenged actions of defendant judges were not performed as part of the judicial function and that the judges were thus not entitled to rely upon the doctrine of judicial immunity. The Court of Appeals for the Ninth Circuit, for example, has held that a justice of the peace who was accused of forcibly removing a man from his courtroom and physically assaulting him was not absolutely immune. Gregory v. Thompson, 500 F. 2d 59 (1974). While the court recognized that a judge has the duty to maintain order in his courtroom, it concluded that the actual eviction of someone from the courtroom by use of physical force, a task normally performed by a sheriff or bailiff, was “simply not an act of a judicial nature.” Id., at 64. And the Court of Appeals for the Sixth Circuit held in Lynch v. Johnson, 420 F. 2d 818 (1970), that the county judge sued in that case was not entitled to judicial immunity because his service on a board with only legislative and administrative powers did not constitute a judicial act. 362 OCTOBER TERM, 1977 Opinion of the Court 435U.S. The relevant cases demonstrate that the factors determining whether an act by a judge is a “judicial” one relate to the nature of the act itself, i. e., whether it is a function normally performed by a judge, and to the expectations of the parties, i. e., whether they dealt with the judge in his judicial capacity. Here, both factors indicate that Judge Stump’s approval of the sterilization petition was a judicial act.11 State judges with general jurisdiction not infrequently are called upon in their official capacity to approve petitions relating to the affairs of minors, as for example, a petition to settle a minor’s claim. Furthermore, as even respondents have admitted, at the time he approved the petition presented to him by Mrs. McFarlin, Judge Stump was “acting as a county circuit court judge.” See supra, at 360. We may infer from the record that it was only because Judge Stump served in that position that Mrs. McFarlin, on the advice of counsel, submitted the petition to him for his approval. Because Judge Stump performed the type of act normally performed only by judges and because he did so in his capacity as a Circuit Court Judge, we find no 11 11 Mr. Justice Stewart, in dissent, complains that this statement is inaccurate because it nowhere appears that judges are normally asked to approve parents’ decisions either with respect to surgical treatment in general or with respect to sterilizations in particular. Of course, the opinion makes neither assertion. Rather, it is said that Judge Stump was performing a “function” normally performed by judges and that he was taking “the type of action” judges normally perform. The dissent makes no effort to demonstrate that Judge Stump was without jurisdiction to entertain and act upon the specific petition presented to him. Nor does it dispute that judges normally entertain petitions with respect to the affairs of minors. Even if it is assumed that in a lifetime of judging, a judge has acted on only one petition of a particular kind, this would not indicate that his function in entertaining and acting on it is not the kind of function that a judge normally performs. If this is the case, it is also untenable to claim that in entertaining the petition and exercising the jurisdiction with which the statutes invested him, Judge Stump was nevertheless not performing a judicial act or was engaging in the kin,d of conduct not expected of a judge under the Indiana statutes governing the jurisdiction of its courts. STUMP v. SPARKMAN 363 349 Opinion of the Court merit to respondents’ argument that the informality with which he proceeded rendered his action non judicial and deprived him of his absolute immunity.12 Both the Court of Appeals and the respondents seem to suggest that, because of the tragic consequences of Judge Stump’s actions, he should not be immune. For example, the Court of Appeals noted that “[t]here are actions of purported judicial character that a judge, even when exercising general jurisdiction, is not empowered to take,” 552 F. 2d, at 176, and respondents argue that Judge Stump’s action was “so unfair” and “so totally devoid of judicial concern for the interests and well-being of the young girl involved” as to disqualify it as a judicial act. Brief for Respondents 18. Disagreement with the action taken by the judge, however, does not justify depriving that judge of his immunity. Despite the unfairness to litigants that sometimes results, the doctrine of judicial immunity is thought to be in the best interests of “the proper administration of justice . . . [, for it allows] a judicial officer, in exercising the authority vested in him [to] be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, 13 12 Mr. Justice Stewart’s dissent, post, at 369, suggests that Judge Stump’s approval of Mrs. McFarlin’s petition was not a judicial act because of the absence of what it considers the “normal attributes of a judicial proceeding.” These attributes are said to include a “case,” with litigants and the opportunity to appeal, in which there is “principled decisionmaking.” But under Indiana law, Judge Stump had jurisdiction to act as he did; the proceeding instituted by the petition placed before him was sufficiently a “case” under Indiana law to warrant the exercise of his jurisdiction, whether or not he then proceeded to act erroneously. That there were not two contending litigants did not make Judge Stump’s act any less judicial. Courts and judges often act ex parte. They issue search warrants in this manner, for example, often without any “case” having been instituted, without any “case” ever being instituted, and without the issuance of the warrant being subject to appeal. Yet it would n,ot destroy a judge’s immunity if it is alleged and offer of proof is made that in issuing a warrant he acted erroneously and without principle. 364 OCTOBER TERM, 1977 Stewart, J., dissenting 435 U. S. Wall., at 347. The fact that the issue before the judge is a controversial one is all the more reason that he should be able to act without fear of suit. As the Court pointed out in Bradley: “Controversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings, are being constantly determined in those courts, in which there is great conflict in the evidence and great doubt as to the law which should govern their decision. It is this class of cases which impose upon the judge the severest labor, and often create in his mind a painful sense of responsibility.” Id., at 348. The Indiana law vested in Judge Stump the power to entertain and act upon the petition for sterilization. He is, therefore, under the controlling cases, immune from damages liability even if his approval of the petition was in error. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.13 It is so ordered. Mr. Justice Brennan took no part in the consideration or decision of this case. Mr. Justice Stewart, with whom Mr. Justice Marshall and Mr. Justice Powell join, dissenting. It is established federal law that judges of general jurisdiction are absolutely immune from monetary liability “for their 13 The issue is not presented and we do not decide whether the District Court correctly concluded that the federal claims against the other defendants were required to be dismissed if Judge Stump, the only state agent, was found to be absolutely immune. Compare Kermit Constr. Corp. v. Banco Credito y Ahorro Ponceno, 547 F. 2d 1 (CAI 1976), with Guedry v. Ford, 431 F. 2d 660 (CA5 1970). STUMP v. SPARKMAN 365 349 Stewart, J., dissenting judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Bradley v. Fisher, 13 Wall. 335, 351. It is also established that this immunity is in no way diminished in a proceeding under 42 U. S. C. § 1983. Pierson v. Ray, 386 U. S. 547. But the scope of judicial immunity is limited to liability for “judicial acts,” and I think that what Judge Stump did on July 9, 1971, was beyond the pale of anything that could sensibly be called a judicial act. Neither in Bradley v. Fisher nor in Pierson v. Ray was there any claim that the conduct in question was not a judicial act, and the Court thus had no occasion in either case to discuss the meaning of that term.1 Yet the proposition that judicial immunity extends only to liability for “judicial acts” was emphasized no less than seven times in Mr. Justice Field’s opinion for the Court in the Bradley case.1 2 Cf. Imbler v. Pachtman, 424 U. S. 409, 430. And if the limitations inherent in that concept have any realistic meaning at all, then I cannot believe that the action of Judge Stump in approving Mrs. McFarlin’s petition is protected by judicial immunity. The Court finds two reasons for holding that Judge Stump’s approval of the sterilization petition was a judicial act. First, the Court says, it was “a function normally performed by a judge.” Second, the Court says, the act was performed in Judge Stump’s “judicial capacity.” With all respect, I think that the first of these grounds is factually untrue and that the second is legally unsound. When the Court says that what Judge Stump did was an act “normally performed by a judge,” it is not clear to me whether the Court means that a judge “normally” is asked to approve a mother’s decision to have her child given surgical 1 In the Bradley case the plaintiff was a lawyer who had been disbarred; in the Pierson case the plaintiffs had been found guilty after a criminal trial. 2 See 13 Wall., at 347,348, 349,351, 354, 357. 366 OCTOBER TERM, 1977 Stewart, J., dissenting 435U.S. treatment generally, or that a judge “normally” is asked to approve a mother’s wish to have her daughter sterilized. But whichever way the Court’s statement is to be taken, it is factually inaccurate. In Indiana, as elsewhere in our country, a parent is authorized to arrange for and consent to medical and surgical treatment of his minor child. Ind. Code § 16-8-4-2 (1973). And when a parent decides to call a physician to care for his sick child or arranges to have a surgeon remove his child’s tonsils, he does not, “normally” or otherwise, need to seek the approval of a judge.3 On the other hand, Indiana did in 1971 have statutory procedures for the sterilization of certain people who were institutionalized. But these statutes provided for administrative proceedings before a board established by the superintendent of each public hospital. Only if, after notice and an evidentiary hearing, an order of sterilization was entered in these proceedings could there be review in a circuit court. See Ind. Code §§ 16-13-13-1 through 16-13-13-4 (1974).4 3 This general authority of a parent was held by an Indiana Court of Appeals in 1975 not to include the power to authorize the sterilization of his minor child. A. L. v. G. R. H., 163 Ind. App. 636, 325 N. E. 2d 501. Contrary to the Court’s conclusion, ante, at 359, that case does not in the least demonstrate that an Indiana judge is or ever was empowered to act on the merits of a petition like Mrs. McFarlin’s. The parent in that case did not petition for judicial approval of her decision, but rather “filed a complaint for declaratory judgment seeking declaration of her right Under the common-law attributes of the parent-child relationship to have her son . . . sterilized.” 163 Ind. App., at 636-637, 325 N. E. 2d, at 501. The Indiana Court of Appeals’ decision simply established a limitation on the parent’s common-law rights. It neither sanctioned nor contemplated any procedure for judicial “approval” of the parent’s decision. Indeed, the procedure followed in that case offers an instructive contrast to the judicial conduct at issue here: “At the outset, we thank counsel for their excellent efforts in representing a seriously concerned parent and in providing the guardian ad litem defense of the child’s interest. Id., at 638, 325 N. E. 2d, at 502. 4 These statutes were repealed in 1974. STUMP v. SPARKMAN 367 349 Stewart, J., dissenting In sum, what Judge Stump did on July 9, 1971, was in no way an act “normally performed by a judge.” Indeed, there is no reason to believe that such an act has ever been performed by any other Indiana judge, either before or since. When the Court says that Judge Stump was acting in “his judicial capacity” in approving Mrs. McFarlin’s petition, it is not clear to me whether the Court means that Mrs. McFarlin submitted the petition to him only because he was a judge, or that, in approving it, he said that he was acting as a judge. But however the Court’s test is to be understood, it is, I think, demonstrably unsound. It can safely be assumed that the Court is correct in concluding that Mrs. McFarlin came to Judge Stump with her petition because he was a County Circuit Court Judge. But false illusions as to a judge’s power can hardly convert a judge’s response to those illusions into a judicial act. In short, a judge’s approval of a mother’s petition to lock her daughter in the attic would hardly be a judicial act simply because the mother had submitted her petition to the judge in his official capacity. If, on the other hand, the Court’s test depends upon the fact that Judge Stump said he was acting in his judicial capacity, it is equally invalid. It is true that Judge Stump affixed his signature to the approval of the petition as “Judge, De Kalb Circuit Court.” But the conduct of a judge surely does not become a judicial act merely on his own say-so. A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity.5 5 Believing that the conduct of Judge Stump on July 9, 1971, was not a judicial act, I do not need to inquire whether he was acting in “the clear absence of all jurisdiction over the subject matter.” Bradley v. Fisher, 13 Wall., at 351. “Jurisdiction” is a coat of many colors. I note only that the Court’s finding that Judge Stump had jurisdiction to entertain Mrs. McFarlin’s petition seems to me to be based upon dangerously broad 368 OCTOBER TERM, 1977 Stewart, J., dissenting 435U.S. If the standard adopted by the Court is invalid, then what is the proper measure of a judicial act? Contrary to implications in the Court’s opinion, my conclusion that what Judge Stump did was not a judicial act is not based upon the fact that he acted with informality, or that he may not have been “in his judge’s robes,” or “in the courtroom itself.” Ante, at 361. And I do not reach this conclusion simply “because the petition was not given a docket number, was not placed on file with the clerk’s office, and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem.” Ante, at 360. It seems to me, rather, that the concept of what is a judicial act must take its content from a consideration of the factors that support immunity from liability for the performance of such an act. Those factors were accurately summarized by the Court in Pierson v. Ray, 386 U. S., at 554: “ [I]t ‘is . . . for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ ... It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.” Not one of the considerations thus summarized in the Pierson opinion was present here. There was no “case,” con- criteria. Those criteria are simply that an Indiana statute conferred “jurisdiction of all . . . causes, matters and proceedings,” and that there was not in 1971 any Indiana law specifically prohibiting what Judge Stump did. STUMP v. SPARKMAN 369 349 Powell, J., dissenting troversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decisionmaking. The total absence of any of these normal attributes of a judicial proceeding convinces me that the conduct complained of in this case was not a judicial act. The petitioners’ brief speaks of “an aura of deism which surrounds the bench . . . essential to the maintenance of respect for the judicial institution.” Though the rhetoric may be overblown, I do not quarrel with it. But if aura there be, it is hardly protected by exonerating from liability such lawless conduct as took place here. And if intimidation would serve to deter its recurrence, that would surely be in the public interest.6 Mr. Justice Powell, dissenting. While I join the opinion of Mr. Justice Stewart, I wish to emphasize what I take to be the central feature of this case— Judge Stump’s preclusion of any possibility for the vindication of respondents’ rights elsewhere in the judicial system. Bradley v. Fisher, 13 Wall. 335 (1872), which established the absolute judicial immunity at issue in this case, recognized that the immunity was designed to further the public interest in an independent judiciary, sometimes at the expense of legitimate individual grievances. Id., at 349; accord, Pierson v. Ray, 386 U. S. 547, 554 (1967). The Bradley Court accepted those costs to aggrieved individuals because the judicial system itself provided other means for protecting individual rights: “Against the consequences of [judges’] erroneous or irregular action, from whatever motives proceeding, the law 6 The only question before us in this case is the scope of judicial immunity. How the absence of a “judicial act” might affect the issue of whether Judge Stump was acting “under color of” state law within the meaning of 42 U. S. C. § 1983, or the issue of whether his act was that of the State within the meaning of the Fourteenth Amendment that need not, therefore, be pursued here. 370 OCTOBER TERM, 1977 Powell, J., dissenting 435 IT. S. has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort.” 13 Wall., at 354. Underlying the Bradley immunity, then, is the notion that private rights can be sacrificed in some degree to the achievement of the greater public good deriving from a completely independent judiciary, because there exist alternative forums and methods for vindicating those rights.1 But where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative. See Pierson v. Ray, supra, at 554.1 2 In this case, as Mr. Justice Stewart points out, ante, at 369, Judge Stump’s unjudicial conduct insured that “[t]here was and could be no appeal.” The complete absence of normal judicial process foreclosed resort to any of the “numerous remedies” that “the law has provided for private parties.” Bradley, supra, at 354. In sum, I agree with Mr. Justice Stewart that petitioner judge’s actions were not “judicial,” and that he is entitled to no judicial immunity from suit under 42 U. S. C. § 1983. 1See Handler & Klein, The Defense of Privilege in Defamation Suits Against Government Executive Officials, 74 Harv. L. Rev. 44, 53-55 (1960); Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv. L. Rev. 209, 233-235 (1963); Note, Federal Executive Immunity From Civil Liability in Damages: A Réévaluation of Barr v. Mateo, 77 Colum. L. Rev. 625, 647 (1977). 2 In both Bradley and Pierson any errors committed by the judges involved were open to correction on appeal. UNITED STATES v. CULBERT 371 Opinion of the Court UNITED STATES v. CULBERT CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 77-142. Argued January 11, 1978—Decided March 28, 1978 Respondent was convicted under the Hobbs Act, 18 U. S. C. § 1951 (1976 ed.), of attempting to obtain money from a federally insured bank by means of threats of violence to its president. The Court of Appeals reversed, holding that the Government had failed to prove that respondent’s conduct constituted “racketeering,” which in its view was a necessary element of a Hobbs Act offense. Held: The plain language and legislative history of the statute make clear that Congress did not intend to limit the statute’s scope by reference to an undefined category of conduct termed “racketeering,” but rather that Congress intended to reach all conduct within the express terms of the statute. Pp. 373-380. 548 F. 2d 1355, reversed. Marshall, J., delivered the opinion of the Court, in which all other Members joined, except Brennan, J., who took no part in the consideration or decision of the case. Sara Sun Beale argued the cause for the United States. With her on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, and Deputy Solicitor General Frey. James F. Hewitt argued the cause for respondent. With him on the brief was Frank O. Bell, Jr. Mr. Justice Marshall delivered the opinion of the Court. Respondent was convicted of violating the Hobbs Act, 18 U. S. C. § 1951 (1976 ed.), which provides in relevant part: “Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical 372 OCTOBER TERM, 1977 Opinion of the Court 435U.S. violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.” § 1951 (a). The question in this case is whether the Government not only had to establish that respondent violated the express terms of the Act, but also had to prove that his conduct constituted “racketeering.” The evidence at respondent’s jury trial showed that he and an accomplice attempted to obtain $100,000 from a federally insured bank by means of threats of physical violence made to the bank’s president. The United States Court of Appeals for the Ninth Circuit, with one judge dissenting, reversed the Hobbs Act conviction,1 holding that, “ ‘although an activity may be within the literal language of the Hobbs Act, it must constitute “racketeering” to be within the perimeters of the Act.’ ” 548 F. 2d 1355,1357, quoting United States v. Yokley, 542 F. 2d 300, 304 (CA6 1976). We granted certiorari, 434 U. S. 816 (1977),1 2 and we now reverse. 1 Respondent was also convicted of attempted bank robbery, a violation of 18 U. S. C. §2113 (a) (1976 ed.). In the Court of Appeals, however, the Government confessed error on the ground that § 2113 (a) is not violated unless the taking of the bank’s money is “from the person or presence of another.” Since respondent’s plan involved the delivery of the money by the bank president to a parking lot and did not contemplate any entry by respondent into the bank or any taking from the person or presence of the president, the Government conceded that the bank robbery conviction should be vacated. 548 F. 2d 1355, 1356-1357. In its brief in this Court, the Government notes that “the United States Attorney’s concession was not approved by the Solicitor General and does not represent the position of the Department of Justice on this question.” Brief for United States 33 n. 19. We express no view on the validity of the United States Attorney’s interpretation of §2113 (a). 2 There is a conflict in the Circuits on this issue. Compare United States v. Cvlbert, 548 F. 2d 1355 (CA9 1977) (case below), and United States v. Yokley, 542 F. 2d 300 (CA6 1976), with United States v. Frazier, 560 F. 2d 884, 886 (CA8 1977), cert, pending, No. 77-847; United States v. UNITED STATES v. CULBERT 373 371 Opinion of the Court I Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons who have engaged in “racketeering.” To the contrary, the statutory language sweeps within it all persons who have “in any way or degree . . . affect[ed] commerce ... by robbery or extortion.” 18 U. S. C. § 1951 (a) (1976 ed.). These words do not lend themselves to restrictive interpretation; as we have recognized, they “manifest... a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence,” Stirone v. United States, 361 U. S. 212, 215 (1960). The statute, moreover, carefully defines its key terms, such as “robbery,” “extortion,” and “commerce.” * 3 Hence the absence of any reference to “racketeering”—much less any definition of the word—is strong evidence that Congress did not intend to make “racketeering” an element of a Hobbs Act violation. Warledo, 557 F. 2d 721, 730 (CAIO 1977); and United States v. Brecht, 540 F. 2d 45, 52 (CA2 1976). 3 Title 18 U. S. C. § 1951 (b) (1976 ed.) provides: "As used in this section— "(1) The term ‘robbery’ means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. "(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. “(3) The term ‘commerce’ means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.” 374 OCTOBER TERM, 1977 Opinion of the Court 435U.S. Respondent nevertheless argues that we should read a racketeering requirement into the statute. To do so, however, might create serious constitutional problems, in view of the absence of any definition of racketeering in the statute. Neither respondent nor either of the two Courts of Appeals that have read this requirement into the statute has even attempted to provide a definition. Without such a definition, the statute might well violate “the first essential of due process of law”: It would forbid “the doing of an act in terms so vague that [persons] of common intelligence [would] necessarily [have to] guess at its meaning and differ as to its application.” Connally v. General Constr. Co., 269 U. 8. 385, 391 (1926); see, e. g., Hynes v. Mayor of Oradell, 425 U. S. 610, 620 (1976). But we need not concern ourselves with these potential constitutional difficulties because a construction that avoids them is virtually compelled by the language and structure of the statute. II A Nothing in the legislative history supports the interpretation of the statute adopted by the Court of Appeals.4 The predecessor to the Hobbs Act, the Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979, was enacted, as its name implies, at a time when Congress was very concerned about racketeering activities. Despite these concerns, however, the Act, which was written in broad language similar to the language of the 4 Although we find the statutory language to be clear, we have often stated that, “[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ” United States v. American Trucking Assns., Inc., 310 U. S. 534, 543-544 (1940) (footnotes omitted). See Train v. Colorado Public Interest Research Group, Inc., 426 U. S. 1, 10 (1976); Cass v. United States, 417 U. S. 72,77-79 (1974). UNITED STATES v. CULBERT 375 371 Opinion of the Court Hobbs Act, nowhere mentioned racketeering.5 This absence of the term is not surprising, since the principal congressional committee working on the Act, known as the Copeland Committee, found that the term and the associated word “racket” had “for some time been used loosely to designate every conceivable sort of practice or activity which was either questionable, unmoral, fraudulent, or even disliked, whether criminal or not.” S. Rep. No. 1189, 75th Cbng., 1st Sess., 2 (1937).6 The Copeland Committee proceeded to develop its own “working definition” of racketeering, but it did not incor 5 The Anti-Racketeering Act provided in pertinent part: “Sec. 2. Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving or about to move in trade or commerce— “(a) Obtains or attempts to obtain, by the use of or attempt to use or threat to use force, violence, or coercion, the payment of money or other valuable considerations, or the purchase or rental of property or protective services, not including, however, the payment of wages by a bona-fide employer to a bona-fide employee; or “(b) Obtains the property of another, with his consent, induced by wrongful use of force or fear, or under color of official right; or “(c) Commits or threatens to commit an act of physical violence or physical injury to a person or property in furtherance of a plan or purpose to violate sections (a) or (b); or “(d) Conspires or acts concertedly with any other person or persons to commit any of the foregoing acts; shall, upon conviction thereof, be guilty of a felony and shall be punished by imprisonment from one to ten years or by a fine of $10,000, or both. “Sec. 3. (a) As used in this Act the term ‘wrongful’ means in violation of the criminal laws of the United States or of any State or Territory. “(b) The terms ‘property’, ‘money’, or ‘valuable considerations’ used herein shall not be deemed to include wages paid by a bona-fide employer to a bona-fide employee.” 6 Although the cited report was issued in 1937, it was intended to provide “a complete picture” of the earlier work of the Copeland Committee. S. Rep. No. 1189, 75th Cong., 1st Sess., 1 (1937). 376 OCTOBER TERM, 1977 Opinion of the Court 435U.S. porate this definition into the Act. Ibid. Critical to the definition was the existence of “an organized conspiracy to commit the crimes of extortion or coercion.” Id., at 3. Yet the Act itself did not require a conspiracy to engage in unlawful conduct, and the Senate Judiciary Committee Report expressly stated that a violation of the Act would be established “ ‘whether the restraints [of commerce] are in form of conspiracies or not/ ” S. Rep. No. 532, 73d Cong., 2d Sess., 2 (1934), quoting Justice Department memorandum; see H. R. Rep. No. 1833, 73d Cong., 2d Sess., 2 (1934). Moreover, the Act included a separate prohibition on conspiracies, § 2 (d), 48 Stat. 980; see n. 5, supra, that would have been superfluous if proof of racketeering—as defined by the Copeland Committee to require conspiracy—were an integral element of the substantive offenses.7 There is nothing in the legislative history to dispel the conclusion compelled by these observations. Congress simply did not intend to make racketeering a separate, unstated element of an Anti-Racketeering Act violation. B Given the absence of this intent in the Hobbs Act’s predecessor, any requirement that racketeering be proved must be derived from the Hobbs Act itself or its legislative history. While the Hobbs Act was enacted to correct a perceived deficiency in the Anti-Racketeering Act, that deficiency had nothing to do with the element of racketeering. See United States v. Enmons, 410 U. S. 396, 401-404 (1973). Rather, it involved the latter Act’s requirement that the proscribed “force, violence or coercion” lead to exaction of “valuable consideration” and its exclusion of wage payments from the definition of consideration. See n. 5, supra. In construing the wage-payments exclusion, this Court had held that the Act 7 The Hobbs Act also separately proscribes conspiracies. 18 U. 8. C. §1951 (a) (1976 ed.), quoted, supra, at 371-372. UNITED STATES v. CULBERT 377 371 Opinion of the Court did not cover the actions of union truckdrivers who exacted money by threats or violence from out-of-town drivers in return for undesired and often unutilized services. United States v. Teamsters, 315 U. S. 521 (1942). Shortly thereafter, several bills were introduced in Congress to alter this result. United States v. Enmons, supra, at 402, and n. 8. The bill that eventually became the Hobbs Act deleted the exception on which the Court had relied in Teamsters and substituted specific prohibitions against robbery and extortion for the Anti-Racketeering Act’s language relating to the use of force or threats of force. The primary focus in the Hobbs Act debates was on whether the bill was designed as an attack on organized labor. Opponents of the bill argued that it would be used to prosecute strikers and interfere with labor unions. See, e. g., 91 Cong. Rec. 11848 (1945) (remarks of Rep. Lane) ; ibid, (remarks of Rep. Powell); id., at 11902 (remarks of Rep. Celler). The proponents of the bill steadfastly maintained that the purpose of the bill was to prohibit robbery and extortion perpetrated by anyone. See, e. g., id., at 11900 (remarks of Rep. Hancock); id., at 11904 (remarks of Rep. Gwynne); id., at 11912 (remarks of Rep. Hobbs); id., at 11914 (remarks of Rep. Russell). Although there were many references in the debates to “racketeers” and “racketeering,” see, e. g., id., at 11906 (remarks of Rep. Robsion); id., at 11908 (remarks of Rep. Vursell); id., at 11910 (remarks of Rep. Andersen), none of the comments supports the conclusion that Congress did not intend to make punishable all conduct falling within the reach of the statutory language. To the contrary, the debates are fully consistent with the statement in the Report of the House Committee on the Judiciary that the purpose of the bill was “to prevent anyone from obstructing, delaying, or affecting commerce, or the movement of any article or commodity in commerce by robbery or extortion as defined in the bill.” H. R. Rep. No. 238, 79th Cong., 1st Sess., 9 (1945) (emphasis 378 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. added); see also S. Rep. No. 1516, 79th Cong., 2d Sess., 1 (1946).8 Indeed, many Congressmen praised the bill because it set out with more precision the conduct that was being made criminal. As Representative Hobbs noted, the words robbery and extortion “have been construed a thousand times by the courts. Everybody knows what they mean.” 91 Cong. Rec. 11912 (1945). See also id., at 11906 (remarks of Rep. Rob-sion); id., at 11910 (remarks of Rep. Springer); id., at 11914 (remarks of Rep. Russell). In the wake of the Court’s decision in Teamsters, moreover, a paramount congressional concern was to be clear about what conduct was prohibited: “We are explicit. That language is too general, and we thought it better to make this bill explicit, and leave nothing to the imagination of the court.” 91 Cong. Rec. 11904 (1945) (remarks of Rep. Hancock). See id., at 11912 (remarks of Rep. Hobbs). It is inconceivable that, at the same time Congress was so concerned about clearly defining the acts prohibited under the bill, it intended to make proof of racketeering—a term not mentioned in the statute—a separate prerequisite to criminal liability under the Hobbs Act.9 8 There are other indications that Congress did not intend to make criminal liability under the Hobbs Act turn on proof of some additional element of “racketeering.” One Congressman, in enumerating for his colleagues exactly what the Government would have to prove to establish an individual’s liability under the bill, made no reference to “racketeering.” 91 Cong. Rec. 11903 (1945) (remarks of Rep. Gwynne). Another em-phasized that, with respect to a predecessor bill—one that “was substantially carried forward into the [Hobbs] Act,” United States v. Enmons, 410 U. S. 396, 404—405, n. 14 (1973)—Congress was “trying to make a legal definition of racketeering” by proscribing specific conduct in the statute. 89 Cong. Rec. 3227 (1943) (remarks of Rep. Vorys). 9 We note that when Congress wanted to make racketeering an element of an offense, it knew how to do so. In the Organized Crime Control Act UNITED STATES v. CULBERT 379 371 Opinion of the Court III We therefore conclude that respondent’s position has no support in either the statute or its legislative history. Respondent also invokes, as did the court below, two maxims of statutory construction, but neither is applicable here. It is true that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,” Rewis v. United States, 401 U. S. 808, 812 (1971), and that, “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance,” United States v. Bass, 404 U. S. 336, 349 (1971). But here Congress has conveyed its purpose clearly, and *tve decline to manufacture ambiguity where none exists. The two maxims only apply “when we are uncertain about the statute’s meaning”; they are “not to be used ‘in complete disregard of the purpose of the legislature.’ ” Scarborough v. United States, 431 U. S. 563, 577 (1977), quoting United States v. Bramblett, 348 U. S. 503, 510 (1955). With regard to the concern about disturbing the federal-state balance, moreover, there is no question that Congress intended to define as a federal crime conduct that it knew was punishable under state law. The legislative debates are replete with statements that the conduct punishable under the Hobbs Act was already punishable under state robbery and extortion statutes. See, e. g., 91 Cong. Rec. 11848 (1945) (remarks of Rep. Powell); id., at 11900 (remarks of Rep. Hancock); id., at 11904 (remarks of Rep. Gwynne). Those who opposed the Act argued that it was a grave interference with the rights of the States. See, e. g., id., at 11903 (remarks of 1970, Pub. L. 91-452, 84 Stat. 922, Congress not only made “racketeering activity” an element of a statutory offense, but it specifically defined the term for purposes of the statute. 18 U. S. C. § 1961 (1) (1976 ed.). Moreover, the statute defines as “racketeering activity” any act which violates certain state laws as well as “any act which is indictable under . . . title 18, United States Code . . . section 1951”—the Hobbs Act. § 1961 (1)(B). 380 OCTOBER TERM, 1977 Opinion of the Court 435U.S. of Rep. Welch); id., at 11913 (remarks of Rep. Resa). Congress apparently believed, however, that the States had not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so. See, e. g., id., at 11911 (remarks of Rep. Jennings); id., at 11904, 11920 (remarks of Rep. Gwynne). Our examination of the statutory language and the legislative history of the Hobbs Act impels us to the conclusion that Congress intended to make criminal all conduct within the reach of the statutory language. We therefore decline the invitation to limit the statute’s scope by reference to an undefined category of conduct termed “ racketeering.” Th© judgment of the Court of Appeals is, accordingly, Reversed. Mr. Justice Brennan took no part in the consideration or decision of this case. BANKERS TRUST CO. v. MALLIS 381 Syllabus BANKERS TRUST CO. v. MALLIS et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 76-1359. Argued November 30, 1977—Decided March 28, 1978 In dismissing respondents’ action against petitioner under § 10 (b) of the Securities Exchange Act of 1934, the District Court failed to set forth the judgment in a separate document as required by Fed. Rule Civ. Proc. 58. Despite the absence of a separate judgment but without objection by petitioner, the Court of Appeals assumed appellate jurisdiction under 28 U. S. C. § 1291 giving courts of appeals jurisdiction of appeals from all “final decisions” of the district courts, and reversed on the merits. Held: 1. Under the circumstances the parties should be deemed to have waived Rule 58’s separate-judgment requirement, and hence the Court of Appeals properly assumed appellate jurisdiction under § 1291. 2. Where, however, the case’s posture changed between the time of the Court of Appeals’ decision and the presentation of the case to this Court, respondents’ counsel having urged here that the Court of Appeals’ judgment be affirmed on a theory different from that court’s reasoning in reversing the District Court, the writ of certiorari is dismissed as having been improvidently granted. Certiorari dismissed. Reported below: 568 F. 2d 824. Jack H. Weiner argued the cause for petitioner. With him on the briefs was Charles Leeds. Noel W. Hauser argued the cause and filed a brief for respondents. John L. Warden argued the cause and filed a brief for the New York Clearing House Assn, as amicus curiae urging reversal. Harvey L. Pitt argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Paul Gonson, Jacob H. Stillman, and James E. Bowers. 382 OCTOBER TERM, 1977 Per Curiam 435U.S. Per Curiam. Respondents sued petitioner Bankers Trust Co. under § 10 (b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j (b) (1976 ed.), for allegedly fraudulent statements. The District Court for the Southern District of New York dismissed the action on the ground that the fraud alleged had not occurred “in connection with the purchase or sale” of a security, as required by § 10 (b). Mallis v. Federal Deposit Ins. Corp., 407 F. Supp. 7 (1975). The Court of Appeals for the Second Circuit reversed, holding that respondents were “purchasers [of securities] by virtue of their acceptance of [a] pledge” of stock and that petitioner was “a seller by virtue of its release of [a] pledge.” Mallis v. Federal Deposit Ins. Corp., 568 F. 2d 824, 830 (1977). We granted certiorari to consider the correctness of these rulings of the Court of Appeals. 431 U. S. 928 (1977). We find ourselves initially confronted, however, by a difficult question of federal appellate jurisdiction. As the Court of Appeals noted in its opinion, a search of the District Court record fails to uncover “any document that looks like a judgment.” 568 F. 2d, at 827 n. 4. Because both the parties and the District Court “proceeded on the assumption that there was an adjudication of dismissal,” ibid.,1 the Court of Appeals felt free to consider the merits of the appeal. The Court of Appeals action, however, conflicts with the decisions of other Courts of Appeals concluding that a judgment set forth on a “separate document” is a prerequisite to appel 1 Respondents appealed from a combined opinion and order of the District Court dated September 30, 1975. In the relatively lengthy opinon, the District Court granted petitioner’s motion to dismiss the claim for failure to state a federal claim upon which relief could be granted and then concluded: “Complaint dismissed in its entirety. So ORDERED.” On the same day, an entry was made on the District Court docket reading, “Complaint dismissed in its entirety. So Ordered. Pollack, J. (mn) BANKERS TRUST CO. v. MALLIS 383 381 Per Curiam late jurisdiction.2 We conclude that the Court of Appeals for the Second Circuit was correct in deciding that it had jurisdiction in this case despite the absence of a separate judgment. Appellate jurisdiction was invoked under 28 U. S. C. § 1291, which provides that the “courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” The issue posed is whether a decision of a district court can be a “final decision” for purposes of § 1291 if not set forth on a document separate from the opinion. The issue arises because of Fed. Rule Civ. Proc. 58, which reads in part: “Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79 (a).” 3 2 See, e. g., Lyons v. Davoren, 402 F. 2d 890 (CAI 1968); Sassoon v. United States, 549 F. 2d 983 (CA5 1977); Richland Trust Co. v. Federal Ins. Co., 480 F. 2d 1212 (CA6 1973); Home Fed. Sav. & Loan v. Republic Ins. Co., 405 F. 2d 18 (CA7 1968); Baity v. Ciccone, 507 F. 2d 717 (CA8 1974); Baker v. Southern Pac. Transp., 542 F. 2d 1123 (CA9 1976). But see W. G. Cosby Transfer & Storage Corp. v. Froehike, 480 F. 2d 498, 501 n. 4 (CA4 1973). 3 Rule 58 reads in its entirety: “Subject to the provisions of Rule 54 (b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79 (a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.” 384 OCTOBER TERM, 1977 Per Curiam 435 U. S. We assume, without deciding, that the requirements for an effective judgment set forth in the Federal Rules of Civil Procedure must generally be satisfied before § 1291 jurisdiction may be invoked.4 We nonetheless conclude that it could not have been intended that the separate-document requirement of Rule 58 be such a categorical imperative that the parties are not free to waive it. The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U. S. C. § 2107 begins to run.5 According to the Advisory Committee that drafted the 1963 amendment: “Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e. g., ‘the plaintiff’s motion [for summary judgment] is granted,’ see United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227, 229 . . . (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a 4 A “judgment” for purposes of the Federal Rules of Civil Procedure would appear to be equivalent to a “final decision” as that term is used in 28 U. S. C. § 1291. Federal Rule Civ. Proc. 54 (a), for example, provides that “ ‘[j]udgment’ as used in these rules includes a decree and any order from which an appeal lies.” See also Ex parte Tiffany, 252 U. S. 32, 36 (1920); 6A J. Moore, Federal Practice J 58.02, pp. 51-52 (1972). Because Rule 58 provides that a “judgment is effective only . . . when entered as provided in Rule 79 (a),” it is arguable that a decision must be entered on the civil docket before it may constitute a “final decision” for purposes of § 1291. Unlike the separate-document requirement, however, the keeping of a civil docket pursuant to Rule 79 fulfills a public recordkeeping function over and above the giving of notice to the losing party that a final decision has been entered against it. A judgment of dismissal was entered in this case below. See n. 1, supra. 5 Section 2107 provides that “[e]xcept as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.” See also Fed. Rule App. Proc. 4 (a). BANKERS TRUST CO. v. MALLIS 385 381 Per Curiam sufficient basis for entering judgment in the civil docket as provided by Rule 79 (a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of a judgment was effective, starting the time running for post verdict motions and for the purpose of appeal. . . . “The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum— which provides the basis for the entry of judgment.” 28 U. S. C. App., p. 7824. The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. See United States v. Indrelunas, 411 U. S. 216, 220-222 (1973). Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose.6 6 Nor would strict compliance with the separate-judgment requirement aid in the court of appeals’ determination of whether the decision of the District Court was “final” for purposes of § 1291. Even if a separate judgment is filed, the courts of appeals must still determine whether the 386 OCTOBER TERM, 1977 Per Curiam 435U.S. In United States v. Indrelunas, we recognized that the separate-document rule must be “mechanically applied” in determining whether an appeal is timely. Id., at 221-222.7 Technical application of the separate-judgment requirement is necessary in that context to avoid the uncertainties that once plagued the determination of when an appeal must be brought. Cf. United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227 (1958). The need for certainty as to the timeliness of an appeal, however, should not prevent the parties from waiving the separate-judgment requirement where one has accidentally not been entered. As Professor Moore notes, if the only obstacle to appellate review is the failure of the District Court to set forth its judgment on a separate document, “there would appear to be no point in obliging the appellant to undergo the formality of obtaining a formal judgment.” 9 J. Moore, Federal Practice fl 110.08 [2], p. 120 n. 7 (1970). “[I]t must be remembered that the rule is designed to simplify and make certain the matter of appeal-ability. It is not designed as a trap for the inexperienced. . . . The rule should be interpreted to prevent loss of the right of appeal, not to facilitate loss.” Id., at 119-120. The Federal Rules of Civil Procedure are to be “construed district court intended the judgment to represent the final decision in the case. Cf. United States v. Hark, 320 U. S. 531 (1944). 7 While our decision in Indrelunas is consistent with the result we reach today, the beginning paragraph of Indrelunas could be read as holding that a separate judgment must be filed in compliance with Rule 58 before a decision is “final” for purposes of § 1291. In Indrelunas, we noted that since both parties conceded “that the jurisdiction of the Court of Appeals was based on the provisions of 28 U. S. C. § 1291, making final decisions of the district courts appealable, the correctness of the Court of Appeals’ decision depends on whether the District Court’s judgment of February 25, 1971, was a final decision. That question, in turn, depends on whether actions taken in the District Court previous to the February date amounted to the ‘entry of judgment’ as that term is used in Fed. Rule Civ. Proc. 58.” 411 U. S., at 216. To the extent the above passage is inconsistent with our decision today, we disavow it. BANKERS TRUST CO. v. MALLIS 387 381 Per Curiam to secure the just, speedy, and inexpensive determination of every action.” In Foman v. Davis, 371 U. S. 178 (1962), this Court was asked to apply Rule 73 which, as then written, provided that an appeal was to be taken “by filing with the District Court a notice of appeal,” which notice “shall designate the judgment or part thereof appealed from.” Under Rule 73 it was clear that the filing of a notice of appeal was “jurisdictional,” and the contents of the notice of appeal were prescribed in the Rule. This Court nonetheless held in Foman that a notice of appeal from a denial of motions to vacate a judgment and to amend the complaint was, in view of an earlier and premature notice of appeal, a notice of appeal from the original judgment. “The defect in the second notice of appeal did not mislead or prejudice the respondent. With both notices of appeal before it (even granting the asserted ineffectiveness of the first) the Court of Appeals should have treated the appeal from the denial of the motions as an effective, although inept, attempt to appeal from the judgment sought to be vacated.” 371 U. S., at 181. The same principles of common-sense interpretation that led the Court in Foman to conclude that the technical requirements for a notice of appeal were not mandatory where the notice “did not mislead or prejudice” the appellee demonstrate that parties to an appeal may waive the separatejudgment requirement of Rule 58. “It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities.” 371 U. S., at 181. Here, the District Court clearly evidenced its intent that the opinion and order from which an appeal was taken would represent the final decision in the case. A judgment of dismissal was recorded in the clerk’s docket. And petitioner did not object to the taking of the appeal in the absence of a 388 OCTOBER TERM, 1977 Per Curiam 435U.S. separate judgment. Under these circumstances, the parties should be deemed to have waived the separate-judgment requirement of Rule 58, and the Court of Appeals properly assumed appellate jurisdiction under § 1291. Although we conclude that the Court of Appeals did have appellate jurisdiction to pass on the merits of this case, we do not reach them. At oral argument, counsel for respondents took the position that “the mere release of a pledge is [not] a sale.” Tr. of Oral Arg. 32. Counsel urged that the judgment of the Court of Appeals be affirmed on a theory which differed from the reasoning of the Court of Appeals in reversing the District Court. Because of the change in the posture of the case between the time of the decision of the Court of Appeals and its presentation to us for decision, we dismiss the writ of certiorari as having been improvidently granted. Dismissed. Mr. Justice Blackmun took no part in the consideration or decision of this case. LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 389 Syllabus CITY OF LAFAYETTE, LOUISIANA, et al. v. LOUISIANA POWER & LIGHT CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 76-864. Argued October 4, 1977—Decided March 29, 1978 Petitioner cities, which own and operate electric utility systems both within and beyond their respective city limits as authorized by Louisiana law, brought an action in District Court against respondent investor-owned electric utility with which petitioners compete, alleging that it committed various federal antitrust offenses that injured petitioners in the operation of their electric utility systems. Respondent counterclaimed, alleging that petitioners had committed various antitrust offenses that injured respondent in its business and property. Petitioners moved to dismiss the counterclaim on the ground that, as cities and subdivisions of the State, the “state action” doctrine of Parker v. Brown, 317 U. S. 341, rendered federal antitrust laws inapplicable to them. The District Court granted the motion, but the Court of Appeals reversed and remanded. Held: Apart from whether petitioners are exempt from the antitrust laws as agents of the State under the Parker doctrine there are insufficient grounds for inferring that Congress did not intend to subject cities to antitrust liability. Pp. 39-4408. (a) The definition of “person” or “persons” covered by the antitrust laws clearly includes cities, whether as municipal utility operators suing as plaintiffs seeking damages for antitrust violations or as such operators being sued as defendants. Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390;' Georgia v. Evans, 316 U. S. 159. Pp. 394-397. (b) Petitioners have failed to show the existence of any overriding public policy inconsistent with a construction of coverage of the antitrust laws. The presumption against implied exclusion from such laws cannot be negated either on the ground that it would be anomalous to subject municipalities to antitrust liability or on the ground that the antitrust laws are intended to protect the public only from abuses of private power and not from action of municipalities that exist to serve the public weal. Pp. 400-408. Mr. Justice Brennan, joined by Mr. Justice Marshall, Mr. Justice Powell, and Mr. Justice Stevens, concluded: 1. Parker v. Brown does not automatically exempt from the antitrust 390 OCTOBER TERM, 1977 Syllabus 435 U. S. laws all governmental entities, whether state agencies or subdivisions of a State, simply by reason of their status as such, but exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service. Pp. 408-413. 2. The Court of Appeals did not err in holding that further inquiry should be made to determine whether petitioners’ actions were directed by the State, since when the State itself has not directed or authorized an anticompetitive practice, the State’s subdivisions in exercising their delegated power must obey the antitrust laws. While a subordinate governmental unit’s claim to Parker immunity is not as readily established as the same claim by a state government sued as such, an adequate state mandate for anticompetitive activities of cities and other subordinate governmental units exists when it is found “from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.” Pp. 413-417. The Chief Justice, while agreeing with the directions for remand in Part III because they represent at a minimum what is required to establish an exemption, would insist that the State compel the alleged anticompetitive activity and that the cities demonstrate that the exemption is essential to the state regulatory scheme. Pp. 425-426, and n. 6. 532 F. 2d 431, affirmed. Brennan, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part I, in which Burger, C. J., and Marshall, Powell, and Stevens, JJ., joined; and an opinion with respect to Parts II and III, in which Marshall, Powell, and Stevens, JJ., joined. Marshall, J., filed a concurring opinion, post, p. 417. Burger, C. J., filed an opinion concurring in part and concurring in the judgment, post, p. 418. Stewart, J., filed a dissenting opinion, in which White and Rehnquist, JJ., joined, and in all but Part II-B of which Blackmun, J., joined, post, p. 426. Blackmun, J., filed a dissenting opinion, post, p. 441. Jerome A. Hochberg argued the cause for petitioners. With him on the briefs were James F. Fairman, Jr., and Ivor C. Armistead III. Andrew P. Carter argued the cause for respondent. With him on the brief was William T. Tete. William T. Crisp argued the cause for the National Rural Electric Cooperative Assn, et al. as amici curiae urging LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 391 389 Opinion of the Court affirmance. With him on the brief were Robert D. Tisinger, James H. Eddleman, J. J. Davidson, Jr., C. Pinckney Roberts, and B. D. St. Clair* Mr. Justice Brennan delivered the opinion of the Court (Part I), together with an opinion (Parts II and III), in which Mr. Justice Marshall, Mr. Justice Powell, and Mr. Justice Stevens joined. Parker v. Brown, 317 U. S. 341 (1943), held that the federal antitrust laws do not prohibit a State “as sovereign” from imposing certain anticompetitive restraints “as an act of government.” The question in this case is the extent to which the antitrust laws prohibit a State’s cities from imposing such anticompetitive restraints. Petitioner cities are organized under the laws of the State of Louisiana,1 which grant them power to own and operate electric utility systems both within and beyond their city limits.* 1 2 Petitioners brought this action in the District Court for the Eastern District of Louisiana, alleging that, among others,3 Louisiana Power & Light Co. (LP&L), an investor-owned electric service utility with which petitioners compete ^Solicitor General McCree, Acting Assistant Attorney General Shenefteld, and Barry Grossman filed a brief for the United States as amicus curiae urging affirmance. Frederick T. Searls and Michael P. Graney filed a brief for the Columbus and Southern Ohio Electric Co. et al. as amici curiae. 1 See La. Const., Art. 6, §§ 2, 7 (A) (effective Jan. 1, 1975); La. Const., Art. XIV, §40 (d) (1921) (effective prior to Jan. 1, 1975); see generally La. Rev. Stat. Ann. §§33:621, 33:361, 33:506 (West 1951). 2 La. Rev. Stat. Ann. § 33:1326 (West 1951); §§ 33:4162, 33:4163 (West 1966). 3 The complaint named as parties defendant Middle-South Utilities, Inc., a Florida corporation of which LP&L is a subsidiary, Central Louisiana Electric Co., Inc., and Gulf States Utilities, Louisiana and Texas corporations respectively, engaged in the generation, transmission, and sale of electric power at wholesale and retail in Louisiana. 392 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. in the areas beyond their city limits,4 committed various antitrust offenses which injured petitioners in the operation of their electric utility systems.5 LP&L counterclaimed, seeking damages and injunctive relief for various antitrust offenses which petitioners had allegedly committed and which injured it in its business and property.e Petitioners moved to dismiss the counterclaim on the ground that, as cities and subdivisions of the State of Louisiana, the “state action” doctrine of Parker v. Brown, rendered federal antitrust laws inapplicable to them. The District Court granted the motion, holding that the decision of the Court of Appeals for the Fifth Circuit in Saenz v. University Inter-scholastic League, 487 F. 2d 1026 (1973), required dismissal, notwithstanding that “[t]hese plaintiff cities are engaging in what is clearly a business activity ... in which a profit is realized,” and “for this reason . . . this court is reluctant to 4 LP&L does not allege that it directly competes with the city of Lafayette, but does allege that the city of Plaquemine imposed tying arrangements which injured it. See Respondent’s Second Amended Counterclaim, App. 33-34; Affidavit of J. M. Wyatt, Senior Vice President of LP&L, id., at 37. 5 Petitioners’ complaint charged that the defendants conspired to restrain trade and attempted to monopolize and have monopolized the generation, transmission, and distribution of electric power by preventing the construction and operation of competing utility systems, by improperly refusing to wheel power, by foreclosing supplies from markets served by defendants, by engaging in boycotts against petitioners, and by utilizing sham litigation and other improper means to prevent the financing of construction of electric generation facilities beneficial to petitioners. c The counterclaim, as amended, alleged that the petitioners, together with a nonparty electric cooperative, had conspired to engage in sham litigation against LP&L to prevent the financing with the purpose and effect of delaying or preventing the construction of a nuclear electric-generating plant, to eliminate competition within the municipal boundaries by use of covenants in their respective debentures, to exclude competition in certain markets by using long-term supply agreements, and to displace LP&L in certain areas by requiring customers of LP&L to purchase electricity from petitioners as a condition of continued water and gas service. LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 393 389 Opinion of the Court hold that the antitrust laws do not apply to any state activity.” 7 App. 47 (emphasis in original). The District Court in this case read Saenz to interpret the “state action” exemption 8 as requiring the “holding that purely state government activities are not subject to the requirements of the antitrust laws of the United States,” App. 48, thereby making petitioners’ status as cities determinative against maintenance of antitrust suits against them. The Court of Appeals for the Fifth Circuit reversed and remanded for further proceedings.9 532 F. 2d 431 (1976). The Court of Appeals noted that the District Court had acted before this Court’s decision in Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), and held that “taken together” Parker v. Brown and Goldfarb “require the following analysis”: “A subordinate state governmental body is not ipso facto exempt from the operation of the antitrust laws. Rather, a district court must ask whether the state legislature contemplated a certain type of anticompetitive restraint. In our opinion, though, it is not necessary to point to an 7 Saenz was a treble-damages action by a slide-rule manufacturer who alleged a conspiracy between a state agency, the University Interscholastic League (UIL), its director, and a private competitor of Saenz to effect the rejection of Saenz products for use in interscholastic competition among Texas public schools. In Saenz the Court of Appeals affirmed the District Court’s dismissal of the action against the UIL and its director on the ground that as a state agency and a state official, they were not answerable under the Sherman Act. 8 The word “exemption” is commonly used by courts as a shorthand expression for Parker’s holding that the Sherman Act was not intended by Congress to prohibit the anticompetitive restraints imposed by California in that case. 9 In entering its order dismissing the counterclaim, the District Court made an express determination that there was no just reason for delay and expressly directed the entry of judgment for plaintiffs pursuant to Fed. Rule Civ. Proc. 54 (b). This action designated the dismissal as a final appealable order. See Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737, 742-743 (1976). 394 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activity was clearly within the legislative intent. Thus, a trial judge may ascertain, from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of. On the other hand, as in Goldfarb, the connection between a legislative grant of power and the subordinate entity’s asserted use of that power may be too tenuous to permit the conclusion that the entity’s intended scope of activity encompassed such conduct. Whether a governmental body’s actions are comprehended within the powers granted to it by the legislature is, of course, a determination which can be made only under the specific facts in each case. A district judge’s inquiry on this point should be broad enough to include all evidence which might show the scope of legislative intent.” 532 F. 2d, at 434-435 (footnotes omitted). We granted certiorari, 430 U. S. 944 (1977). We affirm. I Petitioners’ principal argument is that “since a city is merely a subdivision of a state and only exercises power delegated to it by the state, Parker's findings regarding the congressionally intended scope of the Sherman Act apply with equal force to such political subdivisions.” Brief for Petitioners 5. Before addressing this question, however, we shall address the contention implicit in petitioners’ arguments in their brief that, apart from the question of their exemption as agents of the State under the Parker doctrine, Congress never intended to subject local governments to the antitrust laws. A The antitrust laws impose liability on and create a cause of action for damages for a “person” or “persons” as defined in LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 395 389 Opinion of the Court the Acts.10 11 Since the Court has held that the definition of “person” or “persons” embraces both cities and States, it is understandable that the cities do not argue that they are not “persons” within the meaning of the antitrust laws. Section 8 of the Sherman Act, ch. 647, 26 Stat. 210, 15 U. S. C. § 7 (1976 ed.), and § 1 of the Clayton Act, 38 Stat. 730, 15 U. S. C. § 12 (1976 ed.), are general definitional sections which define “person” or “persons,” “wherever used in this [Act] ... to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country.” 11 Section 4 of the Clayton Act, 38 Stat. 731,15 U. S. C. § 15 (1976 ed.), provides, 10 The word “person” or “persons” is used repeatedly in the antitrust statutes. For examples, see 15 U. S. C. § 1 (1976 ed.) (“Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony . . .”) ; 15 U. S. C. §2 (1976 ed.) (“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . .”) ; 15 U. S. C. § 3 (1976 ed.) (“Every person [making a contract or engaging in a combination or conspiracy in restraint of trade in any Territory or the District of Columbia] shall be deemed guilty of a felony . . .”) ; 15 U. S. C. §7 (1976 ed.) (defining the word “person” or “persons”); 15 U. S. C. § 8 (1976 ed.) (declaring illegal every contract, combination, or conspiracy in restraint of trade by persons or corporations engaged in importing articles into the United States, and providing that any person so engaged shall be guilty of a misdemeanor). 11 Section 8 of the Sherman Act provides in full : “That the word 'person/ or 'persons/ wherever used in this act shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country.” Section 8 has remained unchanged since its enactment in 1890. Section 1 of the Clayton Act defines the word “person” or “persons” in language identical to that of § 8 of the Sherman Act, and it also has remained unchanged since its enactment in 1914. 396 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. in pertinent part, that “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court. . . , and shall recover threefold the damages by him sustained12 Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390 (1906), held that a municipality is a “person” within the meaning of § 8 of the Sherman Act, the general definitional section, and that the city of Atlanta therefore could maintain a treble-damages action under § 7, the predecessor of § 4 of the Clayton Act,13 * 15 against a supplier from whom the city purchased water pipe which it used to furnish water as a municipal utility service. Some 36 years later, Georgia v. Evans, 316 U. S. 159 (1942), held that the words “any person” in § 7 of the Sherman Act included States. Under that decision, the State of Georgia was permitted to bring an action in its own name charging injury from a combination to fix prices and suppress competition in the market for asphalt which the 12 Section 4 is quoted in full in n. 13, infra. 13 Section 7 of the Shennan Act, ch. 647, 26 Stat. 210 (1890) (repealed in 1955), provided in full: “Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover three fold the damages by him sustained, and the costs of suit, including a reasonable attorney’s fee.” Section 4 of the Clayton Act provides in full: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” Section 4 has remained unchanged since its enactment in 1914. It is made applicable to all of the antitrust statutes by § 1 of the Clayton Act, 15 U. S. C. § 12 (1976 ed.). LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 397 389 Opinion of the Court State purchased annually for use in the construction of public roads. The Court reasoned that “[n]othing in the Act, its history, or its policy, could justify so restrictive a construction of the word ‘person’ in § 7 as to exclude a State.” 316 U. S., at 162. Although both Chattanooga Foundry and Georgia v. Evans involved the public bodies as plaintiffs, whereas petitioners in the instant case are defendants to a counterclaim, the basis of those decisions plainly precludes a reading of “person” or “persons” to include municipal utility operators that sue as plaintiffs but not to include such municipal operators when sued as defendants. Thus, the conclusion that the antitrust laws are not to be construed as meant by Congress to subject cities to liability under the antitrust laws must rest on the impact of some overriding public policy which negates the construction of coverage, and not upon a reading of “person” or “persons” as not including them.14 B Petitioners suggest several reasons why, in addition to their arguments for exemption as agents of the State under the Parker doctrine, a congressional purpose not to subject cities 14 When Congress wished to exempt municipal service operations from the coverage of the antitrust laws, it has done so without ambiguity. The Act of May 26, 1938, ch. 283, 52 Stat. 446, 15 U. S. C. § 13c (1976 ed.), grants a limited exemption to certain not-for-profit institutions for “purchases of their supplies for their own use” from the provisions of the Clayton Act as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C. §§ 13 to 13b and 21a (1976 ed.), which otherwise make it unlawful for a supplier to grant, or for an institution to induce, a discriminatory discount with respect to such supplies. Congress expressly included public libraries in this exemption. (Public libraries are, by definition, operated by local government. See 1 U. S. Office of Education, Biennial Surveys of Education in the United States, ch. 8 (Library Service 1938-1940), p. 27 (1947); 2 U. S. Office of Education, ch. 2 (Statistical Summary of Education, 1941-1942), p. 38; 32 Am. Library Assn. Bull. 272 (1938)). 398 OCTOBER TERM, 1977 Opinion of the Court 435U.S. to the antitrust laws should be inferred. Those arguments, like the Parker exemption itself, necessarily must be considered in light of the presumption against implied exclusions from coverage under the antitrust laws. (1) The purposes and intended scope of the Sherman Act have been developed in prior cases and require only brief mention here. Commenting upon the language of the Act in rejecting a claim that the insurance business was excluded from coverage, the Court stated: “Language more comprehensive is difficult to conceive. On its face it shows a carefully studied attempt to bring within the Act every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states.” United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 553 (1944). That and subsequent cases reviewing the legislative history of the Sherman Act have concluded that Congress, exercising the full extent of its constitutional power,15 sought to establish a regime of competition as the fundamental principle governing commerce in this country.16 For this reason, our cases have held that even when Congress by subsequent legislation establishes a regulatory regime over an area of commercial activity, the antitrust laws will not be displaced unless it appears that the antitrust and regulatory provisions are plainly repugnant. E. g., United States v. 15 See Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S, 219, 229-235 (1948). 16 “Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete—to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster.” United States v. Topco Associates, 405 U. S. 596, 610 (1972). LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 399 389 Opinion of the Court Philadelphia Nat. Bank, 374 U. S. 321, 350-351, and n. 28 (1963) (collecting cases). The presumption against repeal by implication reflects the understanding that the antitrust laws establish overarching and fundamental policies, a principle which argues with equal force against implied exclusions. See Goldfarb, 421 U. S., at 786-788. Two policies have been held sufficiently weighty to override the presumption against implied exclusions from coverage of the antitrust laws. In Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), the Court held that, regardless of anticompetitive purpose or intent, a concerted effort by persons to influence lawmakers to enact legislation beneficial to themselves or detrimental to competitors was not within the scope of the antitrust laws. Although there is nothing in the language of the statute or its history which would indicate that Congress considered such an exclusion, the impact of two correlative principles was held to require the conclusion that the presumption should not support a finding of coverage. The first is that a contrary construction would impede the open communication between the polity and its lawmakers which is vital to the functioning of a representative democracy. Second, “and of at least equal significance,” is the threat to the constitutionally protected right of petition which a contrary construction would entail. Id., at 137-138.17 17 See also Mine Workers v. Pennington, 381 U. S. 657, 669-672 (1965). Pennington held that, regardless of the anticompetitive purpose or effect on small competing mining companies, the joint action of certain large mining companies and labor unions in lobbying before the Secretary of Labor in favor of legislation establishing a minimum wage for employees of contractors selling coal to the Tennessee Valley Authority and in lobbying before TVA to avoid coal purchases exempted from the legislation was not subject to antitrust attack. Cases subsequent to Pennington have emphasized the possible constitutional infirmity in the antitrust laws that a contrary construction would entail in light of the serious threat to First Amendment freedoms that would have been presented. See 400 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. Parker v. Brown18 identified a second overriding policy, namely that “[i]n a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.” 317 U. S., at 351. Common to the two implied exclusions was potential conflict with policies of signal importance in our national traditions and governmental structure of federalism. Even then, however, the recognized exclusions have been unavailing to prevent antitrust enforcement which, though implicating those fundamental policies, was not thought severely to impinge upon them. See, e. g., Goldfarb, supra; California Motor Transport Co. n. Trucking Unlimited, 404 U. S. 508 (1972). Petitioners’ arguments therefore cannot prevail unless they demonstrate that there are countervailing policies which are sufficiently weighty to overcome the presumption. We now turn to a consideration of whether, apart from the question of their exemption as agents of the State under the Parker doctrine, petitioners have made that showing. (2) Petitioners argue that their exclusion must be inferred because it would be anomalous to subject municipalities to the criminal and civil liabilities imposed upon violators of the antitrust laws. The short answer is that it has not been regarded as anomalous to require compliance by municipalities with the substantive standards of other federal laws which impose such sanctions upon “persons.” See Union Pacific R. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 707-708 (1962); California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 516 (1972) (Stewart, J., concurring in judgment). 18 See also Olsen v. Smith, 195 U. S. 332, 344-345 (1904). LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 401 389 Opinion of the Court Co. v. United States, 313 U. S. 450 (1941).19 See generally Ohio v. Helvering, 292 U. S. 360, 370 (1934);20 California v. United States, 320 U. S. 577 (1944).21 But those cases do not 19 Union Pacific considered the applicability to a city of § 1 of the Elkins Act, 32 Stat. 847, as amended, 34 Stat. 587, 49 U. S. C. §41 (1). That statute, in definitional language similar to that used in § 8 of the Sherman Act, makes it unlawful for “any person, persons, or corporation to offer, grant, or give, or to solicit, accept, or receive any rebate, concession, or discrimination in respect to the transportation of any property in interstate or foreign commerce by any [covered] common carrier . . . .” (Emphasis added.) Kansas City, Kan. (hereinafter Kansas), decided to develop its Public Levee as a metropolitan rail food terminal with wholesale and retail produce markets. Kansas constructed, operated, and owned the market, financing the development with municipal revenue bonds. Another city, Kansas City, Mo. (hereinafter Missouri), also operated a rail food terminal within the same metropolitan area. Because Kansas believed that there was insufficient business in the metropolitan area to support both markets, it developed a plan to induce Missouri produce dealers to lease its facilities by offering cash payments and temporary reduction or abatement of rent. These payments exceeded the amounts needed to compensate the merchants for the costs of moving, settlement of existing leases, and disruption to business. Kansas adopted the payment plan by resolution, and its legality under Kansas law was sustained by the Kansas Supreme Court in a quo warranto proceeding. State ex rel. Parker N. Kansas City, 151 Kan. 1, 97 P. 2d 104, 98 P. 2d 101 (1939). The Missouri terminal was served by a number of railroads, but the Kansas terminal was served virtually exclusively by the Union Pacific Railroad. As merchants moved from Missouri to Kansas, the Union Pacific’s traffic necessarily increased while that of the other railroads shrank. The United States charged that the effect of Kansas’ concessions to merchants was to permit them to ship produce over the Union Pacific more cheaply than on the competing railroads serving the Missouri terminal and, in effect, amounted to a rebate from Union Pacific’s tariffs. The District Court permanently enjoined Kansas from giving cash or rental credits to Missouri dealers to move or for moving to Kansas. On appeal to this Court, Kansas argued that because the concessions were lawful under state law, it could not be enjoined from making them, and the United States argued that the municipality was a “person” within the meaning of the statute and therefore subject to the Act on the same terms [Footnotes 20 and 21 are on p. 402] 402 OCTOBER TERM, 1977 Opinion of the Court 435U.S. necessarily require the conclusion that remedies appropriate to redress violations by private corporations would be equally appropriate for municipalities; nor need we decide any question of remedy in this case.20 21 22 as a private corporation. See Brief for Appellants, O. T. 1940, No. 594, pp. 233-235, 244-256; Brief for United States, O. T. 1940, No. 594, p. 72. See generally id., at 59-68, 69-75. The Court held that the municipality was a “person” subject to the Act, and, with a modification not important here, upheld the permanent injunction against it. Mr. Justice Roberts, in dissent, made the argument made by the cities here, that the statutory phrase “every person” was not sufficiently specific to justify the conclusion that Congress wished to subject municipal corporations and their officers to the criminal penalties for which the Act provided. It is significant that the cities’ argument was rejected in the context of the antirebate provisions of the Elkins Act, a statute which essentially is an antitrust provision serving the same purposes as the anti-price-discrimination provisions of the Robinson-Patman Act. Accord, Slater, Antitrust and Government Action: A Formula For Narrowing Parker n. Brown, 69 Nw. U. L. Rev. 71, 89 n. 100 (1974). 20 Ohio v. Helvering sustained a federal tax liability imposed upon the State of Ohio in its business as a distributor of alcoholic beverages. The statute, Rev. Stat. § 3244 (1878), imposed a tax upon “[e]very person who sells or offers for sale [alcoholic beverages].” The applicable definitional section, Rev. Stat. §3140 (1878), provided: “[W]here not otherwise distinctly expressed or manifestly incompatible with the intent thereof, the word ‘person,’ as used in this title, shall be construed to mean and include a partnership, association, company, or corporation, as well as a natural person.” Helvering stated that “[w]hether the word ‘person’ or ‘corporation’ includes a state or the United States depends upon the connection in which the word is found,” 292 U. S., at 370, and held that “the state itself, when it becomes a dealer in intoxicating liquors, falls within the reach of the tax either as a ‘person’ under the statutory extension of that word to include a corporation, or as a ‘person’ without regard to such extension.” Id., at 371. 21 California held that a city and State are subject to §§ 16 and 17 of the Shipping Act, 1916, 39 Stat. 734, as amended, 46 U. S. C. §§ 815, 816, making unlawful certain practices of “person [s],” defined by § 1, 46 U. S. C. § 801, as including “corporations, partnerships, and associations, existing under or authorized by the laws of the United States, or any State . . . .” 22 The question of remedy can arise only if the District Court, on the LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 403 389 Opinion of the Court Petitioners next argue that the antitrust laws are intended to protect the public only from abuses of private power and not from actions of municipalities that exist to serve the public weal. Petitioners’ contention that their goal is not private profit but public service is only partly correct. Every business enterprise, public or private, operates its business in furtherance of its own goals. In the case of a municipally owned utility, that goal is likely to be, broadly speaking, the benefit of its citizens. But the economic choices made by public corporations in the conduct of their business affairs, designed as they are to assure maximum benefits for the community constituency, are not inherently more likely to comport with the broader interests of national economic well-being than are those of private corporations acting in furtherance of the interests of the organization and its shareholders. The allegations of the counterclaim, which for present purposes we accept as true,* 23 aptly illustrate the impact which local governments, acting as providers of services, may have on other individuals and business enterprises with which they interrelate as purchasers, suppliers, and sometimes, as here, as competitors.24 LP&L alleged that the city of Plaquemine contracted to provide LP&L’s electric customers outside its city limits gas and water service only on condition that the customers pur Court of Appeals remand, determines that petitioners’ activities are prohibited by the antitrust laws. 23 Cf. Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 740 (1976). We use the allegations of the counterclaim only as a ready and convenient example of the kinds of activities in which a municipality may engage in the operation of its utility business which would have an anticompetitive effect transcending its municipal borders. 24 See generally Duke & Co. v. Foerster, 521 F. 2d 1277 (CA3 1975); New Mexico v. American Petrofina, Inc., 501 F. 2d 363 (CA9 1974); Hecht v. Pro-Football, Inc., 144 U. S. App. D. C. 56, 444 F. 2d 931 (1971). 404 OCTOBER TERM, 1977 Opinion of the Court 435U.S. chase electricity from the city and not from LP&L.25 The effect of such a tie-in is twofold. First, the tying contract might injure former LP&L customers in two ways. The net effect of the tying contract might be to increase the cost of electric service to these customers. Moreover, a municipality conceivably might charge discriminatorily higher rates to such captive customers outside its jurisdiction without a cost-justified basis. Both of these practices would provide maximum benefits for its constituents, while disserving the interests of the affected customers. Second, the practice would necessarily have an impact on the regulated public utility whose service is displaced.26 The elimination of customers in an established service area would likely reduce revenues, and possibly require abandonment or loss of existing equipment the effect of which would be to reduce its rate base and possibly affect its capital structure. The surviving customers and the investor-owners would bear the brunt of these consequences. The decision to displace existing service, rather than being made on the basis of efficiency in the distribution of services, may be made by the municipality in the interest of realizing maximum benefits to itself without regard to extraterritorial impact and regional efficiency.27 25 See Respondent’s Second Amended Counterclaim, App. 33. 26 As one commentator has noted, our cases indicate that the protection against injury to the buyer is only one purpose of the rule against tying arrangements. Equally important is the need to protect competing sellers from competition unrelated to the merits of the product involved, and, concomitantly, to protect the market from distortion. Turner, The Validity of Tying Arrangements Under the Antitrust Laws, 72 Harv. L. Rev. 50, 60 (1958). 27 While the investor-owned utilities in Louisiana are subject to regulation by the Louisiana Public Utilities Commission, municipally owned utilities are not subject to the jurisdiction of the PUC and hence apparently need not conform their expansion policies to whatever plans the PUC might deem advisable for coordinating service. See n. 44, infra. LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 405 389 Opinion of the Court The second allegation of LP&L’s counterclaim,28 29 is that petitioners conspired with others to engage in sham and frivolous litigation against LP&L before various federal agencies20 and federal courts for the purpose, and with the effect, of delaying approval and construction of LP&L’s proposed nuclear electric generating plant. It is alleged that this course of conduct was designed to deprive LP&L of needed financing and to impose delay costs, amounting to $180 million, which would effectively block construction of the proposed project. Such activity may benefit the citizens of Plaquemine and Lafayette by eliminating a competitive threat to expansion of the municipal utilities in still undeveloped areas beyond the cities’ territorial limits. But that kind-of activity, if truly anticompetitive,30 may impose enormous unnecessary costs on the potential customers of the nuclear generating facility both within and beyond the cities’ proposed area of expansion. In addition, it may cause significant injury to LP&L, interfering with its ability to provide expanded service. Another aspect of the public-service argument31 is that 28 See Respondent’s Answer & Counterclaim, App. 18-20. 29 The counterclaim alleged that petitioners engaged in sham litigation before the Securities and Exchange Commission, the Federal Power Commission, the Atomic Energy Commission, and the United States Department of Justice. 30 See generally California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972). 31 Petitioners have urged that the antimonopoly principles of the antitrust laws are inconsistent with the very nature of government operating as a monopoly in the public interest. They suggest that to apply antitrust principles to local governments will necessarily interfere with the execution of governmental programs. We do not agree. Acting as agents at the direction of the State, local governments are free to implement state policies without being subject to the antitrust laws to the same extent as would the State itself. See infra, at 413-417. On the other hand, it would not hinder governmental programs to require that cities authorized to provide services on a monopoly basis refrain from, for example, predatory conduct not itself directed by the State. 406 OCTOBER TERM, 1977 Opinion of the Court 435U.S. because government is subject to political control, the welfare of its citizens is assured through the political process and that federal antitrust regulation is therefore unnecessary. The argument that consumers dissatisfied with the service provided by the municipal utilities may seek redress through the political process is without merit. While petitioners recognize, as they must, that those consumers living outside the municipality who are forced to take municipal service have no political recourse at the municipal level, they argue nevertheless that the customers may take their complaints to the state legislature. It fairly may be questioned whether the consumers in question or the Florida corporation of which LP&L is a subsidiary have a meaningful chance of influencing the state legislature to outlaw on an ad hoc basis whatever anticompetitive practices petitioners may direct against them from time to time. More fundamentally, however, that argument cuts far too broadly; the same argument may be made regarding anticompetitive activity in which any corporation engages. Mulcted consumers and unfairly displaced competitors may always seek redress through the political process. In enacting the Sherman Act, however, Congress mandated competition as the polestar by which all must be guided in ordering their business affairs. It did not leave this fundamental national policy to the vagaries of the political process, but established a broad policy, to be administered by neutral courts,32 which 32 “The prohibitions of the Sherman Act were not stated in terms of precision or of crystal clarity and the Act itself did not define them. In consequence of the vagueness of its language, perhaps not uncalculated,[*] the courts have been left to give content to the statute, and in the performance of that function it is appropriate that courts should interpret its word in the light of its legislative history and of the particular evils at which the legislation was aimed. . . .” “[*]See Debates, 21 Cong. Rec. 2460, 3148 ; 2 Hoar, Autobiography of Seventy Years 364; Senator Edmunds, The Interstate Trust and Commerce Act of 1890, 194 No. Am. Rev. 801, 813, ‘after most careful and earnest consideration by the Judiciary Committee of the Senate it was LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 407 389 Opinion of the Court would guarantee every enterprise the right to exercise “whatever economic muscle it can muster,” United States v. Topco Associates, 405 U. S. 596, 610 (1972), without regard to the amount of influence it might have with local or state legislatures.33 In 1972, there were 62,437 different units of local government in this country.34 Of this number 23,885 were special districts which had a defined goal or goals for the provision of one or several services,35 while the remaining 38,552 repre agreed by every member that it was quite impracticable to include by specific description all the acts which should come within the meaning and purpose of the words “trade” and “commerce” or “trust,” or the words “restraint” or “monopolize,” by precise and all-inclusive definitions; and that these were truly matters for judicial consideration.’ “See also Senator Hoar who with Senator Edmunds probably drafted the bill (see A. H. Walker, History of the Sherman Law (1910), p. 27-28) in 36 Cong. Rec. 522, Jan. 6, 1903: ‘We undertook by law to clothe the courts with the power and impose on them and the Department of Justice the duty of preventing all combinations in restraint of trade....’ ” Apex Hosiery Co. v. Leader, 310 U S. 469, 489, and n. 10 (1940). 33 The political-redress argument could also be made in the context of anticompetitive actions engaged in by the State itself. Our rejection of the argument here is not, however, inconsistent with the Parker doctrine. Parker did not reason that political redress is an adequate substitute for direct enforcement of the antitrust laws. Rather, Parker held that, in the absence of congressional intent to the contrary, a purpose that the antitrust laws be used to strike down the State’s regulatory program imposed as an act of government would not be inferred. To the extent that the actions of a State’s subdivisions are the actions of the State, the Parker exemption applies. See infra, at 413-417. 341 U. S. Bureau of the Census, 1972 Census of Governments, Governmental Organization 1 (1973). This figure (62,437) represents the total of county, municipal, township, and special district governments, but does not include the 15,781 independent school districts in the United States which, of course, have a much more narrowly defined range of functions and powers than those of local governmental units generally. See id., at 1-5. 35 See id., at 4-5. 408 OCTOBER TERM, 1977 Opinion of Brennan, J. 435 U. S. sented the number of counties, municipalities, and townships, most of which have broad authority for general governance subject to limitations in one way or another imposed by the State.36 These units may, and do, participate in and affect the economic life of this Nation in a great number and variety of ways. When these bodies act as owners and providers of services, they are fully capable of aggrandizing other economic units with which they interrelate, with the potential of serious distortion of the rational and efficient allocation of resources, and the efficiency of free markets which the regime of competition embodied in the antitrust laws is thought to engender.37 If municipalities were free to make economic choices counseled solely by their own parochial interests and without regard to their anticompetitive effects, a serious chink in the armor of antitrust protection would be introduced at odds with the comprehensive national policy Congress established.38 We conclude that these additional arguments for implying an exclusion for local governments from the antitrust laws must be rejected. We therefore turn to petitioners’ principal argument, that “Parker's findings regarding the congressionally intended scope of the Sherman Act apply with equal force to such political subdivisions.” Brief for Petitioners 5. II Plainly petitioners are in error in arguing that Parker held that all governmental entities, whether state agencies or subdivisions of a State, are, simply by reason of their status as such, exempt from the antitrust laws. Parker v. Brown involved the California Agricultural Pro- 36 See id., at 1-3. 37 See, e. g., Apex Hosiery Co. n. Leader, supra, at 493-495, n. 15 (reviewing legislative history). 38 See United States v. Topco Associates, 405 U. S., at 610; Apex Hosiery Co. v. Leader, supra, at 492-495, and n. 15; Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 229-235 (1948). LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 409 389 Opinion of Brennan, J. rate Act enacted by the California Legislature as a program to be enforced “through action of state officials ... to restrict competition among the growers [of raisins] and maintain prices in the distribution of their commodities to packers.” 317 U. S., at 346. The Court held that the program was not prohibited by the federal antitrust laws since “nothing in the language of the Sherman Act or in its history . . . suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature,” id., at 350-351, and “[t]he state ... as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit.” Id., at 352. Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), underscored the significance of Parker’s holding that the determinant of the exemption was whether the challenged action was “an act of government” by the State as “sovereign.” Parker repeatedly emphasized that the anticompetitive effects of California’s prorate program derived from “the state [’s] command”; the State adopted, organized, and enforced the program “in the execution of a governmental policy.” 39 317 U. S., at 352. Goldfarb, on the other hand, presented the question “whether a minimum-fee schedule for lawyers published by the Fairfax County Bar Association and enforced by the Virginia State Bar,” 421 U. S., at 775, violated the Sherman Act. Exemption was claimed on the ground that the Virginia State Bar was “a state agency by law.” Id., at 790. The Virginia Legislature had empowered the Supreme Court of Virginia to regulate the practice of law and had assigned the State Bar a role in that regulation as an administrative agency of the Virginia Supreme Court. But no Virginia statute referred to lawyers’ fees and the Supreme Court of Virginia had taken no action requiring the use of and adherence to mini 39 The state regulatory program involved in Parker furthered an important state interest which was consistent with federal policy. See Parker, 317 U. S., at 352-359. 410 OCTOBER TERM, 1977 Opinion of Brennan, J. 435 U. S. mum-fee schedules. Goldfarb therefore held that it could not be said that the anticompetitive effects of minimum-fee schedules were directed by the State acting as sovereign. Id., at 791. The State Bar, though acting within its broad powers, had “voluntarily joined in what is essentially a private anticompetitive activity,” id., at 792, and was not executing the mandate of the State. Thus, the actions of the State Bar had failed to meet “[t]he threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe... .” Id., at 790. Goldfarb therefore made it clear that, for purposes of the Parker doctrine, not every act of a state agency is that of the State as sovereign. Bates v. State Bar of Arizona, 433 U. S. 350 (1977), involved the actions of a state agency to which the Parker exemption applied. Bates considered the applicability of the antitrust laws to a ban on attorney advertising directly imposed by the Arizona Supreme Court. In holding the antitrust laws inapplicable, Bates noted that “[t]hat court is the ultimate body wielding the State’s power over the practice of law, see Ariz. Const., Art. 3; In re Bailey, 30 Ariz. 407, 248 P. 29 (1926), and, thus, the restraint is ‘compelled by direction of the State acting as a sovereign.’ ” Id., at 360, quoting Goldfarb, supra, at 791. We emphasized, moreover, the significance to our conclusion of the fact that the state policy requiring the anticompetitive restraint as part of a comprehensive regulatory system, was one clearly articulated and affirmatively expressed as state policy, and that the State’s policy was actively supervised by the State Supreme Court as the policymaker.40 40 The plurality opinion in Cantor v. Detroit Edison Co., 428 U. S. 579 (1976), also analyzed a “state action” exemption claim in terms of whether the challenged anticompetitive action was taken pursuant to state command. Detroit Edison, an electric utility regulated by Michigan, was charged by an independent seller of light bulbs with antitrust violations in the operation of a program which provided light bulbs without extra cost LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 411 389 Opinion of Brennan, J. These decisions require rejection of petitioners’ proposition that their status as such automatically affords governmental entities the “state action” exemption.41 Parker’s limitation to electricity customers. Detroit Edison, relying on Parker, defended on the ground that the light-bulb program was included in its rate filed with and approved by the State Public Service Commission and that state law required it to follow the terms of the tariff as long as it was in effect. Cantor rejected the claim, holding that since no Michigan statutes regulated the light-bulb industry, and since neither the Michigan Legislature nor the Public Service Commission had passed upon the desirability of such a light-bulb program, the Commission’s approval of Detroit Edison’s program did not “implement any statewide policy relating to light bulbs” and that “the State’s policy is neutral on the question whether a utility should, or should not, have such a program.” 428 U. S., at 585. The Chief Justice, while not joining all of the plurality opinion, agreed with this analysis. Id., at 604-605. Cantor’s analysis is not, however, necessarily applicable here. Cantor was concerned with whether anticompetitive activity in which purely private parties engaged could, under the circumstances of that case, be insulated from antitrust enforcement. The situation involved here, on the other hand, presents the issue of under what circumstances a State’s subdivisions engaging in anticompetitive activities should be deemed to be acting as agents of the State. 41 Petitioners argue that Goldfarb, like Cantor v. Detroit Edison Co., supra, expresses a limitation upon the circumstances under which private parties may be immunized from suit under the antitrust laws. They seek to avoid our holding in Goldfarb by suggesting that the State Bar, although a state agency by law acting in its official capacity, was somehow not a state agency because its official actions in issuing ethical opinions, see 421 U. S., at 791 n. 21, benefited its member-lawyers by discouraging price competition. We think it obvious that the fact that the ancillary effect of the State Bar’s policy, or even the conscious desire on its part, may have been to benefit the lawyers it regulated cannot transmute the State Bar’s official actions into those of a private organization. In addition to the decision in this case, every other Court of Appeals which has considered the immunity of state instrumentalities after Goldfarb has regarded it as having held that anticompetitive actions of a state instrumentality not compelled by the State acting as sovereign are not immune from the antitrust laws. Fairfax v. Fairfax Hospital Assn., 562 F. 2d 280, 284—285 (CA4 1977); id., at 288 (concurring opinion); Kurek n. Pleasure Drive 412 OCTOBER TERM, 1977 Opinion of Brennan, J. 435U.S. of the exemption, as applied by Goldfarb and Bates, to “official action directed by [the] state,” arises from the basis for the “state action” doctrine—that given our “dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority,” 317 U. S., at 351, a congressional purpose to subject to antitrust control the States’ acts of government will not lightly be inferred. To extend that doctrine to municipalities would be inconsistent with that limitation. Cities are not themselves sovereign ; they do not receive all the federal deference of the States that create them. See, e. g., Edelman v. Jordan, 415 U. S. 651, 667 n. 12 (1974); Lincoln County v. Luning, 133 U. S. 529 (1890) (political subdivisions not protected by Eleventh Amendment from immunity from suit in federal court). Parker’s limitation of the exemption to “official action directed by a state,” 317 U. S., at 351, is consistent with the fact that the States’ subdivisions generally have not been treated as equivalents of the States themselves.42 In light of the serious economic dislocation which way & Park Dist., 557 F. 2d 580, 588-591 (CA7 1977), cert, pending, No. 77-440; Duke & Co. n. Foerster, 521 F. 2d, at 1280. The acknowledgment of our Brother Stewart’s dissent, post, at 433, that, as noted in Indian Touting Co. n. United States, 350 U. S. 61, 67-68 (1955), “'Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it’” (citation omitted), discloses the fallacy of his effort to distinguish Goldfarb on the ground that, although the State Bar was “ 'a state agency for some limited purposes,’ . . . the price fixing it fostered was for the private benefit of its members and its actions were essentially those of a private professional group.” Post, at 431. 42 Without explication, our Brother Stewart’s dissent states that our “reliance ... on the basically irrelevant body of law under the Eleventh Amendment” is unfounded. Ibid. Rather, it is the statement that is unfounded. For the longstanding principle, of which Congress in 1890 was well aware, see Lincoln County n. Luning, 133 U. S. 529 (1890), is that political subdivisions are not as such sovereign. Certainly, nothing LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 413 389 Opinion of Brennan, J. could result if cities were free to place their own parochial interests above the Nation’s economic goals reflected in the antitrust laws, see supra, at 403-408, we are especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach. On the other hand, the fact that municipalities, simply by their status as such, are not within the Parker doctrine, does not necessarily mean that all of their anticompetitive activities are subject to antitrust restraints. Since “ [m] unicipal corporations are instrumentalities of the State for the convenient administration of government within their limits.” Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U. S. 285, 287 (1883), the actions of municipalities may reflect state policy. We therefore conclude that the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service. There remains the question whether the Court of Appeals erred in holding that further inquiry should be made to determine whether petitioners’ actions were directed by the State. Ill The petitioners and our Brother Stewart’s dissent focus their arguments upon the fact that municipalities may exercise the sovereign power of the State, concluding from this that any actions which municipalities take necessarily reflect state policy and must therefore fall within the Parker doctrine. in National League of Cities v. Usery, 426 U. S. 833 (1976), even remotely suggested the contrary; we search in vain for anything in that case that establishes a constructional principle of presumptive congressional deference in behalf of cities. Indeed our emphasis today in our conclusion, that municipalities are “exempt” from antitrust enforcement when acting as state agencies implementing state policy to the same extent as the State itself, makes it difficult to see how National League of Cities is even tangentially implicated. 414 OCTOBER TERM, 1977 Opinion of Brennan, J. 435 U. S. But, the fact that the governmental bodies sued are cities, with substantially less than statewide jurisdiction, has significance. When cities, each of the same status under state law, are equally free to approach a policy decision in their own way, the anticompetitive restraints adopted as policy by any one of them, may express its own preference, rather than that of the State.43 Therefore, in the absence of evidence that the State authorized or directed a given municipality to act as it did, the actions of a particular city hardly can be found to be pursuant to “the state [’s] command,” or to be restraints that “the state ... as sovereign” imposed. 317 U. S., at 352. The most44 that could be said is that state policy may be neutral. 43 “While state legislatures exercise extensive power over their constituents and over the various units of local government, the States universally leave much policy and decisionmaking to their governmental subdivisions. Legislators enact many laws but do not attempt to reach those countless matters of local concern necessarily left wholly or partly to those who govern at the local level.” Avery v. Midland County, 390 U. S. 474, 481 (1968). Although Avery concluded that the actions of local government are the actions of the State for purposes of the Fourteenth Amendment, state action required under Parker has different attributes. Cf. Edelman v. Jordan, 415 U. S. 651, 667 n. 12 (1974). 44 Indeed, state policy may be contrary to that adopted by a political subdivision, yet, for a variety of reasons, might not render the local policy unlawful under state law. For example, a state public utilities commission might adopt, though we are not aware that the Louisiana PUC has done so, a policy prohibiting the specific anticompetitive practices in which the municipality engages, yet be unable to enforce that policy with respect to municipalities because it lacks jurisdiction over them. (The Louisiana PUC, in litigation unrelated to this case, has been held to lack jurisdiction over municipal utility systems whether operating within or without the municipality. City of Monroe v. Louisiana Public Serv. Comm’n, No. 177,757—Div. “I” (19th Jud. Dist. Ct., Sept. 14, 1976).) If that were the case, and assuming that there were no other evidence to the contrary, it would be difficult to say that state policy fosters, much less compels, the anticompetitive practices. Louisiana Rev. Stat. Ann. § 33:1334 (G) (West Supp. 1977) provides LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 415 389 Opinion of Brennan, J. To permit municipalities to be shielded from the antitrust laws in such circumstances would impair the goals Congress sought to achieve by those laws, see supra, at 403-408, without furthering the policy underlying the Parker “exemption.” This does not mean, however, that a political subdivision necessarily must be able to point to a specific, detailed legislative authorization before it properly may assert a Parker defense to an antitrust suit. While a subordinate governmental unit’s claim to Parker immunity is not as readily established as the same claim by a state government sued as such, we agree with the Court of Appeals that an adequate state mandate for anticompetitive activities of cities and other subordinate governmental units exists when it is found “from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.”45 532 F. 2d, at 434. The Parker doctrine, so understood, preserves to the States their freedom under our dual system of federalism to use their municipalities to administer state regulatory policies free of the inhibitions of the federal antitrust laws without at the another illustration of the fact that a particular activity in which a subdivision technically has power to engage does not necessarily conform to, and may conflict with, state policy. Louisiana has authorized municipalities to create intergovernmental commissions as municipal instrumentalities jointly to construct and operate public services including utilities. §§33:1324, 33:1331-33:1334 (West Supp. 1977). Such commissions are, by definition, political subdivisions of the State. §33:1334 (D) (West Supp. 1977). Section 1334 (G) nevertheless provides that “[n]othing in this Chapter shall be construed to grant an immunity to or on behalf of any [such] public instrumentality . . . from any antitrust laws of the state or of the United States.” 45 We reject petitioners’ fallback position that an antitrust claim will not lie fpr anticompetitive municipal action which, though not state directed, is lawful under state law. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1951); Northern Securities Co. v. United States, 193 U. S. 197, 344-351 (1904); cf. Union Pacific R. Co. v. United States, 313 U. S. 450 (1941) (discussed in n. 19, supra). See also n. 44, supra. 416 OCTOBER TERM, 1977 Opinion of Brennan, J. 435 U. S. same time permitting purely parochial interests to disrupt the Nation’s free-market goals. Our Brother Stewart’s dissent argues that the result we reach will “greatly . . . impair the ability of a State to delegate governmental power broadly to its municipalities.” Post, at 438 (footnote omitted). That, with respect, is simply hyperbole. Our decision will render a State no less able to allocate governmental power between itself and its political subdivisions. It means only that when the State itself has not directed or authorized an anticompetitive practice, the State’s subdivisions in exercising their delegated power must obey the antitrust laws. The dissent notwithstanding, it is far too late to argue that a State’s desire to insulate anticompetitive practices not imposed by it as an act of government falls within the Parker doctrine. Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1951). Moreover, by characterizing the Parker exemption as fully applicable to local governmental units simply by virtue of their status as such, the approach taken by the dissent would hold anticompetitive municipal action free from federal antitrust enforcement even when state statutes specifically provide that municipalities shall be subject to the antitrust laws of the United States. See generally La. Rev. Stat. Ann. § 33:1334 (G) (West Supp. 1977), quoted in n. 44, supra. That result would be a perversion of federalism.46 Today’s decision does not threaten the legitimate exercise of governmental power, nor does it preclude municipal gov- 46 Restating a theme made and rejected before, see Cantor v. Detroit Edison Co., 428 U. S., at 640 (Stewart, J., dissenting), our Brother Stewart’s dissent, post, at 438-440, likens judicial enforcement of the antitrust laws to a regime of substantive due process used by federal judges to strike down state and municipal economic regulation thought by them unfair. That analogy, of course, ignores the congressional judgment mandating broad scope in enforcement of the antitrust laws and simply reflects the dissent’s view that such enforcement with respect to cities is unwise. LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 41| 389 Marshall, J., concurring ernment from providing services on a monopoly basis. Parker and its progeny make clear that a State properly may, as States did in Parker and Bates, direct or authorize its instrumentalities to act in a way which, if it did not reflect state policy, would be inconsistent with the antitrust laws. Compare Bates with Goldfarb. True, even a lawful monopolist may be subject to antitrust restraints when it seeks to extend or exploit its monopoly in a manner not contemplated by its authorization. Cf. Otter Tail Power Co. v. United States, 410 U. S. 366, 377-382 (1973).47 But assuming that the municipality is authorized to provide a service on a monopoly basis, these limitations on municipal action48 will not hobble the execution of legitimate governmental programs. Affirmed. Mr. Justice Marshall, concurring. I agree with The Chief Justice, post, at 425-426, that any implied “state action” exemption from the antitrust laws should be no broader than is necessary to serve the State’s legitimate purposes. I join the plurality opinion, however, because the test there established, relating to whether it is “state policy to displace competition,” ante, at 413, incorporates within it the core of The Chief Justice’s concern. As the plurality opinion makes clear, it is not enough that the State 47 While the majority and dissent disagreed in Otter Tail over whether the specific practices of which plaintiffs complained could be regarded as unlawful anticompetitive restraints in light of the existence of federal regulation, there was agreement that a lawful monopolist could violate the antitrust laws. Compare 410 U. S., at 377-382 with id., at 390-391, n. 7 (Stewart, J., concurring in part and dissenting in part). 48 It may be that certain activities which might appear anticompetitive when engaged in by private parties, take on a different complexion when adopted by a local government. See generally Posner, The Proper Relationship Between State Regulation and the Federal Antitrust Laws, 49 N. Y. U. L. Rev. 693, 705 (1974). 418 OCTOBER TERM, 1977 Opinion of Burger, C. J. 435U.S. “desire[s] to insulate anticompetitive practices.” Ante, at 416. For there to be an antitrust exemption, the State must “impose” the practices “as an act of government.” Ibid. State action involving more anticompetitive restraint than necessary to effectuate governmental purposes must be viewed as inconsistent with the plurality’s approach. Mr. Chief Justice Burger, concurring in the Court’s opinion in Part I and in the judgment. This case turns, or ought to, on the District Court’s explicit conclusion,1 unchallenged here, that “ [t]hese plaintiff cities are engaging in what is clearly a business activity; activity in which a profit is realized.” There is nothing in Parker v. Brown, 317 U. S. 341 (1943), or its progeny, which suggests that a proprietary enterprise with the inherent capacity for economically disruptive anticompetitive effects should be exempt from the Sherman Act merely because it is organized under state law as a municipality. Parker was a case involving a suit against state officials who were administering a state program which had the conceded purpose of replacing competition in a segment of the agricultural market with a regime of governmental regulation. The instant lawsuit is entirely different. It arises because respondent took the perfectly natural step of answering a federal antitrust complaint— 1 The District Court did not, of course, make a formal finding of fact to this effect since the counterclaim was disposed of on the basis of pleadings. Nonetheless, the District Court could reasonably conclude, as a matter of law, that these Cities are engaging in business activities which have as their aim the production of revenues in excess of costs. It certainly is the case that the Cities are attempting to provide a public service, but it is likewise undeniable that they seek to do so in the most profitable way. The Cities allege in their complaint, for example, that they have “been prevented from profitably expanding their businesses.” App. 14. While it is correct that the Cities are ordinarily constrained from applying their net earnings as a private corporation would, this does not detract from their competitive posture and resulting incentive to engage in anticompetitive practices. LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 419 389 Opinion of Burger, C. J. filed by competitors—with a counterclaim alleging serious violations of the Sherman Act. There is nothing in this record to support any assumption other than that this is an ordinary dispute among competitors in the same market. It is true that petitioners are municipalities, but we should not ignore the reality that this is the only difference between the Cities and any other entrepreneur in the economic community. Indeed, the injuries alleged in petitioners’ complaint read as a litany of economic woes suffered by a business which has been unfairly treated by a competitor: “As a direct and proximate result of the unlawful conduct hereinabove alleged, plaintiffs have: (1) been prevented from and continue to be prevented from profitably expanding their businesses; (2) lost and continue to lose the profits which would have resulted from the operation of an expanded, more efficient and lower cost business; (3) been deprived of and continue to be deprived of economies in the financing and operation of their systems; (4) sustained and continue to sustain losses in the value of their businesses and properties; and (5) incurred and continue to incur excessive costs and expenses they otherwise would not have incurred.” App. 14. (Emphasis added.) It strikes me as somewhat remarkable to suggest that the same Congress which “meant to deal comprehensively and effectively with the evils resulting from contracts, combinations and conspiracies in restraint of trade,” Atlantic Cleaner & Dyers, Inc. v. United States, 286 U. S. 427,435 (1932), would have allowed these petitioners to complain of such economic damage while baldly asserting that any similar harms they might unleash upon competitors or the economy are absolutely beyond the purview of federal law. To allow the defense asserted by the petitioners in this case would inject a wholly arbitrary variable into a “fundamental national economic pol 420 OCTOBER TERM, 1977 Opinion of Burger, C. J. 435 U. S. icy,” Carnation Co. v. Pacific Conference, 383 U. S. 213, 218 (1966), which strongly disfavors immunity from its scope. See United States v. Philadelphia Nat. Bank, 374 U. S. 321, 350-351 (1903); California v. FPC, 369 U. S. 482, 485 (1962). As I indicated, concurring in Cantor v. Detroit Edison Co., 428 U. S. 579, 604 (1976), “in interpreting Parker, the Court has heretofore focused on the challenged activity, not upon the identity of the parties to the suit.” Such an approach is surely logical in light of the fact that the Congress which passed the Sherman Act very likely never considered the kinds of problems generated by Parker and the cases which have arisen in its wake. E. g., Bates v. State Bar of Arizona, 433 U. S. 350 (1977); Cantor, supra; Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975); see Slater, Antitrust and Government Action: A Formula for Narrowing Parker v. Brown, 69 Nw. U. L. Rev. 71, 84 (1974). It is even more dubious to assume that the Congress specifically focused its attention on the possible liability of a utility operated by a subdivision of a State. Not only were the States generally considered free to regulate commerce within their own borders, see, e. g., United States v. E. C. Knight Co., 156 U. S. 1 (1895); Kidd v. Pearson, 128 U. S. 1 (1888), but manufacturing enterprises, in and of themselves, were not taken to be interstate commerce. Id., at 20. By the time Parker was decided, however, this narrow view of “interstate commerce” had broadened via the “affection doctrine” to include intrastate events which had a sufficient effect on interstate commerce. See NLRB v. Fainblatt, 306 U. S. 601, 605, and n. 1 (1939); cf. Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 743 (1976). Given this development, and the Court’s interpretation of “person” or “persons” in the Sherman Act to include States and municipalities, ante, at 394-397, along with the trend of allowing the reach of the Sherman Act to expand with broadening conceptions of congressional power under the Commerce Clause, see LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 421 389 Opinion of Burger, C. J. Rex Hospital Trustees, supra, at 743 n. 2, one might reasonably wonder how the Court reached its result in Parker. The holding in Parker is perfectly understandable, though, in light of the historical period in which the case was decided. The Court had then but recently emerged from the era of substantive due process, and was undoubtedly not eager to commence a new round of invalidating state regulatory laws on federal principles. See Verkuil, State Action, Due Process and Antitrust: Reflections on Parker v. Brown, 75 Colum. L. Rev. 328, 331-334 (1975). Responding to this concern, the Parker Court’s interpretation of legislative intent reflects a “polic[y] of signal importance in our national traditions and governmental structure of federalism.” Ante, at 400. “In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.” Parker, 317 U. S., at 351. The Parker decision was thus firmly grounded on principles of federalism, the ambit of its inquiry into congressional purpose being defined by the Court’s view of the requirements of “a dual system of government.”2 This mode of analysis is as sound today as it was then, and I am surprised that neither the plurality opinion nor the dissents focus their attention on this aspect of Parker. Indeed, 2 Our conceptions of the limits imposed by federalism are bound to evolve, just as our understanding of Congress’ power under the Commerce Clause has evolved. Consequently, since we find it appropriate to allow the ambit of the Sherman Act to expand with evolving perceptions of congressional power under the Commerce Clause, a similar process should occur with respect to “state action” analysis under Parker. That is, we should not treat the result in the Parker case as cast in bronze; rather, the scope of the Sherman Act’s power should parallel the developing concepts of American federalism. 422 OCTOBER TERM, 1977 Opinion of Burger, £J. J. 435 U. S. it is even, more puzzling that so much judicial energy is expended here on deciding a question not presented by the parties or by the facts of this case: that is, to what extent the Sherman Act impinges generally upon the monopoly powers of state and local governments. As I suggested at the outset, the issue here is whether the Sherman Act reaches the proprietary enterprises of municipalities.3 The answer to the question presented ought not to be so difficult. When Parker was decided there was certainly no question that a State’s operation of a common carrier, even without profit and as a “public function,” would be subject to federal regulation under the Commerce Clause. United States v. California, 297 U. S. 175, 183-186 (1936) (“[W]e think it unimportant to say whether the state conducts its railroad in its ‘sovereign’ or in its ‘private’ capacity.” Id., at 183); see Parden v. Terminal R. Co., 377 U. S. 184, 189-193 (1964); California v. Taylor, 353 U. S. 553, 568 (1957). Likewise, it had been held in Ohio v. Helvering, 292 U. S. 360 (1934), that a State, upon engaging in business, became subject to a federal statute imposing a tax on those dealing in intoxicating liquors, although States were not specifically mentioned in the statute. In short, the Court had already recognized, for purposes of federalism, the difference between a State’s entrepreneurial personality and a sovereign’s decision— as in Parker—to replace competition with regulation.4 31 use the term “proprietary” only to focus attention on the fact that all of the parties are in a competitive relationship such that each should be constrained, when necessary, by the federal antitrust laws. It is highly unlikely that Congress would have meant to impose liability only on some of these parties, when each possesses the means to thwart federal antitrust policy. 4 Mr. Justice Stewart’s dissent, post, at 433-434, attempts to blunt this analysis by noting that the “nongovernmental-governmental” distinction was criticized in Indian Towing Co. v. United States, 350 U. S. 61 (1955). I suggest no more, however, than what is obvious from our past cases: Petitioners’ business activities are not entitled to per se exemption from the LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 423 389 Opinion of Burger, C. J. I see nothing in the last 35 years to question this conclusion. In fact, the Court’s recent decision in National League of Cities v. Usery, 426 U. S. 833 (1976), which rekindled a commitment to tempering the Commerce Clause power with the limits imposed by our structure of government, employs language strikingly similar to the words of Mr. Chief Justice Stone in Parker: “It is one thing to recognize the authority of Congress to enact laws regulating individual businesses necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside. It is quite another to uphold a similar exercise of congressional authority directed, not to private citizens, but to States as States. We have repeatedly recognized that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner.” 426 U. S., at 845. The National League of Cities opinion focused its delineation of the “attributes of sovereignty” alluded to above on a determination as to whether the State’s interest involved “ ‘functions essential to separate and independent existence.’ ” Ibid., Sherman Act. This much ought to be quite clear from United States v. California, 297 U. S. 175 (1936), where the State operated a railroad, albeit without profit, and as a “public function.” I cannot comprehend why the Cities here should be treated in a different manner. The only authority which Mr. Justice Stewart cites to the contrary, Lowenstein v. Evans, 69 F. 908 (CC SC 1895), was a case in which a State’s complete monopolization of the liquor industry was challenged as violating the Sherman Act. But in that circumstance the State clearly directed the creation of a monopoly, thus bringing the matter within the Parker rationale. Compare Ohio v. Helvering, 292 U. S. 360 (1934). 424 OCTOBER TERM, 1977 Opinion of Burger, C. J. 435U.S. quoting Coyle v. Oklahoma, 221 U. S. 559, 580 (1911). It should be evident, I would think, that the running of a business enterprise is not an integral operation in the area of traditional government functions. See Alfred Dunhill of London, Inc. v. Cuba, 425 U. S. 682, 695-696 (1976); Bank of United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 907 (1824). Indeed, the reaffirmance of the holding in United States v. California, supra, by National League of Cities, supra, at 854 n. 18, strongly supports this understanding. Even if this proposition were not generally true, the particular undertaking at issue here—the supplying of electric service—has not traditionally been the prerogative of the State. Jackson v. Metropolitan Edison Co., 419 U. S. 345, 352-353 (1974).5 Following the path outlined above should lead us to a logical destination: Petitioners should be treated, for purposes of applying the federal antitrust laws, in essentially the same manner as respondent. This is not to say, of course, that the conduct in which petitioners allegedly engaged is automatically subject to condemnation under the Sherman Act. As the Court recognized in Cantor v. Detroit Edison Co., 428 U. S., at 592-598, state-regulated utilities pose special analytical problems under Parker. It may very well be, for example, that a State, acting as sovereign, has imposed a system of governmental control in order “to avoid the consequences of unre- 5 Such an ascertainment dovetails precisely with the law of Louisiana. There it is recognized that the powers of a municipal corporation are both public and private: As to the former, the city represents the State, discharging duties incumbent upon the State; as to the latter, it represents pecuniary and proprietary interests of individuals, and is held to the same responsibility as a private person. Hall v. Shreveport, 157 La. 589, 594, 102 So. 680, 681 (1925). A long line of Louisiana cases dealing explicitly with the subject of municipally owned electrical utilities holds that cities are to be governed by the same rules applicable to private corporations and individuals. See Hicks v. City of Monroe Utilities Comm’n, 237 La. 848, 112 So. 2d 635 (1959); Elias v. Mayor of New Iberia, 137 La. 691, 69 So. 141 (1915); Hart v. Lake Providence, 5 La. App. 294 (1926); Bannister n. City of Monroe, 4 La. App. 182 (1926). LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 425 389 Opinion of Burger, C. J. strained competition.” Cantor, supra, at 595. This is precisely what occurred in Parker, and there is no question that a utility’s action taken pursuant to the command of such an “act of government,” Parker, 317 U. S., at 352, would not be prohibited by the Sherman Act. I agree with the plurality, then, that “ [t]he threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the State acting as sovereign.” Goldfarb, 421 U. S., at 790. (Emphasis added.) But this is only the first, not the final step of the inquiry, for Cantor recognized that “all economic regulation does not necessarily suppress competition.” 428 U. S., at 595. “There is no logical inconsistency between requiring such a firm to meet regulatory criteria insofar as it is exercising its natural monopoly powers and also to comply with antitrust standards to the extent that it engages in business activity in competitive areas of the economy.” Id., at 596. I would therefore remand, directing the District Court to take an additional step beyond merely determining—as the plurality would—that any area of conflict between the State’s regulatory policies and the federal antitrust laws was the result of a “state policy to displace competition with regulation or monopoly public service.”6 Ante, at 413. This supple 6 While I agree with the plurality that a State may cause certain activities to be exempt from the federal antitrust laws by virtue of an articulated policy to displace competition with regulation, I would require a strong showing on the part of the defendant that the State so intended. Thus, I would not be satisfied, as the plurality and Court of Appeals apparently are, that the highest policymaking body in the State of Louisiana merely “contemplated” the activities being undertaken by the cities. See ante, at 415. I would insist, as the Court did in Goldfarb v. Virginia State Bar, 421 U. S. 773, 791 (1975), that the State compel the anticompetitive activity. Moreover, I would have the Cities demonstrate that the exemption was not only part of a regulatory scheme to supersede competition, but that it was essential to the State’s plan. Consequently, 426 OCTOBER TERM, 1977 Stewart, J., dissenting 435 IT. S. mental inquiry would consist of determining whether the implied exemption from federal law "was necessary in order to make the regulatory Act work, ‘and even then only to the minimum extent necessary.’ ” 428 U. S., at 597.7 Mr. Justice Stewart, with whom Mr. Justice White, Mr. Justice Blackmun,* and Mr. Justice Rehnquist join, dissenting. In Parker v. Brown, 317 U. S. 341, a California statute restricted competition among raisin growers in order to keep the price of raisins artificially high. The Court found that California’s program did not violate the antitrust laws but was “an act of government which the Sherman Act did not undertake to prohibit.” Id., at 352. Parker v. Brown thus made clear that “where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the [Sherman] Act can be made out.” Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U. S. 127,136. The principle of Parker v. Brown controls this case. The petitioners are governmental bodies, not private persons, and their actions are “act[s] of government” which Parker v. Brown held are not subject to the Sherman Act. But instead of applying the Parker doctrine, the Court today imposes new I do not disagree with the terms of the plurality’s remand as such; I would simply ask for a stronger showing on the part of the Cities. I join the judgment, however, and the directions of the remand, because they represent at a minimum what I believe we should demand of petitioners. 7 In Cantor this mode of analysis effectively answered Detroit Edison’s claim that it was required by state law to engage in the allegedly anticompetitive activities. We “infer [red] that the State’s policy [was] neutral on the question whether a utility should, or should not, have such a program,” 428 IT. S., at 585 (opinion of Stevens, J.) (emphasis added), 604-605 (opinion of Burger, C. J.), and consequently it could not be said that an exemption “was necessary in order to make the regulatory Act work.” *Mr. Justice Blackmun joins all but Part II-B of this opinion. LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 427 389 Stewart, J., dissenting and unjustifiable limits upon it. According to the plurality, governmental action will henceforth be immune from the antitrust laws1 only when “authorized or directed” by the State “pursuant to state policy to displace competition with regulation or monopoly public service.” Ante, at 414, 413. Such a “direction” from the State apparently will exist only when it can be shown “ ‘from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.’” Ante, at 415. By this exclusive focus on a legislative mandate the plurality has effectively limited the governmental action immunity of the Parker case to the acts of a state legislature. This is a sharp and I think unjustifiable departure from our prior cases. The Chief Justice adopts a different approach, at once broader and narrower than the plurality’s. In his view, municipalities are subject to antitrust liability when they engage in “proprietary enterprises,” ante, at 422, but apparently retain their antitrust immunity for other types of activity. But a city engaged in proprietary activity is to be treated as if it were a private corporation: that is, it is immune from the antitrust laws only if it shows not merely that its action was “ ‘required by the State acting as sovereign’ ” but also that such immunity is “ ‘necessary in order to make the [State’s] regulatory Act work.’ ” Ante, at 425, 426. The Chief Justice’s approach seems to me just as mistaken as the plurality’s. 1 As the plurality acknowledges, ante, at 393 n. 8, Parker v. Brovm did not create any exemption from the antitrust laws, but simply recognized that it was the intent of Congress that the Sherman Act should not apply to governmental action. It is thus hard to understand why the plurality invokes the doctrine that exemptions from the antitrust laws will not be lightly implied by subsequent enactment of a regulatory statute. This rule, which effects the accommodation of two federal statutes and rests on the principle that implied repeals are not favored, has no relevance to the Parker doctrine, which is based on an interpretation of the Sherman Act itself. 428 OCTOBER TERM, 1977 Stewart, J., dissenting 435 IT. S. I The fundamental error in the opinions of the plurality and The Chief Justice is their failure to recognize the difference between private activities authorized or regulated by government on the one hand, and the actions of government itself on the other. A In determining whether the actions of a political subdivision of a State as well as those of a state legislature are immune from the Sherman Act, we must interpret the provisions of the Act “in the light of its legislative history and of the particular evils at which the legislation was aimed.” Apex Hosiery Co. v. Leader, 310 U. S. 469, 489. Those “particular evils” did not include acts of governmental bodies. Rather, Congress was concerned with attacking concentrations of private economic power unresponsive to public needs, such as “these great trusts, these great corporations, these large moneyed institutions.” 21 Cong. Rec. 2562 (1890).2 Recognizing this congressional intent, the Court in Parker v. Brown held that the antitrust laws apply to private and not governmental action. The program there at issue was in 2 See also, e. g., 20 Cong. Rec. 1458 (1889) (“the practice, now becoming too common, of large corporations, and of single persons, too, of large wealth, so arranging that they dictate to the people of this country what they shall pay when they purchase, and what they shall receive when they sell”); 21 Cong. Rec. 2728 (1890) (“transaction[s] the only purpose of which is to extort from the community, monopolize, segregate, and apply to individual use, for the purposes of individual greed, wealth which ought properly and lawfully and for the public interest to be generally diffused over the whole community”); id., at 3147 (remarks of Sen. George). That the Sherman Act was enacted to deal with combinations of individuals and corporations for private business advantage has long been recognized by this Court. Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U. S. 127, 135-136; Apex Hosiery Co. v. Leader, 310 U. S., at 492-493, and n. 15; Standard Oil Co. v. United States, 221 U. S. 1, 50, 58. LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 429 389 Stewart, J., dissenting fact established by California’s legislature, and not by one of its political subdivisions. But the Court nowhere held that the actions of municipal governments should not equally be immune from the antitrust laws. On the contrary, it expressly equated “the state or its municipality.” 317 U. S., at 351. The Parker opinion repeatedly and carefully3 emphasized that California’s program was not the action of “private persons, individual or corporate.” Id., at 350.4 The distinction established in Parker v. Brown was not one between actions of a state legislature and those of other governmental units. Rather, the Court drew the line between private action and governmental action. There can be no doubt on which side of this line the petitioners’ actions fall. “Municipal corporations are instrumentalities of the State for the convenient administration of government within their limits.” Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U. S. 285, 287; cf. Reynolds v. Sims, 377 U. S. 533, 575.5 They have only such powers as are delegated them by the State of which they are a subdivision, and when they act they exercise the State’s sovereign power. Avery v. Midland County, 390 U. S. 474, 480; Breard v. 3 See Cantor v. Detroit Edison Co., 428 U. S. 579, 591, and n. 24. 4 The Court assumed that California’s program would violate the Sherman Act “if it were organized and made effective solely by virtue of a contract, combination or conspiracy of private persons, individual or corporate,” but noted that the program “was never intended to operate by force of individual agreement or combination.” 317 U. S., at 350. The Court found nothing in the Sherman Act or its legislative history to suggest that “it was intended to restrain state action or official action directed by a state”; rather, the Act was intended “to suppress combinations to restrain competition and attempts to monopolize by individuals and corporations.” Id., at 351. It was “a prohibition of individual and not state action.” Id., at 352. 5 See also, e. g., Trenton v. New Jersey, 262 U. S. 182, 185-186; Hunter n. Pittsburgh, 207 U. S. 161,178; The Mayor n. Ray, 19 Wall. 468, 475; Bradford v. Shreveport, 305 So. 2d 487 (La.). 430 OCTOBER TERM, 1977 Stewart, J., dissenting 435U.S. Alexandria, 341 U. S. 622, 640. City governments are not unaccountable to the public but are subject to direct popular control through their own electorates and through the state legislature.6 They are thus a far cry from the private accumulations of wealth that the Sherman Act was intended to regulate. B The plurality today advances two reasons for holding nonetheless that the Parker doctrine is inapplicable to municipal governments. First, the plurality notes that municipalities cannot claim the State’s sovereign immunity under the Eleventh Amendment. Ante, at 412. But this is hardly relevant to the question of whether they are within the reach of the Sherman Act. That question must be answered by reference to congressional intent, and not constitutional principles that apply in entirely different situations.7 And if constitutional analogies are to be looked to, a decision much more directly related to this case than those under the Eleventh Amendment is National League of Cities v. Usery, 426 U. S. 833. That case, like this one, involved an exercise of Congress’ power under the Commerce Clause, and held that States and their political subdivisions must be given equal deference. Id., at 855-856, n. 20. The plurality does not advance any basis for its disregard of National League of Cities and its 6 Cf. Barnes v. District of Columbia, 91 U. S. 540, 544-545; The Mayor v. Ray, supra, at 475; East Hartford v. Hartford Bridge Co., 10 How. 511. Under Louisiana law the petitioners’ powers are subject to complete legislative control. See Bradford n. Shreveport, supra. 1 That the particular factual and legal context is all important is shown by the fact that under other provisions of the Constitution a municipality is equated with a State. E. g., Waller v. Florida, 397 U. S. 387 (Double Jeopardy Clause); Avery v. Midland County, 390 U. S. 474, 480 (Fourteenth Amendment); Trenton v. New Jersey, supra (Impairment of Contract Clause). See also Doran v. Salem Inn, Inc., 422 U. S. 922, 927 n. 2 (28 U. S. C. §1254 (2)). LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 431 389 Stewart, J., dissenting reliance instead on the basically irrelevant body of law under the Eleventh Amendment. Secondly, the plurality relies on Goldfarb v. Virginia State Bar, 421 U. S. 773. The Goldfarb case, however, did not overrule Parker v. Brown but rather applied it. Goldfarb concerned a scheme regulating economic competition among private parties, namely, lawyers. The Court held that this “private anticompetitive activity,” 421 U. S., at 792, could not be sheltered under the umbrella of the Parker doctrine unless it was compelled by the State. Since the bar association and State Bar could show no more than that their minimum-fee schedule “complemented” actions of the State, id., at 791, the scheme was not immune from the antitrust laws. Cf. Schweg-mann Bros. v. Calvert Distillers Corp., 341 U. S. 384. Unlike Goldfarb, this case does not involve any anticompetitive activity by private persons. As noted in Bates v. State Bar of Arizona, 433 U. S. 350, 361, actions of governmental bodies themselves present “an entirely different case” falling squarely within the rule of Parker v. Brown. Although the State Bar in Goldfarb was “a state agency for some limited purposes,” 421 U. S., at 791, the price fixing it fostered was for the private benefit of its members and its actions were essentially those of a private professional group. Cf. Asheville Tobacco Board of Trade, Inc. v. FTC, 263 F. 2d 502, 508-510 (CA4). Unlike a city, the Virginia State Bar surely is not “a political subdivision of the State.” 8 By requiring that a city show a legislative mandate for its activity, the plurality today blurs, if indeed it does not erase, this logical distinction between private and governmental action. In Goldfarb and in Cantor v. Detroit Edison Co., 428 U. S. 579, the Court held that private action must be compelled by the state legislature in order to escape the reach of the Sherman Act. State compulsion is an appropriate require 8 Worcester v. Street R. Co., 196 U. S. 539, 548. 432 OCTOBER TERM, 1977 Stewart, J., dissenting 435 U. S. ment when private persons claim that their anticompetitive actions are not their own but the State’s, since a State cannot immunize private anticompetitive conduct merely by permitting it.9 But it is senseless to require a showing of state compulsion when the State itself acts through one of its governmental subdivisions. See New Mexico v. American Petro fina, Inc., 501 F. 2d 363, 369-370 (CA9). C The separate opinion of The Chief Justice does not rely on any distinctions between States and their political subdivisions. It purports to find a simpler reason for subjecting the petitioners to antitrust liability despite the fact that they are governmental bodies, namely, that Parker v. Brown does not protect “a State’s entrepreneurial personality.” Ante, at 422.10 11 But this distinction is no more substantial a basis for disregarding the governmental action immunity in this case than the reasons advanced by the plurality. A State may choose to regulate private persons providing certain goods or services, or it may provide the goods and services itself. The State’s regulatory body in the former case, or a state-owned utility in the latter, will necessarily make economic decisions. These decisions may be responsive to similar concerns, and they may have similar anticompetitive effects.11 Yet, according to The Chief Justice, the former 9 See Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384; Northern Securities Co. n. United States, 193 U. S. 197, 346. 10 However, the District Court’s “conclusion,” ante, at 418, that the petitioners’ electric utility service was a business activity engaged in for profit was not supported by any evidence (since the case was decided on a motion to dismiss) and is indeed challenged here by the petitioners in their reply brief. 11 Of course, the fact—heavily relied upon both by the plurality and The Chief Justice—that the actions of cities may have anticompetitive effects misses the point. The whole issue before the Court today is whether conduct that would concededly subject a private individual to liability LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 433 389 Stewart, J., dissenting type of governmental decision is immune from antitrust liability while the latter is not. There is no basis for this distinction either in the Sherman Act itself or in our prior cases interpreting it. To the contrary, Parker v. Brown established that governmental actions are not regulated by the Sherman Act. See supra, at 428-430. And, as this Court has previously said: “ ‘Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it.’ Federal Crop Insurance Corp. v. Merrill, 332 U. S. 380, 383-384. On the other hand, it is hard to think of any governmental activity on the ‘operational level,’ our present concern, which is ‘uniquely governmental,’ in the sense that its kind has not at one time or another been, or could not conceivably be, privately performed.” Indian Towing Co. v. United States, 350 U. S. 61, 67-68. Nonetheless The Chief Justice would treat some governmental actions as governmental for purposes of the antitrust laws, and some as if they were not governmental at all. Moreover, the scope of the immunity envisioned by The Chief Justice is virtually impossible to determine. The distinction between “proprietary” and “governmental” activities has aptly been described as a “quagmire.” Id., at 65. The “distinctions [are] so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation.” Id., at 65-68. The separate opinion of The Chief Justice does nothing to make these distinctions any more substantial or understandable.12 Indeed, even a mo because of its anticompetitive nature is proscribed by the antitrust laws when undertaken by a city. 12 In various places, the separate opinion of The Chief Justice refers to “ ‘business activities] ... in which a profit is realized,’ ” to “pro- 434 OCTOBER TERM, 1977 Stewart, J., dissenting 435 U. S. ment’s consideration of the range of services provided today by governments shows how difficult it is to determine whether or not they are “proprietary.” For example, if a city or State decides to provide water service to its citizens at cost on a monopoly basis, is its action to be characterized as “proprietary”? Whether it is “proprietary” or not, it is surely an act of government, as are the petitioners’ actions in this case. Cf. Lowenstein v. Evans, 69 F. 908 (CC S. C.).* 13 But The Chief Justice, like the plurality, ignores what seems to me the controlling distinction in this case, that between private and governmental action. II The Court’s decision in this case marks an extraordinary intrusion into the operation of state and local government in this country. Its impact can hardly be overstated. A Under our federal system, a State is generally free to allocate its governmental power to its political subdivisions as it wishes.14 A State may decide to permit its municipalities to exercise its police power without having to obtain approval of each law from the legislature.15 Such local self-government prietary enterprises,” to activities which have “the inherent capacity for economically disruptive anticompetitive effects,” to those which are not “integral operation [s] in the area of traditional government functions,” and to those not “the prerogative of the State.” 13 This case, involving a state liquor monopoly, was cited with approval in Parker v. Brown, 317 U. S., at 352. 14 See, e. g., Lockport n. Citizens for Community Action, 430 U. S. 259, 269; Avery v. Midland County, 390 U. S., at 481-482. 15 Local self-government is broadest in “home rule” municipalities, which can be almost entirely free from legislative control in local matters. See Vanlandingham, Municipal Home Rule in the United States, 10 Wm. & Mary L. Rev. 269 (1968). Although the petitioners are not home rule cities, Louisiana’s Constitution has a home rule provision, La. Const, of 1974, Art. 6, §§ 5, 6; La. Const, of 1921, Art. XIV, §§22, 40 (c), as LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 435 389 Stewart, J., dissenting serves important state interests. It allows a state legislature to devote more time to statewide problems without being burdened with purely local matters, and allows municipalities to deal quickly and flexibly with local problems. But today’s decision, by demanding extensive legislative control over municipal action, will necessarily diminish the extent to which a State can share its power with autonomous local governmental bodies. This will follow from the plurality’s emphasis on state legislative action, and the vagueness of the criteria it announces.16 First, it is not clear from the plurality opinion whether a municipal government’s actions will be immune from the Sherman Act if they are merely “authorized” by a state legislature or whether they must be legislatively “directed” in order to enjoy immunity. While the plurality uses these terms interchangeably, they can have very different meanings. See Cantor v. Detroit Edison Co., 428 U. S., at 592-593. A municipality that is merely “authorized” by a state statute to provide a monopoly service thus cannot be certain it will not be subject to antitrust liability if it does so. Second, the plurality gives no indication of how specifically the legislature’s “direction” must relate to the “action complained of.” Reference to the facts of this case will show how elusive the plurality’s test is. Stripped to its essentials, the counterclaim alleged that the petitioners engaged in sham litigation, maintained their monopolies by debenture covenants, foreclosed competition by long-term supply contracts, do the constitutions or statutes of at least 33 other States. Note, Antitrust Law and Municipal Corporations, 65 Geo. L. J. 1547, 1559 n. 77 (1977). 16 While The Chief Justice has not joined those portions of the plurality opinion that discuss what is necessary to show that a challenged activity was required by the State, he would apparently require a still stronger, and hence less justifiable, showing of state legislative compulsion. Ante, at 425-426, n. 6. 436 OCTOBER TERM, 1977 Stewart, J., dissenting 435 U. S. and tied the sale of gas and water to the sale of electricity. Broadly speaking, these actions could be characterized as bringing lawsuits, issuing bonds, and providing electric and gas service, all of which are activities authorized by state statutes.17 But in affirming the judgment of the Court of Appeals the Court makes evident that it does not consider these statutes alone a sufficient “mandate” to the cities. On the other hand, the plurality states that a city need not “point to a specific, detailed legislative authorization before it properly may assert a Parker defense to an antitrust suit.” Ante, at 415. Thus, it seems that the petitioners need not identify a statute compelling each lawsuit, each contract, and each debenture covenant.18 But what intermediate showing 17 La. Rev. Stat. Ann. § 33:621 (West 1951): “The inhabitants of the city shall continue a body politic and corporate by its present name and, as such, . . . may sue and be sued; . . . may acquire by condemnation or otherwise, construct, own, lease, and operate and regulate public utilities within or without the corporate limits of the city subject only to restrictions imposed by general law for the protection of other communities; . . . [and] may borrow money on the faith and credit of the city by issue or sale of bonds, notes, or other evidences of debt . . . See also La. Rev. Stat. Ann. §§33:1326 (West 1951), 33:4162, 33:4163 (West 1966). 18 The plurality’s suggestion that the Louisiana Legislature has expressed a state policy that the activities of cities should be subject to the antitrust laws, ante, at 414-415, n. 44, and 416, is both erroneous and irrelevant. Louisiana Rev. Stat. Ann. § 33:1334 (G) (West Supp. 1977) applies not to municipalities but only to utility commissions created jointly by several cities or counties; there is no comparable statute applicable to the petitioners. Moreover, the applicability of the federal antitrust laws is a matter of federal, not state, law; conversely, a State’s restrictions on municipal action are a matter of state, not federal, law. A State can no more bring a person’s conduct within the coverage of federal law when Congress has not done so than it can exempt a person’s conduct from the operation of federal law if Congress has provided otherwise. Cf. Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384. LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 437 389 Stewart, J., dissenting of legislative authorization, approval, or command will meet the plurality’s test I am unable to fathom.19 Finally, state statutes often are enacted with little recorded legislative history,20 and the bare words of a statute will often be unilluminating in interpreting legislative intent. For example, do the Louisiana statutes permitting the petitioners to operate public utilities21 “contemplate” that the petitioners might tie the sale of gas to the sale of electricity? Do those statutes, indeed, “contemplate” that electric service will be provided to city residents on a monopoly basis? Without legislative history or relevant statutory language, any answer to these questions would be purely a creation of judicial imagination.22 19 The Court imposes yet another unwarranted limitation upon governmental immunity from the antitrust laws. Apparently, a municipality can claim immunity only if the state legislature has mandated its action “pursuant to state policy to displace competition with regulation or monopoly public service.” Ante, at 413 (plurality opinion); see ante, at 425 (opinion of Burger, C. J.). Even had the Louisiana State Legislature passed a law specifically compelling the petitioners to litigate in an effort to prevent respondent from constructing its nuclear generating facility, compelling them to insert restrictive covenants in their debentures, and compelling the tying arrangements complained of, could such a law fairly be described as “displac [ing] competition with regulation or monopoly public service”? Would the Court thus deny the cities immunity for their actions even if they were compelled by the State which controlled them? 20 See M. Price & H. Bitner, Effective Legal Research 73, 103 (3d ed. 1969). 21 See n. 17, supra. 22 This problem of statutory interpretation is exacerbated by the fact that today’s decision will have “retroactive” application in two senses. First, antitrust liability can be premised on actions that have occurred in the past. Second, many of the statutes governing contemporary and future municipal activities were enacted years ago. Thus, municipalities will be faced with the difficult problem of establishing their antitrust immunity based on statutes that were enacted without any foreknowledge of the criteria announced by the Court today. 438 OCTOBER TERM, 1977 Stewart, J., dissenting 435 U. S. As a practical result of the uncertainties in today’s opinions,23 and of the plurality’s emphasis on state legislative action, a prudent municipality will probably believe itself compelled to seek passage of a state statute requiring it to engage in any activity which might be considered anticompetitive. Each time a city grants an exclusive franchise, or chooses to provide a service itself on a monopoly basis, or refuses to grant a zoning variance to a business,24 or even—as alleged in this case—brings litigation on behalf of its citizens, state legislative action will be necessary to ensure that a federal court will not subsequently decide that the activity was not “contemplated” by the legislature. Thus, the effect of today’s decision is greatly to impair the ability of a State to delegate governmental power broadly to its municipalities.25 Such extensive interference with the fundamentals of state government is not a proper function of the federal judiciary.26 B Today’s decision will cause excessive judicial interference not only with the procedures by which a State makes its governmental decisions, but with their substance as well. 23 The vagueness of the test proposed in the separate opinion of The Chief Justice, see supra, at 433-434, will only add to the confusion of a city trying to protect itself from antitrust liability. 24 See Whitworth N. Perkins, 559 F. 2d 378 (CA5). 25 By imposing antitrust liability on “proprietary” governmental activities, the test adopted in the opinion of The Chief Justice would further deter States from choosing to provide services themselves rather than regulating others. 26 See Sailors v. Board of Education, 387 U. S. 105; Williams v. Eggleston, 170 U. S. 304, 310; see also Baker v. Carr, 369 U. S. 186, 289-290, and n. 23, and cases cited (Frankfurter, J., dissenting). The plurality’s emphasis on legislative action also leaves in doubt the status of state delegations of power to administrative agencies, unless they, too, can show that the legislature “directed” their actions. This, of course, defeats the whole purpose of establishing such agencies. LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 439 389 Stewart, J., dissenting States should be “accorded wide latitude in the regulation of their local economies,” New Orleans v. Dukes, 427 U. S. 297, 303, and in “the manner in which they will structure delivery of those governmental services which their citizens require.” National League of Cities v. Usery, 426 U. S., at 847. The antitrust liability the Court today imposes on municipal governments will sharply limit that latitude. First, the very vagueness and uncertainty of the new test for antitrust immunity is bound to discourage state agencies and subdivisions in their experimentation with innovative social and economic programs.27 In the exercise of their powers local governmental entities often take actions that might violate the antitrust laws if taken by private persons, such as granting exclusive franchises, enacting restrictive zoning ordinances, and providing public services on a monopoly basis. But a city contemplating such action in the interest of its citizens will be able to do so after today only at the risk of discovering too late that a federal court believes that insufficient statutory “direction” existed, or that the activity is “proprietary” in nature. Second, the imposition of antitrust liability on the activities of municipal governments will allow the sort of wide-ranging inquiry into the reasonableness of state regulations that this Court has forsworn.28 For example, in New Orleans v. Dukes, supra, a city ordinance which, to preserve the character of a historic area, prohibited the sale of food from pushcarts unless the vendor had been in business for at least eight years, was challenged under the Equal Protection Clause of the Fourteenth Amendment. The Court upheld the constitutional validity of the ordinance. But it now appears that if Dukes had proceeded under the antitrust laws and claimed that the ordinance was an unreasonably anticompetitive limit 27 See New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (Brandeis, J., dissenting). 28 Ferguson v. Skrupa, 372 U. S. 726. 440 OCTOBER TERM, 1977 Stewart, J., dissenting 435U.S. on the number of pushcart vendors, he might well have prevailed unless New Orleans could establish that the Louisiana Legislature “contemplated” the exclusion of all but a few pushcart vendors from the historic area. The “wide latitude” of the States “in the regulation of their local economies,” exercised in Dukes by the city to which this power to regulate had been delegated, could thus be wholly stifled by the application of the antitrust laws. C Finally, today’s decision will impose staggering costs on the thousands of municipal governments in our country. In this case, a not atypical antitrust action, the respondent claimed that it had suffered damages of $180 million as a result of only one of the antitrust violations it alleged. Trebled, this amounts to $540 million on this claim alone, to be recovered from cities with a combined population (in 1970) of about 75,000.29 A judgment of this magnitude would assure bankruptcy for almost any municipality against which it might be rendered.30 Even if the petitioners ultimately prevail, their citizens will have to bear the rapidly mounting 29 U. S. Department of Commerce, Bureau of the Census, 1970 Census of Population, Number of Inhabitants, United States Summary, Table 31 (1971). 30 The Court indicates that the remedy of treble damages might not be “appropriate” in antitrust actions against a municipality. Ante, at 401-402, and n. 22. But the language of § 4 of the Clayton Act, 15 U. S. C. § 15 (1976 ed.), is mandatory on its face: It requires that “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . shall recover threefold the damages by him sustained” (emphasis supplied). Cf., e. g., 35 U. S. C. §284. And the legislative history cited by Mr. Justice Blackmun, post, at 443 n. 2, demonstrates that Congress has understood the treble-damages provision to be mandatory and has refused to change it. The Court does not say on what basis a district court could possibly disregard this clear statutory command. Cf. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134. LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 441 389 Blackmun, J., dissenting costs of antitrust litigation through increased taxes or decreased services.31 The prospect of a city closing its schools, discharging its policemen, and curtailing its fire department in order to defend an antitrust suit would surely dismay the Congress that enacted the Sherman Act.32 For all of the reasons discussed in this opinion, I respectfully dissent. Mr. Justice Blackmun, dissenting. I join Mr. Justice Stewart’s dissent with the exception of Part II-B, but wish to note that I do not take his opinion as reaching the question whether petitioners should be immune under the Sherman Act even if found to have been acting in concert with private parties. To grant immunity to municipalities in such a circumstance would go beyond the protections previously accorded officials of the States themselves. See Parker v. Brown, 317 U. S. 341, 351-352 (1943) (“[W]e have no question of the state or its municipality becoming a participant in a private agreement or combination by others for restraint of trade, cf. Union Pacific R. Co. v. United States, 313 U. S. 450”). The Court of Appeals did not have the opportunity to rule on how a “conspiracy with private parties” exception to municipalities’ general immunity should be limited, if indeed such an exception is appropriate at all. If the view that municipalities are not subject to the full reach 31 Legal fees to defend one current antitrust suit have been estimated as at least one-half million dollars a month. N. Y. Times, June 27, 1977, p. 41, col. 6; id., Sept. 4, 1977, section 3, p. 5, col. 1. 32 Treble-damages liability can, of course, be ruinous to a private corporation as well. But a private corporation, organized for the purpose of seeking private profit, is surely very different from a city providing essential governmental functions, and shareholders do not stand in the same relation to their corporation as do residents or taxpayers to the city in which they five. An investment in a corporation is essentially a business decision; a shareholder takes the risks of corporate losses in the hope of corporate profits. A citizen’s relationship to his city government is obviously far different. 442 OCTOBER TERM, 1977 Blackmun, J., dissenting 435U.S. of Sherman Act liability had commanded a majority, a remand for consideration of this more limited exception would be in order. In light of the fact that the plurality and The Chief Justice have concluded that municipalities should be subject to broad Sherman Act liability, I must question the nonchalance with which the Court puts aside the question of remedy. Ante, at 402, and n. 22. It is a grave act to make governmental units potentially liable for massive treble damages when, however “proprietary” some of their activities may seem, they have fundamental responsibilities to their citizens for the provision of life-sustaining services such as police and fire protection. The several occasions in the past when the Court has found that Congress intended to subject municipalities and States to liability as “persons” or “corporations” do not provide the support for today’s holding that the plurality opinion would pretend. Ante, at 400-402, and nn. 19-21. The Court cites previous constructions of the Elkins Act; the federal tax on sellers of alcoholic beverages; and the Shipping Act, 1916. But the financial penalties available under those Acts do not even approach the magnitude of the trebledamages remedy provided by the antitrust laws.1 Nor has 1 Respondent seeks treble damages in excess of $540 million in this case. If divided among Plaquemine and Lafayette residents, that penalty would exceed $28,000 for each family of four. Under the federal tax on sellers of alcoholic beverages, 26 U. S. C. §§ 11 and 205 (1926 ed.), construed in Ohio v. Helvering, 292 U. S. 360, 370-371 (1934), the potential liability of the State of Ohio was $25 for each retail, and $100 for each wholesale, outlet. Under §§ 16 and 17 of the Shipping Act, 1916, 46 U. S. C. §§815, 816 (1940 ed.), construed in California v. United States, 320 U. S. 577, 585-586 (1944), a violation was a misdemeanor punishable by a $5,000 fine. The Court’s only arguable support lies in § 1 of the Elkins Act, 49 U. S. C. § 41, construed in Union Pacific R. Co. v. United States, 313 U. S. 450 (1941). Even there, the potential liability of a municipality not acting as a common carrier is a $20,000 fine, and, were illegal transportation rebates to be received by the municipality, three times the amount of the rebate. Even if a municipality were held LAFAYETTE v. LOUISIANA POWER & LIGHT CO. 443 389 Blackmun, J., dissenting the Court come to grips with the plainly mandatory language of § 4 of the Clayton Act, 15 U. S. C. § 15 (1976 ed.): “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . shall recover threefold the damages by him sustained” (emphasis supplied), and the repeated occasions on which Congress has rejected proposals to make the treble-damages remedy discretionary.* 2 It is one thing to leave open the question of remedy if there is a conceivable defense to damages whose theory is consistent with the mandatory language of the Clayton Act (e. g., in the case of private utilities subject to state tariffs, that their conduct was required by state law and hence was involuntary). See Cantor v. Detroit Edison Co., 428 U. S. 579, 614-615, n. 6 (1976) (opinion concurring in judgment) . It is quite another to delay the question of remedy in the absence of any suggested basis for a defense, especially where the prospect of insolvency for petitioner cities would so threaten the welfare of their inhabitants. The sensible course, it seems to me, is to consider the range of liability in light of the range of defendants for whom Sherman Act penalties would be appropriate. to be operating a common carrier under that Act, potential financial liability is limited to the fine and the actual damages caused by the prohibited conduct. 49 U. S. C. § 8. 2 E. g., H. R. 4597, 83d Cong., 1st Sess. (1953); H. R. 6875, 84th Cong., 1st Sess. (1955); H. R. 978, 85th Cong., 1st Sess. (1957); H. R. 1184, 86th Cong., 1st Sess. (1959); H. R. 190, 87th Cong., 1st Sess. (1961). See also Hearings on H. R. 4597 before Subcommittee No. 3 of the House Committee on the Judiciary, 83d Cong., 1st Sess. (1953); Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 1st Sess., 189, 509-522, 2246-2249 (1955). 444 OCTOBER TERM, 1977 Syllabus 435 U.S. MASSACHUSETTS v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 76-1500. Argued December 6, 1977—Decided March. 29, 1978 As part of a comprehensive program to recoup the costs of federal aviation programs from those who use the national airsystem, Congress enacted the Airport and Airway Revenue Act of 1970, which imposes an annual “flat fee” registration tax on all civil aircraft, including those owned by the States and by the Federal Government, that fly in the navigable airspace of the United States. The Act also imposes a 7-cent-per-gallon tax on aircraft fuel, which, together with a 5-cent-per-pound aircraft tire and 10-cent-per-pound tube tax and the registration tax, was intended to reflect the cost of benefits from the programs to noncommercial general aircraft, but States were exempted from the fuel, tire, and tube taxes. After the registration tax was collected under protest from it with respect to a helicopter it used exclusively for police functions, the Commonwealth of Massachusetts instituted this refund action, contending that the United States may not constitutionally impose a tax that directly affects the essential and traditional state function of operating a police force. The District Court dismissed the complaint on the ground, inter alia, that the registration tax was a user fee which did not implicate the constitutional doctrine of implied immunity of state government from federal taxation. The Court of Appeals affirmed. Held: The registration tax does not violate the implied immunity of a state government from federal taxation. Pp. 453-470. (a) A State enjoys no constitutional immunity from a nondiscrimi-natory federal revenue measure which operates only to ensure that each member of a class of special beneficiaries of a federal program pays a reasonable approximation of its fair share of the cost of the program to the Federal Government. Pp. 454r-463. (b) Even if it were feasible for the Federal Government to recover all costs of a program through charges for measurable amounts of use of its facilities, rather than by imposing a flat fee, so long as the federal taxes imposed do not discriminate against state functions, are based on a fair approximation of the State’s use of the facilities, and are structured to produce revenues that will not exceed the total cost to the Federal Government of the benefits supplied, there can be no substantial basis for a claim that the Federal Government may be using its MASSACHUSETTS v. UNITED STATES 445 444 Syllabus taxing powers to control, unduly interfere with, or destroy a State’s ability to perform, essential services. Pp. 463-467. (c) Here, the registration tax (1) is nondiscriminatory, since it applies not only to private users of the airways, but also to civil aircraft operated by the United States; (2) is, together with the 7-cent-per-gallon fuel tax and the 5-cent-per-pound tire and 10-cent-per-pound tube tax, a fair approximation of the cost of the benefits civil aircraft receive from the federal programs, since, even though the taxes do not give weight to every factor affecting appropriate compensation for airport and airway use, the fuel tax and tire and tube tax are geared directly to use whereas the registration tax is designed to give weight to factors affecting the level of use of the navigational facilities; and (3) is not excessive in relation to the cost of the Government benefits supplied, since not only have the user fees proved to be insufficient to cover the annual civil aviation outlays but the States, being exempt from the fuel tax, pay far less than private noncommercial users of the airways. Pp. 467-470. 548 F. 2d 33, affirmed. Brennan, J., delivered the opinion of the Court, in which White, Marshall, and Stevens, JJ., joined, and in Parts I, II-C, and III of which Stewart and Powell, JJ., joined. Stewart and Powell, JJ., filed an opinion concurring in part and concurring in the judgment, post, p. 470. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 471. Blackmun, J., took no part in the decision or consideration of the case. Terence P. O’Malley, Assistant Attorney General of Massachusetts, argued the cause for petitioner. With him on the brief were Francis X. Bellotti, Attorney General, and S. Stephen Rosenfeld and Margot Botsford, Assistant Attorneys General. Allan A. Ryan, Jr., argued the cause for the United States. On the brief were Solicitor General McCree, Assistant Attorney General Ferguson, Stuart A. Smith, and Ann Belanger Durney* *W. Bernard Richland and Samuel J. Warms filed a brief for the city of New York as amicus curiae urging reversal. 446 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. Mr. Justice Brennan delivered the opinion of the Court.* As part of a comprehensive program to recoup the costs of federal aviation programs from those who use the national airsystem, Congress in 1970 imposed an annual registration tax on all civil aircraft that fly in the navigable airspace of the United States. 26 U. S. C. § 4491? The constitutional question presented in this case is whether this tax, as applied to an aircraft owned by a State and used by it exclusively for police functions, violates the implied immunity of a state government from federal taxation. We hold that it does not. I Since the passage of the Air Commerce Act of 1926, 44 Stat. 568, the Federal Government has expended significant amounts of federal funds to develop and strengthen an integrated national airsystem and to make civil air transportation safe and practical. It has established, developed, and improved a wide array of air navigational facilities and services that benefit all aircraft flying in the Nation’s navigable *Mr. Justice Stewart and Mr. Justice Powell join only Parts I, II-C, and III of this opinion. Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Stevens join the entire opinion. 1 In pertinent part, § 4491 provides: “(a) Imposition of Tax. “A tax is hereby imposed on the use of any taxable civil aircraft during any year at the rate of— “(1) $25, plus “(2) (A) in the case of an aircraft (other than a turbine-engine-powered aircraft) 2 cents a pound for each pound of the maximum certificated takeoff weight in excess of 2,500 pounds, or (B) in the case of any turbine engine powered aircraft, 3^2 cents a pound for each pound of the maximum certificated takeoff weight.” Title 26 U. S. C. § 4492 (c) (2) defines “use” as flying an aircraft “in the navigable airspace of the United States.” “[T]axable civil aircraft” includes aircraft owned and operated by a State. § 4492 (a); see n. 6, infra. MASSACHUSETTS v. UNITED STATES 447 444 Opinion of the Court airspace,2 and it has also made substantial grants to state and local governments to assist in planning and developing airports. In 1970, after an extended study of the national airsystem, Congress concluded that the level of annual federal outlays on aviation, while significant, had not been sufficient to permit the national airsystem to develop the capacity to cope satisfactorily with the current and projected growth in air transportation. To remedy this situation, Congress enacted two laws, the Airport and Airway Development Act of 1970 (Development Act), 84 Stat. 219, and the Airport and Airway Revenue Act of 1970 (Revenue Act), 84 Stat. 236, which together constitute a comprehensive program substantially to expand and improve the national airport and airway system over the decade beginning July 1, 1970. In the Development Act, Congress provided for vastly increased federal expenditures both for airport planning and development and for the further expansion of federal navigational services. More importantly for present purposes, the Revenue Act adopted several measures to ensure that federal outlays that benefited the civil users of the airways would, to a substantial extent, be financed by taxing measures imposed on those civil users.3 2 These include: assisting and controlling aircraft operations during takeoffs and landings at our Nation’s larger airports; air traffic control to Instrument Flight Rule (IFR) users and navigation assistance to all categories of aircraft after takeoff operations are concluded and prior to landing; and miscellaneous services for both Visual Flight Rule (VFR) and IFR users, such as filing flight plans, weather information, and rescue operations. See Department of Transportation, Airport and Airway Cost Allocation Study, Part 1, Report: Determination, Allocation, and Recovery of System Costs 21 (1973) (hereinafter DOT Study). These services are provided, principally by the Federal Aviation Administration, pursuant to 49 U. S. C. § 1348. 3 Believing that the public at large benefits from the existence and operation of the military, Congress decided that the costs imposed on the national airsystem by the military should be paid for from general revenues. See H. R. Rep. No. 91-601, pp. 3-4, 38 (1969); cf. S. Rep. No. 91-699, pp. 4-5, 7 (1970). 448 OCTOBER TERM, 1977 Opinion of the Court 435U.S. The Revenue Act, therefore, enacted for the first time, or increased, several taxes on civil aviation. Congress conceived of each of these revenue measures as user fees and calculated that they would produce revenues that would defray a significant and increasing percentage of the civil share of the annual total federal airport and airway expenditures for the fiscal years 1970 to 1979.4 To assure that the revenues from these user taxes would be expended only for the expansion, improvement, and maintenance of the air transportation system, an Airport and Airway Trust Fund was created, and Congress provided that the amount of revenue generated by the aviation user charges would, during the 1970’s, be paid into this trust fund, as would any money appropriated from general revenues for aviation purposes.5 Revenue Act, § 208, 84 Stat. 250, 49 U. S. C. § 1742; see H. R. Rep. No. 91-601, p. 41 (1969) (hereinafter H. R. Rep.) ; S. Rep. No. 91-706, pp. 23-25 (1970) (hereinafter S. Rep.). The financing measures in the Revenue Act are intended to promote two purposes. First, they are designed to serve the congressional policy of having those who especially benefit from Government activity help bear the cost. See H. R. Rep. 4 Congress projected that the total aviation expenditures would increase from $1,029 million in fiscal 1970 to $1,727 million in fiscal 1979 and that total revenues from the user taxes would increase from $446.5 million in fiscal 1970 to $1,399.9 million in fiscal 1979. The additional required appropriations or the total deficit would thus decrease from $582.5 million in fiscal 1970 to $327.1 million in fiscal 1979. Because the military share of the total expenditures—which is paid from general revenues, see n. 3, supra—will increase from $178 million in fiscal 1970 to $291 million in fiscal 1979, civil aviation would pay an increasing share of the federal expenditures allocable to it. The “civil share deficit” would decrease from $404.5 million in fiscal 1970 to $36.1 million in fiscal 1979. H. R. Rep. No 91-601, p. 38 (1969); see S. Rep. No. 91-699, pp. 4-5, 7 (1970). 5 The authority to use trust fund monies for the operating expenses of the air navigational facilities, temporarily suspended in 1971, see Pub. L. 92-172, 85 Stat. 491, has since been restored. See 90 Stat. 873-874. MASSACHUSETTS v. UNITED STATES 449 444 Opinion of the Court 38; S. Rep. 5. Second, the financing provisions are intended to ensure that the capacity of the national air system would not again be found to be insufficient to meet the demands of increasing use. Congress believed that the inadequacy in past levels of investment in aviation had been due to the substantial competition from nonaviation budgetary requests. See H. R. Rep. 3. The trust fund and the user fees were, therefore, established to provide funding for aviation that would “generally match and grow with the demand” for use of the airways. Id., at 8. The tax challenged in this case is one of several adopted in the Revenue Act, the annual aircraft registration tax. Revenue Act, § 206, 26 U. S. C. § 4491. It imposes an annual “flat fee” tax on all civil aircraft—including those owned by State and National Governments6—that fly in the navigable 6 The terms of the statutory provision make clear that Congress intended it to apply to state-owned aircraft. By the statutory terms, the levy is to be imposed on “taxable civil aircraft,” which is defined by 26 U. S. C. §4492 (a)(1) to include any engine-driven aircraft “registered, or required to be registered under section 501 (a) of the Federal Aviation Act of 1958 [72 Stat. 771] (49 U. S. C. § 1401 (a)).” Since § 501 (a) of the Federal Aviation Act provides that the only aircraft that may be lawfully operated without having been registered are aircraft of the national defense forces of the United States, there is no question under the statute but that state-owned aircraft are subject to the registration tax. The legislative history supports this view. In connection with the discussion of one of the other taxes enacted by the Revenue Act, the Committee Reports explained that it was terminating the statutory exemption that previously had operated to benefit the States “since this tax is now generally viewed as a user charge[, so] there would appear to be no reason why these governmental [bodies] should not pay for their share of the use of the airway facilities.” H. R. Rep. 46; see S. Rep. 17-18. Obviously, this reasoning is equally applicable to all measures the Congress conceived of as user fees. Moreover, the Committee Reports’ discussion of § 4491 explicitly stated that the tax was “based upon the premise that all aircraft should pay a basic fee as an entry fee to use the system,” H. R. Rep. 40 (emphasis supplied); see S. Rep. 20-21, and further that the tax applied to civil aircraft owned by the United States. See H. R. 450 OCTOBER TERM, 1977 Opinion of the Court 435U.S. airspace of the United States.7 The amount of the annual charge depends upon the type and weight of the aircraft: those with piston-driven engines pay $25 plus 2 cents per pound of the maximum certificated takeoff weight in excess of 2,500 pounds whereas turbine-powered aircraft pay $25 plus 3% cents per pound of the maximum certificated takeoff weight. See n. 1, supra. As is apparent from both the rate of tax in § 4491 and the legislative history of the Revenue Act, Congress did not contemplate that the annual registration tax would generate significant amounts of revenue, but rather that the bulk of the funds generated by the system would come from other user taxes,8 each of which is related more directly to the level Rep. 49; S. Rep. 20. Since the statute by its terms includes state-owned aircraft and since the legislative history broadly indicates that all government-owned civil aircraft are covered, petitioner has conceded that the statute applies. See Brief for Petitioner 8-9, n. 1; Tr. of Oral Arg. 6-7. 7 The navigable airspace of the United States is administratively delineated pursuant to 49 U. S. C. § 1301 (24). 8 The following table from the legislative history illustrates the congressional understanding that the annual registration fee would recover only a small percentage of the costs imposed on the airsystem by civil aviation: “TABLE 3.—REVENUES FROM AVIATION USER TAXES, SELECTED FISCAL YEARS, 1965-79 [In millions of dollars] User tax Actual Estimated 1965 1967 1969 1970 1971 1974 1979 Passenger ticket tax $147.5 $194.5 $259.5 $373.7 $507.2 $679.2 $1,083.2 Cargo tax, 5 percent 18.7 42.7 63.1 134.2 Fuel tax 16.7 14.4 11.0 26.5 45.8 54.3 76.7 International departure tax, $3 12.4 27.1 36.5 58.7 Taxes on tires and tubes used on aircraft- 2.0 2.4 2.6 2.8 3.0 3.5 5.0 Aircraft registration taxes — 12.4 26.6 32.3 42.1 Total 166.2 211.3 273.1 446.5 652.4 868.9 1,399.9 “Source: U. S. Treasury Department and Federal Aviation Administra- MASSACHUSETTS v. UNITED STATES 451 444 Opinion of the Court of use of the navigable airspace. Thus, commercial aviation’s share of the cost of the federal activities would be raised primarily through an 8% tax on the price of domestic air passenger tickets, see Revenue Act, § 203, 26 U. S. C. § 4261; a $3 “head tax” on international flights originating in the United States, ibid.; and a 5% tax on the cost of transporting property by air, Revenue Act, § 204, 26 U. S. C. § 4271. Noncommercial general aviation—the generic category that includes state police aircraft—would pay most of its share through a 7-cent-per-gallon tax on aircraft fuel. See Revenue Act, § 202, 26 U. S. C. § 4041. But while the registration tax was expected to produce only modest revenues and was understood to be only indirectly related to system use, Congress regarded it as an integral and essential part of the network of user charges.* 9 Moreover, it is tion, Office of Aviation Economics.” H. R. Rep. 39 (footnotes omitted) ; see S. Rep. 10. Indeed, this table overstates the estimated revenues from the registration tax since it assumes that the rate of tax on piston aircraft will be $25 plus 2 cents per pound, rather than the $25 plus 2 cents for each pound in excess of 2,500 pounds that is provided for in § 4491. Ibid. As the table indicates, aircraft are subject to an aircraft tire and tube tax, which is imposed by 26 U. S. C. § 4071, but this is a highly insignificant revenuegenerating measure. 9 The reasons the registration tax was added to the Revenue Act are clearly stated in the .Committee Reports: “The [Committee] determine[s] that, to some extent, the costs of the airport and airway system are incurred because many aircraft may use the system at some time, even though most of the time most of these craft are not in the air. In addition, it appears that heavier and faster aircraft are generally responsible for much of the increased need of sophisticated control facilities and approach and landing facilities.” H. R. Rep. 48; see S. Rep. 8-9. Thus, the registration tax was included in the bill in an attempt to recover part of the marginal cost imposed on the national airsystem by the addition of a possible user and to ensure that the fee system reflects in some manner the additional costs that heavier and faster (z. e., turbine-powered) aircraft impose upon it. 452 OCTOBER TERM, 1977 Opinion of the Court 435 U.S. the only tax imposed on those general noncommercial aircraft owned and operated by States. Although Congress was generally of the view that the States should be required to pay aviation user charges since “there would appear to be no reason why [they] should not pay for their fair share of the use of the airway facilities,” H. R. Rep. 46; see S. Rep. 17-18, and in fact made the States subject to all the other user charges, it retained a statutory exemption for the States from the aircraft fuel, tire, and tube taxes. See 68A Stat. 480, as amended, 26 U. S. C. §4041 (g) (1976 ed.); 26 U. S. C. §4221. The Commonwealth of Massachusetts owns several aircraft that are subject to the tax imposed by § 4491, including a helicopter which the Commonwealth uses exclusively for patrolling highways and other police functions.10 In 1973 the United States notified the Commonwealth that it had been assessed for a tax of $131.43 on this state police helicopter for the period from July 1, 1970, to June 30, 1971. The Commonwealth refused to pay and the United States thereafter levied on one of the Commonwealth’s bank accounts and collected this tax, plus interest and penalties. Pursuant to 28 U. S. C. § 1346 (1970 ed. and Supp. V), the Commonwealth then instituted this action for a refund of the money collected, contending that the United States may not constitutionally impose a tax that directly affects the essential and traditional state function of operating a police force. The District Court dismissed the complaint in an unreported decision. It first indicated its view that the most recent decisions of this Court had so limited a State’s constitutional immunity from federal taxation that a constitutional challenge could not succeed unless the tax was discriminatory or the State showed that the tax actually impaired a State function. Because the Commonwealth had not alleged that this nondiscrimi- 10 At oral argument, the Commonwealth informed us that it owns three aircraft in addition to the helicopter that is the subject of this case. See Tr. of Oral Arg. 4. MASSACHUSETTS v. UNITED STATES 453 444 Opinion of Brennan, J. natory annual fee had in fact impaired the operations of its police force, the District Court concluded dismissal was mandatory. In the alternative, the District Court held that the tax in question is a user fee and that, whatever the present scope of the constitutional principle of implied immunity of a state government from federal taxes, a user fee does not implicate the doctrine. The Court of Appeals for the First Circuit affirmed, solely on the latter ground. 548 F. 2d 33 (1977). We granted certiorari, 432 U. S. 905 (1977), to resolve a conflict between this decision and Georgia Dept, of Transp. v. United States, 430 F. Supp. 823 (ND Ga. 1976), appeal docketed, No. 77-16. See also City of New York v. United States, 394 F. Supp. 641 (SDNY 1975), affirmance order, 538 F. 2d 308 (CA2 1976); Texas v. United States, 72-2 USTC U 16.048 (WD Tex. 1972), aff’d, 73-1 USTC fl 16,085 (CA5 1973) (holding that 8% air passenger tax may constitutionally be applied to state employees traveling on official state business). We affirm. II A review of the development of the constitutional doctrine of state immunity from federal taxation is a necessary preface to decision of this case. For while the Commonwealth concedes that certain types of user fees may constitutionally be applied to its essential activities,11 it urges that the decisions of this Court teach that the validity of any impost levied against a State must be judged by a “bright-line” test: If the measure is labeled a tax and/or imposed or collected pursuant to the Internal Revenue Code, it is unconstitutional as applied to an essential state function even if the revenue measure 11 At oral argument, it conceded that a State could not, even when performing traditional governmental activities, insist on the right to have the Postal Service carry unstamped letters or—if there were such roads—to use federally constructed toll roads without paying the required toll. See id., at 8. Its argument before this Court is that there is a difference of constitutional magnitude between such charges and the tax imposed by § 4491. 454 OCTOBER TERM, 1977 Opinion of Brennan, J. 435U.S. operates as a user fee. See Brief for Petitioner 14-28. And the Commonwealth maintains that § 4491 is invalid for the additional reason that the values furthered by this constitutional doctrine necessarily require the invalidation of a levy such as that under § 4491 which, as an annual fee, is not directly related to use. See Brief for Petitioner 28—41. Neither contention has merit. The principles that have animated the development of the doctrine of state tax immunity and the decisions of this Court in analogous contexts persuade us that a State enjoys no constitutional immunity from a nondiscrimina-tory revenue measure, like § 4491, which operates only to ensure that each member of a class of special beneficiaries of a federal program pay a reasonable approximation of its fair share of the cost of the program to the National Government.12 Like the Court of Appeals, we have no occasion to decide either the present vitality of the doctrine of state tax immunity or the conditions under which it might be invoked. A That the existence of the States implies some restriction on the national taxing power was first decided in Collector v. Day, 11 Wall. 113 (1871). There this Court held that the immunity that federal instrumentalities and employees then enjoyed from state taxation, see Dobbins v. Commissioners, 16 Pet. 435 (1842); McCulloch v. Maryland, 4 Wheat. 316 (1819), was to some extent reciprocal and that the salaries paid state judges were immune from a nondiscriminatory federal tax. This immunity of State and Federal Governments 12 The Commonwealth’s arguments and the questions presented in its brief to this Court, see Brief for Petitioner 3-4, establish that our Brother Rehnquist’s dissent errs in suggesting that the discussion establishing this proposition is superfluous. See post, at 472. Moreover, the dissent’s assertion to the contrary notwithstanding, the United States’ brief in this Court recognizes that a decision validating § 4491 requires rejection of the Commonwealth’s submission concerning the scope of the doctrine of state tax immunity. See Brief for United States 22-23, n. 19. MASSACHUSETTS v. UNITED STATES 455 444 Opinion of Brennan, J. from taxation by each other was expanded in decisions over the last third of the 19th century and the first third of this century, see, e. g., Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218 (1928) ; Indian Motorcycle Co. v. United States, 283 U. S. 570 (1931) (sales from a private person to one sovereign may not be taxed by the other), but more recent decisions of this Court have confined the scope of the doctrine. The immunity of the Federal Government from state taxation is bottomed on the Supremacy Clause, but the States’ immunity from federal taxes was judicially implied from the States’ role in the constitutional scheme. Collector v. Day, supra, emphasized that the States had been in existence as independent sovereigns when the Constitution was adopted, and that the Constitution presupposes and guarantees the continued existence of the States as governmental bodies performing traditional sovereign functions. 11 Wall., at 125-126. To implement this aspect of the constitutional plan, Collector v. Day concluded that it was imperative absolutely to prohibit any fédéral taxation that directly affected a traditional state function, quoting Mr. Chief Justice Marshall’s aphorisms that “ The power of taxing . . . may be exercised so far as to destroy,’ ” id., at 123, quoting McCulloch v. Maryland, supra, at 427, and “ ‘a right [to tax], in its nature, acknowledges no limits.’ ” 11 Wall., at 123, quoting Weston v. Charleston, 2 Pet. 449, 466 (1829). The Court has more recently remarked that these maxims refer primarily to two attributes of the taxing power. First, in imposing a tax to support the services a government provides to the public at large, a legislature need not consider the value of particular benefits to a taxpayer, but may assess the tax solely on the basis of taxpayers’ ability to pay. Second (of perhaps greater concern in the present context), a tax is a powerful regulatory device; a legislature can discourage or eliminate a particular activity that is within its regulatory jurisdiction simply by im 456 OCTOBER TERM, 1977 Opinion of Brennan, J. 435U.S. posing a heavy tax on its exercise. See National Cable Television Assn. v. United States, 415 U. S. 336, 340-341 (1974). Collector v. Day, like the earlier McCulloch v. Maryland, reflected the view that the awesomeness of the taxing power required a flat and absolute prohibition against a tax implicating an essential state function because the ability of the federal courts to determine whether particular revenue measures would or would not destroy such an essential function was to be doubted. As the contours of the principle evolved in later decisions, “cogent reasons” were recognized for narrowly limiting the immunity of the States from federal imposts. See Helvering v. Gerhardt, 304 U. S. 405, 416 (1938). The first is that any immunity for the protection of state sovereignty is at the expense of the sovereign power of the National Government to tax. Therefore, when the scope of the States’ constitutional immunity is enlarged beyond that necessary to protect the continued ability of the States to deliver traditional governmental services, the burden of the immunity is thrown upon the National Government without any corresponding promotion of the constitutionally protected values. See, id., at 416-417; Helvering v. Mountain Producers Corp., 303 U. S. 376, 384-385 (1938); Willcuts v. Bunn, 282 U. S. 216, 225 (1931). The second, also recognized by Mr. Chief Justice Marshall in McCulloch v. Maryland, supra, at 435—436, is that the political process is uniquely adapted to accommodating the competing demands “for national revenue, on the one hand, and for reasonable scope for the independence of state action, on the other,” Helvering v. Gerhardt, supra, at 416: The Congress, composed as it is of members chosen by state constituencies, constitutes an inherent check against the possibility of abusive taxing of the States by the National Government.13 13 Although the opinion for the Court in National League of Cities v. Usery, 426 U. 8. 833 (1976), rejects the argument that the operation of the political process eliminates any reason for reviewing federalism-based MASSACHUSETTS v. UNITED STATES 457 444 Opinion of Brennan, J. In tacit, and at times explicit, recognition of these considerations, decisions of the Court either have declined to enlarge the scope of state immunity or have in fact restricted its reach. Typical of this trend are decisions holding that the National Government may tax revenue-generating activities of the States that are of the same nature as those traditionally engaged in by private persons. See, e. g., New York v. United States, 326 U. S. 572 (1946) (tax on water bottled and sold by State upheld); Allen v. Regents, 304 U. S. 439 (1938) (tax on admissions to state athletic events approved notwithstanding use of proceeds for essential state functions); Helvering y. Powers, 293 U. S. 214 (1934) (tax on operations of railroad by State); Ohio v. Helvering, 292 U. S. 360 (1934) (tax on state liquor operation); South Carolina v. United States, 199 U. S. 437 (1905) (tax on state-run liquor business). It is true that some of the opinions speak of the state activity taxed as “proprietary” and thus not an immune essential governmental activity, but the opinions of the Members of the Court in New York v. United States, supra, the most recent decision, rejected the governmental-proprietary distinction as untenable.14 Rather the majority15 reasoned that a nondiscriminatory tax challenges to federal regulation of the States qua States, we do not believe it follows that the existence of “political checks” has no relevance to a determination of the proper scope of a State’s immunity from federal taxation. We have regularly relied upon the existence of such political checks in considering the scope of the National Government’s immunity from state taxation. See, e. g., United States v. County of Fresno, 429 U. S. 452 (1977). 14 All eight Justices who participated in the case indicated that they regarded the governmental-proprietary distinction as an untenable one. See 326 U. S., at 579-581 (opinion of Frankfurter, J., joined by Rutledge, J.); id., at 586 (Stone, C. J., concurring, joined by Reed, Murphy, and Burton, JJ.); and id., at 591 (Douglas, J., dissenting, joined by Black, J.). 15 In New York v. United States, Mr. Justice Frankfurter announced the judgment of the Court and an opinion joined by only one of the eight Justices participating in the case. That opinion upheld the tax on a 458 OCTOBER TERM, 1977 Opinion of Brennan, J. 435 IT. S. may be applied to a state business activity where, as was the case there, the recognition of immunity would “accomplish a withdrawal from the taxing power of the nation a subject of taxation of a nature which has been traditionally within that power from the beginning. Its exercise ... by a non-discriminatory tax, does not curtail the business of the state government more than it does the like business of the citizen.” 326 U. S., at 588-589 (Stone, C. J., concurring). Illustrative of decisions actually restricting the scope of the immunity is the line of cases that culminated in the overruling of Collector v. Day in Graves v. New York ex rel. O’Keefe, 306 U. S. 466 (1939). See, e. g., Helvering v. Gerhardt, supra; Helvering v. Mountain Producers Corp., supra; Metcalf & Eddy v. Mitchell, 269 U. S. 514 (1926). Collector v. Day, of course, involved a nondiscriminatory tax that was imposed not directly on the State but rather on the salary earned by a judicial officer. Neither Collector v. Day itself nor its progeny or precursors made clear how such a taxing measure could be employed to preclude the States from performing essential functions. In any case, in the line of decisions that culminated in Graves v. New York ex rel. O’Keefe, supra, the Court demonstrated that an immunity for the salaries paid key state officials is not justifiable. Although key state officials are agents of the State, they are also citizens of the United States, so their income is a natural subject for income taxation. See Helvering v. Gerhardt, supra, at 420 and 422. More significantly, because the taxes imposed were nondiscriminatory and thus also applicable to income earned by persons in private employment, the risk was virtually nonexistent that such revenue provisions could significantly impede a State’s ability to hire able persons to perform its essential broader ground than the concurring opinion of Mr. Chief Justice Stone, joined by three Justices. We therefore conclude that a majority supported the Chief Justice’s rationale. MASSACHUSETTS v. UNITED STATES 459 444 Opinion of Brennan, J. functions. See Graves v. New York ex rel. O'Keefe, supra, at 484r-485; Helvering v. Gerhardt, supra, at 420-421. The only advantage conceivably to be lost by denying the States such an immunity is that essential state functions might be obtained at a lesser cost because employees exempt from taxation might be willing to work for smaller salaries. See 304 U. S., at 420-421. But that was regarded as an inadequate ground for sustaining the immunity and preventing the National Government from requiring these citizens to support its activities. See Graves v. New York ex rel. O'Keefe, supra, at 483 and cases cited in n. 3. The purpose of the implied constitutional restriction on the national taxing power is not to give an advantage to the States by enabling them to engage employees at a lower charge than those paid by private entities, see Helvering v. Gerhardt, supra, at 421-422, but rather is solely to protect the States from undue interference with their traditional governmental functions. While a tax on the salary paid key state officers may increase the cost of government, it will no more preclude the States from performing traditional functions than it will prevent private entities from performing their missions. See Graves v. New York ex rel. O'Keefe, supra, at 484-485; Helvering v. Gerhardt, supra, at 420-421. These two lines of decisions illustrate the “practical construction” that the Court now gives the limitation the existence of the States constitutionally imposes on the national taxing power; “that limitation cannot be so varied or extended as seriously to impair either the taxing power of the government imposing the tax ... or the appropriate exercise of the functions of the government affected by it.” New York v. United States, 326 U. S., at 589-590 (Stone, C. J., concurring) quoting Metcalf & Eddy n. Mitchell, supra, at 523-524. Where the subject of tax is a natural and traditional source of federal revenue and where it is inconceivable that such a revenue measure could ever operate to preclude traditional 460 OCTOBER TERM, 1977 Opinion of Brennan, J. 435U.S. state activities, the tax is valid. While the Court has by no means abandoned its doubts concerning its ability to make particularized assessments of the impact of revenue measures on essential state operations, compare New York v. United States, supra, at 581 (opinion of Frankfurter, J.)16 with 326 U. S., at 590 (Stone, C. J., concurring),17 it has recognized that some generic types of revenue measures could never seriously threaten the continued functioning of the States and hence are outside the scope of the implied tax immunity. B A nondiscriminatory taxing measure that operates to defray the cost of a federal program by recovering a fair approximation of each beneficiary’s share of the cost is surely no more offensive to the constitutional scheme than is either a tax on the income earned by state employees or a tax on a State’s sale of bottled water.18 The National Government’s interest in being compensated for its expenditures is only too apparent. More significantly perhaps, such revenue measures by their very nature cannot possess the attributes that led Mr. Chief Justice Marshall to proclaim that the power to tax is the power 16 “Any implied limitation upon the supremacy of the federal power to levy a tax like that now before us, in the absence of discrimination against State activities, brings fiscal and political factors into play. The problem cannot escape issues that do not lend themselves to judgment by criteria and methods of reasoning that are within the professional training and special competence of judges.” 17 “Since all taxes must be laid by general, that is, workable, rules, the effect of [state] immunity on the national taxing power is to be determined not quantitatively but by its operation and tendency in withdrawing taxable property or activities from the reach of federal taxation.” 18 As is implicit from our summary of the development of the law of state tax immunity, this doctrine does not inflexibly require the invalidation of any revenue measure that is labeled or operates as a tax. That § 4491 is called or can be characterized as a “tax” thus possesses no talis-manic significance. We observe, moreover, that Congress did regard § 4491 as a user fee. MASSACHUSETTS v. UNITED STATES 461 444 Opinion of Brennan, J. to destroy. There is no danger that such measures will not be based on benefits conferred or that they will function as regulatory devices unduly burdening essential state activities. It is, of course, the case that a revenue provision that forces a State to pay its own way when performing an essential function will increase the cost of the state activity. But Graves v. New York ex rel. O’Keefe, and its precursors, see 306 U. S., at 483 and the cases cited in n. 3, teach that an economic burden on traditional state functions without more is not a sufficient basis for sustaining a claim of immunity. Indeed, since the Constitution explicitly requires States to bear similar economic burdens when engaged in essential operations, see U. S. Const., Arndts. 5, 14; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922) (State must pay just compensation when it “takes” private property for a public purpose); U. S. Const., Art. I, § 10, cl. 1; United States Trust Co. v. New Jersey, 431 U. S. 1 (1977) (even when burdensome, a State often must comply with the obligations of its contracts), it cannot be seriously contended that federal exactions from the States of their fair share of the cost of specific benefits they receive from federal programs offend the constitutional scheme. Our decisions in analogous contexts support this conclusion. We have repeatedly held that the Federal Government may impose appropriate conditions on the use of federal property or privileges and may require that state instrumentalities comply with conditions that are reasonably related to the federal interest in particular national projects or programs. See, e. g., Ivanhoe Irrigation Dist. v. McCracken, 357 U. S. 275, 294-296 (1958); Oklahoma v. Civil Service Comm’n, 330 U. S. 127,142-144 (1947); United States v. San Francisco, 310 U. S. 16 (1940); cf. National League of Cities v. Usery, 426 U. S. 833, 853 (1976); Fry v. United States, 421 U. S. 542 (1975). A requirement that States, like all other users, pay a portion of the costs of the benefits they enjoy from federal programs is surely permissible since it is closely related to the 462 OCTOBER TERM, 1977 Opinion of Brennan, J. 435U.S. federal interest in recovering costs from those who benefit and since it effects no greater interference with state sovereignty than do the restrictions which this Court has approved. A clearly analogous fine of decisions is that interpreting provisions in the Constitution that also place limitations on the taxing power of government. See, e. g., U. S. Const., Art. I, § 8, cl. 3 (restricting power of States to tax interstate commerce); § 10, cl. 3 (prohibiting any state tax that operates “to impose a charge for the privilege of entering, trading in, or lying in a port.” Clyde Mallory Lines v. Alabama ex rel. State Docks Comm’n, 296 U. S. 261, 265-266 (1935)). These restrictions, like the implied state tax immunity, exist to protect constitutionally valued activity from the undue and perhaps destructive interference that could result from certain taxing measures. The restriction implicit in the Commerce Clause is designed to prohibit States from burdening the free flow of commerce, see generally Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), whereas the prohibition against duties on the privilege of entering ports is intended specifically to guard against local hindrances to trade and commerce by vessels. See Packet Co. v. Keokuk, 95 U. S. 80, 85 (1877). Our decisions implementing these constitutional provisions have consistently recognized that the interests protected by these Clauses are not offended by revenue measures that operate only to compensate a government for benefits supplied. See, e. g., Clyde Mallory Lines v. Alabama, supra (flat fee charged each vessel entering port upheld because charge operated to defray cost of harbor policing); Evansville-Vanderburgh Airport Authority n. Delta Airlines, Inc., 405 U. S. 707 (1972) ($1 head tax on enplaning commercial air passengers upheld under the Commerce Clause because designed to recoup cost of airport facilities). A governmental body has an obvious interest in making those who specifically benefit from its services pay the cost and, provided that the charge is structured to compensate the government for the benefit conferred, there can be no danger of the kind of interference MASSACHUSETTS v. UNITED STATES 463 444 Opinion of the Court with constitutionally valued activity that the Clauses were designed to prohibit. C Having established that taxes that operate as user fees may constitutionally be applied to the States, we turn to consider the Commonwealth’s argument that § 4491 should not be treated as a user fee because the amount of the tax is a flat annual fee and hence is not directly related to the degree of use of the airways.19 This argument has been confronted and rejected in analogous contexts. Capitol Greyhound Lines v. Brice, 339 U. S. 542 (1950), is illustrative. There the Court rejected an attack under the Commerce Clause on an annual Maryland highway tax of “2% upon the fair market value of motor vehicles used in interstate commerce.” The carrier argued that the correlation between the tax and use was not sufficiently precise to sustain the tax as a valid user charge. Noting that the tax “should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted,” id., at 545, the Court rejected the carrier’s argument: “Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensation for road use. These factors, like those relevant tn considering the constitutionality of other state taxes, are so countless that we must be content with 'rough approximation rather than precision.’. . . Each additional factor adds to administrative burdens of 19 Only a few words are needed to reject the Commonwealth’s suggestion that the United States may not impose this tax under a user-fee rationale because the United States has no proprietary interest in the airports and airways of the United States. Quite simply, we think there is no basis for the position that user fees are constitutional only when the United States has some sort of a right of property. A user-fee rationale may be invoked whenever the United States is recovering a fair approximation of the cost of benefits supplied. 464 OCTOBER TERM, 1977 Opinion of the Court 435U.S. enforcement, which fall alike on taxpayers and government. We have recognized that such burdens may be sufficient to justify states in ignoring even such a key factor as mileage, although the result may be a tax which on its face appears to bear with unequal weight upon different carriers. . . . Upon this type of reasoning rests our general rule that taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roads.” Id., at 546-547. (Citations and footnotes omitted.) See also Aero Mayflower Transit Co. v. Board of Railroad Comm’rs, 332 U. S. 495 (1947) (taxes of $10 and $15 per vehicle sustained against Commerce Clause challenges); Clyde Mallory Lines v. Alabama ex rel. State Docks Comm’n, supra (flat fee designed to defray cost of policing port upheld against claim it was constitutionally prohibited tax on privilege of entering harbor). This Court recently relied upon this reasoning to uphold a tax on commercial aviation activity. In Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., supra, we sustained against claims based on the Commerce Clause and on the right to travel a $1 head tax on commercial airline passengers. We held that such taxes are valid so long as they (1) do not discriminate against interstate commerce, (2) are based upon some fair approximation of use, and (3) are not shown to be excessive in relation to the cost to the government of the benefits conferred. 405 U. S., at 710-720. The Commonwealth, of course, recognizes that flat fees, and even flat annual fees, have been held constitutionally permissible in these contexts. It urges, however, that such “rough approximations of cost,” while appropriate compensatory measures in other settings, should not be permissible here. It maintains that the values protected by the doctrine of state tax immunity require that any user tax be closely calibrated MASSACHUSETTS v. UNITED STATES 465 444 Opinion of the Court to the amount of any taxpayer’s actual use, and it suggests that we—for purposes of the state tax immunity doctrine only—define user fees as charges for measurable amounts of use of government facilities. We note first that it is doubtful that the National Government could recover the costs of its aviation activities from those direct beneficiaries without making at least some use of annual flat fees. In arguing that the Revenue Act provisions are not sufficiently user related, the Commonwealth places extensive reliance upon the DOT Study, prepared at the direction of Congress,20 of the best way to recoup the costs of the federal aviation activities from its beneficiaries. While the report recognized that it would be generally possible, albeit costly in the case of general aviation, to tie the charges to specific measurable benefits received, see DOT Study 61, it indicated that certain costs imposed by general aviation could only be recovered through flat fees. Id., at 61 n. 2. But even if it were feasible to recover all costs through charges for measurable amounts of use of Government facilities, we fail to see how such a requirement would appreciably advance the policies embodied in the doctrine of state tax immunity. Since a State has no constitutional complaint when it is required to pay the cost of benefits received, the Commonwealth’s only legitimate fear is that the flat-fee requirement may result in the collection from it of more than its actual “fair share.” We observe first that where the 20 Provisions in both the Development Act and the Revenue Act directed the Department of Transportation to conduct a study of how best to recover the costs imposed on the national airsystem by each class of users. See §4 of the Development Act, 84 Stat. 220, 49 U. S. C. § 1703; §209 of the Revenue Act, 84 Stat. 252. The existence of these provisions underscores the fact, which is further illustrated by the fact that the taxes imposed by the Revenue Act expire in 1980, see, e. g., 26 U. S. C. § 4491 (e), that Congress regarded the Revenue Act user fees as an interim approach to the recovery of aviation costs from their beneficiaries. 466 OCTOBER TERM, 1977 Opinion of the Court 435U.S. charges imposed by the Federal Government apply to large numbers of private parties as well as to state activities, it is as likely as not that the user fee will result in exacting less money from the State than it would have to pay under a perfect user-fee system. More fundamentally, even when an annual flat fee results in some overcharges, the Commonwealth’s solution would often increase the fiscal burden on the States. If the National Government were required more precisely to calibrate the amount of the fee to the extent of the actual use of the airways, administrative costs would increase and so would the amount of revenue needed to operate the system. The resulting increment in a State’s actual fair share might well be greater than any overcharge resulting from the present fee system. But the complete answer to the Commonwealth’s concern is that even if the flat fee does cost it somewhat more than it would have to pay under a perfect userfee system, there is still no interference with the values protected by the implied constitutional tax immunity of the States. The possibility of a slight overcharge is no more offensive to the constitutional structure than is the increase in the cost of essential operations that results either from the fact that those who deal with the State may be required to pay nondiscriminatory taxes on the money they receive or from the fact a jury may award an eminent domain claimant an amount in excess of what would be “just compensation” in an ideal system of justice. Whatever the present scope of the principle of state tax immunity, a State can have no constitutional objection to a revenue measure that satisfies the three-prong test of Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc.—substituting “state function” for “interstate commerce” in that test. So long as the charges do not discriminate against state functions, are based on a fair approximation of use of the system, and are structured to produce revenues that will not exceed the total cost to the Federal Government of the benefits MASSACHUSETTS v. UNITED STATES 467 444 Opinion of the Court to be supplied, there can be no substantial basis for a claim that the National Government will be using its taxing powers to control, unduly interfere with, or destroy a State’s ability to perform essential services. The requirement that total revenues not exceed expenditures places a natural ceiling on the total amount that such charges may generate and the further requirement that the measure be reasonable and nondiscrim-inatory precludes the adoption of a charge that will unduly burden state activities.21 Ill Applying these principles to this case demonstrates that the Commonwealth’s claim of constitutional immunity is particularly insubstantial. First, there is no question but that the tax imposed by § 4491 is nondiscriminatory. It applies not only to private users of the airways but also to civil aircraft operated by the United States—facts which minimize, if not eliminate entirely, the basis for a conclusion that § 4491 might be an abusive exercise of the taxing power. Indeed, the Revenue Act discriminates in favor of the States since it retains the States’ exemption from the 7-cent-per-gallon fuel tax that applies to private noncommercial general aviation—a fact that illustrates the manner in which the political process is peculiarly adapted to the protection of state interests. Second, the tax satisfies the requirement that it be a fair approximation of the cost of the benefits civil aircraft receive from the federal activities. As we have indicated, the legislative background and terms of the Revenue Act indicate that 21 Our Brother Rehnquist’s characterization of this test (which the United States urged us to adopt, see Brief for United States 19-20) as “vague and convoluted” see post, at 472, overlooks its consistent applications for years by the Court, without any apparent difficulty, in cases involving the negative implications of the Commerce Clause. It further overlooks that, as our experience today indicates, see Part III, infra, there is no reason to suppose that the Court will have any different experience in applying this test in cases involving a State’s claim of immunity from federal taxation. 468 OCTOBER TERM, 1977 Opinion of the Court 435U.S. Congress believed that four measures, taken together, would fairly reflect some of the cost of the benefits that redound to the noncommercial general aircraft that fly in the navigable airspace of the United States: a 7-cent-per-gallon fuel tax, a 5-cent-per-pound tax on aircraft tires, a 10-cent-per-pound tax on tubes, see 26 U. S. C. § 4071, and the annual aircraft registration tax. See nn. 4 and 8, supra. The formula contained in these four measures taken together does not, of course, give weight to every factor affecting appropriate compensation for airport and airway use. A probable deficiency in the formula arises because not all aircraft make equal use of the federal navigational facilities or of the airports that have been planned or constructed with federal assistance. But the present scheme nevertheless is a fair approximation of the cost of the benefits each aircraft receives. Every aircraft that flies in the navigable airspace of the United States has available to it the navigational assistance and other special services supplied by the United States.22 And even those aircraft, if there are any, that have never received specific services from the National Government benefit from them in the sense that the services are available for their use if needed and in that the provision of the services makes the airways safer for all users.23 The four taxes, taken together, fairly 22 Although a helicopter may be expected to make less intensive use of the federal facilities and services than would an airplane, the Commonwealth has not denied that its state police helicopter has made some use of the federal services, and it conceded as much at oral argument. See Tr. of Oral Arg. 20. In any case, the Commonwealth has indicated that its submission in the case at bar does not depend in any way on the fact that a helicopter is involved, but rather is equally applicable to all aircraft. Ibid. 23 Because aircraft do not invariably use the federal services each time they fly, the Commonwealth suggests that the case at bar is analogous to Cannon v. New Orleans, 20 Wall. 577 (1874). There, this Court held that when an ordinance taxed the use of wharves or riverbanks indiscriminately, rather than only the use of wharves built by the city, the MASSACHUSETTS v. UNITED STATES 469 444 Opinion of the Court reflect the benefits received, since three are geared directly to use, whereas the fourth, the aircraft registration tax, is designed to give weight to factors affecting the level of use of the navigational facilities. See n. 9, supra. A more precisely calibrated formula—which would include landing fees, charges for specific services received, and less reliance on annual flat fees, see DOT Study 62—would, of course, be administratively more costly. It follows that a State may not complain of the application of § 4491 on the ground it is not a fair approximation of use. Since the fuel tax, tire and tube tax, and annual registration fee together constitute an appropriate means of recovering the amount of the federal investment, a State, being exempt from the fuel, tire, and tube taxes, can have no constitutional objection to the application of the registration fee alone. Finally, the tax is not excessive in relation to the cost of the Government benefits supplied. When Congress enacted the Revenue Act, it contemplated that the user fees imposed on civil aircraft would not be sufficient to cover the federal expenditures on civil aviation in any one year, see n. 4, supra, and the actual experience during the first years of operation was that the revenues fell far short of covering the annual civil aviation outlays.24 Since the Commonwealth pays far exaction could not be justified as compensation for use of municipal facilities or services. What distinguishes the case at bar is that the federal services are directed at the entire navigable airspace of the United States and inure to the benefit of all users. The analogous decision is Clyde Mallory Lines n. Alabama ex rel. State Docks Comm’n, 296 U. S. 261 (1935), in which the Court held that a vessel that has not been the recipient of any police services could be required to pay a charge designed to defray their costs since the services redounded to the benefit of all vessels in the port. 24 The DOT Study, which the Commonwealth asks us judicially to notice, concludes that the system of user fees has not come close to recovering the costs imposed on the national airsystem by the civil users of the airways in the first years of the program. Id., at 43. Indeed, it finds that the greatest shortfall is the revenue produced by the charges imposed on gen 470 OCTOBER TERM, 1977 Opinion of Stewart and Powell, JJ. 435 U. S. less than private noncommercial users of the airways, there therefore is no basis for a conclusion that the application of the registration tax to the States produces revenues in excess of the costs25 incurred by the Federal Government.26 Affirmed. Mr. Justice Blackmun took no part in the consideration or decision of this case. Mr. Justice Stewart and Mr. Justice Powell, concurring in part and concurring in the judgment. The petitioner has conceded that a nondiscriminatory user fee may constitutionally be imposed upon a State, and, for substantially the reasons stated in Part II-B of the plurality opinion, we agree. Moreover, we agree with the Court that eral aviation, a category that, of course, includes the Commonwealth’s aircraft. See id., at 43-50. 25 Even if the revenues in any one year exceeded the outlays, it would not follow that the tax is invalid as applied. In Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., 405 U. S. 707, 719-720 (1972), we indicated that the validity of the tax was determined by comparing total revenue with total outlays: i. e., a surplus of revenue over outlays in any one year can be offset against actual deficits of past years and perhaps against projected deficits of future years. 26 We regard our Brother Rehnquist’s view that the record does not support a conclusion that § 4491 is a user fee as perhaps another way of stating disagreement with our understanding of the governing legal principles. Compare supra, at 463 n. 19, and 467-469, with post, at 473-474. For under our view of those principles, there plainly is no basis to remand for an evidentiary hearing. In light of the undisputed nature of the tax and the Commonwealth’s reliance upon the DOT Study, there is no basis for a dispute among the parties concerning the operation of § 4491, the nature of the services that the United States supplies for the benefit of all users of the airways, or the relationship between the revenues from the various user fees and the federal expenditures on the national airsystem. In this circumstance the record amply justifies our conclusion that each prong of the Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., test is satisfied. MASSACHUSETTS v. UNITED STATES 471 444 Rehnquist, J., dissenting the aircraft registration tax imposed by 26 U. S. C. § 4491 is such a user fee. We therefore see no need to discuss the general contours of state immunity from federal taxation, as the plurality does in Part II-A of its opinion. On this basis we join Parts I, II-C, and III of the Court’s opinion and concur in its judgment. Mr. Justice Rehnquist, with whom The Chief Justice joins, dissenting. Petitioner, the Commonwealth of Massachusetts, brought suit against the United States to recover a charge of $131.43 plus penalties and interest imposed upon it by reason of its use of a helicopter in connection with its state police force. The United States moved to dismiss petitioner’s complaint, and its motion was granted by the District Court for the District of Massachusetts. The Court of Appeals for the First Circuit affirmed that judgment, but expressly chose to do so on a narrower ground than that relied upon by the District Court. 548 F. 2d 33, 34 (1977). The Court of Appeals found it unnecessary to examine the law of intergovernmental tax immunity, because it concluded that the charge imposed here “is, in reality, a user charge.” Id., at 35. While the Court of Appeals recognized that the labeling of an assessment as a user charge is not of itself conclusive, cf. Packet Co. v. Keokuk, 95 U. S. 80, 86 (1877), it quoted the following language in explaining its understanding of the distinction between a tax and a user charge: “ ‘It is a tax or duty that is prohibited: something imposed by virtue of sovereignty, not claimed in right of proprietorship. Wharfage is of the latter character. Providing a wharf to which vessels may make fast, or at which they may conveniently load or unload, is rendering them a service. . . . [A] nd, when compensation is demanded for the use of the wharf, the demand is an assertion, not of sovereignty, but of a right of property.’ ” 548 F. 2d, at 36, quoting Packet Co. v. Keokuk, supra, at 85. 472 OCTOBER TERM, 1977 Rehnquist, J., dissenting 435U.S. The United States has defended its judgment in this Court solely on the basis that the Court of Appeals was correct in concluding that the exaction in question was a user charge. Its brief states: “[T]his case presents no occasion to consider the present status of the doctrine of implied constitutional immunity of the states from federal taxation. Here, the annual excise tax on the use of civil aircraft is not a tax subject to any constitutional restrictions but is simply a required payment by the user for airport and airway facilities funded or provided by the federal government. Petitioner can no more claim the right to free use of these facilities than it could, for example, use the postal service without purchasing stamps.” Brief for United States 6-7. It is therefore somewhat surprising to find Part II-A of today’s opinion (which reflects the views of only four Justices) discussing at length the scope of intergovernmental tax immunity. Petitioner insists that it may be able to prove at a trial of the action that the charge is not in fact a user fee; the United States insists that it is a user fee, apparently as a matter of law. This is the issue before the Court, and the only issue before it. I agree that the United States would have a valid defense to this action if it had established, or could establish, that the charge imposed was reasonably related to services rendered to the petitioner by agencies of the Federal Government. I further conclude that the United States would have a valid defense to this action if it could establish that the charge was based on use by the petitioner of some property which the United States owned or in which it had some other type of proprietary interest. Cf. Packet Co. v. Keokuk, supra, at 8A-85. I am at a loss to know why the Court feels obligated to draw on cases decided under the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, to establish its vague and convoluted MASSACHUSETTS v. UNITED STATES 473 444 Rehnquist, J., dissenting three-part test to determine whether the user fee is valid, since cases regarding intergovernmental relations raise significantly different considerations. Commerce Clause cases, while no doubt useful analogies, are not required to deal with the fact that the payer of the user fee is a State in our constitutional structure, and that its essential sovereign interests are entitled to greater deference than is due to ordinary business enterprises which may be regulated by both State and Federal Governments. Since the United States concedes that the absence of intergovernmental immunity to user fees is a reciprocal one, Tr. of Oral Arg. 26-28, it stands to lose as much from the vagueness of the Court’s test as do petitioner and its sister States. Regardless of the phrasing of the test, I cannot accept the Court’s conclusion that the Commonwealth need not be given the opportunity to prove that the test has not been satisfied. The Court, relying heavily on our opinion in Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., 405 U. S. 707 (1972), holds that the fee need not be precisely calibrated to the value of the service furnished so long as it is not shown to be excessive in relation to the cost to the United States of the benefits conferred. Ante, at 466-467. But in the cases considered in that opinion, the Court explicitly noted that the challengers had been given the chance to prove the fee excessive and had failed to do so. 405 U. S., at 720. In addition, there was no doubt that the municipal corporations which sought to impose the head tax in fact owned the airport facilities, nor that passengers who were paying the head tax were taking advantage of the services provided by those facilities. Neither of those conclusions can be reached as a matter of law on the record before us. The United States does not “own” the airspace above its territorial boundaries, although it undoubtedly has considerable authority to regulate the use of that airspace. Nor does the United States, so far as this record shows, “own” any of the facilities which are used by 474 OCTOBER TERM, 1977 Rehnquist, J., dissenting 435 U.S. the helicopter in question. Indeed, it is not even clear from this record whether the helicopter in question has made use of any of the services, such as air traffic controllers, which are furnished by the United States to those who make use of the airways. Were any of these facts to be found to exist by a finder of fact, I might well concur in the Court’s judgment. I cannot, under my view of the law, accept as a substitute for such factual findings House and Senate Reports which merely state that a tax of this kind is 11 ‘generally viewed as a user charge.’ ” Ante, at 449 n. 6, quoting H. R. Rep. No. 91-601, p. 46 (1969). The Court’s reliance upon Clyde Mallory Lines v. Alabama ex rel. State Docks Comm’n, 296 U. S. 261 (1935), which arose under the Duty of Tonnage Clause of the Constitution, Art. I, § 10, cl. 3, as well as the Commerce Clause, is misplaced in this regard. The Court there held that neither provision was violated by a flat fee which was charged by the State as compensation for the “policing service rendered by the state in the aid of the safe and efficient use of its port.” 296 U. S., at 264. The Court held that the vessels were properly liable for the fee despite the fact that they had not received any special assistance, because the evidentiary record affirmatively demonstrated that “[t]he benefits which flow from the enforcement of [the] regulations . . . inure to all who enter [the harbor].” Id., at 266. It may be that upon further development of the record in this case, by trial or by procedures leading to summary judgment, a situation similar to that in Clyde Mallory Lines, supra, could be shown by the United States to exist. But that does not justify the order of the District Court dismissing petitioner’s complaint without such development. I would therefore reverse the judgment of the Court of Appeals and remand for further proceedings. HOLLOWAY v. ARKANSAS 475 Syllabus HOLLOWAY et al. v. ARKANSAS CERTIORARI TO THE SUPREME COURT OF ARKANSAS No. 76-5856. Argued November 2, 1977—Decided April 3, 1978 Petitioners, three codefendants at a state criminal trial in Arkansas, made timely motions, both a few weeks before the trial and before the jury was empaneled, for appointment of separate counsel, based on their appointed counsel’s representations that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and could not, therefore, provide effective assistance for each client. The trial court denied these motions, and petitioners were subsequently convicted. The Arkansas Supreme Court affirmed, concluding that the record showed no actual conflict of interests or prejudice to petitioners. Held: 1. The trial judge’s failure either to appoint separate counsel or to take adequate steps to ascertain whether the risk of a conflict of interests was too remote to warrant separate counsel, in the face of the representations made by counsel before trial and again before the jury was empaneled, deprived petitioners of the guarantee of "assistance of counsel” under the Sixth Amendment. Pp. 481-487. (a) The trial court has a duty to refrain from embarrassing counsel for multiple defendants by insisting or even suggesting that counsel undertake to concurrently represent interests that might conflict, when the possibility of inconsistent interests is brought home to the court by formal objections, motions, and Counsel’s representations. Glasser v. United States, 315 U. S. 60,76. Pp. 484-485. (b) An attorney’s request for the appointment of separate counsel, based on his representations regarding a conflict of interests, should be granted, considering that he is in the best position professionally and ethically to determine when such a conflict exists or will probably develop at trial; that he has the obligation, upon discovering such a conflict, to advise the court at once; and, that as an officer of the court, he so advises the court virtually under oath. Pp. 485-486. (c) Here no prospect of dilatory practices by the attorney was present to justify the trial court’s failure to take adequate steps in response to the repeated motions for appointment of separate counsel. Pp. 486-487. 2. Whenever a trial court improperly requires joint representation over timely objection reversal is automatic, and prejudice is presumed regard 476 OCTOBER TERM, 1977 Opinion of the Court 435U.S. less of whether it was independently shown. Glasser v. United States, supra, at 75-76. Pp. 487-491. (a) The assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,” Chapman v. California, 386 U. S. 18, 23. P. 489. (b) That an attorney representing multiple defendants with conflicting interests is physically present at pretrial proceedings, during trial, and at sentencing does not warrant departure from the general rule requiring automatic reversal. Pp. 489-490. (c) A rule requiring a defendant to show that a conflict of interests—which he and his counsel tried to avoid by timely objections to the joint representation—prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application. Pp. 490-491. 260 Ark. 250, 539 S. W. 2d 435, reversed and remanded. Burger, C. J., delivered the opinion of the Court, in which Brennan, Stewart, White, Marshall, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Blackmun and Rehnquist, JJ., joined, post, p. 491. Harold L. Hall argued the cause and filed a brief for petitioners. Joseph H. Purvis, Assistant Attorney General of Arkansas, argued the cause pro hac vice for respondent. With him on the brief were Bill Clinton, Attorney General, and Robert Alston Newcomb, Assistant Attorney General.* Mr. Chief Justice Burger delivered the opinion of the Court. Petitioners, codefendants at trial, made timely motions for appointment of separate counsel, based on the representations of their appointed counsel that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and could *H award B. Eisenberg filed a brief for the National Legal Aid and Defender Assn, as amicus curiae urging reversal. Rollie R. Rogers filed a brief for the Office of the Colorado State Public Defender as amicus curiae. HOLLOWAY v. ARKANSAS 477 475 Opinion of the Court not, therefore, provide effective assistance for each client. We granted certiorari to decide whether petitioners were deprived of the effective assistance of counsel by the denial of those motions. 430 U. S. 965 (1977). I Early in the morning of June 1, 1975, three men entered a Little Rock, Ark., restaurant and robbed and terrorized the five employees of the restaurant. During the course of the robbery, one of the two female employees was raped once; the other, twice. The ensuing police investigation led to the arrests of the petitioners. On July 29, 1975, the three defendants were each charged with one count of robbery and two counts of rape. On August 5, the trial court appointed Harold Hall, a public defender, to represent all three defendants. Petitioners were then arraigned and pleaded not guilty. Two days later, their cases were set for a consolidated trial to commence September 4. On August 13, Hall moved the court to appoint separate counsel for each petitioner because “the defendants ha[d] stated to him that there is a possibility of a conflict of interest in each of their cases . . . .” After conducting a hearing on this motion, and on petitioners’ motions for a severance, the court declined to appoint separate counsel.1 Before trial, the same judge who later presided at petitioners’ trial conducted a Jackson v. Denno hearing1 2 to determine the admissibility of a confession purportedly made by petitioner Campbell to two police officers at the time of his arrest. The essence of the confession was that Campbell had entered the restaurant with his codefendants and had remained, armed with a rifle, one flight of stairs above the site 1 No transcript of this hearing is included in the record, and we are not informed whether the hearing was transcribed. 2 See Jackson v. Denno, 378 U. S. 368 (1964). 478 OCTOBER TERM, 1977 Opinion of the Court 435U.S. of the robbery and rapes (apparently serving as a lookout), but had not taken part in the rapes. The trial judge ruled the confession admissible, but ordered deletion of the references to Campbell’s codefendants. At trial one of the arresting officers testified to Campbell’s confession. On September 4, before the jury was empaneled, Hall renewed the motion for appointment of separate counsel “on the grounds that one or two of the defendants may testify and, if they do, then I will not be able to cross-examine them because I have received confidential information from them.” The court responded, “I don’t know why you wouldn’t,” and again denied the motion.3 The prosecution then proceeded to present its case. The manager of the restaurant identified petitioners Holloway and Campbell as two of the robbers. Another male employee identified Holloway and petitioner Welch. A third identified only Holloway. The victim of the single rape identified Holloway and Welch as two of the robbers but was unable to identify the man who raped her. The victim of the double rape identified Holloway as the first rapist. She was unable to identify the second rapist but identified Campbell as one of the robbers. On the second day of trial, after the prosecution had rested its case, Hall advised the court that, against his recommendation, all three defendants had decided to testify. He then stated: “Now, since I have been appointed, I had previously filed a motion asking the Court to appoint a separate attorney for each defendant because of a possible conflict of interest. This conflict will probably be now coming up since each one of them wants to testify. 3 It is probable that the judge’s response, “I don’t know why you wouldn’t,” referred back to counsel’s statement, “I will not be able to cross-examine them . . . .” If the response is so read, the judge’s later statements, see infra, at 479 and 480, are directly contradictory. HOLLOWAY v. ARKANSAS 479 475 Opinion of the Court “THE COURT: That’s all right; let them testify. There is no conflict of interest. Every time I try more than one person in this court each one blames it on the other one. “MR. HALL: I have talked to each one of these defendants, and I have talked to them individually, not collectively. “THE COURT: Now talk to them collectively.” The court then indicated satisfaction that each petitioner understood the nature and consequences of his right to testify on his own behalf, whereupon Hall observed: “I am in a position now where I am more or less muzzled as to any cross-examination. “THE COURT: You have no right to cross-examine your own witness. “MR. HALL: Or to examine them. “THE COURT: You have a right to examine them, but have no right to cross-examine them. The prosecuting attorney does that. “MR. HALL: If one [defendant] takes the stand, somebody needs to protect the other two’s interest while that one is testifying, and I can’t do that since I have talked to each one individually. “THE COURT: Well, you have talked to them, I assume, individually and collectively, too. They all say they want to testify. I think it’s perfectly alright [sic] for them to testify if they want to, or not. It’s their business. “Each defendant said he wants to testify, and there will be no cross-examination of these witnesses, just a direct examination by you. “MR. HALL: Your Honor, I can’t even put them on direct examination because if I ask them— 480 OCTOBER TERM, 1977 Opinion of the Court 435U.S. “THE COURT: (Interposing) You can just put them on the stand and tell the Court that you have advised them of their rights and they want to testify; then you tell the man to go ahead and relate what he wants to. That’s all you need to do.”4 Holloway took the stand on his own behalf, testifying that during the time described as the time of the robbery he was at his brother’s home. His brother had previously given similar testimony. When Welch took the witness stand, the record shows Hall advised him, as he had Holloway, that “I cannot ask you any questions that might tend to incriminate any one of the three of you .... Now, the only thing I can say is tell these ladies and gentlemen of the jury what you know about this case . . . .” Welch responded that he did not “have any kind of speech ready for the jury or anything. I thought I was going to be questioned.” When Welch denied, from the witness stand, that he was at the restaurant the night of the robbery, Holloway interrupted, asking: “Your Honor, are we allowed to make an objection? “THE COURT: No, sir. Your counsel will take care of any objections. “MR. HALL: Your Honor, that is what I am trying to say. I can’t cross-examine them. “THE COURT: You proceed like I tell you to, Mr. Hall. You have no right to cross-examine your own witnesses anyhow.” Welch proceeded with his unguided direct testimony, denying any involvement in the crime and stating that he was at his home at the time it occurred. Campbell gave jsimilar testi- 4 The record reveals that both the trial court and defense counsel were alert to defense counsel’s obligation to avoid assisting in the presentation of what counsel had reason to believe was false testimony, or, at least, testimony contrary to the version of facts given to him earlier and in confidence. Cf. ABA Project on Standards Relating to the Administration of Criminal Justice, The Defense Function §7.7 (c), p. 133 (1974). HOLLOWAY v. ARKANSAS 481 475 Opinion of the Court mony when he took the stand. He also denied making any confession to the arresting officers. The jury rejected the versions of events presented by the three defendants and the alibi witness, and returned guilty verdicts on all counts. On appeal to the Arkansas Supreme Court, petitioners raised the claim that their representation by a single appointed attorney, over their objection, violated federal constitutional guarantees of effective assistance of counsel. In resolving this issue, the court relied on what it characterized as the majority rule: “[T]he record must show some material basis for an alleged conflict of interest, before reversible error occurs in single representation of co-defendants.” 260 Ark. 250, 256, 539 S. W. 2d 435, 439 (1977). Turning to the record in the case, the court observed that Hall had failed to outline to the trial court both the nature of the confidential information received from his clients and the manner in which knowledge of that information created conflicting loyalties. Because none of the petitioners had incriminated codefendants while testifying, the court concluded that the record demonstrated no actual conflict of interests or prejudice to the petitioners, and therefore affirmed. II More than 35 years ago, in Glasser v. United States, 315 U. S. 60 (1942), this Court held that by requiring an attorney to represent two codefendants whose interests were in conflict the District Court had denied one of the defendants his Sixth Amendment right to the effective assistance of counsel. In that case the Government tried five codefendants in a joint trial for conspiracy to defraud the United States. Two of the defendants, Glasser and Kretske, were represented initially by separate counsel. On the second day of trial, however, Kretske became dissatisfied with his attorney and dismissed him. The District Judge thereupon asked Glasser’s attorney, Stewart, if 482 OCTOBER TERM, 1977 Opinion of the Court 435U.S. he would also represent Kretske. Stewart responded by noting a possible conflict of interests: His representation of both Glasser and Kretske might lead the jury to link the two men together. Glasser also made known that he objected to the proposal. The District Court nevertheless appointed Stewart, who continued as Glasser’s retained counsel, to represent Kretske. Both men were convicted. Glasser contended in this Court that Stewart’s representation at trial was ineffective because of a conflict between the interests of his two clients. This Court held that “the ‘assistance of counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer should simultaneously represent conflicting interests.” Id., at 70. The record disclosed that Stewart failed to cross-examine a Government witness whose testimony linked Glasser with the conspiracy and failed to object to the admission of arguably inadmissible evidence. This failure was viewed by the Court as a result of Stewart’s desire to protect Kretske’s interests, and was thus “indicative of Stewart’s struggle to serve two masters . . . .” Id., at 75. After identifying this conflict of interests, the Court declined to inquire whether the prejudice flowing from it was harmless and instead ordered Glasser’s conviction reversed. Kretske’s conviction, however, was affirmed. One principle applicable here emerges from Glasser without ambiguity. Requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation. In Mr. Justice Frankfurter’s view: “Joint representation is a means of insuring against reciprocal recrimination. A common defense often HOLLOWAY v. ARKANSAS 483 475 Opinion of the Court gives strength against a common attack.” Glasser v. United States, supra, at 92 (dissenting opinion).5 Since Glasser was decided, however, the courts have taken divergent approaches to two issues commonly raised in challenges to joint representation where—unlike this case—trial counsel did nothing to advise the trial court of the actuality or possibility of a conflict between his several clients’ interests. First, appellate courts have differed on how strong a showing of conflict must be made, or how certain the reviewing court must be that the asserted conflict existed, before it will conclude that the defendants were deprived of their right to the effective assistance of counsel. Compare United States ex rel. Hart v. Davenport, 478 F. 2d 203 (CA3 1973); Lollar v. United States, 126 U. S. App. D. C. 200, 376 F. 2d 243 (1967); People v. Chacon, 69 Cal. 2d 765, 447 P. 2d 106 (1968); and State v. Kennedy, 8 Wash. App. 633, 508 P. 2d 1386 (1973), with United States v. Lovano, 420 F. 2d 769, 773 (CA2 1970); see also cases collected in Annot., 34 A. L. R. 3d 470, 477-507 (1970). Second, courts have differed with respect to the scope and nature of the affirmative duty of the trial judge to assure that criminal defendants are not deprived of their right to the effective assistance of counsel by joint representation of conflicting interests. Compare United States v. Lawriw, 568 F. 2d 98 (CA8 1977); United States v. Carrigan, 543 F. 2d 1053 (CA2 1976); and United States v. Foster, 469 F. 2d 1 (CAI 1972), with Foxworth v. Wainwright, 516 F. 2d 1072 (CA5 1975), and United States v. Williams, 429 F. 2d 158 (CA8 1970).6 5 By inquiring in Glasser whether there had been a waiver, the Court also confirmed that a defendant may waive his right to the assistance of an attorney unhindered by a conflict of interests. 315 U. S., at 70. In this case, however, Arkansas does not contend that petitioners waived that right. 6 See ABA Project on Standards Relating to the Administration of Criminal Justice, The Function of the Trial Judge § 3.4 (b), p. 171 (1974): “Whenever two or more defendants who have been jointly charged, or 484 OCTOBER TERM, 1977 Opinion of the Court 435U.S. We need not resolve these two issues in this case, however. Here trial counsel, by the pretrial motions of August 13 and September 4 and by his accompanying representations, made as an officer of the court, focused explicitly on the probable risk of a conflict of interests. The judge then failed either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.* 7 We hold that the failure, in the face of the representations made by counsel weeks before trial and again before the jury was empaneled, deprived petitioners of the guarantee of “assistance of counsel.” This conclusion is supported by the Court’s reasoning in Glasser: “Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. . . . The trial court should protect the right of an accused to have the assistance of counsel. . . . “Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to whose cases have been consolidated, are represented by the same attorney, the trial judge should inquire into potential conflicts which may jeopardize the right of each defendant to the fidelity of his counsel.” 7 There is no indication in the record, and the State does not suggest, that the hearing held in response to the motion of August 13 disclosed information demonstrating the insubstantiality of Hall’s September 4 representations—based, as nearly as can be ascertained, on the codefendants’ newly formed decision to testify—respecting a probable conflict of interests. So far as we can tell from this record, the trial judge cut off any opportunity of defense counsel to do more than make conclusory representations. During oral argument in this Court, Hall represented that the trial court did not request him to disclose the basis for his representations as to a conflict of interests. See Tr. of Oral Arg. 14-15. There is no occasion in this case to determine the constitutional significance, if any, of the trial court’s response to petitioners’ midtrial objections. HOLLOWAY v. ARKANSAS 485 475 Opinion of the Court refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting, that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court.” 315 U. S., at 71, 76 (emphasis added). This reasoning has direct applicability in this case where the “possibility of [petitioners’] inconsistent interests” was “brought home to the court” by formal objections, motions, and defense counsel’s representations. It is arguable, perhaps, that defense counsel might have presented the requests for appointment of separate counsel more vigorously and in greater detail. As to the former, however, the trial court’s responses hardly encouraged pursuit of the separate-counsel claim; and as to presenting the basis for that claim in more detail, defense counsel was confronted with a risk of violating, by more disclosure, his duty of confidentiality to his clients. Additionally, since the decision in Glasser, most courts have held that an attorney’s request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted. See, e. g., Shuttle v. Smith, 296 F. Supp. 1315 (Vt. 1969); State v. Davis, 110 Ariz. 29, 514 P. 2d 1025 (1973); State v. Brazile, 226 La. 254, 75 So. 2d 856 (1954); but see Commonwealth v. LaFleur, 1 Mass. App. 327,296 N. E. 2d 517 (1973). In so holding, the courts have acknowledged and given effect to several interrelated considerations. An “attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.” State v. Davis, supra, at 31, 514 P. 2d, at 1027. Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at 486 OCTOBER TERM, 1977 Opinion of the Court 435U.S. once of the problem. Ibid.3 Finally, attorneys are officers of the court, and “ ‘when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.’ ” State v. Brazile, supra, at 266, 75 So. 2d, at 860-861.® (Emphasis deleted.) We find these considerations persuasive. The State argues, however, that to credit Hall’s representations to the trial court would be tantamount to transferring to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict and to appoint separate counsel. In the State’s view, the ultimate decision on those matters must remain with the trial judge; otherwise unscrupulous defense attorneys might abuse their “authority,” presumably for purposes of delay or obstruction of the orderly conduct of the trial.8 9 10 The State has an obvious interest in avoiding such abuses. But our holding does not undermine that interest. When an untimely motion for separate counsel is made for dilatory purposes, our holding does not impair the trial court’s ability to 8 The American Bar Association in its Standards Relating to the Administration of Criminal Justice, The Defense Function § 3.5(b), p. 123 (1974) cautions: “Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.” 9 When a considered representation regarding a conflict in clients’ interests comes from an officer of the court, it should be given the weight commensurate with the grave penalties risked for misrepresentation. 10 Such risks are undoubtedly present; they are inherent in the adversary system. But courts have abundant power to deal with attorneys who misrepresent facts. HOLLOWAY v. ARKANSAS 487 475 Opinion of the Court deal with counsel who resort to such tactics. Cf. United States v. Dardi, 330 F. 2d 316 (CA2), cert, denied, 379 U. S. 845 (1964); People v. Kroeger, 61 Cal. 2d 236, 390 P. 2d 369 (1964). Nor does our holding preclude a trial court from exploring the adequacy of the basis of defense counsel’s representations regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client.11 See State v. Davis, supra. In this case the trial court simply failed to take adequate steps in response to the repeated motions, objections, and representations made to it, and no prospect of dilatory practices was present to justify that failure. Ill The issue remains whether the error committed at petitioners’ trial requires reversal of their convictions. It has generally been assumed that Glasser requires reversal, even in the absence of a showing of specific prejudice to the complaining codefendant, whenever a trial court improperly permits or requires joint representation. See Austin v. Erickson, 477 F. 2d 620 (CA8 1973); United States v. Gougis, 374 F. 2d 758 (CA7 1967); Hall v. State, 63 Wis. 2d 304, 217 N. W. 2d 352 (1974); Commonwealth ex rel. Whitting v. Russell, 406 Pa. 45, 176 A. 2d 641 (1962); Note, Criminal Codefendants and the Sixth Amendment: The Case for Separate Counsel, 58 Geo. L. J. 369, 387 (1969). Some courts and commentators have argued, however, that appellate courts should not reverse automatically in such cases but rather should affirm unless the defendant can demonstrate prejudice. See United States 11 This case does not require an inquiry into the extent of a court’s power to compel an attorney to disclose confidential communications that he concludes would be damaging to his client. Cf. ABA Code of Professional Responsibility, DR 4-101 (C) (2) (1969). Such compelled disclosure creates significant risks of unfair prejudice, especially when the disclosure is to a judge who may be called upon later to impose sentences on the attorney’s clients. 488 OCTOBER TERM, 1977 Opinion of the Court 435U.S. v. Woods, 544 F. 2d 242 (CA6 1976), cert, denied, 430 U. S. 969 (1977); Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119, 122-125 (1978). This argument rests on two aspects of the Court’s decision in Glasser. First, although it had concluded that Stewart was forced to represent conflicting interests, the Court did not reverse the conviction of Kretske, Stewart’s other client, because Kretske failed to “show that the denial of Glasser’s constitutional rights prejudiced [him] in some manner.” 315 U. S., at 76 (emphasis added). Second, the Court justified the reversal of Glasser’s conviction, in part, by emphasizing the weakness of the Government’s evidence against him; with guilt a close question, “error, which under some circumstances would not be ground for reversal, cannot be brushed aside as immaterial, since there is a real chance that it might have provided the slight impetus which swung the scales toward guilt.” Id., at 67 (emphasis added). Assessing the strength of the prosecution’s evidence against the defendant is, of course, one step in applying a harmless-error standard. See Schneble v. Florida, 405 U. S. 427 (1972); Harrington v. California, 395 U. S. 250 (1969). We read the Court’s opinion in Glasser, however, as holding that whenever a trial court improperly requires joint representation over timely objection reversal is automatic. The Glasser Court stated: “To determine the precise degree of prejudice sustained by Glasser as a result of the [district] court’s appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. Cf. Snyder v. Massachusetts, 291 U. S. 97, 116; Tumey v. Ohio, 273 U. S. 510, 535; Patton v. United States, 281 U. S. 276, 292.” 315 U. S., at 75-76. HOLLOWAY v. ARKANSAS 489 475 Opinion of the Court This language presupposes that the joint representation, over his express objections, prejudiced the accused in some degree. But from the cases cited it is clear that the prejudice is presumed regardless of whether it was independently shown. Tumey v. Ohio, 273 U. S. 510 (1927), for example, stands for the principle that “[a] conviction must be reversed if [the asserted trial error occurred], even if no particular prejudice is shown and even if the defendant was clearly guilty.” Chapman v. California, 386 U. S. 18, 43 (1967) (Stewart, J., concurring); see also id., at 23, and n. 8 (opinion of the Court). The Court’s refusal to reverse Kretske’s conviction is not contrary to this interpretation of Glasser. Kretske did not raise his own Sixth Amendment challenge to the joint representation. 315 U. S., at 77; see Brief for Petitioner Kretske in Glasser v. United States, 0. T. 1941, No. 31. As the Court’s opinion indicates, some of the codefendants argued that the denial of Glasser’s right to the effective assistance of counsel prejudiced them as alleged co-conspirators. 315 U. S., at 76-77. In that context, the Court required a showing of prejudice; finding none, it affirmed the convictions of the codefendants, including Kretske. Moreover, this Court has concluded that the assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, supra, at 23. Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U. S. 335 (1963); Hamilton v. Alabama, 368 U. S. 52 (1961); White v. Maryland, 373 U. S. 59 (1963). That an attorney representing multiple defendants with conflicting interests is physically present at pretrial proceedings, during trial, and at sentencing does not warrant departure from this general rule. Joint representation of conflicting interests is suspect because of what it tends to prevent 490 OCTOBER TERM, 1977 Opinion of the Court 435U.S. the attorney from doing. For example, in this case it may well have precluded defense counsel for Campbell from exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution, provided a lesser charge or a favorable sentencing recommendation would be acceptable. Generally speaking, a conflict may also prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another. Examples can be readily multiplied. The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters. Finally, a rule requiring a defendant to show that a conflict of interests—which he and his counsel tried to avoid by timely objections to the joint representation—prejudiced him in some specific fashion would not be susceptible of intelligent, even-handed application. In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. Compare Chapman v. California, supra, at 24-26, with Handing v. United States, 418 U. S. 87, 108 (1974), and United States v. Valle-Valdez, 554 F. 2d 911, 914-917 (CA9 1977). But in a case of joint representation of conflicting interests the evil—it bears repeating—is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would HOLLOWAY v. ARKANSAS 491 475 Powell, J., dissenting be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion. It is so ordered. Mr. Justice Powell, with whom Mr. Justice Blackmun and Mr. Justice Rehnquist join, dissenting. While disavowing a per se rule of separate representation, the Court holds today that the trial judge’s failure in this case “either to appoint separate counsel or take adequate steps to ascertain whether the risk was too remote to warrant separate counsel” worked*a violation of the guarantee of “assistance of counsel” embodied in the Sixth and Fourteenth Amendments. The Court accepts defense counsel’s representations of a possible conflict of interests among his clients and of his inability to conduct effective cross-examination as being adequate to trigger the trial court’s duty of inquiry. The trial court should have held an appropriate hearing on defense counsel’s motions for separate representation, but our task is to decide whether this omission assumes the proportion of a constitutional violation. Because I cannot agree that, in the particular circumstances of this case, the court’s failure to inquire requires reversal of petitioners’ convictions, and because the Court’s opinion contains seeds of a per se rule of separate representation merely upon the demand of defense counsel, I respectfully dissent. I It is useful to contrast today’s decision with the Court’s most relevant previous ruling, Glasser v. United States, 315 U. S. 60 (1942). In that case, the trial court ordered Glasser’s 492 OCTOBER TERM, 1977 Powell, J., dissenting 435U.S. retained lawyer, Stewart, to represent both Glasser and his codefendant, Kretske, even though Stewart had identified “inconsistency in the defense” that counseled against joint representation. Id., at 68. This Court reversed Glasser’s conviction because his lawyer had been required to undertake simultaneous representation of “conflicting interests.” Id., at 70. The Glasser decision did not rest only on the determination that “[t]he possibility of the inconsistent interests of Glasser and Kretske [had been] brought home to the court. . . .” Id., at 71. Instead, the Court proceeded to find record support for Glasser’s claim of “impairment” of his Sixth Amendment right to assistance of counsel. The evidence “indicative of Stewart’s struggle to serve two masters [could not] seriously be doubted.” Id., at 75; see also id., at 76. Today’s decision goes well beyond the limits of Glasser. I agree that the representations made by defense counsel in this case, while not as informative as the affidavit of counsel Stewart in Glasser, were sufficient to bring into play the trial court’s duty to inquire further into the possibility of “conflicting interests.” I question, however, whether the Constitution is violated simply by the failure to conduct that inquiry, without any additional determination that the record reveals a case of joint representation in the face of “conflicting interests.” The Court’s approach in this case is not premised on an ultimate finding of conflict of interest or ineffective assistance of counsel. Rather, it presumes prejudice from the failure to conduct an inquiry, equating that failure with a violation of the Sixth Amendment guarantee. The justification for this approach appears to be the difficulty of a post hoc reconstruction of the record to determine whether a different outcome, or even a different defense strategy, might have obtained had the trial court engaged in the requisite inquiry and ordered separate representation. Although such difficulty may be taken into account in the allocation of the burden of persuasion on the questions of conflict and prejudice, see infra, HOLLOWAY v. ARKANSAS 493 475 Powell, J., dissenting at 495-496, I am not convinced of the need for a prophylactic gloss on the requirements of the Constitution in this area of criminal law. Cf. Miranda v. Arizona, 384 U. S. 436 (1966). Several other aspects of the Court’s opinion suggest a rule of separate representation upon demand of defense counsel. The Court leaves little room for maneuver for a trial judge who seeks to inquire into the substantiality of the defense counsel’s representations. Apparently, the trial judge must order separate representation unless the asserted risk of conflict “was too remote to warrant separate counsel,” ante, at 484, a formulation that suggests a minimal showing on the part of defense counsel. The Court also offers the view that defense counsel in this case could not be expected to make the kind of specific proffer that was present in Glasser because of “a risk of violating, by more disclosure, his duty of confidentiality to his clients.” Ante, at 485. Although concededly not necessary to a decision in this case, the Court then states that the trial court’s inquiry must be conducted “without improperly requiring disclosure of the confidential communications of the client.” Ante, at 487, and n. 11? When these intimations are coupled with the Court’s policy of automatic reversal, see ante, at 488-489, the path may have been cleared for potentially disruptive demands for separate counsel predicated solely on the representations of defense counsel. 11 do not propose to resolve here the tension between the assertion of a constitutional right and a claim of lawyer-client privilege. But I reject the assumption that defense counsel will be unable to discuss in concrete terms the difficulties of joint representation in a particular case without betraying confidential communications. Nor am I persuaded that the courts will be unable to pursue a meaningful inquiry without insisting on a breach of confidentiality. Experience in the somewhat analogous area of claims of exemption from the disclosure requirements of the Freedom of Information Act, 5 U. S. C. § 552 (1976 ed.), supports this point. See, e. g., EPA v. Mink, 410 U. S. 73, 92-94 (1973); Vaughn v. Rosen, 157 U. S. App. D. C. 340, 484 F. 2d 820 (1973), cert, denied, 415 U. S. 977 (1974). 494 OCTOBER TERM, 1977 Powell, J., dissenting 435U.S. II Recognition of the limits of this Court’s role in adding protective layers to the requirements of the Constitution does not detract from the Sixth Amendment obligation to provide separate counsel upon a showing of reasonable probability of need. In my view, a proper accommodation of the interests of defendants in securing effective assistance of counsel and that of the State in avoiding the delay, potential for disruption, and costs inherent in the appointment of multiple counsel,2 can be achieved by means which sweep less broadly than the approach taken by the Court. I would follow the lead of the several Courts of Appeals that have recognized the trial court’s duty of inquiry in joint-representation cases without minimizing the constitutional predicate of “conflicting interests.” 3 2 Each addition of a lawyer in the trial of multiple defendants presents increased opportunities for delay in setting the trial date, in disposing of pretrial motions, in selecting the jury, and in the conduct of the trial itself. Additional lawyers also may tend to enhance the possibility of trial errors. Moreover, in light of professional canons of ethics, cf. ABA Code of Professional Responsibility, DR 5-105 (D) (1969); Allen v. District Court, 184 Colo. 202, 205-206, 519 P. 2d 351, 353 (1974); Tr. of Oral Arg. 6-7, 15-16, a rule requiring separate counsel virtually upon demand may disrupt the operation of public defender offices. 3 See, e. g., United States v. Carrigan, 543 F. 2d 1053, 1055-1056 (CA2 1976): “The mere representation of two or more defendants by a single attorney does not automatically give rise to a constitutional deprivation of counsel. It is settled in this Circuit that some specific instance of prejudice, some real conflict of interest, resulting from a joint representation, must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel. United States v. Mari, . . . 526 F. 2d [117,] 119 [(CA2 1975)]; United States v. Vowteras, 500 F. 2d 1210, 1211 (2d Cir.), cert, denied, 419 U. S. 1069 . . . (1974); United States v. Wisniewski, 478 F. 2d 274, 281 (2d Cir. 1973); United States v. Lovano, 420 F. 2d 769, 773 (2d Cir.), cert, denied, 397 U. S. 1071 . . . (1970). In all of these cases the trial court had carefully inquired as to the possibility of prejudice and elicited the personal responses of the de HOLLOWAY v. ARKANSAS 495 475 Powell, J., dissenting Ordinarily defense counsel has the obligation to raise objections to joint representation as early as possible before the commencement of the trial.4 When such a motion is made, supported by a satisfactory proffer, the trial court is under a duty to conduct “the most careful inquiry to satisfy itself that no conflict of interest would be likely to result and that the parties involved had no valid objection.” United States v. DeBerry, 487 F. 2d 448, 453 (CA2 1973). At that hearing, the burden is on defense counsel, because his clients are in possession of the relevant facts, to make a showing of a reasonable likelihood of conflict or prejudice. Upon such a showing, separate counsel should be appointed. “If the court has carried out this duty of inquiry, then to the extent a defendant later attacks his conviction on grounds of conflict of interest arising from joint representation he will bear a heavy burden indeed of persuading” the reviewing court “that he was, for that reason, deprived of a fair trial.” United States v. Foster, 469 F. 2d 1, 5 (CAI 1972). If, however, a proper and timely motion is made, and no hearing is held, “the lack of satisfactory judicial inquiry shifts the burden of proof on the question of prejudice to the Government.” United States v. Carrigan, 543 F. 2d 1053,1056 (CA2 1976). Since the trial judge in this case failed to inquire into the fendants involved. Here the record is barren of any inquiry by the court or any concern by the Government. “In United States v. DeBerry, supra, 487 F. 2d, at 453-54, we . . . noted with approval the view of the First Circuit in United States v. Foster, 469 F. 2d 1, 5 (1st Cir. 1972), that the lack of satisfactory judicial inquiry shifts the burden of proof on the question of prejudice to the Government. 487 F. 2d at 453 n. 6.” 4 Since a proper, timely objection was interposed in this case, there is no occasion to identify the circumstances which might trigger a duty of inquiry in the absence of such a motion. Of course, a later motion may be appropriate if the conflict is not known or does not become apparent before trial proceeds. To guard against strategic disruption of the trial, however, the court may require a substantial showing of justification for such midtrial motions. 496 OCTOBER TERM, 1977 Powell, J., dissenting 435U.S. substantiality of defense counsel’s representations of September 4,1975, ante, at 484 n. 7, the burden shifted to the State to establish the improbability of conflict or prejudice. I agree that the State’s burden is not met simply by the assertion that the defenses of petitioners were not mutually inconsistent, for that is not an infrequent consequence of improper joint representation. Nevertheless, the record must offer some basis for a reasonable inference that “conflicting interests” hampered a potentially effective defense. See, e. g., United States v. Donahue, 560 F. 2d 1039, 1044-1045 (CAI 1977). Because the State has demonstrated that such a basis cannot be found in the record of this case,5 I would affirm the judgment of the Supreme Court of Arkansas. 5 It is unlikely that separate counsel would have been able to develop an independent defense in this case because of the degree of overlap in the identification testimony by the State’s witnesses and because of the consistency of the alibis advanced by petitioners. Campbell and Welch, who are half brothers, both used the same alibi. Since Campbell was not identified as an actual participant in the rapes, it might be argued that separate counsel would have encouraged him to endorse his earlier confession in an effort to show that he was less culpable than his two codefendants. But, given his common alibi with Welch, Campbell would have found it difficult to extricate himself from his half brother’s cause. In any event, such an argument would have been an appeal to jury nullification because, as the court below noted, Campbell’s denial of direct involvement in the rapes "had no effect on his guilt as a principal.” 260 Ark. 250, 256, 539 8. W. 2d 435, 439 (1976). Conceivably Holloway, who gave an independent alibi, might have wished to argue that while the State had apprehended two of the real culprits, his arrest was due to a mistaken identification. It is most unlikely that separate counsel would have succeeded on such a tack because each witness who identified Holloway also identified one of the other two codefendants. Moreover, petitioners do not argue in this Court that joint representation impeded effective cross-examination of the State’s witnesses. In sum, this is not a case where an inquiry into the possibility of “conflicting interests” reasonably might have revealed a basis for separate representation. MALONE v. WHITE MOTOR CORP. 497 Syllabus MALONE, COMMISSIONER OF LABOR AND INDUSTRY FOR MINNESOTA v. WHITE MOTOR CORP. ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 76-1184. Argued January 10, 1978—Decided April 3, 1978 The 1971 version of a pension plan negotiated by appellee company and the union representing its employees provided that pensions were to be payable only from a fund established under the plan. Funding of the pension plan was in part to be on a deferred basis; the excess of accrued liability of the fund’s assets was to be met through contributions from the employer’s continuing operations. Though the company had the right to terminate the plan, it guaranteed to pay benefits amounting to $7 million above the fund’s assets. A few weeks before appellee, on May 1, 1974, exercised its termination right, Minnesota’s Private Pension Benefits Protection Act (Pension Act) was enacted, which imposed “a pension funding charge” directly against any employer who ceased to operate a place of employment or a pension plan. After appellant state official had certified that appellee by application of the Pension Act owed a pension funding charge of over $19 million, appellee brought this suit in District Court, challenging the constitutionality of the Pension Act, inter alia, on the ground that it interfered with the process of collective bargaining sanctioned by the National Labor Relations Act (NLRA) and therefore was pre-empted by the NLRA. Section 10 (b) of the federal Welfare and Pension Plans Disclosure Act (Disclosure Act) provided that the Disclosure Act shall not exempt any person from liability provided by any present or future federal or state law affecting the operation of pension plans. Section 10 (a) provided that the Disclosure Act shall not be construed to prevent any State from obtaining additional information relating to a pension plan “or from otherwise regulating such plan.” The District Court, having taken note of the § 10 (b) disclaimer, found sufficient evidence of congressional intent that the Pension Act was not pre-empted by federal law, and ruled in favor of appellant. The Court of Appeals reversed, holding that by purporting to override the existing pension plan in several respects, the Pension Act encroached upon subjects that Congress had committed for determination to the collective-bargaining process. The court also concluded that § 10 (b) of the Disclosure Act related only to state 498 OCTOBER TERM, 1977 Syllabus 435 U. S. statutes governing those obligations of trust undertaken by persons managing employment benefit funds, the violation of which gives rise to criminal or civil penalties, and that therefore there was no basis for construing the Disclosure Act as leaving a State with power to change the substantive terms of pension plan agreements. Held: 1. The NLRA neither expressly nor by implication forecloses state regulatory power over pension plans that may be the subject of collective bargaining. Section^ 10 (b) and 10 (a) of the Disclosure Act, together with the legislative history of that statute, indicate Congress’ intention to preserve state regulatory authority over pension plans, including those resulting from collective bargaining. Congress was concerned not only with corrupt pension plans but also with the possibility that those that were honestly managed would be prematurely terminated by the employer, leaving employees without, funded pensions at retirement age; and the Disclosure Act clearly anticipated a broad regulatory role for the States. Pp. 504-514. 2. That the Pension Act applies to pre-existing collective-bargaining agreements does not render it pre-empted, since it does not render it more or less consistent with congressional policy. Appellee’s claim of unfair retroactive impact may be considered in the context of appellee’s due process and impairment-of-contract claims, which are not before the Court and which the District Court will consider on remand. Pp. 514r-515. 545 F. 2d 599, reversed. White, J., delivered the opinion of the Court, in which Marshall, Rehnquist, and Stevens, JJ., joined. Stewart, J., post, p. 515, and Powell, J., post, p. 516, filed dissenting opinions, in which Burger, C. J., joined. Brennan and Blackmun, JJ., took no part in the consideration or decision of the case. Richard B. Allyn, Solicitor General of Minnesota, argued the cause for appellant. With him on the briefs were Warren Spannaus, Attorney General, and Kent G. Harbison, Richard A. Lockridge, and Jon K. Murphy, Special Assistant Attorneys General. Frank C. Heath argued the cause for appellees. With him on the brief were Curtis L. Roy, Erwin Griswold, and John L. Strauch. Allan A. Ryan, Jr., argued the cause for the United States MALONE v. WHITE MOTOR CORP. 499 497 Opinion of the Court as amicus curiae urging reversal. On the brief were Solicitor General McCree, John S. Irving, Carl L. Taylor, Norton J. Come, Linda Sher, and David S. Fishback* Mr. Justice White delivered the opinion of the Court. A Minnesota statute, the Private Pension Benefits Protection Act, Minn. Stat. § 181B.01 et seq. (1976) (Pension Act), passed in April 1974, established minimum standards for the funding and vesting of employee pensions. The question in this case is whether this statute, which since January 1, 1975, has been pre-empted by the federal Employee Retirement Income Security Act of 1974 (ERISA),* 1 was pre-empted prior to that time by federal labor policy insofar as it purported to override or control the terms of collective-bargaining agreements negotiated under the National Labor Relations Act (NLRA). A Federal District Court held that it was not, 412 F. Supp. 372 (Minn. 1976), but the Court of Appeals for the Eighth Circuit disagreed and held the Pension Act invalid. 545 F. 2d 599 (1976). Because the case fell within our mandatory appellate jurisdiction pursuant to 28 U. S. C. § 1254 (2), we noted probable jurisdiction. 434 U. S. 813. We reverse. I In 1963, White Motor Corp, and its subsidiary, White Farm Equipment Co. (hereafter collectively referred to as appellee), *Peter G. Nash, Eugene B. Granoj, and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance. J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae. 1 ERISA, 88 Stat. 832, 29 U. S. C. § 1001 et seq. (1970 ed., Supp. V), provides for comprehensive federal regulation of employee pension plans, and contains a provision expressly pre-empting all state laws regulating covered plans. § 1144 (a) (1970 ed., Supp. V). Because ERISA did not become effective until January 1, 1975, and expressly disclaims any effect with regard to events before that date, it does not apply to the facts of this case. 500 OCTOBER TERM, 1977 Opinion of the Court 435U.S. purchased from another company two farm equipment manufacturing plants, located in Hopkins, Minn., and Minneapolis, Minn, (on Lake Street). The employees at these plants, represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), were covered by a pension plan established through collective bargaining. Under the 1971 collective-bargaining contract, the Pension Plan provided that an employee who attained the age of 40 and completed 10 or more years of credited service with the company was entitled to a pension. The amount of the pension would depend upon the age at which the employee retired. In language unchanged since 1950, the 1971 Plan provided that “ [p] ensions shall be payable only from the Fund, and rights to pensions shall be enforceable only against the Fund.” App. 155.2 The Plan, however, was to be funded in part on a deferred basis. The unpaid past service liability— the excess of accrued liability over the present value of the assets of the Fund—was to be met through contributions by the employer from its continuing operations.3 2 Section 6.17 of the Plan also stated: “No benefits other than those specifically provided for are to be provided under this Plan. No employee shall have any vested right under the Plan prior to his retirement and then only to the extent specifically provided herein.” App. to Jurisdictional Statement A-29. Section 9.04, “Rights of Employees in Fund,” is also relevant: “No employee, participant or pensioner shall have any right to, or interest in any part of any Trust Fund created hereunder, upon termination of employment or otherwise, except as provided under this Plan and only to the extent therein provided. All payments of benefits as provided for in this Plan shall be made only out of the Fund or Funds of the Plan, and neither the Company nor any Trustee nor any Pension Committee or Member thereof shall be liable therefore in any manner or to any extent.” App. to Jurisdictional Statement A-7. 3 The 1971 version of the Plan contained a provision which required the employer to fund the net deficiency over a period of 35 years, beginning MALONE v. WHITE MOTOR CORP. 501 497 Opinion of the Court Section 10.02 of the Plan provided that “[t]he Company shall have the sole right at any time to terminate the entire plan.” During the 1968 and 1971 negotiations, however, the UAW obtained from appellee guarantees that, upon termination, pensions for those entitled to them would remain at certain designated levels, though lower than those specified in the Plan.4 By virtue of these guarantees, appellee assumed a direct liability for pension payments amounting to $7 million above the assets in the Fund. Appellee exercised its contractual right to terminate the Pension Plan on May 1, 1974.5 A few weeks before, however, the Pension Act had been enacted. This statute imposed “a pension funding charge” directly against any employer who ceased to operate a place of employment or a pension plan. This charge would be sufficient to insure that all employees with 10 or more years of service would receive whatever pension benefits had accrued to them, regardless of whether their rights to those benefits had “vested” within the terms of in 1971. The 1968 version contained a similar provision which contemplated that the deficiency would be amortized over a 30-year period. 4 The effect of the guarantees was to assure that the employees would receive pension benefits at a level about 60% of that specified in the Plan. 5 In January 1972, after several years of losses, appellee informed the UAW that it intended to close both of the plants at issue. As a result of negotiations, the Hopkins plant continued to operate, but the Lake Street plant was closed. At the time the Lake Street plant was closed, there was a net deficiency in the Pension Fund of $14 million. As of January 1, 1975, there were 981 retirees under the Plan and 233 persons eligible for deferred pensions. In addition, there were 44 terminated employees who at the time of the termination had 10 years of service but had not attained the age of 40. Two hundred and sixty employees continued to work at the Hopkins plant. Appellee also attempted to terminate the Pension Plan on June 30, 1972, but the UAW challenged this action on the ground that the Plan could not be terminated until expiration of the collective-bargaining agreement on May 1, 1974. An arbitrator upheld the union’s position. See International Union, UAW v. White Motor Corp., 505 F. 2d 1193 (CA8 1974). 502 OCTOBER TERM, 1977 Opinion of the Court 435U.S. the Plan. The funds obtained through the pension funding charge would then be used to purchase an annuity payable to the employee when he reached normal retirement age. Although the Pension Act did not compel an employer to adopt or continue a pension plan, it did guarantee to employees with 10 or more years’ service full payment of their accrued pension benefits. Pursuant to the Pension Act, the appellant, Commissioner of Labor and Industry of the State of Minnesota, undertook an investigation of the pension plan termination here involved and later certified that the sum necessary to achieve compliance with the Pension Act was $19,150,053. Under the Pension Act, a pension funding charge in this amount became a lien on the assets of appellee. Appellee promptly filed this suit in Federal District Court. Appellee’s complaint, as amended, asserted violations of the Supremacy Clause, the Contract Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. The Supremacy Clause claim was based on the argument that the Pension Act was in conflict with several provisions of the NLRA,6 as amended, 29 U. S. C. § 151 et seq., because it “interferes with the right of Plaintiffs to free collective bargaining under federal law and . . . vitiates collective bargaining agreements entered into under the authority of federal law, by imposing upon Plaintiffs obligations which, by the express terms of such collective bargaining agreements, Plaintiffs were not required to assume.” App. A-9—A-10. Appellee moved for partial summary judgment or, alternatively, for a preliminary injunction based on the pre-emption claim. Distinguishing Teamsters v. Oliver, 358 U. S. 283 (1959), and relying on evidence of congressional intent contained in 6 The complaint claimed a conflict with the provisions and policies of §§ 1, 7, 8 (a)(5), 8 (b)(3), and 8 (d) of the NLRA, 29 U. S. C. §§ 151, 157, 158 (a) (5), 158 (b) (3), and 158 (d). MALONE v. WHITE MOTOR CORP. 503 497 Opinion of the Court the federal Welfare and Pension Plans Disclosure Act (Disclosure Act), 72 Stat. 997, as amended, 76 Stat. 35, 29 U. S. C. § 301 et seq., the District Court held that the Pension Act was not pre-empted by federal law. 412 F. Supp. 372 (Minn. 1976). On appeal, the Court of Appeals for the Eighth Circuit held that the Pension Act was pre-empted by federal labor law, and reversed the District Court. 545 F. 2d 599 (1976). The reason was that the Pension Act purported to override the terms of the existing pension plan, arrived at through collective bargaining, in at least three ways: It granted employees vested rights not available under the pension plan; to the extent of any deficiency in the pension fund, it required payment from the general assets of the employer, while the pension plan provided that benefits shall be paid only out of the pension fund; and the Pension Act imposed liability for posttermination payments to the pension fund beyond those specifically guaranteed. This, the court ruled, the State could not do; for if, under Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132 (1976), “states cannot control the economic weapons of the parties at the bargaining table, a fortiori, they may not directly control the substantive terms of the contract which results from that bargaining.” 545 F. 2d, at 606. Further, as the court understood the opinion in Oliver, supra, “a state cannot modify or change an otherwise valid and effective provision of a collective bargaining agreement.” 545 F. 2d, at 608. Finally, the Court of Appeals found that the pre-emption disclaimer in the Disclosure Act relied on by the District Court related only “to state statutes governing those obligations of trust undertaken by persons managing, administrating or operating employee benefit funds, the violation of which gives rise to civil and criminal penalties. Accordingly, no warrant exists for construing this legislation to leave to a state the power to change substantive terms of pension plan agreements.” Id., at 609. 504 OCTOBER TERM, 1977 Opinion of the Court 435U.S. II It is uncontested that whether the Minnesota statute is invalid under the Supremacy Clause depends on the intent of Congress. “The purpose of Congress is the ultimate touchstone.” Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963). Often Congress does not clearly state in its legislation whether it intends to pre-empt state laws; and in such instances, the courts normally sustain local regulation of the same subject matter unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States. Ray v. Atlantic Richfield Co., ante, at 157-158; Jones v. Rath Packing Co., 430 U. S. 519, 525, 540-541 (1977); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). “We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers and unions; obviously, much of this is left to the States.” Motor Coach Employees v. Lockridge, 403 U. S. 274, 289 (1971). The Pension Act “leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.” Garner v. Teamsters, 346 U. S. 485, 488 (1953). Here, the Court of Appeals concluded that the Minnesota statute was invalid because it trenched on what the court considered to be subjects that Congress had committed for determination to the collective-bargaining process. There is little doubt that under the federal statutes governing labor-management relations, an employer must bargain about wages, hours, and working conditions and that pension benefits are proper subjects of compulsory bargaining. But there is nothing in the NLRA, including those sections on which appellee relies, which expressly forecloses all state regulatory power with respect to those issues, such as pension MALONE v. WHITE MOTOR CORP. 505 497 Opinion of the Court plans, that may be the subject of collective bargaining. If the Pension Act is pre-empted here, the congressional intent to do so must be implied from the relevant provisions of the labor statutes. We have concluded, however, that such implication should ,not be made here and that a far more reliable indicium of congressional intent with respect to state authority to regulate pension plans is to be found in § 10 of the Disclosure Act. Section 10 (b) provided: “The provisions of this Act, except subsection (a) of this section and section 13 and any action taken thereunder, shall not be held to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of the United States or of any State affecting the operation or administration of employee welfare or pension benefit plans, or in any manner to authorize the operation or administration of any such plan contrary to any such law.” Also, § 10 (a), after shielding an employer from duplicating state and federal filing requirements, makes clear that other state laws remained unaffected: “Nothing contained in this subsection shall be construed to prevent any State from obtaining such additional information relating to any such plan as it may desire, or from otherwise regulating such plan.” Contrary to the Court of Appeals, we believe that the foregoing provisions, together with the legislative history of the 1958 Disclosure Act, clearly indicate that Congress at that time recognized and preserved state authority to regulate pension plans, including those plans which were the product of collective bargaining. Because the 1958 Disclosure Act was in effect at the time of the crucial events in this case, the expression of congressional intent included therein should control the decision here.7 7 The Disclosure Act, codified at 29 U. S. C. § 301 et seq., was specifi- 506 OCTOBER TERM, 1977 Opinion of the Court 435U.S. Congressional consideration of the problems in the pension field began in 1954, after the President sent a message to Congress recommending that “Congress initiate a thorough study of welfare and pension funds covered by collective bargaining agreements, with a view of enacting such legislation as will protect and conserve these funds for the millions of working men and women who are the beneficiaries.” * 8 In the next four years, through hearings, studies, and investigations, a Senate Subcommittee canvassed the problems of the nearly unregulated pension field and possible solutions to them. Although Congress turned up extensive evidence of kickbacks, embezzlement, and mismanagement, it concluded: “The most serious single weakness in this private social insurance complex is not in the abuses and failings enumerated above. Overshadowing these is the too frequent practice of withholding from those most directly affected, the employee-beneficiaries, information which will permit them to determine (1) whether the program is being administered efficiently and equitably, and (2) more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them.” S. Rep. No. 1440, 85th Cong., 2d Sess., 12 (1958) (hereinafter S. Rep.). As a first step toward protection of the workers’ interests in their pensions, Congress enacted the 1958 Disclosure Act. The statute required plan administrators to file with the Labor cally repealed by ERISA. 29 U. S. C. §1031 (a) (1970 ed., Supp. V). However, ERISA was enacted on September 2, 1974—after the operative events in this case—and the repeal did not take effect until January 1, 1975. § 1031 (b)(1) (1970 ed., Supp. V). See generally n. 1, supra. 8 Public Papers of The Presidents, Dwight D. Eisenhower, 1954,5, p. 43 (1960). MALONE v. WHITE MOTOR CORP. 507 497 Opinion of the Court Department and make available upon request both a description of the plan and an annual report containing financial information. In the case of a plan funded through a trust, the annual report was to include, inter alia, “the type and basis of funding, actuarial assumptions used, the amount of current and past service liabilities, and the number of employees both retired and nonretired covered by the plan . . . ,” as well as a valuation of the assets of the fund. The statute did not, however, prescribe any substantive rules to achieve either of the two purposes described above. The Senate Report explained: “[T]he legislation proposed is not a regulatory statute. It is a disclosure statute and by design endeavors to leave regulatory responsibility to the States.” S. Rep. 18. This objective was reflected in §§10 (a) and 10 (b), quoted above. As the Senate Report explained, the statute was designed “to leave to the States the detailed regulations relating to insurance, trusts and other phases of their operations.” S. Rep. 19. There was “no desire to get the Federal Government involved in the regulation of these plans but a disclosure statute which is administered in close cooperation with the States could also be of great assistance to the States in carrying out their regulatory functions.” Id., at 18. There is also no doubt that the Congress which adopted the Disclosure Act recognized that it was legislating with respect to pension funds many of which had been established by collective bargaining. The message from the President which had prompted the original inquiry had focused on the need to protect workers “covered by collective bargaining agreements.” The problems that Congress had identified were characteristic of bargained-for plans as well as of others. The Reports of both the Senate and House Committees explained that pension funds were frequently established 508 OCTOBER TERM, 1977 Opinion of the Court 435U.S. through the collective-bargaining process. S. Rep. 8; H. R. Rep. No. 2283, 85th Cong., 2d Sess., 9 (1958) (hereinafter H. R. Rep.). The Senate Report emphasized the need for protection even where the plan was incorporated in a collectivebargaining agreement. S. Rep. 4, 8, 14. Congressmen explaining the bill on the floor also made clear that the bill would apply to pension plans “whether or not they have been brought into existence through collective bargaining.” 104 Cong. Rec. 16420 (1958) (remarks of Cong. Lane); id., at 16425 (remarks of Cong. Wolverton); see id., at 7049-7052 (remarks of Sen. Kennedy). Indeed, the bill met opposition in both the Senate and the House on the ground that its approach would “require employers to surrender to labor unions economic and bargaining power which should be negotiated through the normal channels of collective bargaining.” S. Rep. 34 (minority view of Sen. Allott); accord, H. R. Rep. 25 (minority views).9 Yet neither the bill as enacted nor its 9 Opponents of the bill argued that the legislation would “seriously interfere with . . . bargaining relationships” by giving labor unions access to information about the costs of certain employer-administered benefit plans. 104 Cong. Rec. 7209 (1958) (remarks of Sen. Allott). In these level-of-benefit plans, the employer guaranteed to his employees specified benefits and then undertook the full cost and management of the plan. The unions were often not told the annual cost of providing benefits under the plan. Senator Allott, the principal opponent of the bill, argued on the floor: “Where the employer, either on his own initiative or as a result of collective bargaining, agrees to provide a level-of-benefits plan, the question of whether employees or their representatives should have further information is one to be bargained between them. How the employer intends to meet this financial obligation, or how the financial operation of the fund is set up to pay the benefits, is a matter to be settled by the parties concerned—not granted by operation of law.” Id., at 7208. Congressman Bosch, the leading opponent of the bill in the House, argued bluntly: “Those level-of-benefits plans which now operate under collective bargaining contracts were agreed to with the full knowledge by the unions MALONE v. WHITE MOTOR CORP. 509 497 Opinion of the Court legislative history drew a distinction between collectively bargained and all other plans, either with regard to the disclosure role of the federal legislation or the regulatory functions that would remain with the States. Appellee argues that the Disclosure Act’s allocation of regulatory responsibility to the States is irrelevant here because the Disclosure Act was “enacted to deal with corruption and mismanagement of funds.” Brief for Appellees 36. We think that the appellee advances an excessively narrow view of the legislative history. Congress was concerned not only with corruption, but also with the possibility that honestly managed pension plans would be terminated by the employer, leaving the employees without funded pensions at retirement age. The Senate Report specifically stated: “Entirely aside from abuses or violations, there are compelling reasons why there should be disclosure of the financial operation of all types of plans.” S. Rep. 16. The Report then reproduced a chart showing the number of pension plans registered with the Internal Revenue Service that had been terminated during a 2-month period. Ibid. The Senate Committee also observed: “Trusteed pension plans commonly limit benefits, even though fixed, to what can be paid out of the funds in the pension trust.” Id., at 15. As an illustration, the Report quoted language from a collectively bargained pension plan disclaiming any liability of the company in the event of termination. involved that the cost, operation and management were the exclusive right of the persons responsible under the plans and, if the unions desired it otherwise, they could have bargained on some other basis than level-of-benefits. If the labor unions wish to change this situation, they should do it through the normal channels of collective bargaining and not by legislation.” Id., at 16424. Amendments proposed by Senator Allott and Congressman Bosch seeking to exempt level-of-benefits plans from the statute were defeated. Id., at 7333, 16442. 510 OCTOBER TERM, 1977 Opinion of the Court 435U.S. Ibid™ The Senate Report also showed an awareness of the problems posed by vesting requirements11 and expressed concern that “employees whose rights do not mature within such contract period must rely upon the expectation that their union will be able to renew the contract or negotiate a similar one upon its termination.” Id., at 8. Thus, Congress was concerned with many of the same issues as are involved in this case—unexpected termination, inadequate funding, unfair vesting requirements. In preserving generally state laws “affecting the operation or administration of employee welfare or pension benefit plans,” 72 Stat. 1003, Congress indicated that the States had and were to have authority to deal with these problems. Moreover, it should be emphasized that § 10 of the Disclosure Act referred specifically to the “future,” as well as 10 11 10 The Report quoted “representative language” from a General Motors-UAW contract which provided: “The pension benefits of the plan shall be only such as can be provided by the assets of the pension fund or by any insured fund, and there shall be no liability or obligation on the part of the corporation to make any further contributions to the trustee or the insurance company in event of termination of the plan. No liability for the payment of pension benefits under the plan shall be imposed upon the corporation, the officers, directors, or stockholders of the corporation.” S. Rep. 15. 11 Among the “basic facts” noted by the Committee were: “9. The employees covered by these group plans have no specific rights until they meet the conditions of the particular plans. For example, in the case of a pension plan this might involve 30 years’ service and the attainment of age 65 .... “10. Although these plans envisaged a continuing operation to provide benefits for all employees covered—in plans which are not collectively bargained, which constitute the majority of all plans and which are predominantly administered by employers, there is actually no assurance that the benefits will be forthcoming in view of a universally employed clause in such plans to the effect that the employer can terminate the plan at his discretion. Even in collectively bargained plans the employer’s agreement to provide for part or all the costs of the benefits is a short-term contract of 1 to 5 years.” Id., at 4. MALONE v. WHITE MOTOR CORP. 511 497 Opinion of the Court “present” laws of the States. Congress was aware that the States had thus far attempted little regulation of pension plans.12 The federal Disclosure Act was envisioned as laying a foundation for future state regulation. The Congress sought “to provide adequate information in disclosure legislation for possible later State . . . regulatory laws.” H. R. Rep. 2. Senator Kennedy, a manager of the bill, explained to his colleagues: “The objective of the bill is to provide more adequate protection for.the employee-beneficiaries of these plans through a uniform Federal disclosure act which will . . . make the facts available not only to the participants and the Federal Government but to the States, in order that any desired State regulation can be more effectively accomplished.” 104 Cong. Rec. 7050 (1958). See also S. Rep. 18. Senator Kennedy had “no doubt that this [was] an area in which the States [were] going to begin to move.” 104 Cong. Rec. 7053 (1958). The aim of the Disclosure Act was perhaps best summarized by Senator Smith, the ranking Republican on the Senate Committee and a supporter of the bill. He stated: “It seems to be the policy of the pending legislation to extend beyond the problem of corruption. As stated in the language of the bill, one of its aims is to make available to the employee-beneficiaries information which will permit them to determine, first, whether the program is being administered efficiently and equitably; and, second, more importantly, whether or not the assets and 12 Senator Ives, who had served as chairman of the Senate Investigating Committee during the 83d Congress, explained: “Six States already have enacted legislation on the general subject of pension and welfare plans. Other States are considering such legislation.” 104 Cong. Rec. 7186-7187 (1958). The coverage of extant state legislation was more fully discussed in S. Rep. 18. 512 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. prospective income of the programs are sufficient to guarantee the benefits which have been promised to them. “This present bill provides for far more than anticorruption legislation directed against the machinations of dishonest men who betray their trust. Rather, it inaugurates a new social policy of accountability. . . . “This policy could very well lead to the establishment of mandatory standards by which these plans must be governed.” Id., at 7517. It is also clear that Congress contemplated that the primary responsibility for developing such “mandatory standards” would lie with the States. Although Congress came to a quite different conclusion in 1974 when ERISA was adopted, the 1958 Disclosure Act clearly anticipated a broad regulatory role for the States. In light of this history, we cannot hold that the Pension Act is nevertheless implicitly pre-empted by the collective-bargaining provisions of the NLRA. Congress could not have intended that bargained-for plans, which were among those that had given rise to the very problems that had so concerned Congress, were to be free from either state or federal regulation insofar as their substantive provisions were concerned. The Pension Act seeks to protect the accrued benefits of workers in the event of plan termination and to insure that' the assets and prospective income of the plan are sufficient to guarantee the benefits promised—exactly the kind of problems which the 85th Congress hoped that the States would solve. This conclusion is consistent with the Court’s decision in Teamsters v. Oliver, 358 U. S. 283 (1959), which concerned a claimed conflict between a state antitrust law and the terms of a collective-bargaining agreement specially adapted to the trucking business. The agreement prescribed a wage scale for truckdrivers and, in order to prevent evasion, provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed wage, a stated minimum rental MALONE v. WHITE MOTOR CORP. 513 497 Opinion of the Court for the use of their vehicles. An Ohio court had invalidated this portion of the collective-bargaining agreement under Ohio antitrust law. This Court reversed, noting that “ [t]he application [of the Ohio law] would frustrate the parties’ solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here.” Id., at 296. The Oliver opinion contains broad language affirming the independence of the collective-bargaining process from state interference: “Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty . . . and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide .... We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties’ agreement can provide to the problems of wages and working conditions.” Ibid, (citations omitted). The opinion nevertheless recognizes exceptions to this general rule. One of them, necessarily anticipated, was the situation where it is evident that Congress intends a different result: “The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U. S. 301, 307-312.” Ibid.13 13 The Court also pointed out: “We have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the 514 OCTOBER TERM, 1977 Opinion of the Court 435U.S. As we understand the 1958 Disclosure Act and its legislative history, the collective-bargaining provisions at issue here dealt with precisely the sort of subject matter “which Congress . . . indicated may be left to [regulation] by the several states.” Congress clearly envisioned the exercise of state regulation power over pension funds, and we do not depart from Oliver in sustaining the Minnesota statute. Ill Insofar as the Supremacy Clause issue is concerned, no different conclusion is called for because the Minnesota statute was enacted after the UAW-White Motor Corp, agreement had been in effect for several years. Appellee points out that the parties to the 1971 collective-bargaining agreement therefore had no opportunity to consider the impact of any such legislation. Although we understand the equitable considerations which underlie appellee’s argument, they are not material to the resolution of the pre-emption issue since they do not render the Minnesota Pension Act any more or less consistent with congressional policy at the time it was adopted.14 Our decision in this case is, of course, limited to appellee’s claim that the Minnesota statute is inconsistent with the federal labor statutes. Appellee’s other constitutional claims are not before us. It remains for the District Court to consider on remand the contentions that the Minnesota Pension Act impairs contractual obligations and fails to provide due federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce.” 358 U. S., at 297. The State claims that the statute is a health or safety regulation that would be valid under Oliver, wholly aside from the Disclosure Act. We need not pass on this contention. 14 We note that the United States as amicus curiae, argues that the Minnesota statute is not pre-empted. Its view is that application of the Minnesota Pension Act to pre-1974 labor agreements is not disruptive of the federal labor scheme. MALONE v. WHITE MOTOR CORP. 515 497 Stewart, J., dissenting process in violation of the United States Constitution. Without intimating any views on the merits of those questions,15 we note that appellee’s claim of unfair retroactive impact can be considered in that context. All that we decide here is that the decision of the Court of Appeals finding federal preemption of the Minnesota Pension Act should be and hereby is Reversed. Mr. Justice Brennan and Mr. Justice Blackmun took no part in the consideration or decision of this case. Mr. Justice Stewart, with whom The Chief Justice joins, dissenting. I substantially agree with the reasoning of the Court of Appeals for the Eighth Circuit in this case. 545 F. 2d 599. Accordingly, I would affirm the judgment before us. The Court today seems to concede that Minnesota’s statutory modification of the appellee’s substantive obligations under its collective-bargaining agreement would be pre-empted by the federal labor laws if Congress had not somehow indicated that the State was free to impose this particular modification. Ante, at 513-514. The Court finds such an indication implicit in Congress’ failure to undertake substantive regulation of pension plans when it enacted the so-called Disclosure Act of 1958. I do not believe, however, that inferences drawn largely from what Congress did not do in enacting the Disclosure Act are sufficient to override the fundamental policy of the national labor laws to leave undisturbed “the parties’ solution of a problem which Congress has 15 In Fleck v. Spannaus, 449 F. Supp. 644 (Minn. 1977), a three-judge District Court upheld the Minnesota Pension Act against a federal constitutional challenge based on the Contract Clause, as well as other constitutional provisions. We have noted probable jurisdiction in that case sub nom. Allied Structural Steel Co. v. Spannaus, 434 U. S. 1045, but have not yet heard oral argument. 516 OCTOBER TERM, 1977 Powell, J., dissenting 435 U.S. required them to negotiate in good faith toward solving . . . .” Teamsters v. Oliver, 358 U. S. 283, 296. Mr. Justice Powell, with whom The Chief Justice joins, dissenting. I join Mr. Justice Stewart’s conclusion that the evidence as to what Congress did not do in the federal Welfare and Pension Plans Disclosure Act, 72 Stat. 997, 29 U. S. C. § 301 et seq., is insufficient to override national labor policy barring interference by the States with privately negotiated solutions to problems involving mandatory subjects of collective bargaining. As in Teamsters v. Oliver, 358 U. S. 283, 297 (1959), “[w]e have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce.” The statute in this case removes from the bargaining table certain means of dealing with an inevitable trade-off between somewhat conflicting industrial relations goals—the tension between maintaining competitive standards of present compensation and, at the same time, creating a solvent fund for the security of long-term employees upon retirement. In essence, Minnesota has restricted the available options to the fully funded pension plan that vests upon 10 years of service, whenever an employer ceases to operate a place of employment or pension plan. It also imposes a principle of direct liability that well may discourage employer participation in matters of such vital importance to working men and women. The retroactivity feature of the Minnesota measure exacerbates the degree of interference with the system of free collective bargaining. Here a statute resulting in the imposition on appellee of substantial financial liability, perhaps as large as $19 million, was enacted and took effect at a time when a MALONE v. WHITE MOTOR CORP. 517 497 Powell, J., dissenting collective-bargaining agreement embodying different provisions continued in force, by virtue of an arbitration decision, even though the plant in question had closed. Essential features of the negotiated plan, including deferred funding of past-service liability, limited employer liability, and a power of termination, were negated by the legislation. The parties were given no opportunity to consider this expansion of liability in determining how the bargain should be struck. It is not unlikely that the provisions of the pension plan in issue would have been different if the parties could have predicted this statutory development. This is not, therefore, a case where state law serves as a backdrop to negotiations, while affording the parties considerable freedom to strike the best possible bargain consistent with state substantive policies. This statute became law in midterm, significantly changing the economic balance reached by the parties at the bargaining table. In the absence of congressional indication to the contrary, or the type of local health or safety regulation adverted to in Oliver, the States may not alter the terms of existing collective-bargaining agreements on mandatory subjects of bargaining. Congress can be expected to take into account the impact of retroactive legislation on the bargaining process, and often provides for a delayed effective date in order to minimize any disruption.* But the States, because their *Unlike the Minnesota statute, the federal Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. § 1001 et seq. (1970 ed., Supp. V), provides for a careful phasing in of the statute’s requirements in the case of collectively negotiated pension plans. For such plans, ERISA funding requirements will apply only to plan years beginning after termination of the collective-bargaining agreement in effect on January 1, 1974, or plan years beginning after December 31, 1980, whichever is earlier. §§ 1061 (c) (1) and 1086 (c) (1) (1970 ed., Supp. V). This type of considered congressional response to the special problems of arrangements flowing from collective-bargaining agreements is also found in the Equal Pay Act of 1963, § 4, 77 Stat. 57, amending the Fair Labor Standards Act of 1938, 29 IT. S. C. §206 (d). Congress provided that in 518 OCTOBER TERM, 1977 Powell, J., dissenting 435U.S. concerns are distinct from the considerations that animate a national labor policy, are unlikely to weigh—with perception and understanding—the relevant private and public interests. There is little evidence that Minnesota took more than a parochial view of these considerations when it amended retroactively the bargaining agreement of the parties. Until Congress expresses its will in clearer fashion than the ambiguous pre-emption disclaimer of the 1958 Disclosure Act, ante, at 505, federal labor policy requires invalidation of the type of statute involved in this case. I would affirm the judgment of the Court of Appeals. the case of bona fide collective-bargaining agreements in effect at least 30 days prior to the date of enactment of the 1963 measure, the amendments would take effect upon the termination of such collective-bargaining agreement or upon the expiration of two years from the enactment date, whichever occurred first. VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 519 Syllabus VERMONT YANKEE NUCLEAR POWER CORP. v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 76-419. Argued November 28, 1977—Decided April 3,1978* In No. 76-419, after extensive hearings before the Atomic Safety and Licensing Board (Licensing Board) and over respondents’ objections, the Atomic Energy Commission (AEC) granted petitioner Vermont Yankee Nuclear Power Corp, a license to operate a nuclear power plant, and this ruling was affirmed by the Atomic Safety and Licensing Appeal Board (Appeal Board). Subsequently, the AEC, specifically referring to the Appeal Board’s decision, instituted rulemaking proceedings to deal with the question of considering environmental effects associated with the uranium fuel cycle in the individual cost-benefit analyses for light-water-cooled nuclear power reactors. In these proceedings the Licensing Board was not to use full formal adjudicatory procedures. Eventually, as a result of these rulemaking proceedings, the AEC issued a so-called fuel cycle rule. At the same time the AEC approved the procedures used at the hearing; indicated that the record, including the Environmental Survey, provided an adequate data base for the rule adopted; and ruled that to the extent the rule differed from the Appeal Board’s decision such decision had no further precedential significance, but that since the environmental effects of the uranium fuel cycle had been shown to be relatively insignificant, it was unnecessary to apply the rule to Vermont Yankee’s environmental reports submitted prior to the rule’s effective date or to the environmental statements circulated for comment prior to such date. Respondents appealed from both the AEC’s adoption of the fuel cycle rule and its decision to grant Vermont Yankee’s license. With respect to the license, the Court of Appeals first ruled that in the absence of effective rulemaking proceedings, the AEC must deal with the environmental impact of fuel reprocessing and disposal in individual licensing proceedings, and went on to hold that despite the fact that it appeared that the AEC employed all the procedures required by the Administrative Procedure Act (APA) in 5 U. S. 0. § 553 (1976 ed.) and more, *Together with No. 76-528, Consumers Power Co. v. Aeschliman et dL, also on certiorari to the same court. 520 OCTOBER TERM, 1977 Syllabus 435 U. S. the rulemaking proceedings were inadequate and overturned the rule, and accordingly the AEC’s determination with respect to the license was also remanded for further proceedings. In No. 76-528, after examination of a report of the Advisory Committee on Reactor Safeguards (ACRS) and extensive hearings, and over respondent intervenors’ objections, the AEC granted petitioner Consumers Power Co. a permit to construct two nuclear reactors, and this ruling was affirmed by the Appeal Board. At about this time the Council on Environmental Quality revised its regulations governing the preparation of environmental impact statements so as to mention for the first time the necessity for considering energy conservation as one of the alternatives to a proposed project. In view of this development and a subsequent AEC ruling indicating that all evidence of energy conservation should not necessarily be barred at the threshold of AEC proceedings, one of the intervenors moved to reopen the permit proceedings so that energy conservation could be considered, but the AEC declined to reopen the proceedings. Respondents appealed from the granting of the construction permit. The Court of Appeals held that the environmental impact statement for the construction of the reactors was fatally defective for failure to examine energy conservation as an alternative to plants of this size, and that the ACRS report was inadequate and should have been returned to the ACRS for further elucidation, understandable to a layman, and remanded the case for appropriate consideration of waste disposal and other unaddressed issues. Held: 1. Generally speaking, 5 U. S. C. §553 (1976 ed.) establishes the maximum procedural requirements that Congress was willing to have the courts impose upon federal agencies in conducting rulemaking proceedings, and while agencies are free to grant additional procedural rights in the exercise of their discretion, reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. And, even apart from the APA, the formulation of procedures should basically be left within the discretion of the agencies to which Congress has confided the responsibility for substantive judgments. Pp. 523-525. 2. The Court of Appeals in these cases has seriously misread or misapplied such statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress, and moreover as to the Court of Appeals’ decision with respect to agency action taken after full adjudicatory hearings, it improperly intruded into the agency’s decisionmaking process. Pp. 535-558. (a) In No. 76-419, the AEC acted well within its statutory authority VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 521 519 Syllabus when it considered the environmental impact of the fuel processes when licensing nuclear reactors. Pp. 538-539, (b) Nothing in the APA, the National Environmental Policy Act of 1969 (NEPA), the circumstances of the case in No. 76-419, the nature of the issues being considered, past agency practice, or the statutory mandate under which the AEC operates permitted the Court of Appeals to review and overturn the rulemaking proceeding on the basis of the procedural devices employed (or not employed) by the AEC so long as the AEC used at least the statutory minima, a matter about which there is no doubt. Pp. 539-548. (c) As to whether the challenged rule in No. 76-419 finds sufficient justification in the administrative proceedings that it should be upheld by the reviewing court, the case is remanded so that the Court of Appeals may review the rule as the APA provides. The court should engage in this kind of review and not stray beyond the judicial province to explore the procedural format or to impose upon the agency its own notion of which procedures are “best” or most likely to further some vague, undefined public good. P. 549. (d) In No. 76-528, the Court of Appeals was wrong in holding that rejection of energy conservation on the basis of the “threshold test” was capricious and arbitrary as being inconsistent with the NEPA’s basic mandate to the AEC, since the court’s rationale basically misconceives not only the scope of the agency’s statutory responsibility, but also the nature of the administrative process, the thrust of the agency’s decision, and the type of issues the intervenors were trying to raise. The court seriously mischaracterized the AEC’s “threshold test” as placing “heavy substantive burdens on intervenors.” On the contrary the AEC’s stated procedure as requiring a showing sufficient to require reasonable minds to inquire further is a procedure well within the agency’s discretion. Pp. 549-555. (e) The Court of Appeals’ holding in No. 76-528 that the Licensing Board should have returned the ACRS report to the ACRS for further elaboration is erroneous as being an unjustifiable intrusion into the administrative process, and there is nothing in the relevant statutes to justify what the court did. Pp. 556-558. No. 76-419, 178 U. S. App. D. C. 336, 547 F. 2d 633, and No. 76-528, 178 U. S. App. D. C. 325, 547 F. 2d 622, reversed and remanded. Rehnquist, J., delivered the opinion of the Court, in which all other Members joined except Blackmun and Powell, JJ., who took no part in the consideration or decision of the cases. 522 OCTOBER TERM, 1977 Counsel 435 U.S. Thomas G. Dignan, Jr., argued the cause for petitioner in No. 76—419. With him on the briefs were G. Marshall Moriarty, William L. Patton, and R. K. Gad III. Charles A. Horsky argued the cause for petitioner in No. 76-528. With him on the briefs was Harold F. Reis. Deputy Solicitor General Wallace argued the cause for the federal respondents in support of petitioners in both cases pursuant to this Court’s Rule 21 (4). On the briefs were Solicitor General McCree, Acting Assistant Attorney General Liotta, Harriet S. Shapiro, Edmund B. Clark, John J. Zimmerman, Peter L. Strauss, and Stephen F. Eilperin. Henry V. Nickel and George C. Freeman, Jr., filed a brief for respondents Baltimore Gas & Electric Co. et al. in support of petitioner in No. 76-419 pursuant to Rule 21 (4). Richard E. Ayres argued the cause and filed briefs for respondents in No. 76-419. Myron M. Cherry argued the cause for the nonfederal respondents in No. 76-528. With him on the brief was Peter A. Flynn A fBriefs of amici curiae urging reversal were filed by Cameron F. MacRae, Leonard M. Trosten, and Harry H. Voigt for Edison Electric Institute et al. in No. 76-419; by Leonard J. Theberge, John M. Cannon, Edward H. Dowd, and L. Manning Muntzing for Hans A. Bethe et al. in No. 76-528; and by Max Dean and David S. Heller for the U. S. Labor Party in No. 76-528. Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirsho-witz, First Assistant Attorney General, Philip Weinberg and John F. Shea III, Assistant Attorneys General; Cabanne Howard, Assistant Attorney General of Maine; and Ellyn Weiss, Assistant Attorney General of Massachusetts, filed a brief for 24 named States as amici curiae urging affirmance in both cases, joined by officials for their respective States as follows: William J. Baxley, Attorney General of Alabama, and Henry H. Caddell, Assistant Attorney General; Richard R. Wier, Jr., Attorney General of Delaware, and June D. MacArtor, Deputy Attorney General; Robert L. Shevin, Attorney General of Florida, and Marty Friedman, Assistant Attorney General; Arthur K. Bolton, Attorney General of Georgia, and Robert Bomar, Senior Assistant Attorney General; William J. Scott, Attorney General of Illinois, and Richard W. Cosby, Assistant VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 523 519 Opinion of the Court Mr. Justice Rehnquist delivered the opinion of the Court. In 1946, Congress enacted the Administrative Procedure Act, which as we have noted elsewhere was not only “a new, basic and comprehensive regulation of procedures in many agencies,” Wong Yang Sung v. McGrath, 339 U. S. 33 (1950), but was also a legislative enactment which settled “long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest.” Id., at 40. Section 4 of the Act, 5 U. S. C. § 553 (1976 ed.), dealing with rulemaking, requires in subsection (b) that Attorney General; Curt T. Schneider, Attorney General of Kansas, and William Griffin, Assistant Attorney General; Robert F. Stephens, Attorney General of Kentucky, and David Short, Assistant Attorney General; William J. Guste, Attorney General of Louisiana, and Richard M. Troy, Assistant Attorney General; Joseph E. Brennan, Attorney General of Maine; Francis B. Burch, Attorney General of Maryland, and Warren K. Rich, Assistant Attorney General; Francis X. Bellotti, Attorney General of Massachusetts; Frank J. Kelley, Attorney General of Michigan, and Stewart H. Freeman, Assistant Attorney General; Warren R. Spannaus, Attorney General of Minnesota, and Jocelyn F. Olson, Assistant Attorney General; John Ashcroft, Attorney General of Missouri, and Robert H. Lindholm, Assistant Attorney General; Toney Anaya, Attorney General of New Mexico, and James Huber, Assistant Attorney General; Rufus L. Edmis-ten, Attorney General of North Carolina, and Dan Oakley, Assistant Attorney General; William J. Brown, Attorney General of Ohio, and David Northrup, Assistant Attorney General; James A. Redden, Attorney General of Oregon, and Richard M. Sandvik, Assistant Attorney General; Robert P. Kane, Attorney General of Pennsylvania, and Douglas Blazey, Assistant Attorney General; John L. Hill, Attorney General of Texas, and Troy C. Webb and Paul G. Gosselink, Assistant Attorneys General; Robert B. Hansen, Attorney General of Utah, and William C. Quigley; M. Jerome Diamond, Attorney General of Vermont, and Benson D. Scotch, Assistant Attorney General; and Bronson C. LaFollette, Attorney General of Wisconsisn, and John E. Kofron, Assistant Attorney General. George C. Deptula and James N. Barnes filed a brief for the Union of Concerned Scientists Fund, Inc., as amicus curiae urging affirmance in No. 76-419. Ronald A. Zumbrun, Raymond M. Momboisse, Robert K. Best, Albert Ferri, Jr., and W. Hugh O’Riordan filed a brief for the Pacific Legal Foundation as amicus curiae in both cases. 524 OCTOBER TERM, 1977 Opinion of the Court 435U.S. “notice of proposed rule making shall be published in the Federal Register . . . describes the contents of that notice, and goes on to require in subsection (c) that after the notice the agency “shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.” Interpreting this provision of the Act in United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742 (1972), and United States v. Florida East Coast R. Co., 410 U. S. 224 (1973), we held that generally speaking this section of the Act established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.1 Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. This is not to say necessarily that there are no circumstances which would ever justify a court in overturning agency action because; of a failure to employ procedures beyond those required by the statute. But such circumstances, if they exist, are extremely rare. Even apart from the Administrative Procedure Act this Court has for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments. In FCC v. Schreiber, 381 U. S. 279, 290 (1965), the Court explicated 1 While there was division in this Court in United States v. Florida East Coast R. Co. with respect to the constitutionality of such an interpretation in a case involving ratemaking, which Mr. Justice Douglas and Mr. Justice Stewart felt was “adjudicatory” within the terms of the Act, the cases in the Court of Appeals for the District of Columbia Circuit which we review here involve rulemaking procedures in their most pristine sense. VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 525 519 Opinion of the Court this principle, describing it as “an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved.” The Court there relied on its earlier case of FCC n. Pottsville Broadcasting Co., 309 U. S. 134, 138 (1940), where it had stated that a provision dealing with the conduct of business by the Federal Communications Commission delegated to the Commission the power to resolve “subordinate questions of procedure . . . [such as] the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another’s proceedings, and similar questions.” It is in the light of this background of statutory and decisional law that we granted certiorari to review two judgments of the Court of Appeals for the District of Columbia Circuit because of our concern that they had seriously misread or misapplied this statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress. 429 U. S. 1090 (1977). We conclude that the Court of Appeals has done just that in these cases, and we therefore remand them to it for further proceedings. We also find it necessary to examine the Court of Appeals’ decision with respect to agency action taken after full adjudicatory hearings. We again conclude that the court improperly intruded into the agency’s decisionmaking process, making it necessary for us to reverse and remand with respect to this part of the cases also. I A Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. § 2011 et seq., the Atomic Energy Cbm- 526 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. mission2 was given broad regulatory authority over the development of nuclear energy. Under the terms of the Act, a utility seeking to construct and operate a nuclear power plant must obtain a separate permit or license at both the construction and the operation stage of the project. See 42 U. S. C. §§ 2133, 2232, 2235, 2239. In order to obtain the construction permit, the utility must file a preliminary safety analysis report, an environmental report, and certain information regarding the antitrust implications of the proposed project. See 10 CFR §§2.101, 50.30 (f), 50.33a, 50.34(a) (1977). This application then undergoes exhaustive review by the Commission’s staff and by the Advisory Committee on Reactor Safeguards (ACRS), a group of distinguished experts in the field of atomic energy. Both groups submit to the Commission their own evaluations, which then become part of the record of the utility’s application.3 See 42 U. S. C. §§ 2039, 2232 (b). The Commission staff also undertakes the review required by the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq„ and prepares a draft environmental impact statement, which, after being circulated for comment, 10 CFR §§ 51.22-51.25 (1977), is revised and becomes a final environmental impact statement. § 51.26. Thereupon a three-member Atomic Safety and Licensing Board conducts a public adjudicatory hearing, 42 U. S. C. § 2241, and reaches a decision4 which can be 2 The licensing and regulatory functions of the Atomic Energy Commission (AEC) were transferred to the Nuclear Regulatory Commission (NRC) by the Energy Reorganization Act of 1974, 42 U. S. C. § 5801 et seq. (1970 ed., Supp. V). Hereinafter both the AEC and NRC will be referred to as the Commission. 3 ACRS is required to review each construction permit application for the purpose of informing the Commission of the “hazards of proposed or existing reactor facilities and the adequacy of proposed reactor safety standards.” 42 U. S. C. § 2039. 4 The Licensing Board issues a permit if it concludes that there is reasonable assurance that the proposed plant can be constructed and operated without undue risk, 42 U. S. C. §2241; 10 CFR § 50.35 (a) VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 527 519 Opinion of the Court appealed to the Atomic Safety and Licensing Appeal Board, and currently, in the Commission’s discretion, to the Commission itself. 10 CFR §§ 2.714, 2.721, 2.786, 2.787 (1977). The final agency decision may be appealed to the courts of appeals. 42 U. S. C. § 2239; 28 U. S. C. § 2342. The same sort of process occurs when the utility applies for a license to operate the plant, 10 CFR § 50.34 (b) (1977), except that a hearing need only be held in contested cases and may be limited to the matters in controversy. See 42 U. S. C. § 2239 (a); 10 CFR § 2.105 (1977); 10 CFR pt. 2, App. A, V (f) (1977).* 5 These cases arise from two separate decisions of the Court of Appeals for the District of Columbia Circuit. In the first, the court remanded a decision of the Commission to grant a license to petitioner Vermont Yankee Nuclear Power Corp, to operate a nuclear power plant. Natural Resources Defense Council n. NRC, 178 U. S. App. D. C. 336, 547 F. 2d 633 (1976). In the second, the court remanded a decision of that same agency to grant a permit to petitioner Consumers Power Co. to construct two pressurized water nuclear reactors to generate electricity and steam. Aeschliman v. NRC, 178 U. S. App. D. C. 325, 547 F. 2d 622 (1976). B In December 1967, after the mandatory adjudicatory hearing and necessary review, the Commission granted petitioner Vermont Yankee a permit to build a nuclear power plant in Vernon, Vt. See 4 A. E. C. 36 (1967). Thereafter, Vermont Yankee applied for an operating license. Respondent Natural Resources Defense Council (NRDC) objected to the granting (1977), and that the environmental cost-benefit balance favors the issuance of a permit. 5 When a license application is contested, the Licensing Board must find reasonable assurance that the plant can be operated without undue risk and will not be inimical to the common defense and security or to the health and safety of the public. See 42 U. S. C. § 2232 (a); 10 CFR § 50.57 (a) (1977). The Licensing Board’s decision is subject to review similar to that afforded the Board’s decision with respect to a construction permit. 528 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. of a license, however, and therefore a hearing on the application commenced on August 10, 1971. Excluded from consideration at the hearings, over NRDC’s objection, was the issue of the environmental effects of operations to reprocess fuel or dispose of wastes resulting from the reprocessing operations.6 This ruling was affirmed by the Appeal Board in June 1972. In November 1972, however, the Commission, making specific reference to the Appeal Board’s decision with respect to the Vermont Yankee license, instituted rulemaking proceedings “that would specifically deal with the question of consideration of environmental effects associated with the uranium fuel cycle in the individual cost-benefit analyses for light water cooled nuclear power reactors.” App. 352. The notice of proposed rulemaking offered two alternatives, both predicated on a report prepared by the Commission’s staff entitled Environmental Survey of the Nuclear Fuel Cycle. The first would have required no quantitative evaluation of the environmental hazards of fuel reprocessing or disposal because the Environmental Survey had found them to be slight. The second would have specified numerical values for the environmental impact of this part of the fuel cycle, which values would then be incorporated into a table, along with the other relevant factors, to determine the overall cost-benefit balance for each operating license. See id., at 356-357. Much* of the controversy in this case revolves around the 6 The nuclear fission which takes place in light-water nuclear reactors apparently converts its principal fuel, uranium, into plutonium, which is itself highly radioactive but can be used as reactor fuel if separated from the remaining uranium and radioactive waste products. Fuel reprocessing refers to the process necessary to recapture usable plutonium. Waste disposal, at the present stage of technological development, refers to the storage of the very long lived and highly radioactive waste products until they detoxify sufficiently that they no longer present an environmental hazard. There are presently no physical or chemical steps which render this waste less toxic, other than simply the passage of time. VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 529 519 Opinion of the Court procedures used in the rulemaking hearing which commenced in February 1973. In a supplemental notice of hearing the Commission indicated that while discovery or cross-examination would not be utilized, the Environmental Survey would be available to the public before the hearing along with the extensive background documents cited therein. All participants would be given a reasonable opportunity to present their position and could be represented by counsel if they so desired. Written and, time permitting, oral statements would be received and incorporated into the record. All persons giving oral statements would be subject to questioning by the Commission. At the conclusion of the hearing, a transcript would be made available to the public and the record would remain open for 30 days to allow the filing of supplemental written statements. See generally id., at 361-363. More than 40 individuals and organizations representing a wide variety of interests submitted written comments. On January 17, 1973, the Licensing Board held a planning session to schedule the appearance of witnesses and to discuss methods for compiling a record. The hearing was held on February 1 and 2, with participation by a number of groups, including the Commission’s staff, the United States Environmental Protection Agency, a manufacturer of reactor equipment, a trade association from the nuclear industry, a group of electric utility companies, and a group called Consolidated National Intervenors which represented 79 groups and individuals including respondent NRDC. After the hearing, the Commission’s staff filed a supplemental document for the purpose of clarifying and revising the Environmental Survey. Then the Licensing Board forwarded its report to the Commission without rendering any decision. The Licensing Board identified as the principal procedural question the propriety of declining to use full formal adjudicatory procedures. The major substantive issue was the technical adequacy of the Environmental Survey. 530 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. In April 1974, the Commission issued a rule which adopted the second of the two proposed alternatives described above. The Commission also approved the procedures used at the hearing,7 and indicated that the record, including the Environmental Survey, provided an “adequate data base for the regulation adopted.” Id., at 392. Finally, the Commission ruled that to the extent the rule differed from the Appeal Board decisions in Vermont Yankee “those decisions have no further precedential significance,” id., at 386, but that since “the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant, ... it is unnecessary to apply the amendment to applicant’s environmental reports submitted prior to its effective date or to Final Environmental Statements for which Draft Environmental Statements have been circulated for comment prior to the effective date,” id., at 395. Respondents appealed from both the Commission’s adoption of the rule and its decision to grant Vermont Yankee’s license to the Court of Appeals for the District of Columbia Circuit. C In January 1969, petitioner Consumers Power Co. applied for a permit to construct two nuclear reactors in Midland, 7 The Commission stated: “In our view, the procedures adopted provide a more than adequate basis for formulation of the rule we adopted. All parties were fully heard. Nothing offered was excluded. The record does not indicate that any evidentiary material would have been received under different procedures. Nor did the proponent of the strict 'adjudicatory’ approach make an offer of proof—or even remotely suggest—what substantive matters it would develop under different procedures. In addition, we note that 11 documents including the Survey were available to the parties several weeks before the hearing, and the Regulatory staff, though not requested to do so, made available various drafts and handwritten notes. Under all of the circumstances, we conclude that adjudicatory type procedures were not warranted here.” App. 389-390 (footnote omitted). VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 531 519 Opinion of the Court Mich. Consumers Power’s application was examined by the Commission’s staff and the ACRS. The ACRS issued reports which discussed specific problems and recommended solutions. It also made reference to “other problems” of a more generic nature and suggested that efforts should be made to resolve them with respect to these as well as all other projects.8 Two groups, one called Saginaw and another called Mapleton, intervened and opposed the application.9 10 Saginaw filed with the Board a number of environmental contentions, directed over 300 interrogatories to the ACRS, attempted to depose the chairman of the ACRS, and requested discovery of various ACRS documents. The Licensing Board denied the various discovery requests directed to the ACRS. Hearings were then held on numerous radiological health and safety issues.19 Thereafter, the Commission’s staff issued a draft 8 The ACRS report as quoted, 178 U. S. App. D. C., at 333, 547 F. 2d, at 630, stated: “Other problems related to large water reactors have been identified by the Regulatory Staff and the ACRS and cited in previous ACRS reports. The Committee believes that resolution of these items should apply equally to the Midland Plant Units 1 & 2. “The Committee believes that the above items can be resolved, during construction and that, if due consideration is given to these items, the nuclear units proposed for the Midland Plant can be constructed with reasonable assurance that they can be operated without undue risk to the health and safety of the public.” 9 Saginaw included the Saginaw Valley Nuclear Study Group, the Citizens Committee for Environmental Protection of Michigan, the United Automobile Workers International, and three other environmental groups. Mapleton included Nelson Aeschliman and five other residents of a community near the proposed plantsite. Mapleton did not raise any contentions relating to energy conservation. 10 Pursuant to the regulations then in effect, the Licensing Board refused to consider most of the environmental issues in this first set of hearings. On the last day of those hearings, however, the Court of Appeals for the District of Columbia Circuit decided Calvert Cliffs’ Coordinating Comm. v. AEC, 146 U. S. App. D. C. 33, 449 F. 2d 1109 (1971), which invalidated the Cornmissinn’s NEPA regulations. One effect of that decision was to 532 OCTOBER TERM, 1977 Opinion of the Court 435U.S. environmental impact statement. Saginaw submitted 119 environmental contentions which were both comments on the proposed draft statement and a statement of Saginaw’s position in the upcoming hearings. The staff revised the statement and issued a final environmental statement in March 1972. Further hearings were then conducted during May and June 1972. Saginaw, however, choosing not to appear at or participate in these latter hearings, indicated that it had “no conventional findings of fact to set forth” and had not “chosen to search the record and respond to this proceeding by submitting citations of matters which we believe were proved or disproved.” See App. 190 n. 9. But the Licensing Board, recognizing its obligations to “independently consider the final balance among conflicting environmental factors in the record,” nevertheless treated as contested those issues “as to which intervenors introduced affirmative evidence or engaged in substantial cross examination.” Id., at 205, 191. At issue now are 17 of those 119 contentions which are claimed to raise questions of “energy conservation.”^ The Licensing Board indicated that as far as appeared from the record, the demand for the plant was made up of normal industrial and residential use. Id., at 207. It went on to state that it was “beyond our province to inquire into whether the customary uses being made of electricity in our society are ‘proper’ or ‘improper.’ ” Ibid. With respect to claims that Consumers Power stimulated demand by its advertising the Licensing Board indicated that “[n]o evidence was offered on this point and absent some evidence that Applicant is creating abnormal demand, the Board did not consider the require that environmental matters be considered in pending proceedings, including this one. Accordingly, the Commission revised its regulations and then undertook an extensive environmental review of the proposed nuclear plants, requiring Consumers Power to file a lengthy environmental report. Thereafter the Commission’s staff prepared the draft environmental impact statement discussed in text. VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 533 519 Opinion of the Court question.” Id., at 207-208. The Licensing Board also failed to consider the environmental effects of fuel reprocessing or disposal of radioactive wastes. The Appeal Board ultimately affirmed the Licensing Board’s grant of a construction permit and the Commission declined to further review the matter. At just about the same time, the Council on Environmental Quality revised its regulations governing the preparation of environmental impact statements. 38 Fed. Reg. 20550 (1973). The regulations mentioned for the first time the necessity of considering in impact statements energy conservation as one of the alternatives to a proposed project. The new guidelines were to apply only to final impact statements filed after January 28, 1974. Id., at 20557. Thereafter, on November 6, 1973, more than a year after the record had been closed in the Consumers Power case and while that case was pending before the Court of Appeals, the Commission ruled in another case that while its statutory power to compel conservation was not clear, it did not follow that all evidence of energy conservation issues should therefore be barred at the threshold. In re Niagara Mohawk Power Corp., 6 A. E. C. 995 (1973). Saginaw then moved the Commission to clarify its ruling and reopen the Consumers Power proceedings. In a lengthy opinion, the Commission declined to reopen the proceedings. The Commission first ruled it was required to consider only energy conservation alternatives which were “ ‘reasonably available,’ ” would in their aggregate effect curtail demand for electricity to a level at which the proposed facility would not be needed, and were susceptible of a reasonable degree of proof. App. 332. It then determined, after a thorough examination of the record, that not all of Saginaw’s contentions met these threshold tests. Id., at 334r-340. It further determined that the Board had been willing at all times to take evidence on the other contentions. Saginaw had simply failed to present any such evidence. The 534 OCTOBER TERM, 1977 Opinion of the Court 435U.S. Commission further criticized Saginaw for its total disregard of even those minimal procedural formalities necessary to give the Board some idea of exactly what was at issue. The Commission emphasized that "[p]articularly in these circumstances, Saginaw’s complaint that it was not granted a hearing on alleged energy conservation issues comes with ill grace.”11 Id., at 342. And in response to Saginaw’s contention that regardless of whether it properly raised the issues, the Licensing Board must consider all environmental issues, the Commission basically agreed, as did the Board itself, but further reasoned that the Board must have some workable procedural rules and these rules "in this setting must take into account that energy conservation is a novel and evolving concept. NEPA ‘does not require a "crystal ball” inquiry.’ Natural Resources Defense Council v. Morton, [148 U. S. App. D. C. 5, 15, 458 F. 2d 827, 837 ( 1972) ]. This consideration has led us to hold that we will not apply Niagara retroactively. As we gain experience on a case-by-case basis and hopefully, feasible energy conservation techniques emerge, the applicant, staff, and licensing boards will have obligations to develop an adequate record on these issues in appropriate cases, whether or not they are raised by intervenors. "However, at this emergent stage of energy conservation principles, intervenors also have their responsibilities. They must state clear and reasonably specific energy conservation contentions in a timely fashion. Beyond that, they have a burden of coming forward with some 11 The Licensing Board had highlighted this same problem in its initial decision, noting '‘that the failure to propose proper findings and conclusions has greatly complicated the task of the Board and has made it virtually impossible in some instances to know whether particular issues are in fact contested.” App. 190 n. 10. The Appeal Board was even less charitable, noting that that “[participation in this manner, in our opinion, subverts the entire adjudicatory process.” Id., at 257. VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 535 519 Opinion of the Court affirmative showing if they wish to have these novel contentions explored further.”12 Id., at 344 (footnotes omitted). Respondents then challenged the granting of the construction permit in the Court of Appeals for the District of Columbia Circuit. D With respect to the challenge of Vermont Yankee’s license, the court first ruled that in the absence of effective rulemaking proceedings,13 the Commission must deal with the environmental impact of fuel reprocessing and disposal in individual licensing proceedings. 178 U. S. App. D. C., at 344, 547 F. 2d, at 641. The court then examined the rulemaking proceedings and, despite the fact that it appeared that the agency employed all the procedures required by 5 U. S. C. § 553 (1976 ed.) and more, the court determined the proceedings to be inadequate and overturned the rule. Accordingly, the Commission’s determination with respect to Vermont Yankee’s license was also remanded for further proceedings.14 178 U. S. App. D. C., at 358, 547 F. 2d, at 655. 12 In what was essentially dictum, the Commission also ruled, after considering the various relevant factors—such as the extent to which the new rule represents a departure from prior practice, the degree of reliance on past practice and consequent burdens imposed by retroactive application of the rule—that the rule enunciated in Niagara should not be applied retroactively to cases which had progressed to final order and issuance of construction permits before Niagara was decided. App. 337. 13 In the Court of Appeals no one questioned the Commission’s authority to deal with fuel cycle issues by informal rulemaking as opposed to adjudication. 178 U. S. App. D. C., at 345-346, 547 F. 2d, at 642-643. Neither does anyone seriously question before this Court the Commission’s authority in this respect. 14 After the decision of the Court of Appeals the Commission promulgated a new interim rule pending issuance of a final rule. 42 Fed. Reg. 13803 (1977). See Vermont Yankee Nuclear Power Corp., 5 N. R. C. 717 536 OCTOBER TERM, 1977 Opinion of the Court 435U.S. With respect to the permit to Consumers Power, the court first held that the environmental impact statement for construction of the Midland reactors was fatally defective for (1977). The Commission then, at the request of the New England Coalition on Nuclear Pollution, applied the interim rule to Vermont Yankee and determined that the cost-benefit analysis was still in the plant’s favor. Vermont Yankee Nuclear Power Corp., 6 N. R. C. 25 (1977). That decision is presently on appeal to the Court of Appeals for the First Circuit. The Commission has also indicated in its brief that it intends to complete the proceedings currently in progress looking toward the adoption of a final rule regardless of the outcome of this case. Brief for Federal Respondents 37 n. 36. Following oral argument, respondent NRDC, relying on the above facts, filed a suggestion of mootness and a motion to dismiss the writ of certiorari as improvidently granted. We hold that the case is not moot, and deny the motion to dismiss the writ of certiorari as improvidently granted. Upon remand, the majority of the panel of the Court of Appeals is entirely free to agree or disagree with Judge Tamm’s conclusion that the rule pertaining to the back end of the fuel cycle under which petitioner Vermont Yankee’s license was considered is arbitrary and capricious within the meaning of § 10 (e) of the Administrative Procedure Act, 5 U. S. C. §706 (1976 ed.), even though it may not hold, as it did in its previous opinion, that the rule is invalid because of the inadequacy of the agency procedures. Should it hold the rule invalid, it appears in all probability that the Commission will proceed to promulgate a rule resulting from rulemaking proceedings currently in progress. Brief for Federal Respondents 37 n. 36. In all likelihood the Commission would then be required, under the compulsion of the court’s order, to examine Vermont Yankee’s license under that new rule. If, on the other hand, a majority of the Court of Appeals should decide that it was unwilling to hold the rule in question arbitrary and capricious merely on the basis of § 10 (e) of the Administrative Procedure Act, Vermont Yankee would not necessarily be required to have its license reevaluated. So far as petitioner Vermont Yankee is concerned, there is certainly a case or controversy in this Court with respect to whether it must, by virtue of the Court of Appeals’ decision, submit its license to the Commission for réévaluation and possible revocation under a new rule. It is true that we do not finally determine here the validity of the rule upon which the validity of Vermont Yankee’s license in turn depends. Neither should VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 537 519 Opinion of the Court failure to examine energy conservation as an alternative to a plant of this size. 178 U. S. App. D. C., at 331,547 F. 2d, at 628. The court also thought the report by ACRS was inadequate, although it did not agree that discovery from individual ACRS members was the proper way to obtain further explication of the report. Instead, the court held that the Commission should have sua sponte sent the report back to the ACRS for further elucidation of the “other problems” and their resolution. Id., at 335, 547 F. 2d, at 632. Finally, the court ruled that the fuel cycle issues in this case were controlled by NRDC v. NRC, discussed above, and remanded for appropriate consideration of waste disposal and other unaddressed fuel cycle issues as described in that opinion. 178 U. S. App. D. C., at 335, 547 F. 2d, at 632. anything we say today be taken as a limitation on the Court of Appeals’ discretion to take due account, if appropriate, of any additions made to the record by the Commission or to consolidate this appeal with the appeal from the interim rulemaking proceeding which is already pending. But the fact that the question of the validity of the first rule remains open upon remand makes the controversy no less “live.” As we read the opinion of the Court of Appeals, its view that reviewing courts may in the absence of special circumstances justifying such a course of action impose additional procedural requirements on agency action raises questions of such significance in this area of the law as to warrant our granting certiorari and deciding the case. Since the vast majority of challenges to administrative agency action are brought to the Court of Appeals for the District of Columbia Circuit, the decision of that court in this case will serve as precedent for many more proceedings for judicial review of agency actions than would the decision of another Court of Appeals. Finally, this decision will continue to play a major role in the instant litigation regardless of the Commission’s decision to press ahead with further rulemaking proceedings. As we note in n. 15, infra, not only is the NRDC relying on the decision of the Court of Appeals as a device to force the agency to provide more procedures, but it is also challenging the interim rules promulgated by the agency in the Court of Appeals, alleging again the inadequacy of the procedures and citing the opinion of the Court of Appeals as binding precedent to that effect. 538 OCTOBER TERM, 1977 Opinion of the Court 435U.S. II A Petitioner Vermont Yankee first argues that the Commission may grant a license to operate a nuclear reactor without any consideration of waste disposal and fuel reprocessing. We find, however, that this issue is no longer presented by the record in this case. The Commission does not contend that it is not required to consider the environmental impact of the spent fuel processes when licensing nuclear power plants. Indeed, the Commission has publicly stated subsequent to the Court of Appeals’ decision in the instant case that consideration of the environmental impact of the back end of the fuel cycle in “the environmental impact statements for individual LWR’s [light-water power reactors] would represent a full and candid assessment of costs and benefits consistent with the legal requirements and spirit of NEPA.” 41 Fed. Reg. 45849 (1976). Even prior to the Court of Appeals’ decision the Commission implicitly agreed that it would consider the back end of the fuel cycle in all licensing proceedings: It indicated that it was not necessary to reopen prior licensing proceedings because “the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant,” and thus incorporation of those effects into the cost-benefit analysis would not change the results of such licensing proceedings. App. 395. Thus, at this stage of the proceedings the only question presented for review in this regard is whether the Commission may consider the environmental impact of the fuel processes when licensing nuclear reactors. In addition to the weight which normally attaches to the agency’s determination of such a question, other reasons support the Commission’s conclusion. Vermont Yankee will produce annually well over 100 pounds of radioactive wastes, some of which will be highly toxic. The Commission itself, in a pamphlet published by its VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 539 519 Opinion of the Court information office, clearly recognizes that these wastes “pose the most severe potential health hazard . . . U. S. Atomic Energy Commission, Radioactive Wastes 12 (1965). Many of these substances must be isolated for anywhere from 600 to hundreds of thousands of years. It is hard to argue that these wastes do not constitute “adverse environmental effects which cannot be avoided should the proposal be implemented,” or that by operating nuclear power plants we are not making “irreversible and irretrievable commitments of resources.” 42 U. S. C. §§4332 (2) (C) (ii), (v). As the Court of Appeals recognized, the environmental impact of the radioactive wastes produced by a nuclear power plant is analytically indistinguishable from the environmental effects of “the stack gases produced by a coal-burning power plant.” 178 U. S. App. D. C., at 341, 547 F. 2d, at 638. For these reasons we hold that the Commission acted well within its statutory authority when it considered the back end of the fuel cycle in individual licensing proceedings. B We next turn to the invalidation of the fuel cycle rule. But before determining whether the Court of Appeals reached a permissible result, we must determine exactly what result it did reach, and in this case that is no mean feat. Vermont Yankee argues that the court invalidated the rule because of the inadequacy of the procedures employed in the proceedings. Brief for Petitioner in No. 76-419, pp. 30-38. Respondents, on the other hand, labeling petitioner’s view of the decision a “straw man,” argue to this Court that the court merely held that the record was inadequate to enable the reviewing court to determine whether the agency had fulfilled its statutory obligation. Brief for Respondents in No. 76-419, pp. 28-30, 40. But we unfortunately have not found the parties’ characterization of the opinion to be entirely reliable; it appears here, as in Orloff v. Willoughby, 345 U. S. 83, 87 (1953), that 540 OCTOBER TERM, 1977 Opinion of the Court 435U.S. “in this Court the parties changed positions as nimbly as if dancing a quadrille.”15 After a thorough examination of the opinion itself, we con- 15 Vermont Yankee’s interpretation has been consistent throughout the litigation. That cannot be said of the other parties, however. The Government, Janus-like, initially took both positions. While the petition for certiorari was pending, a brief was filed on behalf of the United States and the Commission, with the former indicating that it believed the court had unanimously held the record to be inadequate, while the latter took Vermont Yankee’s view of the matter. See Brief for Federal Respondents 5-9 (filed Jan. 10, 1977). When announcing its intention to undertake licensing of reactors pending the promulgation of an “interim” fuel cycle rule, however, the Commission, said: “[T]he court found that the rule was inadequately supported by the record insofar as it treated two particular aspects of the fuel cycle—the impacts from reprocessing of spent fuel and the impacts from radioactive waste management.” 41 Fed. Reg. 45850 (1976). And even more recently, in opening another rulemaking proceeding to replace the rule overturned by the Court of Appeals, the Commission stated: “The original procedures proved adequate for the development and illumination of a wide range of fuel cycle impact issues .... “. . . The court here indicated that the procedures previously employed could suffice, and indeed did for other issues. “Accordingly, notice is hereby given that the rules for the conduct of the reopened hearing and the authorities and responsibilities of the Hearing Board will be the same as originally applied in this matter (38 Fed. Reg. 49, January 3, 1973) except that specific provision is hereby made for the Hearing Board to entertain suggestions from participants as to questions which the Board should ask of witnesses for other participants.” 42 Fed. Reg. 26988-26989 (1977). Respondent NRDC likewise happily switches sides depending on the forum. As indicated above, it argues here that the Court of Appeals held only that the record was inadequate. Almost immediately after the Court of Appeals rendered its decision, however, NRDC filed a petition for rulemaking with the Commission which listed over 13 pages of procedural suggestions it thought “necessary to comply with the Court’s order and with the mandate of [NEPA].” NRDC, Petition for Rulemaking, NRC VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 541 519 Opinion of the Court elude that while the matter is not entirely free from doubt, the majority of the Court of Appeals struck down the rule because of the perceived inadequacies of the procedures employed in the rulemaking proceedings. The court first determined the intervenors’ primary argument to be “that the decision to preclude ‘discovery or cross-examination’ denied them a meaningful opportunity to participate in the proceedings as guaranteed by due process.” 178 U. S. App. D. C., at 346, 547 F. 2d, at 643. The court then went on to frame the issue for decision thus: “Thus, we are called upon to decide whether the procedures provided by the agency were sufficient to ventilate the issues.” Ibid., 547 F. 2d, at 643. The court conceded that absent extraordinary circumstances it is improper for a reviewing court to prescribe the procedural format an agency must follow, but it likewise clearly thought it entirely appropriate to “scrutinize the record as a whole to insure that genuine opportunities to participate in a meaningful way were provided . . . .” Id., at 347, 547 F. 2d, at 644. The court also refrained from actually ordering the agency to follow any specific procedures, id., at 356-357, 547 F. 2d, at 653-654, but there is little doubt in our minds that Docket No. RM-50-3 (Aug. 10, 1976). These proposals include cross-examination, discovery, and subpoena power. Id., Attachment, Rules for Conduct of Hearing on Environmental Effects of the Uranium Fuel Cycle, fl5 (a), 9(b), 11. NRDC likewise challenged the interim fuel cycle rule and suggested to the Court of Appeals that it hold the case pending our decision in this case because the interim rules were “defective due to the inadequacy of the procedures used in developing the rule . . . .” Motion to Hold Petition for Review in Abeyance 1, in NRDC v. NRC, No. 77-1448 (DC Cir., petition for review filed May 13, 1977; motion filed July 5, 1977). NRDC has likewise challenged the procedures being used in the final rulemaking proceeding as being “no more than a re-run of hearing procedures which were found inadequate [by the Court of Appeals].” • NRDC Petition for Reconsideration of the Ruling Reopening the Hearings on the Environmental Effects of the Uranium Fuel Cycle 10, NRC Docket No. RM-50-3 (June 6, 1977). 542 OCTOBER TERM, 1977 Opinion of the Court 435U.S. the ineluctable mandate of the court’s decision is that the procedures afforded during the hearings were inadequate. This conclusion is particularly buttressed by the fact that after the court examined the record, particularly the testimony of Dr. Pittman, and declared it insufficient, the court proceeded to discuss at some length the necessity for further procedural devices or a more “sensitive” application of those devices employed during the proceedings. Ibid. The exploration of the record and the statement regarding its insufficiency might initially lead one to conclude that the court was only examining the sufficiency of the evidence, but the remaining portions of the opinion dispel any doubt that this was certainly not the sole or even the principal basis of the decision. Accordingly, we feel compelled to address the opinion on its own terms, and we conclude that it was wrong. In prior opinions we have intimated that even in a rulemaking proceeding when an agency is making a “ ‘quasijudicial’ ” determination by which a very small number of persons are “ ‘exceptionally affected, in each case upon individual grounds,’ ” in some circumstances additional procedures may be required in order to afford the aggrieved individuals due process.16 United States v. Florida East Coast R. Co., 410 U. S., at 242, 245, quoting from Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441, 446 (1915). It might also be true, although we do not think the issue is presented in this case and accordingly do not decide it, that a totally unjustified departure from well-settled agency procedures of long standing might require judicial correction.17 16 Respondent NRDC does not now argue that additional procedural devices were required under the Constitution. Since this was clearly a rulemaking proceeding in its purest form, we see nothing to support such a view. See United States v. Florida East Coast R. Co., 410 U. S. 224, 244-245 (1973); Bowles v. Willingham, 321 U. S. 503 (1944); Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441 (1915). 17 NRDC argues that the agency has in the past provided more than the minimum procedures specified in § 4 of the APA and therefore something VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 543 519 Opinion of the Court But this much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances the “administrative agencies ‘should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.’ ” FCC v. Schreiber, 381 U. S., at 290, quoting from FCC v. Pottsville more is required here, since “[a]gencies are not free to alter their procedures on a whim, grossly constricting parties’ procedural rights when it deems them an impediment or embarrassment to implementing its own views.” Brief for Respondents in No. 76-419, p. 46. In support NRDC first argues that the Commission has considered other equally generic issues in adjudicatory proceedings. But NRDC conceded in the court below that the agency could promulgate rules regarding the fuel cycle in rulemaking proceedings. 178 U. S. App. D. C., at 346, 547 F. 2d, at 643. Moreover, even here it concedes “that the Commission has in the past chosen to consider both environmental and safety issues that would ordinarily be addressed in adjudicatory licensing proceedings through 'generic’ rulemaking, a practice with which the lower court did not take issue.” Brief for Respondents in No. 76-419, p. 48. It now contends, however, that the Commission provided more procedural safeguards in those rulemaking proceedings than in the proceeding presently under review. In support it cites three previous proceedings where cross-examination was supposedly provided. Id., at 49 n. 69. Pretermitting both the fact that the Court of Appeals in no way relied upon this argument in its decision and the question of whether courts can impose additional procedures even when an agency substantially departs from past practice, we find NRDC’s argument without merit. In the first place, three proceedings out of the many held by NRC and its predecessor hardly establish the type of longstanding and well-established practice deviation from which might justify judicial intervention. It appears, moreover, that in fact the hearings cited by NRDC are not only not part of a longstanding practice but are themselves aberrational. Since 1970 the Commission has conducted a large number of rulemaking proceedings, some of which have involved matters of substantial importance, and almost none of which have involved cross-examination. See, e. g., Quality Assurance Criteria for Nuclear Power Plants, 35 Fed. Reg. 10499 (1970); General Design Criteria for Nuclear Power Plants, 36 Fed. Reg. 3255 (1971); Pre-Construction Permit Activities, 39 Fed. Reg. 14506 (1974); Environmental Protection—Licensing and Regulatory Policy and Procedures. Id., at 26279. 544 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. Broadcasting Co., 309 U. S., at 143. Indeed, our cases could hardly be more explicit in this regard. The Court has, as we noted in FCC v. Schreiber, supra, at 290, and n. 17, upheld this principle in a variety of applications,18 including that case where the District Court, instead of inquiring into the validity of the Federal Communications Commission’s exercise of its rulemaking authority, devised procedures to be followed by the agency on the basis of its conception of how the public and private interest involved could best be served. Examining §4 (j) of the Communications Act of 1934, the Court unanimously held that the Court of Appeals erred in upholding that action. And the basic reason for this decision was the Court of Appeals’ serious departure from the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure. We have continually repeated this theme through the years, most recently in FPC v. Transcontinental Gas Pipe Line Corp., 423 U. S. 326 (1976), decided just two Terms ago. In that case, in determining the proper scope of judicial review of agency action under the Natural Gas Act, we held that while a court may have occasion to remand an agency decision because of the inadequacy of the record, the agency should normally be allowed to “exercise its administrative discretion in deciding how, in light of internal organization considerations, it may best proceed to develop the needed evidence and how its prior decision should be modified in light of such evidence as develops.” Id., at 333. We went on to emphasize : “At least in the absence of substantial justification for doing otherwise, a reviewing court may not, after determining that additional evidence is requisite for adequate 18 See, e. g., CAB v. Hermann, 353 U. S. 322 (1957); Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186 (1946); Wallace Corp. v. NLRB, 323 U. S. 248 (1944); Endicott Johnson Corp. v. Perkins, 317 U. S. 501 (1943); Utah Fuel Co. v. National Bituminous Coal Comm’n, 306 U. S. 56 (1939); Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 (1933). VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 545 519 Opinion of the Court review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. Such a procedure clearly runs the risk of ‘propel [ling] the court into the domain which Congress has set aside exclusively for the administrative agency.’ SEC v. Chenery Corp., 332 U. S. 194, 196 (1947).” Ibid. Respondent NRDC argues that § 4 of the Administrative Procedure Act, 5 U. S. C. § 553 (1976 ed.), merely establishes lower procedural bounds and that a court may routinely require more than the minimum when an agency’s proposed rule addresses complex or technical factual issues or “Issues of Great Public Import.” Brief for Respondents in No. 76-419, p. 49. We have, however, previously shown that our decisions reject this view. Supra, at 542 to this page. We also think the legislative history, even the part which it cites, does not bear out its contention. The Senate Report explains what eventually became § 4 thus: “This subsection states . . . the minimum requirements of public rule making procedure short of statutory hearing. Under it agencies might in addition confer with industry advisory committees, consult organizations, hold informal ‘hearings,’ and the like. Considerations of practicality, necessity, and public interest . . . will naturally govern the agency’s determination of the extent to which public proceedings should go. Matters of great import, or those where the public submission of facts will be either useful to the agency or a protection to the public, should naturally be accorded more elaborate public procedures.” S. Rep. No. 752, 79th Cong., 1st Sess., 14-15 (1945). The House Report is in complete accord: “ ‘[U]niformity has been found possible and desirable for all classes of both equity and law actions in the courts .... 546 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. It would seem to require no argument to demonstrate that the administrative agencies, exercising but a fraction of the judicial power may likewise operate under uniform rules of practice and procedure and that they may be required to remain within the terms of the law as to the exercise of both quasi-legislative and quasi-judicial power.’ “The bill is an outline of minimum essential rights and procedures. ... It affords private parties a means of knowing what their rights are and how they may protect them .... . . [The bill contains] the essentials of the different forms of administrative proceedings . . . .” H. R. Rep. No. 1980, 79th Cong., 2d Sess., 9,16-17 (1946). And the Attorney General’s Manual on the Administrative Procedure Act 31, 35 (1947), a contemporaneous interpretation previously given some deference by this Court because of the role played by the Department of Justice in drafting the legislation,19 further confirms that view. In short, all of this leaves little doubt that Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices should be employed. There are compelling reasons for construing § 4 in this manner. In the first place, if courts continually review agency proceedings to determine whether the agency employed procedures which were, in the court’s opinion, perfectly tailored to reach what the court perceives to be the “best” or “correct” result, judicial review would be totally unpredictable. And the agencies, operating under this vague injunction to employ 19 See Power Reactor Co. v. Electricians, 367 U. S. 396, 408 (1961); United States v. Zucca, 351 U. S. 91,96 (1956). VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 547 519 Opinion of the Court the “best” procedures and facing the threat of reversal if they did not, would undoubtedly adopt full adjudicatory procedures in every instance. Not only would this totally disrupt the statutory scheme, through which Congress enacted “a formula upon which opposing social and political forces have come to rest,” Wong Yang Sung v. McGrath, 339 U. 8., at 40, but all the inherent advantages of informal rulemaking would be totally lost.20 Secondly, it is obvious that the court in these cases reviewed the agency’s choice of procedures on the basis of the record actually produced at the hearing, 178 U. S. App. D. C., at 347, 547 F. 2d, at 644, and not on the basis of the information available to the agency when it made the decision to structure the proceedings in a certain way. This sort of Monday morning quarterbacking not only encourages but almost compels the agency to conduct all rulemaking proceedings with the full panoply of procedural devices normally associated only with adjudicatory hearings. Finally, and perhaps most importantly, this sort of review fundamentally misconceives the nature of the standard for judicial review of an agency rule. The court below uncritically assumed that additional procedures will automatically result in a more adequate record because it will give interested parties more of an opportunity to participate in and contribute to the proceedings. But informal rulemaking need not be based solely on the transcript of a hearing held before an agency. Indeed, the agency need not even hold a formal hearing. See 5 U. S. C. § 553 (c) (1976 ed.). Thus, the adequacy of the “record” in this type of proceeding is not correlated directly to the type of procedural devices employed, but rather turns on whether the agency has followed the statutory mandate of the Administrative Procedure Act or other relevant statutes. If the agency is compelled to sup 20 See Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L. Rev. 375, 387-388 (1974). 548 OCTOBER TERM, 1977 Opinion of the Court 435U.S. port the rule which it ultimately adopts with the type of record produced only after a full adjudicatory hearing, it simply will have no choice but to conduct a full adjudicatory hearing prior to promulgating every rule. In sum, this sort of unwarranted judicial examination of perceived procedural shortcomings of a rulemaking proceeding can do nothing but seriously interfere with that process prescribed by Congress. Respondent NRDC also argues that the fact that the Commission’s inquiry was undertaken in the context of NEPA somehow permits a court to require procedures beyond those specified in § 4 of the APA when investigating factual issues through rulemaking. The Court of Appeals was apparently also of this view, indicating that agencies may be required to “develop new procedures to accomplish the innovative task of implementing NEPA through rulemaking.” 178 U. S. App. D. C., at 356, 547 F. 2d, at 653. But we search in vain for something in NEPA which would mandate such a result. We have before observed that “NEPA does not repeal by implication any other statute.” Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289, 319 (1975). See also United States v. SCRAP, 412 U. S. 669, 694 (1973). In fact, just two Terms ago, we emphasized that the only procedural requirements imposed by NEPA are those stated in the plain language of the Act. Kleppe v. Sierra Club, U. S. 390, 405-406 (1976). Thus, it is clear NEPA cannot serve as the basis for a substantial revision of the carefully constructed procedural specifications of the APA. In short, nothing in the APA, NEPA, the circumstances of this case, the nature of the issues being considered, past agency practice, or the statutory mandate under which the Commission operates permitted the court to review and overturn the rulemaking proceeding on the basis of the procedural devices employed (or not employed) by the Commission so long as the Commission employed at least the statutory minima, a matter about which there is no doubt in this case. VERMONT YANKEE NUCLEAR POWER CORP. v. NRDC 549 519 Opinion of the Court There remains, of course, the question of whether the challenged rule finds sufficient justification in the administrative proceedings that it should be upheld by the reviewing court. Judge Tamm, concurring in the result reached by the majority of the Court of Appeals, thought that it did not. There are also intimations in the majority opinion which suggest that the judges who joined it likewise may have thought the administrative proceedings an insufficient basis upon which to predicate the rule in question. We accordingly remand so that the Court of Appeals may review the rule as the Administrative Procedure Act provides. We have made it abundantly clear before that when there is a contemporaneous explanation of the agency decision, the validity of that action must “stand or fall on the propriety of that finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the Comptroller’s decision must be vacated and the matter remanded to him for further consideration.” Camp v. Pitts, 411 U. S. 138, 143 (1973). See also SEC v. Chenery Corp., 318 U. S. 80 (1943). The court should engage in this kind of review and not stray beyond the judicial province to explore the procedural format or to impose upon the agency its own notion of which procedures are “best” or most likely to further some vague, undefined public good.21 Ill A We now turn to the Court of Appeals’ holding “that rejection of energy conservation on the basis of the ‘threshold test’ 21 Of course, the court must determine whether the agency complied with the procedures mandated by the relevant statutes. Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 417 (1971). But, as we indicated above, there is little doubt that the agency was in full compliance with all the applicable requirements of the Administrative Procedure Act. 550 OCTOBER TERM, 1977 Opinion of the Court 435 U. S. was capricious and arbitrary,” 178 U. S. App. D. C., at 332, 547 F. 2d, at 629, and again conclude the court was wrong. The Court of Appeals ruled that the Commission’s “threshold test” for the presentation of energy conservation contentions was inconsistent with NEPA’s basic mandate to the Commission. Id., at 330, 547 F. 2d, at 627. The Commission, the court reasoned, is something more than an umpire who sits back and resolves adversary contentions at the hearing stage. Ibid., 547 F. 2d, at 627. And when an intervenor’s comments “bring ‘sufficient attention to the issue to stimulate the Commission’s consideration of it,’ ” the Commission must “undertake its own preliminary investigation of the proffered alternative sufficient to reach a rational judgment whether it is worthy of detailed consideration in the EIS. Moreover, the Commission must explain the basis for each conclusion that further consideration of a suggested alternative is unwarranted.” Id., at 331, 547 F. 2d, at 628, quoting from Indiana . Krause et al. ; and No. 77-1022. Krause et al. v. Rhodes, Governor of Ohio, et al. C. A. 6th Cir. Certiorari denied. Reported below: 570 F. 2d 563. No. 77-1024. Furness Withy & Co., Ltd., et al. v. Bunge Corp. C. A. 5th Cir. Certiorari denied. Reported below: 558 F. 2d 790. No. 77-1025. Hess v. Upper Mississippi Towing Corp, et al. C. A. 5th Cir. Certiorari denied. Reported below: 559 F. 2d 1030. No. 77-1030. Olinkraft, Inc. v. Louisiana, through the Department of Highways of Louisiana. Sup. Ct. La. Certiorari denied. Reported below: 350 So. 2d 865. No. 77-1031. Boudreaux v. Mississippi. Sup. Ct. Miss. Certiorari denied. Reported below: 350 So. 2d 688. No. 77-1040. Hughes Aircraft Co. v. Bell Telephone Laboratories, Inc. C. A. 3d Cir. Certiorari denied. Reported below: 564 F. 2d 654. ORDERS 925 435 U. S. March 20, 1978 No. 77-1044. Caravel Office Building Co. et al. v. Bogley Harting Mahoney & Leibling, Inc. Sup. Ct. Va. Certiorari denied. No. 77-1045. Bergen County Associates et al. v. Borough of East Rutherford et al. Super. Ct. N. J. Certiorari denied. No. 77-1047. Sherard v. Ginsberg et al. C. A. 6th Cir. Certiorari denied. Reported below: 559 F. 2d 1221. No. 77-1049. St. Louis Union Trust Co. et al. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., et al. C. A. 8th Cir. Certiorari denied. Reported below: 562 F. 2d 1040. No. 77-1052. Butker v. Alcoholic Beverage Control Appeals Board. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 77-1053. Nutter v. Torrez, dba Perfecto Plumbing Sewer Service, Inc., et al. Sup. Ct. Kan. Certiorari denied. Reported below: 222 Kan. 749. No. 77-1054. Trachtman v. Anker, Chancellor, New York City Public Schools, et al. C. A. 2d Cir. Certiorari denied. Reported below: 563 F. 2d 512. No. 77-1055. Lunsford v. Investors Diversified Services, Inc., et al. C. A. 7th Cir. Certiorari denied. Reported below: 567 F. 2d 393. No. 77-1090. Founding Church of Scientology v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 187 U. S. App. D. C. 297, 572 F. 2d 321. No. 77-1142. Robles v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 563 F. 2d 1308. No. 77-1151. Jackson et al. v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 567 F. 2d 393. 926 OCTOBER TERM, 1977 March 20, 1978 435 U. S. No. 77-1158. Allen v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 566 F. 2d 1193. No. 77-1159. Hall v. United States. C. A. D. C. Cir. Certiorari denied. No. 77-1167. Mageean v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 568 F. 2d 779. No. 77-1168. Constantine v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 567 F. 2d 266. No. 77-5511. Jones v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 563 F. 2d 569. No. 77-5556. Baker v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 562 F. 2d 43. No. 77-5733. Morgan v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 559 F. 2d 397. No. 77-5777. Neyra v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 565 F. 2d 153. No. 77-5780. West v. Brown, Secretary of Defense, et al. C. A. 5th Cir. Certiorari denied. Reported below: 558 F. 2d 757. No. 77-5785. Oakes v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 564 F. 2d 384. No. 77-5786. Bobisink v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 562 F. 2d 106. No. 77-5814. Fisher v. United States. C. A. 6th Cir. Certiorari denied. No. 77-5817. Harrington v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 566 F. 2d 1185. No. 77-5820. Benel v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 566 F. 2d 1166. ORDERS 927 435 U. S. March 20, 1978 No. 77-5839. Longoria v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 566 F. 2d 1185. No. 77-5845. Zuber v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 566 F. 2d 1184. No. 77-5848. Dixon v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 562 F. 2d 1138. No. 77-5854. Speir et al. v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 564 F. 2d 934. No. 77-5889. Livingston et al. v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. No. 77-5892. Shannon v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 564 F. 2d 90. No. 77-5936. Palanacki v. United States. C. A. 6th Cir. Certiorari denied. No. 77-5940. Smolsky v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 565 F. 2d 153. No. 77-5949. Jardan v. Hunter, U. S. District Judge. C. A. 8th Cir. Certiorari denied. No. 77-5955. McDonnell v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 565 F. 2d 153. No. 77-5965. Cox v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 567 F. 2d 930. No. 77-5975. Horng v. Immigration and Naturalization Service. C. A. 2d Cir. Certiorari denied. No. 77-5976. Emler v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 570 F. 2d 584. No. 77-5994. Masel v. United States. C. A. 7th Cir. Certiorari denied. Repoited below: 563 F. 2d 322. 928 OCTOBER TERM, 1977 March 20, 1978 435 U. S. No. 77-6002. Skidmore v. National Railroad Adjustment Board, Third Division. C. A. 3d Cir. Certiorari denied. Reported below: 565 F. 2d 153. No. 77-6003. Tyler v. Missouri. C. A. 8th Cir. Certiorari denied. Reported below: 566 F. 2d 1179. No. 77-6009. Coone et ux. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 565 F. 2d 1214. No. 77-6020. Ellis v. United States. C. A. 10th Cir. Certiorari denied. No. 77-6022. Harrison v. Morris, Chief Judge, U. S. District Court. C. A. 10th Cir. Certiorari denied. No. 77-6033. Caldwell v. United States. C. A. 7th Cir. Certiorari denied. No. 77-6049. Doran v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 564 F. 2d 1176. No. 77-6063. Olden v. Community Release Board. C. A. 9th Cir. Certiorari denied. No. 77-6065. Ricks v. Maryland. Ct. Sp. App. Md. Certiorari denied. No. 77-6069. Ladd v. Alaska. Sup. Ct. Alaska. Certiorari denied. Reported below: 568 P. 2d 960. No. 77-6072. Myers v. Arizona. Sup. Ct. Ariz. Certiorari denied. Reported below: 117 Ariz. 79, 570 P. 2d 1252. No. 77-6074. Trantino v. Hatrak, Prison Superintendent. C. A. 3d Cir. Certiorari denied. Reported below: 563 F. 2d 86. No. 77-6077. Clark v. Malley, Warden, et al. C. A. 10th Cir. Certiorari denied. ORDERS 929 435 U. S. March 20, 1978 No. 77-6080. Billingsley et al. v. Seibels, Mayor of Birmingham, et al. C. A. 5th Cir. Certiorari denied. Reported below: 556 F. 2d 276. No. 77-6081. Williams v. Leeke, Corrections Director, et al. C. A. 4th Cir. Certiorari denied. Reported below: 568 F. 2d 775. No. 77-6082. Turner v. Texas. Sup. Ct. Tex. Certiorari denied. Reported below: 556 S. W. 2d 563. No. 77-6085. Moore et al. v. Cowan, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 560 F. 2d 1298. No. 77-6089. Tyler v. Goins, Sheriff. C. A. 8th Cir. Certiorari denied. No. 77-6091. Stevenson v. Young, Acting Penitentiary Superintendent. C. A. 4th Cir. Certiorari denied. Reported below: 559 F. 2d 1213. No. 77-6093. Raitport v. General Electric Co. et al. C. A. 2d Cir. Certiorari denied. No. 77-6096. Walloe v. Cuyler, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. Reported below: 566 F. 2d 1171. No. 77-6099. Conover v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 77-6102. Rocca v. Groomes, Warden, et al. C. A. 3d Cir. Certiorari denied. Reported below: 566 F. 2d 1171. No. 77-6108. Sayles v. Haywood, Judge, et al. Ct. App. D. C. Certiorari denied. No. 77-6112. Anderson et ux. v. Watertown Savings Bank et al. C. A. 1st Cir. Certiorari denied. Reported below: 566 F. 2d 1166. No. 77-6113. Heflin v. Oregon. Ct. App. Ore. Certiorari denied. 930 OCTOBER TERM, 1977 March 20, 1978 435 U. S. No. 77-6114. Reed v. Owen et al. Sup. Ct. Colo. Certiorari denied. Reported below: See — Colo. —, 570 P. 2d 26. No- 77-6115. Lawary v. United States. C. A. 10th Cir. Certiorari denied. No. 77-6118. Smyzer v. Dotson, Superintendent, Career Development Center of Kentucky. C. A. 6th Cir. Certiorari denied. No. 77-6121. O’Neill v. California. App. Dept., Super. Ct. Cal., County of Alameda. Certiorari denied. No- 77-6122. Marsh v. Cupp, Warden. C. A. 9th Cir. Certiorari denied. No. 77-6123. Lowe v. Virginia. Sup. Ct. Va. Certiorari denied. Reported below: 218 Va. 670, 239 S. E. 2d 112. No. 77-6124. Lawrence et al. v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 159. No. 77-6127. Noone v. Szoradi et al. Ct. App. D. C. Certiorari denied. No. 77-6128. Richardson v. Texas. Ct. Crim. App. Tex. Certiorari denied. Reported below: 555 S. W. 2d 134. No. 77-6129. Riley v. Florida. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Reported below: 352 So. 2d 180. No. 77-6133. Carr v. Dick et al. C. A. 5th Cir. Certiorari denied. Reported below: 559 F. 2d 27. No. 77-6136. Christian v. Perini, Penitentiary Superintendent. C. A. 6th Cir. Certiorari denied. No. 77-6139. Crawford v. Kansas. Sup. Ct. Kan. Certiorari denied. Reported below: 223 Kan. 127, 573 P. 2d 982. ORDERS 931 435 U. S. March 20, 1978 No. 77-6143. Jenkins v. Washington Post Co. et al. C. A. D. C. Cir. Certiorari denied. No. 77-6146. Raupp v. United States. C. A. 10th Cir. Certiorari denied. No. 77-6151. Campbell v. Indiana. Ct. App. Ind. Certiorari denied. No. 77-6164. Miller v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 564 F. 2d 103. No. 77-6172. Lieberman v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 567 F. 2d 389. No. 77-6174. Brown v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 159. No. 77-6175. Marshall v. United States. Ct. Cl. Certiorari denied. Reported below: 215 Ct. Cl. 969, 566 F. 2d 1191. No. 77-6176. Adams v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 567 F. 2d 391. No. 77-6181. Lipscomb v. United States. C. A. 6th Cir. Certiorari denied. No. 77-6186. McElroy v. Wilson et al. Ct. App. Ga. Certiorari denied. Reported below: 143 Ga. App. 893, 240 S. E. 2d 155. No. 77-6187. Bass, aka Johnson v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 568 F. 2d 770. No. 77-6188. Berkley v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 568 F. 2d 770. No. 77-6196. Scruggs v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 570 F. 2d 349. 932 OCTOBER TERM, 1977 March 20, 1978 435 U. S. No. 77-6200. Van Buren v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 568 F. 2d 607. No. 77-6205. Brown v. United States. C. A. 6th Cir. Certiorari denied. No. 77-6206. Lowe v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 569 F. 2d 1113. No. 77-6246. Sumlin v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 567 F. 2d 684. No. 76-6204. Bonner v. Coughlin et al. C. A. 7th Cir. Certiorari denied. Mr. Justice Stevens took no part in the consideration or decision of this petition? Reported below: 545 F. 2d 565. No. 77-1020. Winokur et al. v. Bell Federal Savings & Loan Assn, et al. C. A. 7th Cir. Certiorari denied. Mr. Justice Stevens took no part in the consideration or decision of this petition. Reported below: 560 F. 2d 271. No. 77-121. Walker, Governor of Illinois, et al. v. Little. C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 552 F. 2d 193. No. 77-732. Michigan v. Hampton. Ct. App. Mich. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. No. 77-743. Rowe, Corrections Director, et al. v. Ferris. C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 551 F. 2d 185. No. 77-986. Black, Reformatory Superintendent v. Niemeyer et al. C. A. 6th Cir. Motion of respondents for leave to. proceed in forma pauperis granted. Certiorari denied. ORDERS 933 435 U. S. March 20, 1978 No. 77-992. Raines, Secretary of Corrections, et al. v. Wright et al. Ct. App. Kan. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 1 Kan. App. 2d 494, 571 P. 2d 26. No. 77-691. Supreme Court of Illinois et al. v. Ktsanes. C. A. 7th Cir. Certiorari denied. Mr. Justice Blackmun and Mr. Justice Powell would grant certiorari. Reported below: 552 F. 2d 740 and 560 F. 2d 790. No. 77-714. Daley v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice White would grant certiorari. Reported below: 564 F. 2d 645. No. 77-733. Michigan v. Allensworth. Sup. Ct. Mich. Certiorari denied, it appearing that the judgment below rests upon adequate state grounds. Reported below: 401 Mich. 67, 257 N. W. 2d 81. No. 77-770. Akin v. United States. C. A. 7th Cir. Application for bail, presented to Mr. Justice Marshall, and by him referred to the Court, denied. Certiorari denied. Reported below: 562 F. 2d 459. No. 77-785. Consumers Union of the United States, Inc. v. Committee for the Implementation of Textile Agreements et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice White and Mr. Justice Powell would grant certiorari. Reported below: 182 U. S. App. D. C. 423, 561 F. 2d 872. No. 77-887. Surles v. Wirth. C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Mr. Justice Blackmun would grant certiorari. Reported below: 562 F. 2d 319. No. 77-1048. Canon v. Massachusetts. Sup. Jud. Ct. Mass. Certiorari denied. Mr. Justice Stewart would grant certiorari. Reported below: 373 Mass. 494, 368 N. E. 2d 1181. 934 OCTOBER TERM, 1977 March 20, 1978 435 U. S. No. 77-1060. Condit et al. v. United Air Lines, Inc. C. A. 4th Cir. Certiorari denied. Mr. Justice Stewart would grant certiorari. Reported below: 558 F. 2d 1176. No. 77-1057. Yuhas et al. v. Libbey-Owens-Ford Co. C. A. 7th Cir. Certiorari denied. Mr. Justice Brennan and Mr. Justice Stewart would grant certiorari. Reported below: 562 F. 2d 496. No. 77-1059. Bossard, Administratrix, et al. v. Exxon Corp. C. A. 5th Cir. Certiorari denied. Mr. Justice Powell took no part in the consideration or decision of this petition. Reported below: 559 F. 2d 1040. No. 77-1083. Simpson v. O’Neal. Sup. Ct. Miss. Certiorari denied. Mr. Justice Brennan and Mr. Justice Marshall would grant certiorari. Reported below: 350 So. 2d 998. No. 77-5757. Jarvis v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 560 F. 2d 494. Mr. Justice White, with whom Mr. Justice Brennan joins, dissenting. In denying certiorari in this case, the Court allows the Second Circuit’s “but for” corollary to the exclusionary rule to pass unreviewed, at least for the present. As applied in this case, the Second Circuit rule allows into evidence the fruits of an arrest involving serious constitutional questions, because the court below could envision a set of circumstances in which the arrest might have been carried out constitutionally. Petitioner was arrested on April 20, 1976, on the authority of a “John Doe” bench warrant. The arresting agents broke down the door of petitioner’s home and arrested him in his bed. The trial court approved the arrest on the basis of extrinsic evidence which supplemented the nameless and descriptionless warrant. However, the Second Circuit found the “John Doe” warrant to be invalid, and went on to consider whether the ORDERS 935 934 White, J., dissenting arrest might otherwise be defended under 18 U. S. C. § 3052, which grants FBI agents authority to make felony arrests based on reasonable suspicion. Observing that United States v. Watson, 423 U. S. 411 (1976), left unresolved the constitutionality of probable-cause arrests pursuant to statutory authority effected in a private home without a warrant, the Second Circuit concluded that the facts of this case raised “serious question whether the forcible entry into Jarvis’ home without a valid warrant and in the absence of exigent circumstances meets the requirement of the statute or fourth amendment standards of reasonableness.” 560 F. 2d 494, 498 (CA2 1977). Nevertheless, the Second Circuit affirmed the admissibility of photographs, fingerprints, and identifications resulting therefrom, all of which followed petitioner’s arrest. Its reasoning was that the agents could have legally arrested petitioner on probable cause as he emerged from his home, and, had they done so, all the evidence complained of would then have materialized anyway. “The illegal arrest thus was not a ‘but for’ cause for the introduction of the evidence appellant seeks to suppress.” Id., at 498-499. This “but for” test presents a substantial question for the proper enforcement of the exclusionary rule. Its origin is dubious,1 and its use has not been explicitly sanctioned outside of the Second Circuit.1 2 Most importantly, it sanctions a post 1 United States v. Galante, 547 F. 2d 733 (CA2 1976), which the Second Circuit cites as supporting the “but for” test, engaged in speculation in a fashion similar to the court’s action in this case, but it also based the holding of admissibility on the interruption of the chain connecting illegal arrest and seizure of evidence by an independent act of the suspect. Id., at 741. In United States v. Edmons, 432 F. 2d 577 (CA2 1970), also relied on by the Solicitor General in opposing this petition, the Second Circuit excluded the fruits of “flagrantly illegal arrests,” while reserving the question of exclusion after “an arrest made in good faith” but lacking probable cause. Id., at 584. 2 The Solicitor General relies on only one Circuit case outside of the Second Circuit, Sutton n. United States, 267 F. 2d 271 (CA4 1959). The 936 OCTOBER TERM, 1977 White, J., dissenting 435U.S. hoc hypothesizing by a court as to what the conditions for an arrest or a search might have been. If a court is satisfied that the Constitution need not have been violated in the conduct of a particular arrest, then, under this rule, evidence derived from the arrest, which in fact violated the Constitution, may be admitted. In short, the exclusionary rule is suspended when constitutional infringements are gratuitous. The “but for” rule is not a mere application or extension of our cases sustaining the admissibility of evidence arguably the product of a prior constitutional breach. In Wong Sun v. United States, 371 U. S. 471 (1963), this Court sanctioned the use of evidence possibly stemming from an illegal arrest, where the “connection between the arrest and the [evidence] had ‘become so attenuated as to dissipate the taint/ ” id., at 491, citing Nardone v. United States, 308 U. S. 338,341 (1939). In Brown v. Illinois, 422 U. S. 590 (1975), we recently reaffirmed that “[i]n order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires . . . that the statement ... be ‘sufficiently an act of free will to purge the primary taint.’ ” Id., at 602. In both cases it was recognized that evidence which would not have arisen “but for” an illegal arrest might still be admitted if, under the facts as they actually developed, a break in the chain occurred. But in this case, the Government does not argue that an act of the petitioner’s free will intervened to break the causality between arrest and identification. Rather, this case deals in suppositions of how the illegality of the arrest might have been avoided. The primary rationale for the exclusionary rule is to deter official misconduct. United States v. Calandra, 414 U. S. 338, defendant there sought to suppress all evidence in order to punish the Government for an unreasonably long prearraignment delay. The absence of any causal link between the right infringement and the evidence sought to be suppressed clearly distinguishes Sutton from the present case and from the discussion of “but for” causation generally. ORDERS 937 435U.S. March 20, 1978 347-348 (1974). Evidence that comes to light after official misconduct but not because of it may be introduced. No deterrent purpose is served by excluding it. The Second Circuit rule poses the problem of evidence which comes to light because of official misconduct, but which might well have arisen anyway. It makes the exclusion decision turn not on what events transpired but on what might have transpired. It makes courts not factfinders but fact predictors. As a deterrent, it removes the exclusion sanction from that police misconduct which is gratuitous and avoidable, precisely the type of behavior most in need of deterrence. I believe this Court should give plenary consideration to the interpretation the Second Circuit has given to the exclusionary rule this Court originally fashioned. I dissent from the denial of certiorari. No. 77-5891. Manion v. Illinois. Sup. Ct. Ill. Certiorari denied. Mr. Justice Blackmun would grant certiorari. Reported below: 67 Ill. 2d 564, 367 N. E. 2d 1313. No. 77-6057. Bowden v. Georgia; and No. 77-6107. Mitchell v. Hopper, Warden. Sup. Ct. Ga. Certiorari denied. Reported below: No. 77-6057, 239 Ga. 821, 238 S. E. 2d 905; No. 77-6107, 239 Ga. 781, 239 S. E. 2d 2. Mr. Justice Brennan and Mr. Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases. Rehearing Denied No. 76-5815. Zannis v. United States, 430 U. S. 934. Second motion for leave to file petition for rehearing denied. 938 OCTOBER TERM, 1977 March 20, 24, 1978 435 U. S. No. 77-219. Plumlee v. United States, 434 U. S. 1040; No. 77-801. Fowler v. Maryland State Board of Law Examiners, 434 U. S. 1043; and No. 77-5960. Roots v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida, 434 U. S. 1059. Petitions for rehearing denied. No. 72-1679. Hackett, Director, Department of Employment Security of Rhode Island, et al. v. Grinnell Corp., 414 U. S. 879; No. 76-6983. Keefer v. Pennsylvania, 434 U. S. 1009; and No. 77-5676. Beard v. Estelle, Corrections Director, 434 U. S. 1019. Motions for leave to file petitions for rehearing denied. March 24, 1978 Miscellaneous Order No. A-807. Brown et al. v. Thomson, Governor of New Hampshire. Application for stay of judgment of the United States Court of Appeals for the First Circuit, presented to Mr. Justice Brennan, and by him referred to the Court, granted pending timely filing and disposition of a petition for writ of certiorari in this Court. Should the petition for a writ of certiorari not be timely filed or denied, this stay is to terminate automatically. In the event the petition for a writ of certiorari is granted, this stay is to remain in effect pending issuance of the judgment of this Court. The Chief Justice dissenting. I would not disturb the order of the United States Court of Appeals for the First Circuit. Moreover, the Attorney General of New Hampshire having this day personally represented to the Clerk of this Court that the proclamation of March 21, ORDERS 939 435 U. S. March 24, 27, 1978 1978, has been superseded by a new proclamation dated March 24, 1978, filed today, the application referred to the Court appears to be moot, and I therefore dissent from the action of the Court and would reinstate the order of the Court of Appeals. Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Rehnquist, dissenting. As we would not disturb the order of the Court of Appeals of the First Circuit, we dissent from the order of this Court. March 27, 1978 Appeals Dismissed No. 77-1100. Illinois State Board of Elections v. Sang-meister et al. Appeal from C. A. 7th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 565 F. 2d 460. No. 77-6162. Adams v. Mulder et al. Appeal from C. A. 5th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 567 F. 2d 388. No. 77-5919. Richardson et al., Executors v. Blumenthal, Secretary of the Treasury, et al. Appeal from C. A. 2d Cir. dismissed for failure to file notice of appeal within the time provided by 28 U. S. C. § 2101 (a) and this Court’s Rule 11. Reported below: 560 F. 2d 500. Miscellaneous Orders No. A-739 (77-6178). Garrett v. United States. C. A. 9th Cir. Application for stay, presented to Mr. Justice Marshall, and by him referred to the Court, denied. No. A-754 (77-1293). Peterson v. United States. C. A. 7th Cir. Application for stay, presented to Mr. Justice Marshall, and by him referred to the Court, denied. 940 OCTOBER TERM, 1977 March 27, 1978 435 U. S. No. A-791. Fund of Funds, Ltd., et al. v. Arthur Andersen & Co. et al. C. A. 2d Cir. Application for extension of time to file petition for writ of certiorari, presented to Mr. Justice Brennan, and by him referred to the Court, denied. No. 54, Orig. United States v. Florida et al. Special Master’s Accounting of Expense Funds is accepted. It is ordered that the Special Master be discharged. [For earlier order herein, see e. g., 430 U. S. 140.] No. 76-1114. California et al. v. Southland Royalty Co. et al. ; No. 76-1133. El Paso Natural Gas Co. v. Southland Royalty Co. et al. ; and No. 76-1587. Federal Energy Regulatory Commission v. Southland Royalty Co. et al. C. A. 5th Cir. [Certiorari granted sub nom. Federal Power Comm’n v. Southland Royalty Co., 433 U. S. 907.] These cases restored to calendar for reargument. Mr. Justice Stewart and Mr. Justice Powell took no part in the consideration or decision of this order. No. 77-152. Beth Israel Hospital v. National Labor Relations Board. C. A. 1st Cir. [Certiorari granted, 434 U. S. 1033.] Motion of Massachusetts Hospital Workers Union, Local 880, for leave to intervene granted. No. 77-369. Furnco Construction Corp. v. Waters et al. C. A. 7th Cir. [Certiorari granted, 434 U. S. 996.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae denied. No. 77-510. United States v. New Mexico. Sup. Ct. N. M. [Certiorari granted, 434 U. S. 1008.] Motion of National Wildlife Federation et al. to file a brief as amid curiae denied. ORDERS 941 435 U. S. March 27, 1978 No. 77-575. John et al. v. Mississippi ; and No. 77-836. United States v. John et al. C. A. 5th Cir. [Probable jurisdiction postponed, 434 U. S. 1032.] Joint motion for additional time for oral argument granted and 30 additional minutes allotted for that purpose. No. 77-1098. Bell, Securities Commissioner of Arkansas v. International Trading, Ltd., et al. Sup. Ct. Ark. The Solicitor General is invited to file a brief in this case expressing the views of the United States. No. 77-1289. Lutheran Hospital of Milwaukee, Inc. v. National Labor Relations Board. C. A. 7th Cir. Motion of petitioner to consolidate with No. 77-152, Beth Israel Hospital v. National Labor Relations Board [certiorari granted, 434 U. S. 1033], denied. No. 77-6321.. Payton v. Harris, Warden, et al. Motion for leave to file petition for writ of habeas corpus denied. Certiorari Granted No. 77-961. New York Telephone Co. et al. v. New York State Department of Labor et al. C. A. 2d Cir. Certiorari granted. Reported below: 566 F. 2d 388. No. 77-968. Detroit Edison Co. v. National Labor Relations Board. C. A. 6th Cir. Certiorari granted. Reported below: 560 F. 2d 722. Certiorari Denied. (See also Nos. 77-1100 and 77-6162, supra.) No. 77-674. The Tamano et al. v. United States et al. C. A. 1st Cir. Certiorari denied. Reported below: 564 F. 2d 964. No. 77-686. Chiappe v. United States. C. A. 2d Cir. Certiorari denied. Reported below : 562 F. 2d 39. 942 OCTOBER TERM, 1977 March 27, 1978 435 U. S. No. 77-736. New York Stock Exchange, Inc., et al. v. Heimann, Comptroller of the Currency. C. A. D. C. Cir. Certiorari denied. Reported below: 183 U. S. App. D. C. 217, 562 F. 2d 736. No. 77-787. Tidwell v. United States. C. A. 5th Cir. Certiorari denied. Reported below : 559 F. 2d 262. No. 77-898. Pomponio et al. v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 563 F. 2d 659. No. 77-900. Velsicol Chemical Corp. v. United States. C. A. 7th Cir. Certiorari denied. Reported below : 561 F. 2d 671. No. 77-901. Frakes v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 564 F. 2d 821. No. 77-903. Myers v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 67 Ill. 2d 308, 367 N. E. 2d 949. No. 77-917. Whiteside & Co. et al. v. National Association of Securities Dealers, Inc., et al. C. A. 5th Cir. Certiorari denied. Reported below: 557 F. 2d 1118. No. 77-936. Coastal States Petrochemical Co. v. United States. Ct. Cl. Certiorari denied. Reported below: 214 Ct. Cl. 520, 559 F. 2d 1. No. 77-946. Iannone et al. v. United States. C. A. 2d Cir. Certiorari denied. No. 77-948. Zannino v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 566 F. 2d 1171. No. 77-956. Parke, Davis & Co. v. Califano, Secretary of Health, Education, and Welfare, et al. C. A. 6th Cir. Certiorari denied. Reported below: 564 F. 2d 1200. No. 77-974. Hall v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 559 F. 2d 1160. ORDERS 943 435 U. S. March 27, 1978 No. 77-962. Hawaiian Telephone Co. et al. v. Hawaii Department of Labor and Industrial Relations et al. C. A. 9th Cir. Certiorari before judgment denied. No. 77-996. Poe v. Stetson, Secretary of the Air Force, et al. C. A. 9th Cir. Certiorari denied. Reported below: 562 F. 2d 56. No. 77-997. Hawaii v. Consumer Product Safety Commission et al. C. A. D. C. Cir. Certiorari denied. Reported below: 185 U. S. App. D. C. 133, 566 F. 2d 798. No. 77-998. Logal v. Cruse et al. Sup. Ct. Ind. Certiorari denied. Reported below: 267 Ind. 83, 368 N. E. 2d 235. No. 77-1029. Clay v. Bomar. C. A. 6th Cir. Certiorari denied. No. 77-1076. Massachusetts v. Dustin. Sup. Jud. Ct. Mass. Certiorari denied. Reported below: 373 Mass. 612, 368 N. E. 2d 1388. No. 77-1082. Joyner v. Phelps, Warden. Sup. Ct. La. Certiorari denied. Reported below: 352 So. 2d 187. No. 77-1084. Barbee v. North Carolina. Ct. App. N. C. Certiorari denied. Reported below: 34 N. C. App. 66, 237 S. E. 2d 352. No. 77-1088. Chestnutt Corp. v. Galfand et al. C. A. 2d Cir. Certiorari denied. No. 77-1103. Bryan v. Merrill Lynch, Pierce, Fenner & Smith, Inc. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 276. No. 77-1112. Duke v. United States Steel Corp, et al. C. A. 5th Cir. Certiorari denied. Reported below: 560 F. 2d 1022. 944 OCTOBER TERM, 1977 March 27, 1978 435U.S. No. 77-1114. Ternes v. North Dakota. Sup. Ct. N. D. Certiorari denied. Reported below: 259 N. W. 2d 296. No. 77-1139. Burnett v. Arkansas. Sup. Ct. Ark. Certiorari denied. Reported below: 262 Ark. 235, 556 S. W. 2d 653. No. 77-1178. Quinn v. Kansas Power & Light Co. C. A. 10th Cir. Certiorari denied. No. 77-1187. Black et al. v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 569 F. 2d 1111. No. 77-1204. Rodriguez v. United States; and No. 77-1212. Rodriguez v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 568 F. 2d 771. No. 77-1215. Cady v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 567 F. 2d 771. No. 77-5832. Cole v. Illinois. App. Ct. Ill., 5th Dist. Certiorari denied. Reported below: 50 Ill. App. 3d 133, 365 N. E. 2d 133. No. 77-5875. Duke v. United States. C. A. 2d Cir. Certiorari denied. No. 77-5884. Welch v. Evans et al. C. A. ,4th Cir. Certiorari denied. Reported below: 564 F. 2d 94. No. 77-5895. Rudolph v. Wisconsin. Sup. Ct. Wis. Certiorari denied. Reported below: 78 Wis. 2d 435, 254 N. W. 2d 471. No. 77-5971. Myers v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 564 F. 2d 1329. No. 77-6008. Asumansi v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 566 F. 2d 1173. No. 77-6037. Wylie v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 186 U. S. App. D. C. 231, 569 F. 2d 62. ORDERS 945 435 U. S. March 27, 1978 No. 77-6038. Lewis v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 567 F. 2d 785. No. 77-6051. Chalk v. Secretary of Labor et al. C. A. D. C. Cir. Certiorari denied. Reported below: 184 U. S. App. D. C. 189, 565 F. 2d 764. No. 77-6056. Clark v. Benson, Warden. C. A. 10th Cir. Certiorari denied. No. 77-6061. Evans v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 559 F. 2d 244. No. 77-6134. Peterson v. Maryland. Ct. App. Md. Certiorari denied. Reported below: 281 Md. 309, 379 A. 2d 164. No. 77-6138. Arias v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 566 F. 2d 1184. No. 77-6142. Jenkins v. District of Columbia. C. A. D. C. Cir. Certiorari denied. No. 77-6153. Ricks v. Hopper, Warden. Sup. Ct. Ga. Certiorari denied. No. 77-6154. Broomfield v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida. C. A. 5th Cir. Certiorari denied. No. 77-6163. Fahrig et al. v. Berger et al. Ct. App. Ohio, Montgomery County. Certiorari denied. No. 77-6166. Tenn art v. Louisiana. Sup. Ct. La. Certiorari denied. Reported below: 352 So. 2d 629. No. 77-6168. Cloudy v. Indiana. Ct. App. Ind. Certiorari denied. No. 77-6169. Murray v. Califano, Secretary, Department of Health, Education, and Welfare. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 157. 946 OCTOBER TERM, 1977 March 27, 1978 435 U. S. No. 77-6171. Exum v. Perini, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. No. 77-6173. Green v. Warden, Maryland State Penitentiary. C. A. 4th Cir. Certiorari before judgment denied. No. 77-6179. Naylor v. Superior Court of Arizona, County of Maricopa, et al. C. A. 9th Cir. Certiorari denied. Reported below: 558 F. 2d 1363. No. 77-6182. Tippett v. Missouri. Ct. App. Mo., St. Louis Dist. Certiorari denied. Reported below: 558 S. W. 2d 288. No. 77-6183. Williams et al. v. Hoyt et al. C. A. 5th Cir. Certiorari denied. Reported below: 556 F. 2d 1336. No. 77-6185. Rogers v. Thirty-Seventh Judicial Court et al. C. A. 10th Cir. Certiorari denied. No. 77-6207. Cardillo v. Bell, Attorney General, et al. C. A. 3d Cir. Certiorari denied. Reported below: 562 F. 2d 43. No. 77-6214. Simpson v. Kreiger, Sheriff. C. A. 6th Cir. Certiorari denied. Reported below: 565 F. 2d 390. No. 77-6220. Pico-Zazueta v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 564 F. 2d 1367. No. 77-6243. Smith v. United States. C. A. 10th Cir. Certiorari denied. No. 77-6249. Howze v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 567 F. 2d 389. No. 77-6257. Hudson v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 566 F. 2d 889. No. 77-6262. Bull v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 869. ORDERS 947 435 U. S. March 27, 1978 No. 77-6264. Kulas v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 570 F. 2d 353. No. 77-6269. Montes-Zarate v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 552 F. 2d 1330. No. 77-6284. Ilacqua v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 562 F. 2d 399. No. 77-6311. Eckert v. Hewitt et al. C. A. 3d Cir. Certiorari denied. No. 77-318. Shang, Acting Commissioner, Department of Social Services of New York v. Holley et al. C. A. 2d Cir. Motion of respondents Holley et al. for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 553 F. 2d 845. No. 77-958. Pennsylvania v. Jones, aka Friday. Sup. Ct. Pa. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 474 Pa. 364, 378 A. 2d 835. No. 77-1075. American Society of Travel Agents, Inc., et al. v. Blumenthal, Secretary of the Treasury, et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice Brennan, Mr. Justice White, and Mr. Justice Powell would grant certiorari. Reported below: 184 U. S. App. D. C. 253, 566 F. 2d 145. Rehearing Denied No. 77-584. Neustein v. United States, 434 U. S. 1062; No. 77-5515. Hampton v. United States, 434 U. S. 1071; and No. 77-5804. Simmons et al. v. United States, 434 U. S. 1074. Petitions for rehearing denied. No. 77-5328. Hilliard v. Estelle, Corrections Director, 434 U. S. 1016. Motion for leave to file petition for rehearing denied. 948 OCTOBER TERM, 1977 435 U.S. April 3, 1978 Affirmed on Appeal No. 77-980. Lewis v. Cowen et al. Affirmed on appeal from D. C. E. D. Pa. Mr. Justice Brennan and Mr. Justice Powell would note probable jurisdiction and set case for oral argument. Reported below: 443 F. Supp. 544. Appeal Dismissed No. 77-1026. Riley, a minor, by Gibbs v. Ohio et al. Appeal from Ct. App. Ohio, Franklin County, dismissed for want of substantial federal question. Certiorari Granted—Vacated and Remanded No. 77-85. Smalling, Superintendent of Unified School District No. 480, Seward County, Kansas, et al. v. Epperson et al. C. A. 10th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Carey v. Piphus, ante, p. 247. Reported below: 551 F. 2d 254. Miscellaneous Orders No. A-636 (77-6111). Brown v. United States. C. A. 2d Cir. Application for stay, presented to Mr. Justice Stevens, and by him referred to the Court, denied. No. A-776. Keogh v. Main XX XVI, Inc. County Ct. of Law No. 3, Harris County, Tex. Application for stay, presented to Mr. Justice Marshall, and by him referred to the Court, denied. No. D-122. In re Disbarment of Stillo. Disbarment entered. [For earlier order, see 434 U. S. 979.] No. D-125. In re Disbarment of Duden. Disbarment entered. [For earlier order, see 434 U. S. 980.] No. D-126. In re Disbarment of Spar. Disbarment entered. [For earlier order, see 434 U. S. 980.] ORDERS 949 435 U. S. April 3, 1978 No. D-127. In re Disbarment of Gonzalez. Disbarment entered. [For earlier order, see 434 U. S. 980.] No. D-128. In re Disbarment of Kellogg. Disbarment entered. [For earlier order see 434 U. S. 980.] No. D-132. In re Disbarment of Esser. It is ordered that Gene Ira Esser of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D-133. In re Disbarment of Chu. It is ordered that Gene Loy Chu of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. 77-529. Wise, Mayor of Dallas, et al. v. Lipscomb et al. C. A. 5th Cir. [Certiorari granted, 434 U. S. 1008.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae granted and 15 minutes allotted for that purpose, provided that the brief of the United States is filed on or before April 10, 1978. If the brief is timely filed, appellants also allotted an additional 15 minutes for oral argument. No. 77-888. Vitek, Correctional Director, et al. v. Jones et al. D. C. Neb. [Probable jurisdiction noted, 434 U. S. 1060.] Motion of appellee Jones for leave to proceed herein in forma pauperis granted. Motion for appointment of counsel granted, and it is ordered that Thomas A. Wurtz, Esquire, of Lincoln, Neb., be appointed to serve as counsel for appellee Jones in this case. No. 77-1207. Blum, Acting Commissioner, Department of Social Services of New York, et al. v. Toomey et ux. C. A. 2d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States. 950 OCTOBER TERM, 1977 April 3, 1978 435 U. S. No. 77-6354. Northern v. Department of Human Services of Tennessee. Appeal from Sup. Ct. Tenn. Motion to expedite denied. No. 77-1037. Renwick v. United States Court of Appeals for the Second Circuit et al. Motion for leave to file petition for writ of mandamus and/or other relief denied. Certiorari Granted No. 77-1051. Givhan v. Western Line Consolidated School District et al. C. A. 5th Cir. Certiorari granted. Reported below: 555 F. 2d 1309. Certiorari Denied No. 77-570. Avery v. New England Telephone & Telegraph Co. C. A. 2d Cir. Certiorari denied. Reported below: 559 F. 2d 1202. No. 77-805. Franklin v. Georgia. Ct. App. Ga. Certiorari denied. Reported below: 143 Ga. App. 3, 237 S. E. 2d 425. No. 77-851. Fernandez v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 556 F. 2d 1246. No. 77-855. Warner-Lambert Co. v. Federal Trade Commission; and No. 77-1118. Federal Trade Commission v. Warner-Lambert Co. C. A. D. C. Cir. Certiorari denied. Reported below: 183 U. S. App. D. C. 230, 562 F. 2d 749. No. 77-870. Missouri Pacific Railroad Co. v. City of Palestine, Texas, et al. C. A. 5th Cir. Certiorari denied. Reported below: 559 F. 2d 408. No. 77-885. Commissioner of Education of New Jersey et al. v. Board of Education of the North Hunterdon Regional High School, Township of Franklin, et al. Sup. Ct. N. J. Certiorari denied. Reported below: 74 N. J. 345, 378 A. 2d 218. ORDERS 951 435 U. S. April 3, 1978 No. 77-939. Blizzard v. Mahan, Prison Superintendent, et al. C. A. 4th Cir. Certiorari denied. No. 77-959. Hulver v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 562 F. 2d 1132. No. 77-960. Clinton Municipal Separate School District v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 560 F. 2d 1188. No. 77-976. Davis v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 564 F. 2d 688. No. 77-999. Helfer v. United States; No. 77-5991. Gentry v. United States; and No. 77-6052. Hornstein v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 563 F. 2d 836. No. 77-1001. Markley et al. v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 567 F. 2d 523. No. 77-1005. Brown v. United States. C. A. 6th dr. Certiorari denied. No. 77-1034. Nogueras et al. v. Puerto Rico International Airlines, Inc., et al. C. A. 1st Cir. Certiorari denied. No. 77-1035. Vice v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 562 F. 2d 1004. No. 77-1043. Stifel, Nicolaus & Co., Inc., et al. v. Garnatz. C. A. 8th Cir. Certiorari denied. Reported below: 559 F. 2d 1357. No. 77-1073. Lee Pharmaceuticals v. United States District Court for the Central District of California (Den-Mat, Inc., et al., Real Parties in Interest). C. A. 9th dr. Certiorari denied. 952 OCTOBER TERM, 1977 April 3, 1978 435 U. S. No. 77-1085. American Biltrite, Inc., et al. v. United States et al. C. A. 6th Cir. Certiorari denied. Reported below: 559 F. 2d 1221. No. 77-1113. Lozada v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported below: 57 App. Div. 2d 907, 394 N. Y. S. 2d 460. No. 77-1116. Toro Co. et al. v. Alsop, U. S. District Judge, et al. C. A. 8th Cir. Certiorari denied. Reported below: 565 F. 2d 998. No. 77-1121. State Compensation Insurance Fund v. Workers’ Compensation Appeals Board of California et al. Sup. Ct. Cal. Certiorari denied. No. 77-1127. Brown v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 567 F. 2d 389. No. 77-1141. Walter E. Heller & Co. v. First Virginia Bankshares. C. A. 5th Cir. Certiorari denied. Reported below: 559 F. 2d 1307. No. 77-1183. City of Evanston, Illinois v. Andruss et al. Sup. Ct. Ill. Certiorari denied. Reported below: 68 Ill. 2d 215, 369 N. E. 2d 1258. No. 77-1206. Gambino et al. v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 566 F. 2d 414. No. 77-1216. Duhon et al. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 565 F. 2d 345. No. 77-1224. Foster et ux. v. United States. C. A. 9th Cir. Certiorari denied. No. 77-1230. Taylor v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 569 F. 2d 448. No. 77-1233. Odneal et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 565 F. 2d 598. ORDERS 953 435 U. S. April 3, 1978 No. 77-1238. Levatino v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 564 F. 2d 414. No. 77-5539. Walking Crow v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 560 F. 2d 386. No. 77-5855. Rapp v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 564 F. 2d 101. No. 77-5916. Manson v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 71 Cal. App. 3d 1,139 Cal. Rptr. 275. No. 77-5954. Carey v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 565 F. 2d 545. No. 77-5987. Scott v. United States. C. A. 6th Cir. Certiorari denied. No. 77-6014. Albert v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 568 F. 2d 489. No. 77-6027. Silberberg et al. v. United States. C. A. 2d Cir. Certiorari denied. No. 77-6046. Whitney v. United States. C. A. 9th Cir. Certiorari denied. No. 77-6071. Abascal v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 564 F. 2d 821. No. 77-6079. Smith v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 159. No. 77-6090. Lewis v. Chavez, Correctional Superintendent. C. A. 9th Cir. Certiorari denied. No. 77-6106. Tyler v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 160. No. 77-6135. DeShazo v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 565 F. 2d 893. 954 OCTOBER TERM, 1977 April 3, 1978 435U.S. No. 77-6144. Adcock v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 571 F. 2d 582. No. 77-6189. Cohen v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Reported below: 59 App. Div. 2d 1066,399 N. Y. S. 2d 552. No. 77-6190. Pevlor v. Kentucky. Sup. Ct. Ky. Certiorari denied. No. 77-6193. Harris, aka Davis v. United States; and No. 77-6195. Felder v. United States. C. A. 3d Cir. Certiorari denied. Reported below: No. 77-6193, 568 F. 2d 771; No. 77-6195, 568 F. 2d 770. No. 77-6197. Ratliff v, Ohio. Sup. Ct. Ohio. Certiorari denied. No. 77-6198. Lyle v. Wyrick, Warden. C. A. 8th Cir. Certiorari denied. Reported below: 565 F. 2d 529. No. 77-6199. Thundershield v. Solem, Warden, et al. C. A. 8th Cir. Certiorari denied. Reported below: 565 F. 2d 1018. No. 77-6203. Zink v. Estelle, Corrections Director. C. A. 5th Cir. Certiorari denied. No. 77-6210. Stafford v. Weber et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 77-6213. Hernandez et al. v. Colorado. C. A. 10th Cir. Certiorari denied. No. 77-6223. Grismore v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 564 F. 2d 929. No. 77-6224. Schoultz v. Sheriff, Carson City, Nevada. C. A. 9th Cir. Certiorari denied. Reported below: 568 F. 2d 778. ORDERS 955 435 U. S. April 3, 1978 No. 77-6227. Punch et al. v. United States. Ct. App. D. C. Certiorari denied. Reported below: 377 A. 2d 1353. No. 77-6232. Henderson v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 565 F. 2d 1119. No. 77-6240. Barney v. United States. C. A. 9th dr. Certiorari denied. Reported below: 568 F. 2d 134. No. 77-6266. Mora v. United States. C. A. 10th dr. Certiorari denied. No. 77-6270. Godin v. United States. C. A. 10th Cir. Certiorari denied. No. 77-6272. Daniels v. Ohio. Ct. App. Ohio, Hamilton County. Certiorari denied. No. 77-6275. Montoya v. United States. C. A. 5th dr. Certiorari denied. Reported below: 568 F. 2d 1368. No. 77-6281. Speadling v. United States. C. A. 7th dr. Certiorari denied. Reported below: 570 F. 2d 348. No. 77-6292. Gray v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 565 F. 2d 881. No. 77-6294. Summers v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 565 F. 2d 161. No. 77-6295. Franklin v. United States. C. A. 8th dr. Certiorari denied. Reported below: 568 F. 2d 1156. No. 77-6298. Carbajal v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 570 F. 2d 352. No. 77-6302. Cerkl v. United States. C. A. 9th dr. Certiorari denied. Reported below: 570 F. 2d 352. No. 77-6306. Murphy v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 569 F. 2d 771. 956 OCTOBER TERM, 1977 April 3, 1978 435 U. S. No. 77-6312. Pederson v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 568 F. 2d 779. No. 77-6314. Enriquez-Palafox v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 570 F. 2d 352. No. 77-6316. Parker v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 566 F. 2d 1304. No. 77-6319. Mullholan v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 570 F. 2d 353. No. 77-6327. Moore v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 571 F. 2d 154. No. 77-6334. Simpkins v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 568 F. 2d 774. No. 77-1108. Antal v. Boyle et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice Brennan and Mr. Justice Powell would grant certiorari. Reported below: 185 U. S. App. D. C. 245, 567 F. 2d 112. No. 77-1111. Colorado v. Bramlett. Sup. Ct. Colo. Motion of respondent for leave to proceed in jorma pauperis granted. Certiorari denied. Reported below: 194 Colo. 205, 573 P. 2d 94. No. 77-1132. New Mexico ex rel. Environmental Improvement Agency v. Albuquerque Publishing Co. Sup. Ct. N. M. Certiorari denied, it appearing that the judgment below rests upon adequate state grounds. Reported below: 91 N. M. 125,571 P. 2d 117. No. 77-1175. Illinois v. Pendleton. App. Ct. Ill., 1st Dist. Motion of respondent for leave to proceed in jorma pauperis granted. Certiorari denied, it appearing that the judgment below rests upon adequate state grounds. Reported below: 52 Ill. App. 3d 241, 367 N. E. 2d 196. ORDERS 957 435 U. S. April 3, 1978 No. 77-5874. Little v. Arkansas. Sup. CL Ark. Certiorari denied. Reported below: 261 Ark. 859, 554 S. W. 2d 312. Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting. I would grant certiorari to resolve the question whether, before a juvenile waives her constitutional rights to remain silent and consult with an attorney, she is entitled to competent advice from an adult who does not have significant conflicts of interest. Petitioner, a girl of “low dull normal” intelligence,1 has been sentenced to spend the rest of her life in prison for a crime that occurred when she was 13 years old.1 2 Her conviction for the murder of her father was based in large part on incriminating statements that she made on three occasions. The most important of these statements was a lengthy confession given at the county juvenile home on the day of the murder, in the presence of her mother, a probation officer, a prosecuting attorney, and two sheriff’s deputies. Prior to making this confession, petitioner spent 10-15 minutes alone with her mother, who had earlier been questioned by the police concerning the murder and who believed that she was herself a suspect. 261 Ark. 859, 866-867, 554 S. W. 2d 312, 314-315 (1977). The mother emerged from this meeting, “lookfing] as if she had been crying,” and stated 1261 Ark. 859, 870, 554 8. W. 2d 312, 317 (1977). The psychiatrist who made this observation had been called by the State at a pretrial hearing on petitioner’s suppression motion. He also stated that petitioner had “basic insecurity and inadequacy” and that she was “fearful of doing the wrong thing.” Ibid. 2 The opinion of the Arkansas Supreme Court suggests at one point that petitioner might have been 14 years old, id., at 863, 554 S. W. 2d, at 313, but assumes at another point that petitioner was 13, id., at 876, 554 S. W. 2d, at 320-321. The State here concedes that petitioner was 13. Brief in Opposition 5. 958 OCTOBER TERM, 1977 Marshall, J., dissenting 435U.S. that petitioner wanted to confess. Id., at 867, 554 S. W. 2d at 315. Petitioner then was advised of her rights under the Fifth and Sixth Amendments, pursuant to Miranda V. Arizona, 384 U. S. 436 (1966).3 She said that she understood her rights and wished to talk. Her confession was tape-recorded and, along with testimony concerning petitioner’s other selfincriminating statements,4 was introduced at trial over timely objection. Petitioner’s subsequent conviction was affirmed by the Arkansas Supreme Court. The issue presented here is an important one. In In re Gault, 387 U. S. 1 (1967), this Court recognized that “special problems may arise with respect to waiver of the [Fifth Amendment] privilege by or on behalf of children” and that “the greatest care must be taken to assure that ... [a child’s confession] was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” Id., at 55. Several years earlier, in Gallegos v. Colorado, 370 U. S. 49 (1962), the Court observed that “a 14-year-old boy, no matter how sophisticated, ... is unable to know how to protect his own interests or how to get the benefits of his constitutional rights.” Id., at 54. In both of these cases, convictions of 3 Petitioner had been given Miranda warnings at least once prior to this time, see n. 4, infra, and her rights had been separately explained to her mother, 261 Ark., at 866-867, 554 S. W. 2d, at 315. 4 Petitioner had earlier stated, while being taken to the juvenile home by deputy sheriffs, that she had “ 'done it.’ ” Id., at 866, 554 S. W. 2d, at 315. It is not clear whether this brief statement was made spontaneously or in response to questioning by the sheriffs. Compare ibid., with id., at 872, 554 8. W. 2d, at 318. Miranda warnings had been given before petitioner spoke. The final set of statements made by petitioner and used against her were made at a juvenile home where petitioner was held for several months. She developed a close relationship with a “house mother,” who later testified that petitioner had admitted to her that petitioner had committed the crime partly out of fear of her father’s sexual advances. Id., at 872-873, 554 S. W. 2d, at 318. There is no indication that the house mother ever advised petitioner of her rights. ORDERS 959 957 Marshall, J., dissenting juveniles were reversed, in part because they had not had an opportunity to consult with a relative or lawyer prior to confessing. See 387 U. S., at 56; 370 U. S., at 54.5 6 Requiring that a child receive adult advice before making a confession ensures that the child is protected from “his own immaturity,” thereby “put[ting] him on a less unequal footing with his interrogators. Ibid? Petitioner here did consult with her mother before she made her statement. The mother, however, was plainly not in a position to provide rational advice with only the child’s interests in mind, especially on the day of the murder. The mother had been through the traumatic experience of having her husband shot while he slept next to her, and then had suffered the additional trauma of believing herself to be a suspect, see supra, at 957. Like her daughter, the mother had been given tranquilizers not long before the confession was made. 261 Ark., at 869-872, 554 S. W. 2d, at 316-318. The mother’s testimony indicates understandable confusion and incomprehension at the time her daughter’s rights were explained to her: “I didn’t know what to do. I didn’t have nobody there with me, and being under this shock, and then them 5 See also Haley v. Ohio, 332 U. S. 596, 599-600 (1948): “[W]hen, as here, a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. . . . [W]e cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him.” 6 Many state courts have required that a child receive competent parental or other adult advice before waiving constitutional rights. See, e. g., Lewis v. State, 259 Ind. 431, 436-440, 288 N. E. 2d 138, 141-143 (1972); In re K. W. B., 500 S. W. 2d 275, 279-283 (Mo. App. 1973); Commonwealth v. Webster, 466 Pa. 314, 320-328, 353 A. 2d 372, 375-379 (1975). See also Weatherspoon v. State, 328 So. 2d 875, 876 (Fla. App. 1976). 960 OCTOBER TERM, 1977 Marshall, J., dissenting 435 ILS. coming and picking her up, and I was sedated, she was sedated. ... I was trying to make funeral arrangements. ... I didn’t know. I’d never been through a shock like this.” Tr. 172,173,175-176. Under the circumstances, it is hardly surprising that the mother cried when she was supposed to be giving dispassionate advice, see supra, at 957-958, and then urged her daughter to confess, 261 Ark., at 869, 554 S. W. 2d, at 316. We recognized in Gault that the “competence of parents” is a relevant factor in determining the validity of a waiver of rights by a child. 387 U. S., at 55. When the parent is emotionally distraught, crying, and under the influence of drugs, not only is her advice likely to be less than “competent,” but the parent’s demeanor may well have an adverse effect on the child’s ability to make a knowing waiver of her own rights. And to uphold a child’s waiver on the ground that she received parental advice is surely questionable when the parent has two obvious conflicts of interest, one arising from the possibility that the parent herself is a suspect, and the other from the fact that she is “advising” the person accused of killing her spouse. The difficulties inherent in a situation like that presented here have been recognized by lower courts and commentators. See, e. g., McBride v. Jacobs, 101 U. S. App. D. C. 189, 190, 247 F. 2d 595, 596 (1957) (parent may waive child’s rights if waiver is “intelligent [and] knowing” and “there is no conflict of interest between them”); Daniels v. State, 226 Ga. 269, 273, 174 S. E. 2d 422, 424 (1970) (mother intoxicated; Gault requires “competent, sober mother”); Ezell v. State, 489 P. 2d 781, 783-784 (Okla. Crim. App. 1971) (confession inadmissible despite presence of mother and legal guardian; no showing that either was “capable of protecting defendant’s constitutional rights”); In re L. B., 33 Colo. App. 1, 4, 513 P. 2d 1069, 1070 (1973) (father, incarcerated on drunkenness and other charges, taken from cell to advise son; parent’s “mere physical ORDERS 961 435 U. S. April 3, 1978 presence” is not sufficient); Institute of Judicial Administration & American Bar Assn., Joint Commission on Juvenile Justice Standards, Standards Relating to Police Handling of Juvenile Problems 69-73 (tent, draft 1977); Note, 57 B. U. L. Rev. 778, 783, 787-788 (1977). Under all of the circumstances, petitioner’s contention that there was no valid waiver of her rights deserves this Court’s plenary consideration. At the time that she made the decision to confess, this girl of “low dull normal” intelligence was not old enough, according to state law, to make decisions for herself on such other matters as marriage, voting, drinking alcoholic beverages, entering into an enforceable contract, initiating a lawsuit, and remaining in school.7 Her mother was hardly in a position to act on petitioner’s behalf on the day of the confession, as discussed above. In view of our reaffirmation only last Term that courts must “indulge in every reasonable presumption against waiver,” Brewer v. Williams, 430 U. S. 387, 404 (1977), I would grant the petition for certiorari. Rehearing Denied No. 77-646. Brand v. United States, 434 U. S. 1063; No. 77-856. Phillips Petroleum Co. v. Shutts, Executor, et al., 434 U. S. 1068; No. 77-883. Dappolonia v. Board of Chiropractic Examiners of Florida, 434 U. S. 1056; and No. 77-5174. Murry v. United States, ante, p. 915. Petitions for rehearing denied. 7 Ark. Stat. Ann. § 55-102 (Supp. 1977) ; Ark. Const. Art. 3, § 1, Ark. Stat. Ann. §3-212 (1976) and §§48-902.1 to 48-903.2 (1977); Robertson v. King, 225 Ark. 276, 278-279, 280 S. W. 2d 402, 403-404 (1955); Ark. Stat. Ann. § 27-823 (1962) and § 80-1502 (1960). In addition, a child of petitioner’s age in Arkansas may not, inter alia, give blood or obtain a tattoo without parental consent, §§ 82-1606 (Supp. 1977), 41-2468 (1977) ; play cards in a “saloon,” § 41-2459; “frequent” any “pool-hall,” § 41-2461; or operate a motor vehicle, §§ 75-310,75-324 (Supp. 1977). 962 OCTOBER TERM, 1977 April 3, 17, 1978 435 U. S. No. 77-5419. Twyman v. et al., 434 U. S. 1071; No. 77-5695. Moore v. Brierton, Warden, 434 U. S. 1088; No. 77-5721. Thornton v. Georgia, 434 U. S. 1073; No. 77-5748. Smith v. United States, ante, p. 915; No. 77-5811. Gilbert v. Yalanzon, 434 U. S. 1049; No. 77-5870. Barnett et ux. v. Cisneros et al., 434 U. S. 1075; No. 77-5963. Raitport v. Bank & Trust Company of Old York Road et al., 434 U. S. 1077 ; No. 77-6000. Haley v. Florida, ante, p. 906; and No. 77-6006. Tyler v. Peach et al., ante, p. 906. Petitions for rehearing denied. No. 77-5048. Dudar v. United States, 434 U. S. 864. Motion for leave to file petition for rehearing denied. April 17, 1978 Affirmed on Appeal No. 77-971. North Carolina ex rel. Morrow et al. v. Califano, Secretary of Health, Education, and Welfare, et al. Appeal from D. C. E. D. N. C. Motions of Pacific Legal Foundation and Association of American Physicians & Surgeons, Inc., for leave to file briefs as amici curiae granted. Judgment affirmed. Reported below: 445 F. Supp. 532. Appeals Dismissed No. 77-981. M. R. T. S., Inc., dba Classic Cat Theater v. Department of Alcoholic Beverage Control of California et al. Appeal from Ct. App. Cal., 4th App. Dist., dismissed for want of substantial federal question. No. 77-982. Taselli et al. v. Department of Alcoholic Beverage Control of California et al. Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question. ORDERS 963 435 U.S. April 17, 1978 No. 77-1179. Stockler v. Michigan et al. Appeal from Ct. App. Mich, dismissed for want of substantial federal question. Reported below: 75 Mich. App. 640, 255 N. W. 2d 718. No. 77-1211. Regenold v. Baby Fold, Inc., et al. Appeal from Sup. Ct. Ill. dismissed for want of substantial federal question. Reported below: 68 Ill. 2d 419, 369 N. E. 2d 858. No. 77-1188. Breza v. City of Trimont. Appeal from Sup. Ct. Minn, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 77-6228. Demers v. Rhode Island et al. Appeal from C. A. 1st Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 77-6231. Muka v. Heffron et al. Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 42 N. Y. 2d 823, 364 N. E. 2d 1344. No. 77-6244. Marschall et ux. v. Kristensen et al. Appeal from Ct. App. Wash, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 77-6313. Jenkins v. District of Columbia. Appeal from Ct. App. D. C. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 77-6149. Harper v. Duffey. Appeal from D. C. Mass, dismissed for want of jurisdiction. 964 OCTOBER TERM, 1977 April 17, 1978 435 U.S. Vacated and Remanded on Appeal No. 77-16. United States v. Department of Transportation of Georgia. Appeal from D. C. N. D. Ga. Judgment vacated and case remanded for further consideration in light of Massachusetts v. United States, ante, p. 444. Certiorari Granted—Vacated and Remanded. (See also No. 77-5898, ante, p. 559.) No. 76-548. Baltimore Gas & Electric Co. et al. v. Natural Resources Defense Council, Inc., et al. C. A. D. C. Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., ante, p. 519. Mr. Justice Powell took no part in the consideration or decision of this case. Reported below: 178 U. S. App. D. C. 336, 547 F. 2d 633. No. 76-745. Long Island Lighting Co. v. Lloyd Harbor Study Group, Inc. C. A. D. C. Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., ante, p. 519. Mr. Justice Powell took no part in the consideration or decision of this case. No. 77-947. Bordenkircher, Penitentiary Superintendent v. Gaston. C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Bordenkircher v. Hayes, 434 U. S. 357 (1978). Mr. Justice Marshall dissents. Reported below: 564 F. 2d 99. Certiorari Dismissed No. 77-6141. Busic v. United States. C. A. 3d Cir. Certiorari dismissed, it appearing that the judgment of the Court of Appeals for the Third Circuit has been vacated. ORDERS 965 435 U.S. April 17, 1978 Miscellaneous Orders No. A-798 (77-1360). Bracy et al. v. United States. C. A. 9th Cir. Application for reconsideration of denial of stay, presented to Mr. Justice Rehnquist, and by him referred to the Court, denied. No. A-817. Weinstein v. Florida. Sup. Ct. Fla. Application for stay, presented to Mr. Justice Marshall, and by him referred to the Court, denied. No. A-821 (77-1377). Hull v. Florida. Sup. Ct. Fla. Renewed application for stay, presented to Mr. Justice Brennan, and by him referred to the Court, denied. No. A-863 (77-1471). Edwards et al., Members, House of Representatives v. Carter, President of the United States. C. A. D. C. Cir. Application for injunction, presented to The Chief Justice, and by him referred to the Court, denied. No. D-130. In re Disbarment of Spurlark. It having been reported to the Court that Royal E. Spurlark, Jr., has been reinstated on the roll of attorneys admitted to practice in the State of Illinois, it is ordered that the order of this Court entered January 9, 1978 [434 U. S. 1004], suspending Royal E. Spurlark, Jr., from further practice of law in this Court be vacated and that the rule to show cause issued January 9, 1978, be discharged. No. 76-1701. Tennessee Valley Authority v. Hill et al. C. A. 6th Cir. [Certiorari granted, 434 U. S. 954.] Motion of Pacific Legal Foundation for leave to participate in oral argument as amicus curiae denied. No. 77-380. Andrus, Secretary of the Interior v. Charlestons Stone Products Co., Inc. C. A. 9th Cir. [Certiorari granted, 434 U. S. 964.] Motion of J. Alan Steele for leave to file a brief as amicus curiae granted. 966 OCTOBER TERM, 1977 April 17, 1978 435 U.S. No. 77-510. United States v. New Mexico. Sup. Ct. N. M. [Certiorari granted, 434 U. S. 1008.] Motion of respondent for divided argument granted. No. 77-528. Federal Communications Commission v. Pacifica Foundation et al. C. A. D. C. Cir. [Certiorari granted, 434 U. S. 1008.] Motion of American Broadcasting Co. et al. for leave to participate in oral argument as amici curiae denied. No. 77-529. Wise, Mayor of Dallas, et al. v. Lipscomb et al. C. A. 5th Cir. [Certiorari granted, 434 U. S. 1008.,] Motion of Lawyers’ Committee for Civil Rights Under Law for leave to file a brief as amicus curiae granted. Motion of the Solicitor General to permit Peter Buscemi, Esquire, to present oral argument pro hac vice granted. No. 77-539. Zenith Radio Corp. v. United States. C. A. 5th Cir. [Certiorari granted, 434 U. S. 1060.] Motions of Ford Motor Co., Craig Corp, et al., Union des Industries de la Communauté Européenne, and American Importers Assn., Inc., for leave to file briefs as amici curiae granted. No. 77-693. Will, U. S. District Judge v. Calvert Fire Insurance Co. et al. C. A. 7th Cir. [Certiorari granted, 434 U. S. 1008.] Motion of American Mutual Reinsurance Co. for additional time for oral argument denied without prejudice. Should petitioner cede a total of 10 minutes, divided argument is granted. No. 77-1036. Larsen, Acting Commissioner of Labor of the Virgin Islands v. Rogers. Appeal from C. A. 3d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States. No. 77-6394. LeFebre v. Wisconsin et al.; and No. 77-6450. Davidson v. United States. Motions for leave to file petitions for writs of habeas corpus denied. ORDERS 967 435 U.S. April 17, 1978 No. 77-1358. Gaetano et al. v. Oberdorfer, U. S. District Judge; No. 77-6245. Klein v. Decker, U. S. District Judge; and No. 77-6279. Tyler v. Grady, Judge. Motions for leave to file petitions for writs of mandamus denied. Probable Jurisdiction Noted No. 77-69. Panora, Registrar of Motor Vehicles of Massachusetts v. Montrym. Appeal from D. C. Mass. [Restored to calendar, 434 U. S. 1058.] Probable jurisdiction noted. Reported below: 429 F. Supp. 393. No. 77-1163. Friedman et al. v. Rogers et al.; No. 77-1164. Rogers et al. v. Friedman et al.; and No. 77-1186. Texas Optometric Assn., Inc. v. Rogers et al. Appeals from D. C. E. D. Tex. Probable jurisdiction noted. Cases consolidated and a total of one and one-half hours allotted for oral argument. Reported below: 438 F. Supp. 428. No. 77-5992. Addington v. Texas. Appeal from Sup. Ct. Tex. Motion of appellant for leave to proceed in forma pauperis granted. Probable jurisdiction noted. Reported below: 557 S. W. 2d 511. Certiorari Granted No. 77-1202. Michigan v. Doran. Sup. Ct. Mich. Certiorari granted. Reported below: 401 Mich. 235, 258 N. W. 2d 406. No. 77-6248. Hunter v. Dean, Sheriff. Sup. Ct. Ga. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Reported below: 240 Ga. 214, 239 S. E. 2d 791. 968 OCTOBER TERM, 1977 April 17, 1978 435 U.S. Certiorari Denied. (See also Nos. 77-1188, 77-6228, 77-6231, 77-6244, and 77-6313, supra.) No. 77-487. Frazier v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 560 F. 2d 884. No. 77-763. Brackett v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 185 U. S. App. D. C. 394, 567 F. 2d 501. No. 77-925. Windham et al. v. American Brands, Inc., et al. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 59. No. 77-977. Hubbard Broadcasting, Inc. v. Federal Communications Commission et al. C. A. D. C. Cir. Certiorari denied. Reported below: 184 U. S. App. D. C. 115, 564 F. 2d 600. No. 77-978. Western Chain Co. v. Brownlee et al. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 49 Ill. App. 3d 247, 364 N. E. 2d 926. No. 77-984. Mascarenhas v. Meridian Hospital Authority. C. A. 5th Cir. Certiorari denied. Reported below: 560 F. 2d 683. No. 77-988. Richardson et al. v. McFadden et al. C. A. 4th Cir. Certiorari denied. Reported below: 563 F. 2d 1130. No. 77-1010. Miami Herald Publishing Co. et al. v. Krentzman, U. S. District Judge. C. A. 5th Cir. Certiorari denied. Reported below: 558 F. 2d 1202. No. 77-1013. PuGLISI ET AL. V. UNITED STATES. Ct. Cl. Certiorari denied. Reported below: 215 Ct. Cl. 86, 564 F. 2d 403. No. 77-1019. Livestock Marketers, Inc., et al. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 558 F. 2d 748. ORDERS 969 435 U.S. April 17, 1978 No. 77-1027. Doe et al. v. McMillan, Chairman, House Committee on the District of Columbia, et al. C. A. D. C. Cir. Certiorari denied. Reported below: 185 U. S. App. D. C. 48, 566 F. 2d 713. No. 77-1038. Stewart v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 159. No. 77-1041. Ex parte Moody. Sup. Ct. Ala. Certiorari denied. Reported below: 351 So. 2d 538. No. 77-1064. McLennan et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 563 F. 2d 943. No. 77-1065. Lawriw v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 568 F. 2d 98. No. 77-1087. Ewanco v. Commissioner of Patents and Trademarks. C. A. D. C. Cir. Certiorari denied. Reported below: 186 U. S. App. D. C. 328, 569 F. 2d 159. No. 77-1093. Malizia v. United States. C. A. 2d Cir. Certiorari denied. No. 77-1096. Feeney et al. v. Securities and Exchange Commission. C. A. 8th Cir. Certiorari denied. Reported below: 564 F. 2d 260. No. 77-1102. Vaughn v. United States; and No. 77-6130. Little v. United States. C. A. Sth Cir. Certiorari denied. Reported below: 567 F. 2d 346. No. 77-1109. Moody v. Alabama ex rel. Payne, Commissioner of Insurance of Alabama, et al. Sup. Ct. Ala. Certiorari denied. Reported below: 351 So. 2d 552. No. 77-1135. Brown v. Tanenbaum, Judge, et al. C. A. 2d Cir. Certiorari denied. No. 77-1136. O’Haver et ux. v. Black et al. C. A. 10th Cir. Certiorari denied. Reported below: 567 F. 2d 361. 970 OCTOBER TERM, 1977 April 17, 1978 435 U.S. No. 77-1138. Patterson v. Kentucky. Ct. App. Ky. Certiorari denied. Reported below: 556 S. W. 2d 909. No. 77-1140. Doyle v. Board of Fire and Police Commissioners of the Village of Schaumburg. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 48 Ill. App. 3d 449, 363 N. E. 2d 79. No. 77-1143. Jones v. Missouri. Ct. App. Mo., Kansas City Dist. Certiorari denied. Reported below: 558 S. W. 2d 233. No. 77-1147. Firestone Tire & Rubber Co. v. Taylor, Director, Employment Security Commission of Michigan, et al. C. A. 6th Cir. Certiorari denied. Reported below: 571 F. 2d 580. No. 77-1148. Norris v. Arkansas. Sup. Ct. Ark. Certiorari denied. Reported below: 262 Ark. 188, 555 S. W. 2d 560. No. 77-1149. Hoffman et al. v. Public Employees’ Retirement Fund. Ct. App. Ore. Certiorari denied. Reported below: 31 Ore. App. 85, 569 P. 2d 701. No. 77-1152. Bee Jay’s Truck Stop, Inc. v. Department of Revenue of Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 52 Ill. App. 3d 90, 367 N. E. 2d 173. No. 77-1156. Alnoa G. Corp. v. City of Houston, Texas. C. A. 5th Cir. Certiorari denied. Reported below: 563 F. 2d 769. No. 77-1157. Topps Chewing Gum, Inc. v. Fleer Corp. C. A. 3d Cir. Certiorari denied. No. 77-1165. Thompson et al. v. Ohio. Ct. App. Ohio, Stark County. Certiorari denied. No. 77-1166. Philadelphia Gas Works v. Gulf Oil Corp, et al. C. A. 3d Cir. Certiorari denied. Reported below: 570 F. 2d 1138. ORDERS 971 435 U.S. April 17, 1978 No. 77-1180. LaFatch v. MM Corp, et al. G. A. 6th Cir. Certiorari denied. Reported below: 565 F. 2d 81. No. 77-1192. Lyons v. Salve Regina College et al. C. A. 1st Cir. Certiorari denied. Reported below: 565 F. 2d 200. No. 77-1194. Lozano v. Texas Mexican Railway Co. C. A. 5th Cir. Certiorari denied. Reported below: 564 F. 2d 720. No. 77-1198. Namirowski v. Nabisco, Inc. C. A. 7th Cir. Certiorari denied. Reported below: 567 F. 2d 392. No. 77-1199. Times-Picayune Publishing Co. v. Forrest. Ct. App. La., 1st Cir. Certiorari denied. Reported below: 347 So. 2d 1255. No. 77-1208. Estabrook v. Wise et al. Dist. Ct. App. Fla., 1st Dist. Certiorari denied. Reported below: 348 So. 2d 355. No. 77-1210. Alitalia-Linee Aeree Italiane, S. p. A. v. Manufacturers Hanover Trust Co. C. A. 2d Cir. Certiorari denied. No. 77-1214. Davidson v. Columbia University et al. App Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. No. 77-1223 Super Athletics Corp, et al. v. Universal Athletic Sales Co. C. A. 3d Cir. Certiorari denied. Reported below: 566 F. 2d 1170. No. 77-1281. Dillon v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 566 F. 2d 702. No. 77-1291. Trevino v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 565 F. 2d 1317. No. 77-1292. Ivey et al. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 567 F. 2d 389. 257-734 0-80-64 972 OCTOBER TERM, 1977 April 17, 1978 435 U.S. No. 77-1295. Burke v. Narragansett Electric Co. Sup. Ct. R. I. Certiorari denied. Reported below:------R. I.-----, 381 A. 2d 1358. No. 77-1296. United States Navigation, Inc., et al. v. Esposito. C. A. 2d Cir. Certiorari denied. No. 77-1302. Woods v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 568 F. 2d 509. No. 77-1334. Liebert v. United States; and No. 77-1343. Harkins v. United States. C. A. 3d Cir. Certiorari denied. Reported below: No. 77-1334, 571 F. 2d 573; No. 77-1343, 571 F. 2d 572. No. 77-1349. Union v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 570 F. 2d 816. No. 77-1350. Moreno et ux. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 569 F. 2d 1049. No. 77-5157. Hurst v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 559 F. 2d 1222. No. 77-5479. Lee v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 562 F. 2d 47. No. 77-5902. Burgess v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 77-5931. Duran v. New Mexico. Ct. App. N. M. Certiorari denied. Reported below: 91 N. M. 35, 570 P. 2d 36 and 39. No. 77-5956. Stillman v. United States; No. 77-5967. Bryant v. United States; No. 77-5978. Perry v. United States; No. 77-6103. Campbell v. United States; and No. 77-6160. Smith v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 563 F. 2d 1227. ORDERS 973 435 U. S. April 17, 1978 No. 77-5958. Elliott v. Illinois. App. Ct. Ill., 4th Dist. Certiorari denied. Reported below: 46 Ill. App. 3d 887, 361 N. E. 2d 852. No. 77-5984. Johnson v. United States. C. A. D. C. Cir. Certiorari denied. No. 77-5995. Reda v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 563 F. 2d 510. No. 77-6005. Himes v. Hewitt, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 77-6019. Hocker v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 566 F. 2d 1173. No. 77-6023. Clark v. United States. C. A. 9th Cir. Certiorari denied. No. 77-6031. Davis v. Iowa. Sup. Ct. Iowa. Certiorari denied. Reported below: 259 N. W. 2d 843. No. 77-6039. Carr v. United States. C. A. 6th Cir. Certiorari denied. No. 77-6078. Lewis v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 565 F. 2d 1248. No. 77-6088. Robson v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 568 F. 2d 778. No. 77-6104. Carter v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 569 F. 2d 801. No. 77-6111.. Brown v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 566 F. 2d 1170. No. 77-6119. Felts v. United States. C. A. 9th Cir. Certiorari denied. No. 77-6125. Barkley v. Lumpkin, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 566 F. 2d 1180. 974 OCTOBER TERM, 1977 April 17, 1978 435 U.S. No. 77-6126. Crocker v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 566 F. 2d 1173. No. 77-6131. Muncaster v. Griffin. C. A. 5th Cir. Certiorari denied. No. 77-6137. Gillen v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 567 F. 2d 393. No. 77-6140. Cooke v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 566 F. 2d 1170. No. 77-6157. Phillips v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 564 F. 2d 32. No. 77-6161. Mize v. United States. C. A. 9th Cir. Certiorari denied. No. 77-6167. Morgan v. United States; and No. 77-6178. Garrett v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 565 F. 2d 1065. No. 77-6184. Wright v. United States. C. A. Sth Cir. Certiorari denied. Reported below: 565 F. 2d 486. No. 77-6201. Pope v. Ohio. Ct. App. Ohio, Cuyahoga County. Certiorari denied. No. 77-6209. Von der Linden v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 561 F. 2d 1340. No. 77-6212. Hoppe v. Wisconsin. C. A. 7th Cir. Certiorari denied. Reported below: 570 F. 2d 347. No. 77-6229. Anderson v. Louisiana. Sup. Ct. La. Certiorari denied. Reported below: 352 So. 2d 1019. No. 77-6230. Riddell v. Washington. Sup,. Ct. Wash. Certiorari denied. No. 77-6237. Blitz v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 68 Ill. 2d 287, 369 N. E. 2d 1238. ORDERS 975 435 U.S. April 17, 1978 No. 77-6238. Sheridan v. Illinois. App. Ct. Ill., 4th Dist. Certiorari denied. Reported below: 51 Ill. App. 3d 963, 367 N. E. 2d 422. No. 77-6239. Robinson v. Florida. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Reported below: 351 So. 2d 1100. No. 77-6241. Gable v. Massey, Correctional Superintendent. C. A. 5th Cir. Certiorari denied. Reported below: 566 F. 2d 459. No. 77-6242. Martin v. Wyrick, Warden. C. A. 8th Cir. Certiorari denied. Reported below: 568 F. 2d 583. No. 77-6253. Harris v. Chase et al. C. A. 4th Cir. Certiorari denied. Reported below: 571 F. 2d 576. No. 77-6254. Marcus v. McGinnis, Corrections Commissioner. C. A. 2d Cir. Certiorari denied. No. 77-6256. Backus v. Florida. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Reported below: 353 So. 2d 213. No. 77-6258. Jackson v. Indiana. Sup. Ct. Ind. Certiorari denied. Reported below: 267 Ind. 62, 366 N. E. 2d 1186. No. 77-6260. McKinley v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 69 Ill. 2d 145, 370 N. E. 2d 1040. No. 77-6263. Evans v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 569 F. 2d 209. No. 77-6271. McGowan v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 69 Ill. 2d 73, 370 N. E. 2d 537. No. 77-6276. Phillips v. Olian et al. C. A. 5th Cir. Certiorari denied. Reported below: 565 F. 2d 1213. No. 77-6277. Howard v. Wyrick, Warden. C. A. 8th Cir. Certiorari denied. 976 OCTOBER TERM, 1977 April 17, 1978 435 U. S. No. 77-6282. Coledanchise v. Murdaugh et al. C. A. 4th Cir. Certiorari denied. Reported below: 566 F. 2d 1172. No. 77-6287. Bunkis v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 570 F. 2d 346. No. 77-6315. Ennis v. LeFevre, Correctional Superintendent. C. A. 2d Cir. Certiorari denied. Reported below: 560 F. 2d 1072. No. 77-6326. Ralls v. Manson, Corrections Commissioner. C. A. 2d Cir. Certiorari denied. No. 77-6328. Walker v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 569 F. 2d 502. No. 77-6331. Pittman v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 571 F. 2d 584. No. 77-6335. O’Brien v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 571 F. 2d 584. No. 77-6342. Gunston v. United States. Ct. Cl. Certiorari denied. No. 77-6344. Watkins v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 564 F. 2d 201 and 570 F. 2d 151. No. 77-6349. Kizer v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 569 F. 2d 504. No. 77-6367. McNair v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 571 F. 2d 573. No. 77-6376. Bowers v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 567 F. 2d 1309. No. 77-6414. Chavez-Chapula v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 570 F. 2d 352. No. 77-6415. Boettjer v. United States. C. A.. 9th Cir. Certiorari denied. Reported below: 569 F. 2d 1078. ORDERS 977 435 U.S. April 17, 1978 No. 77-6437. Green v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 568 F. 2d 1366. No. 77-643. United Steelworkers of America, AFL-CIO-CLC v. Sadlowski et al. C. A. 3d Cir. Certiorari denied. Reported below: 554 F. 2d 586. Mr. Justice White, with whom Mr. Justice Stewart and Mr. Justice Rehnquist join, dissenting. The Court’s action today lets stand the ruling by a panel of the Court of Appeals for the Third Circuit that attorney’s fees are awardable to intervenors in union election challenges processed under Title IV of the Labor Management Reporting and Disclosure Act (LMRDA), 73 Stat. 532, 29 U. S. C. § 481 et seq. The issues presented in this case are of serious importance to the proper enforcement of the LMRDA, and also to the prosecution generally of private claims that benefit a broad class of persons. The decision below rested on two necessary foundations: that the scheme of Title IV of the LMRDA did not foreclose the awarding of attorney’s fees to intervenors, and that the “common benefit” exception to the American rule against awarding attorney’s fees could fairly be applied to a case of intervention under Title IV such as occurred here. In Trbovich v. Mine Workers, 404 U. S. 528 (1972), this Court held that intervention by an individual union member whose initial complaint commenced the challenge to. the election was not inimical to the LMRDA. Title IV anticipates that objections to the conduct of union elections be initiated by union members filing a complaint with the Secretary of Labor after exhausting union remedies. Thereupon, however, it is the exclusive province of the Secretary to commence a civil action in federal district court. 29 U. S. C. § 482 (b). Trbovich held that the union member who initiated the challenge might still intervene in the federal suit, “so long as that intervention is limited to the claims of illegality presented 978 OCTOBER TERM, 1977 White, J., dissenting 435U.S. by the Secretary’s complaint.” Trbovich, supra, at 537. This conclusion represented a very careful balance between Title TV’s commitment of enforcement authority to the Secretary’s sole discretion, and a recognition that the union member who originally raised the complaint might wish to see his claims pressed in some manner different from that of the Secretary. The opinion below threatens to upset that delicate compromise. Intervention by union members in support of the Secretary’s grounds of complaint was upheld in Trbovich only because it would make the union liable “to relatively little additional burden,” and would “not subject the union to burdensome multiple litigation, nor will it compel the union to respond to a new and potentially groundless suit.” Trbovich, supra, at 536. Once attorney’s fees are assessable against a union on behalf of intervenors, however, the union has indeed become liable to an “additional burden” that could be quite costly. And the adjudication of whether an intervenor has contributed significantly to the common benefit of all union members could well involve the “burdensome multiple litigation” that the restrictions on intervention imposed by Trbovich were intended to avoid. Although not controlling, the Secretary of Labor’s views should also be considered in any matter concerning the proper enforcement of the Act he is to administer. It is significant, therefore, that the Secretary has in this case broken his silence on the attorney’s fees question for the first time. It is the position of the Secretary that the awarding of attorney’s fees to intervenors “significantly impedes the effective enforcement of Title IV.”* The other holding below, that intervention in such a case as *Memorandum on Behalf of Secretary of Labor 2. The Secretary believes that the availability of attorney’s fees will encourage excessive intervention since, no matter how great or small the assistance an individual might have provided the Secretary7, it is only by intervening that he can hope to receive compensation. ORDERS 979 977 White, J., dissenting this contributes to the “common benefit” of the group to be assessed the attorney’s fees, raises problems of its own. A judge-made exception to the traditional American rule against awarding attorney’s fees, the “common benefit” theory is premised on a court’s equity power to allocate a portion of a fund won for a class of persons through the efforts of a single person to compensate that single person. See Hall v. Cole, 412 U. S. 1, 5 n. 7 (1973). Subsequent elaboration extended the early theory to cases where no single class of persons was suing, Sprague v. Ticonic Nat. Bank, 307 IL S. 161 (1939), and to cases involving a common benefit other than a tangible pool of assets. Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970); Hall v. Cole, supra. The contribution made by an individual union member, however, who intervenes in an action brought by the Secretary of Labor, can only with great difficulty be viewed as the creation of a common benefit. The Secretary has already investigated the case, and is already conducting the suit. And the rationale permitting intervention was not to duplicate the efforts of the Secretary. Intervention was held permissible in Trbovich in order to protect a union member’s interest, or his choice of how to represent that interest, precisely to the extent that the individual’s interest diverged from the Secretary’s. The Secretary is the champion of the “ ‘vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member.’ ” Trbovich, supra, at 539, citing Wirtz v. Glass Bottle Blowers, 389 U. S. 463, 475 (1968). Hence, the rationale that provides for the right to intervene in the first place substantially undercuts the intervenor’s claim to be creating a significant common benefit not already provided by the Secretary. The Third Circuit panel, in adopting a common-benefit theory, correctly observed that our opinion in Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240 (1975), recognized the continuing vitality of that theory. More questionable, however, is whether the court below took proper account of 980 OCTOBER TERM, 1977 April 17, 1978 435 U.S. Alyeska’s explanation of the antedating opinions that applied a common-benefit theory: “In this Court’s common-fund and common-benefit decisions, the classes of beneficiaries were small in number and easily identifiable. The benefits could be traced with some accuracy, and there was reason for confidence that the costs could indeed be shifted with some exactitude to those benefiting.” Id., at 265 n. 39. The intervenor’s contribution admittedly need not be the provision of a monetary sum. However, the lower court’s reasoning that a new election in a single district benefited the entire membership of the United Steelworkers of America in such an identifiable and proportionate way as to justify burdening the entire membership with the intervenor’s attorney’s fees represents logic squarely at issue with Alyeska’s construction of the common-benefit theory. Both holdings of the lower court appear to conflict with this Court’s decisions. The awarding of attorney’s fees to intervenors in Title IV proceedings threatens seriously to obstruct the administration of the LMRDA. The common-benefit exception has in this case been stretched beyond the bounds of its creative rationale, both as to whether a benefit has been shown to exist at all, given the Secretary’s dominant enforcement role, and as to whether it is fair to tax the entire union with the costs of providing what benefit there might be. I would grant certiorari to resolve these important issues affecting the administration of the LMRDA and the conduct of all common-benefit litigation. No. 77-910. Government of the Virgin Islands et al. v. Vitco, Inc. C. A. 3d Cir. Certiorari denied. Mr. Justice White and Mr. Justice Blackmun would grant certiorari. Reported below: 560 F. 2d 180. No. 77-765. Wadsworth, Administrator, New Hampshire Employers’ Benefit Trust et al. v. Whaland, Com- ORDERS 981 435 U. S. April 17, 1978 missioner, Department of Insurance of New Hampshire ; and No. 77-772. Dawson, Administrator, Northern New England Carpenters Health and Welfare Fund et al. v. Whaland, Commissioner, Department of Insurance of New Hampshire. C. A. 1st Cir. Certiorari denied. Mr. Justice White would grant certiorari. Reported below: 562 F. 2d 70. No. 77-949. Illinois v. Washington. Sup. Ct. Ill. Motion of respondent for leave to proceed in jorma pauperis granted. Certiorari denied. Reported below: 68 Ill. 2d 186, 369 N. E. 2d 57. Rehearing Denied No. 77-447. Ratchford, President, University of Missouri, et al. v. Gay Lib et al., 434 U. S. 1080 ; No. 77-596. Gulf Oil Corp. v. Federal Energy Regulatory Commission et al., 434 U. S. 1062; No. 77-777. Miller v. Harris, Secretary of Housing and Urban Development, et al., 434 U. S. 1065 ; No. 77-853. Walton et ux. v. Papagianopoulos et al., 434 U. S. 1067; No. 77-941. Ender v. Chrysler Corp, et al., 434 U. S. 1070; No. 77-957. Hutter v. Korzen, Treasurer of Cook County, ante, p. 901 ; No. 77-975. Summers v. Alabama, 434 U. S. 1070; No. 77-1072. Yeev. Yeeetal., ante, p. 911; No. 77-5801. Frivaldo v. Cleland, Administrator, Veterans’ Affairs, et al., 434 U. S. 1074; No. 77-5882. Kaplan v. Whipple et al., Judges, 434 U. S. 1059; No. 77-5908. Hampton v. Alaska, 434 U. S. 1056; No. 77-5921. Gaddis v. Georgia, 434 U. S. 1088; and No. 77-5923. Morris, aka Hundley v. United States, ante, p. 916. Petitions for rehearing denied. 982 OCTOBER TERM, 1977 April 17, 19, 24, 1978 435 U.S. No. 77-6013. Wyche v. Warden, Maryland Penitentiary, ante, p. 907. Petition for rehearing denied. No. 77-908. Madry v. Sorel et al., 434 U. S. 1086. Motion of petitioner to defer consideration of petition for rehearing and petition for rehearing denied. No. 77-5877. Carroll v. Manson, Corrections Commissioner, et al., 434 U. S. 1075. Motion for leave to file petition for rehearing denied. April 19, 1978 Dismissals Under Rule 60 No. 76-1610. Ayala et al. v. United States et al. C. A. 9th Cir. [Certiorari granted, 434 U. S. 814.] Writ of certiorari dismissed under this Court’s Rule 60. Reported below: 550 F. 2d 1196. No. 77-1000. Chicago, Rock Island & Pacific Railroad Co. v. Rediker. Ct. App. Kan. [Certiorari granted, ante, p. 922.] Writ of certiorari dismissed under this Court’s Rule 60. Reported below: 1 Kan. App. 2d 581, 571 P. 2d 70. No. 77-1344. K. S. B. Technical Sales Corp, et al. v. North Jersey District Water Supply Commission of New Jersey et al. Appeal from Sup. Ct. N. J. dismissed under this Court’s Rule 60. Reported below: 75 N. J. 272, 381 A. 2d 774. April 24, 1978 Appeals Dismissed No. 76-1738. Sewell v. Georgia. Appeal from Sup. Ct. Ga. dismissed for want of substantial federal question. Reported below: 238 Ga. 495,233 S. E. 2d 187. Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissenting. Appellant, William M. Sewell, appeals from a judgment of the Supreme Court of Georgia which affirmed his conviction ORDERS 983 982 Brennan, J., dissenting on a one-count accusation framed under the Georgia obscenity statute, Ga. Code §26-2101 (1975). In July 1975, a police officer bought a magazine, Hot and Sultry, and a device said to be an “artificial vagina,” from appellant, an employee of the Stewart Avenue Adult Book Store. Shortly after this sale, the officer, joined by two others, entered the store, arrested appellant, and seized various vibrators, rubber devices shaped like penises, and other items alleged to be devices for sexual stimulation. After attempting unsuccessfully to have the seized material suppressed, appellant was convicted by a jury of selling the magazine and artificial vagina and of possessing the other material and was sentenced to 12 months in jail and a fine of $4,000. Georgia Code §26-2101 (a) (1975) provides: “A person commits the offense of distributing obscene materials when he sells ... or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so, provided that the word ‘knowing,’ as used herein, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter, and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable' and prudent person on notice as to the suspect nature of the material.” Sections 26-2101 (b) through 26-2101 (d) define the term “obscene materials” used in § 26-2101 (a). Section 26-2101 (b) covers published material alleged to be obscene and generally tracks the guidelines set out in Miller v. California, 413 U. S. 15 (1973). Section 26-2101 (c) states that, in addition to material covered in subsection (b), “any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this section.” The jury was instructed that it should determine the obscen 984 OCTOBER TERM, 1977 Brennan, J., dissenting 435U.S. ity of Hot and Sultry under the standards set out in §§ 26-2101 (a) and 26-2101 (b) and that the sale of the artificial vagina and the possession of the other material should be considered under §§ 26-2101 (a) and 26-2101 (c). The trial judge further charged the jury on the meaning of “knowing” in the words set out in § 26-2101 (a). A general verdict of guilty was returned. In this Court, appellant raises constitutional objections to a number of features of § 26-2101. First, he argues that an obscenity statute which defines scienter in a manner which authorizes obscenity convictions on mere “constructive” knowledge impermissibly chills the dissemination of materials protected under the First and Fourteenth Amendments. Jurisdictional Statement 3. Second, he argues that there is no rational basis for § 26-2101 (c) and, in addition, that it is unconstitutionally vague. Jurisdictional Statement 3, 9-10. Third, appellant contends that Hot and Sultry is not obscene as a matter of law. Id., at 3. And, finally, appellant challenges the warrantless mass seizure of the sexual devices on First, Fourth, and Fourteenth Amendment grounds. Id., at 3,17. This is an appeal and I cannot agree with the Court that the first and second questions presented can be dismissed as not presenting substantial federal questions.1 I In Ballew v. Georgia, ante, p. 223, we granted certiorari to consider, but did not reach, the precise scienter issue now raised by appellant. See Pet. for Cert, in Ballew v. Georgia, O. T. 1977, No. 76-761, p. 2. I see no basis for concluding that a federal constitutional question sufficiently substantial 1 Although I agree with my Brother Stewart, post, at 988-989, that § 26-2101 is unconstitutional as applied to the magazine involved in this case, I recognize that a majority of this Court does not agree with this view and, accordingly, I would hear argument on the scienter issue. ORDERS 985 982 Brennan, J., dissenting to be granted review on certiorari is now so insubstantial as not to require exercise of our mandatory appellate jurisdiction in this case. Moreover, even if others do not agree that the void-for-vagueness issue is substantial, the fact that appellant might have been convicted for sale or possession of the seized devices is irrelevant to consideration of the obscenity issue. As we said in Stromberg v. California, 283 U. S. 359, 367-368 (1931): “The verdict against the appellant was a general one. It did not specify the ground upon which it rested. . . . [I] t is impossible to say under which clause of the statute the conviction was obtained. ... It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.” See also Bachellar v. Maryland, 397 U. S. 564 (1970). II Appellant’s second argument, that § 26-2101 (c) is void for vagueness, also raises a substantial federal question—one of first impression in this Court—even though appellant fundamentally misapprehends the reach of the First Amendment in his argument that the protections of that Amendment extend to the sexual devices involved in this case.2 As we said in Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972): “It is a basic principle of due process that an enactment 2 Even if devices might in some circumstances be protected by the First and Fourteenth Amendments, this is not the case here since no claim is made that the devices are in any way expressive or that their possession and sale is in any way related to appellant’s right to speak. 986 OCTOBER TERM, 1977 Brennan, J., dissenting 435U.S. is void for vagueness if its prohibitions are not clearly-defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Footnotes omitted.) See also Papachristou v. Jacksonville, 405 U. S. 156 (1972); Cline v. Frink Dairy Co., 274 U. S. 445 (1927); Connally v. General Construction Co., 269 U. S. 385 (1926). Section 26-2101 (c) at least arguably offends both principles enunciated in Grayned. Even conceding that a jury could properly infer from the shapes of the seized devices that some could be used for sexual stimulation, the fact that some people might use the devices for that purpose scarcely suffices to show that they are designed ,or marketed primarily for sexual stimulation. As one commentator has noted, statutes couched in such terms of “judgment and degree” contain seeds of “inherent discontrol” over the law enforcement process and have been “virtually [the] exclusive target of void-for-vagueness nullification.” Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 92-93 (1960). Moreover, “it is in this realm, where the equilibrium between the individual’s claims of freedom and society’s demands upon him is left to be struck ad hoc on the basis of a subjective evaluation, . . . that there exists the risk of continuing irregu ORDERS 987 982 Brennan, J., dissenting larity with which the vagueness cases have been concerned?’ Id., at 93? In addition, although vague statutes may be saved from constitutional infirmity if they require specific intent as an element of an offense, see Papachristou v. Jacksonville, supra, at 163, the constructive scienter requirement of § 26-2101 (a), at least as applied in appellant’s trial, provides no reasonable assurance that persons will know or ought to know when they are likely to violate § 26-2101 (c). The record here is very clear: Appellant was convicted solely on the basis of the guesses and assumptions of the single witness at trial—a policeman who had never used the devices, Tr. 24; never seen them used, id., at 25; and who knew of no one who used them for sexual stimulation, id., at 26—that the seized devices were used primarily for the stimulation of human genitals. See id., at 22, 24. In explaining how he had reached his guesses and assumptions notwithstanding a total lack of personal familiarity with the seized devices, that witness stated that he had seen, in the course of his investigations, “newspapers that are printed and catalogs that are sent out to different people pertaining to these things.” Id., at 32. No catalogs were introduced into evidence and no evidence was given to show that the unidentified 3 Moreover, the facial vagueness of § 26-2101 (c) is enhanced by its interpretation by law enforcement personnel. Although § 26-2101 (c) by its terms applies only to devices that are “designed or marketed as useful primarily for the stimulation of human genital organs,” the accusation against appellant nonetheless charged appellant with possession of “3 anal stimulators.” Clerk’s Tr. 3. So far as I know, no dictionary includes the human anus among the genital organs. See also Balthazar v. Superior Court, 573 F. 2d 698 (CAI 1978). The packaging of another item states quite clearly on the back that the item is a “doggy dong.” Whether this item, in the shape of a rubber candlestick, is to be used with dogs or humans—or simply as a “novelty,” for whatever ribald humor it may give rise to—it is impossible to discover how appellant or a jury could conclude that this item is primarily used for stimulation of human genitals. 988 OCTOBER TERM, 1977 Stewart, J., dissenting 435U.S. catalogs would likely have been sent to appellant. Thus, how the proverbial “reasonable man,” or even a “reasonable clerk in an adult book store,” would have been put on notice of the primary use to which the seized devices would be put is simply not apparent. It is therefore hard to imagine a more stark prima facie case of a “vague law [which] impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” Grayned v. City of Rockford, supra, at 108-109. In a society where the rule of law is paramount, it simply will not do to allow persons, however ignoble their trade—or perhaps because their trade is ignoble, cf. Papachristou v. City of Jacksonville, supra—to be convicted of crimes solely because policemen and juries, encouraged by the State, can conjure up scenes of sexual stimulation in which devices play a major role. For the reasons set out above, I would set this case for argument. Mr. Justice Stewart, dissenting. The appellant stands convicted of the single crime of distributing obscene material in violation of Ga. Code § 26-2101 (1975). Cf. Robinson v. State, 143 Ga. App. 37, 38-39, 237 S. E. 2d 436, 438 (1977), vacated and remanded on other grounds, post, p. 991. The one-count indictment charged that he had sold both sexual devices, alleged to be obscene material as defined in § 26-2101 (c), and a magazine, alleged to be obscene under the definition in § 26-2101 (b). While the appellant does not claim that the definition of obscenity in subsection (b) is unconstitutional, he does ask this Court to examine the magazine in question and to determine that it is constitutionally protected as a matter of law. I continue to believe that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and ORDERS 989 435 U.S. April 24, 1978 Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (Brennan, J., dissenting). I therefore believe that the appellant’s conviction cannot constitutionally rest on the sale of an allegedly obscene magazine. Because it cannot be determined that the jury in this case did not convict the appellant on the basis of the magazine sale alone, I would reverse the judgment of the Supreme Court of Georgia.* See Stromberg v. California, 283 U. S. 359, 368. No. 77-790. Teal v. Georgia. Appeal from Ct. App. Ga. dismissed for want of substantial federal question. Reported below: 143 Ga. App. 47, 238 S. E. 2d 128. Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissenting. Appellant, Warren Teal, appeals from a judgment of the Georgia Court of Appeals which affirmed his conviction on a one-count accusation framed under the Georgia obscenity statute, Ga. Code § 26-2101 (1975). On August 29,1975, two Atlanta area law enforcement officers bought a magazine, Piece Meal, from appellant, an employee of the Ponce de Leon Adult Book Store, and immediately arrested appellant and seized various items alleged to be devices “designed or marketed as useful primarily for the stimulation of human genital organs.” § 26-2101 (c). After attempting unsuccessfully to have the seized material suppressed, appellant was convicted by a jury of selling the magazine and possessing the devices and was sentenced to 12 months in jail and a $5,000 fine. *Like my Brother Brennan, ante, at 984 n. 1, I recognize that a majority of the Court does not share this view, and since I also agree with Part I of his dissenting opinion, I would alternatively note probable jurisdiction and hear argument in this case on the scienter issue, if three other Members of the Court were like-minded. 990 OCTOBER TERM, 1977 April 24, 1978 435U.S. In this Court, appellant presents constitutional questions identical to those in Sewell v. Georgia, ante, p. 982, which are set out in my dissent there. For the reasons stated in that dissent, I would set this case for argument on the scienter and void-for-vagueness issues.* Mr. Justice Stewart, dissenting. This case is in all relevant respects identical to Sewell v. Georgia, ante, p. 982. For the reasons stated in my dissenting opinion in that case, I would reverse the judgment of the Georgia Court of Appeals, or alternatively, note probable jurisdiction and hear argument on the scienter issue. No. 77-1220. Schroeder v. Municipal Court of the Los Cerritos Judicial District (California, Real Party in Interest). Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question. Reported below: 73 Cal. App. 3d 841,141 Cal. Rptr. 85. No. 77-6365. Gill v. Gill et al. Appeal from C. A. 3d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 568 F. 2d 768. *A review of the record in this case shows that, as in Sewell v. Georgia, ante, p. 982 (Brennan, J., dissenting), the scienter requirement does not save Ga. Code § 26-2101 (c) (1975) from vagueness. Although a police officer testified here that, in the course of viewing adult movies, he had seen some of the devices used to stimulate human genitals and, in addition, that he had seen a catalog which marketed the devices for such a/use, there was no showing that appellant had seen or should have seen the indicated movies or that appellant was familiar with any such catalog. Indeed, the trial judge refused to admit the catalog into evidence because it had no relation to the constructive scienter issue. Thus the conclusion that the seized devices were “useful primarily for the stimulation of human genital organs,” here as in Sewell, was reached solely from an inference to be drawn from the shape of the devices and the arresting officers’ guesses and assumptions. ORDERS 991 435 U. S. April 24, 1978 No. 77-1229. Huffman, Administrator v. Kentucky et al. Appeal from Ct. App. Ky. dismissed for want of substantial federal question. Reported below: 561 S. W. 2d 683. Vacated and Remanded on Appeal No. 77-915. Robinson v. Georgia. Appeal from Ct. App. Ga. Judgment vacated and case remanded for further consideration in light of Ballew v. Georgia, ante, p. 223. Reported below: 143 Ga. App. 37, 237 S. E. 2d 436. Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissenting. Appellant, Ernest H. Robinson, appeals from a judgment of the Georgia Court of Appeals which affirmed his conviction on a one-count accusation framed under the Georgia obscenity statute, Ga. Code § 26-2101 (1975). As in Sewell v. Georgia, ante, p. 982, and Teal v. Georgia, ante, p. 989, appellant was an employee in an adult book store and was arrested for selling an allegedly obscene magazine to an Atlanta police officer. Immediately after the arrest, the police seized various devices thought to be “designed or marketed as useful primarily for the stimulation of human genital organs.” §26-2101 (c). After attempting unsuccessfully to have the seized material suppressed, appellant was convicted by a five-person jury of selling the magazine and possessing the devices and was sentenced to 12 months in jail and a $1,000 fine. In this Court, appellant presents constitutional questions identical to those in Sewell v. Georgia, supra, and, in addition, alleges that a jury composed of only five persons is constitutionally deficient. Although I agree that appellant’s conviction by a five-person jury cannot stand, see Ballew v. Georgia, ante, p. 223, I would nonetheless set the case for argument on the scienter and void-for-vagueness issues, see Sewell v. Georgia, ante, p. 982 (Brennan, J., dissenting), since a reversal on either of those grounds might bar a retrial, whereas Georgia is free under the Court’s remand order to put appel 992 OCTOBER TERM, 1977 April 24, 1978 435 U. S. lant to another trial under a statute that may well be unconstitutional. Mr. Justice Stewart, dissenting. This case is in all relevant respects identical to Sewell v. Georgia, ante, p. 982. For the reasons stated in my dissenting opinion in that case, I would reverse the judgment of the Georgia Court of Appeals, or, alternatively, note probable jurisdiction and hear argument on the scienter issue. Certiorari Granted—Vacated and Remanded No. 77-440. Pleasure Driveway and Park District of Peoria, Illinois, et al. v. Kurek et al. C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of City of Lafayette v. Louisiana Power <& Light Co., ante, p. 389. Mr. Justice Stevens took no part in the consideration or decision of this case. Reported below: 557 F. 2d 580. No. 77-734. City of Impact et al. v. Whitworth, dba Dinkie’s Food Mart. C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of City of Lafayette v. Louisiana Power & Light Co., ante, p. 389. Reported below: 559 F. 2d 378. No. 77-826. Fairfax Hospital Assn, et al. v. City of Fairfax et al. C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of City of Lafayette v. Louisiana Power & Light Co., ante, p. 389. Reported below: 562 F. 2d 280. No. 77-835. University of Texas System et al. v. Assaf. C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded to the United States District Court for the Southern District of Texas with directions to dismiss the case as moot. Board of Regents of the University of Texas System n. New Left Education Project, 414 U. S. 807 (1973). Reported below: 557 F. 2d 822. ORDERS 993 435 U. S. April 24, 1978 Miscellaneous Orders No. A-807. Brown et al. v. Thomson, Governor of New Hampshire. C. A. 1st Cir. Motion to amend or clarify order which this Court entered March 24, 1978 [ante, p. 938], denied. No. A-856. Kissinger v. Reporters Committee for Freedom of the Press et al. Application for stay of order of the United States District Court for the District of Columbia, entered January 25, 1978, presented to The Chief Justice and by him referred to the Court, granted pending final disposition of the appeals in the United States Court of Appeals for the District of Columbia Circuit. No. D-134. In re Disbarment of Beitling. It is ordered that S. Richard Beitling of Independence, Mo., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. 75-679. Internal Revenue Service v. Fruehauf Corp, et al., 429 U. S. 1085. Motion of respondents to retax costs denied. No. 77-529. Wise, Mayor of Dallas, et al. v. Lipscomb et al. C. A. 5th Cir. [Certiorari granted, 434 U. S. 1008.] Motion of Adelfa B. Callejo et al. for leave to participate in oral argument denied. Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Stevens would grant the motion. No. 77-1200. American Association of Councils of Medical Staffs of Private Hospitals, Inc. v. Judges of the United States Court of Appeals for the Fifth Circuit. Motion for leave to file petition for writ of mandamus denied. 994 OCTOBER TERM, 1977 April 24, 1978 435 U. S. No. 77-6462. Begley v. Carter et al. ; and No. 77-6479. Ricks v. Collins, Warden. Motions for leave to file petitions for writs of habeas corpus denied. No. 77-1131. In re Vendo Co. On February 10, 1978, petitioner filed for leave to file a petition for writ of mandamus and further prayed that a writ of mandamus issue to the United States District Court for the Northern District of Illinois directing the District Court to dissolve the preliminary injunction in Lektro-Vend Corp. n. Vendo Co. In Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623 (1977), this Court had held that the preliminary injunction violated the Anti-Injunction Act, 28 U. S. C. § 2283. The Court has now been advised of an order entered on April 6, 1978, dissolving the injunction in accordance with the judgment of this Court. Petitioner’s motion is therefore dismissed as moot. Probable Jurisdiction Noted No. 77-1248. Illinois State Board of Elections v. Socialist Workers Party et al. Appeal from C. A. 7th Cir. Probable jurisdiction noted. Reported below: 566 F. 2d 586. Certiorari Granted No. 77-533. Hisquierdo v. Hisquierdo. Sup. Ct. Cal. Certiorari granted. Reported below: 19 Cal. 3d 613, 566 P. 2d 224. Certiorari Denied. (See also No. 77-6365, supra.) No. 77-880. Lowther et al. v. Maryland Employees Retirement System et al. C. A. 4th Cir. Certiorari denied. Reported below: 561 F. 2d 1120. No. 77-993. Union Oil Company of California v. Ashland Oil Company of California et al. Temp. Emerg. Ct. App. Certiorari denied. Reported below: 567 F. 2d 984. No. 77-1039. Franklin v. Atkins et al. C. A. 10th Cir. Certiorari denied. Reported below: 562 F. 2d 1188. ORDERS 995 435 U. S. April 24, 1978 No. 77-1063. Eisenberg v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 567 F. 2d 391. No. 77-1068. Pfister v. Waddy, U. S. District Judge ; and Pfister v. Delta Air Lines, Inc., et al. C. A. D. C. Cir. Certiorari denied. No. 77-1080. Redmond v. United States; and No. 77-6073. Lund v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 546 F. 2d 1386. No. 77-1081. Knehans v. Alexander, Secretary of the Army. C. A. D. C. Cir. Certiorari denied. Reported below: 184 U. S. App. D. C. 420, 566 F. 2d 312. No. 77-1092. Thies v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 566 F. 2d 1171. No. 77-1097. Reynolds Metals Co. v. Brown, Secretary, Department of Defense, et al. C. A. 4th Cir. Certiorari denied. Reported below: 564 F. 2d 663. No. 77-1099. Buttram v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 568 F. 2d 770. No. 77-1101. Pappas Television, Inc. v. Federal Communications Commission et al. C. A. D. C. Cir. Certiorari denied. Reported below: 185 U. S. App. D. C. 133, 566 F. 2d 798. No. 77-1117. McFayden-Snider v. United States. C. A. 6th Cir. Certiorari denied. No. 77-1120. Tsanas v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 572 F. 2d 340. No. 77-1124. Southwestern Life Insurance Co. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 560 F. 2d 627. 996 OCTOBER TERM, 1977 April 24, 1978 435U.S. No. 77-1133. Marino v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 562 F. 2d 941. No. 77-1160. Local 144, Hotel, Hospital, Nursing Home & Allied Health Services Union, SEIU, AFL-CIO v. Long Island College Hospital et al. C. A. 2d Cir. Certiorari denied. Reported below: 566 F. 2d 833. No. 77-1191. Gish et ux. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 559 F. 2d 572. No. 77-1209. Long Mfg., N. C., Inc. v. Dollar et al. C. A. 5th Cir. Certiorari denied. Reported below: 561 F. 2d 613. No. 77-1218. Whitten et al. v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 77-1222. Ruud et al. v. Minnesota. Sup. Ct. Minn. Certiorari denied. Reported below: 259 N. W. 2d 567. No. 77-1231. City of Cleveland v. Cleveland Electric Illuminating Co. et al. C. A. 6th Cir. Certiorari denied. No. 77-1232. Carr v. United States; No. 77-6283. Anderson v. United States; and No. 77-6291. Bullard v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 554 F. 2d 1071. No. 77-1241. Wagner et al. v. Burlington Northern, Inc., et al. C. A. 7th Cir. Certiorari denied. Reported below: 566 F. 2d 1176. No. 77-1243. Detrich, Director, Department of Public Welfare of San Diego County v. Shelton G. Ct. App. Cal., 4th App. Dist. Certiorari denied. Reported below: 74 Cal. App. 3d 125, 141 Cal. Rptr. 554. No. 77-1244. Waddell v. Pepsi Cola Co. Ct. App. D. C. Certiorari denied. ORDERS 997 435 U. S. April 24, 1978 No. 77-1245. Paradise Palms Community Assn. v. Paradise Homes et al. Sup. Ct. Nev. Certiorari denied. Reported below: 93 Nev. 488, 568 P. 2d 577. No. 77-1246. Maryland v. Wheeler. Ct. App. Md. Certiorari denied. Reported below: 281 Md. 593, 380 A. 2d 1052. No. 77-1304. McAdams v. Bell, Attorney General, et al. C. A. 5th Cir. Certiorari denied. Reported below: 564 F. 2d 414. No. 77-1357. Coleman v. Virginia. Sup. Ct. Va. Certiorari denied. No. 77-1367. Welsh v. United States. C. A. 6th dr. Certiorari denied. No. 77-1375. Moroyoqui v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 570 F. 2d 862. No. 77-1393. Cardarella v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 570 F. 2d 264. No. 77-5942. Hanna v. Illinois. App. Ct. Ill., 4th Dist. Certiorari denied. Reported below: 48 Ill. App. 3d 6, 362 N. E. 2d 424. No. 77-5972. Armstead et al. v. Phelps, Corrections Secretary, et al. C. A. 5th Cir. Certiorari denied. No. 77-6054. Phillips v. Benton et al. C. A. 10th Cir. Certiorari denied. No. 77-6094. Rosenmund v. Virginia. Sup. Ct. Va. Certiorari denied. No. 77-6101. Shaver v. United States. C. A. 4th dr. Certiorari denied. Reported below: 565 F. 2d 159. No. 77-6117. Jackson v. Overberg, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. 998 OCTOBER TERM, 1977 April 24, 1978 435 U. S. No. 77-6191. Williams v. United States. C. A. D. C. Cir. Certiorari denied. No. 77-6211. McNair v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 568 F. 2d 771. No. 77-6226. Luna v. United States. C. A. 6th Cir. Certiorari denied. No. 77-6234. Perez v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 571 F. 2d 584. No. 77-6255. Young v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 77-6265. Thompson v. Florida; and Surace v. Florida. Sup. Ct. Fla. Certiorari denied. Reported below: 351 So. 2d 701 (first case); 351 So. 2d 702 (second case). No. 77-6280. Davis v. New York. Ct. App. N. Y. Certiorari denied. Reported below: 43 N. Y. 2d 17, 371 N. E. 2d 456. No. 77-6296. Chapman v. Indiana. Ct. App. Ind. Certiorari denied. No. 77-6297. Burr v. Indiana. Sup. Ct. Ind. Certiorari denied. Reported below: 267 Ind. 75, 367 N. E. 2d 1085. No. 77-6299. Plemons v. Estelle, Corrections Director. C. A. 5th Cir. Certiorari denied. No. 77-6301. Williams v. Ohio et al. C. A. 6th Cir. Certiorari denied. Reported below: 547 F. 2d 40. No. 77-6305. Trice v. Kentucky. Ct. App. Ky. Certiorari denied. Reported below: 561 S. W. 2d 684. No. 77-6310. Keeling v. Texas. Ct. Crim. App. Tex. Certiorari denied. Reported below: 556 S. W. 2d 832. ORDERS 999 435 U. S. April 24, 1978 No. 77-6317. Aguirre v. Morris, Warden. C. A. 9th Cir. Certiorari denied. No. 77-6320. Mabery v. New York. C. A. 2d Cir. Certiorari denied. No. 77-6322. Morgan v. Setliff, Warden. C. A. 7th Cir. Certiorari denied. No. 77-6324. Burrell v. Estelle, Corrections Director. C. A. 5th Cir. Certiorari denied. No. 77-6329. Sherley v. Kentucky. Sup. Ct. Ky. Certiorari denied. Reported below: 558 S. W. 2d 615. No. 77-6417. Watkins, dba Beltone Hearing Aid Center v. Lou Bachrodt Chevrolet, Inc. App. Ct. Ill., 2d Dist. Certiorari denied. Reported below: 48 Ill. App. 3d 954, 363 N. E. 2d 609. No. 77-6436. Gay v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 567 F. 2d 916. No. 77-6446. Roach v. United States. C. A. 3d Cir. Certiorari denied. No. 77-6449. Clyburn v. United States. Ct. App. D. C. Certiorari denied. Reported below: 381 A. 2d 260. No. 77-6452. Black Horse v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 568 F. 2d 555. No. 77-6453. Hernandez et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 568 F. 2d 779. No. 77-6461. Sacco v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 571 F. 2d 791. No. 77-6491. Jackson v. Virginia. Sup. Ct. Va. Certiorari denied. 1000 OCTOBER TERM, 1977 April 24, 1978 435 U. S. No. 77-1089. Hearst v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Brennan would grant certiorari limited to Questions VII and VIII presented by the petition. Reported below: 563 F. 2d 1331. No. 77-1308. National Broadcasting Co., Inc., et al. v. Niemi. Ct. App. Cal., 1st App. Dist. Certiorari denied. Mr. Justice Brennan would grant certiorari. Reported below: 74 Cal. App. 3d 383,141 Cal. Rptr. 511. No. 77-1329. Ohio v. Teter. Ct. App. Ohio, Summit County. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. No. 77-1385. May v. Indiana. Ct. App. Ind. Certiorari denied. Mr. Justice Stewart would grant certiorari. Reported below:------Ind. App.------, 364 N. E. 2d 172. No. 77-5953. Riley v. Illinois. App. Ct. HL, 1st Dist. Certiorari denied. Reported below: 49 Ill. App. 3d 304, 364 N. E. 2d 306. Mr. Justice Marshall, writh whom Mr. Justice Brennan joins, dissenting. I dissent from the denial of certiorari. Petitioner was 16 years old at the time of his arrest in connection with three homicides.1 After being held for an hour and a half in a police car at the cemetery where the bodies were found, petitioner was taken to the police station, where his shoes, trousers, and shirt were removed1 2 and he was given a blanket and placed in a cell. An hour or two later, after being advised 1 All facts are taken from the opinion of the Illinois Appellate Court. 49 Ill. App. 3d 304, 364 N. E. 2d 306 (1977). It appears that petitioner first told the police that he was 17 years old, but it is here undisputed that petitioner was 16 at the time of the events in question. See id., at 306, 310, 364 N. E. 2d, at 307-308, 310; Brief in Opposition 2. 2 This clothing was apparently removed for evidentiary purposes. See 49 Ill. App. 3d, at 306, 364 N. E. 2d, at 307. ORDERS 1001 1000 Marshall, J., dissenting of his constitutional rights to remain silent and consult with an attorney, petitioner asked to speak to his father, who had come to the police station when he learned of his son’s arrest;3 this request was ignored by the police. Petitioner then confessed to the crimes, and later that evening repeated the confession to a prosecuting attorney, without having consulted. with the parent whom he had asked to see or with any other friendly adult. The confession was introduced over objection at petitioner’s trial, which led to his conviction for murder and to sentences of 75 to 225 years.4 The Illinois courts considered and rejected petitioner’s argument, made initially in support of his motion to suppress the confession, that “the request of a juvenile defendant to see a parent is tantamount to an adult’s request for an attorney” and should terminate police interrogation. 49 Ill. App. 3d 304, 308, 364 N. E. 2d 306, 309 (1977).5 It is this argument that petitioner presses here. I have recently expressed my view that this Court should decide whether a juvenile’s waiver of rights is valid in the absence of “competent advice from an adult who does not have significant conflicts of interest.” Little n. Arkansas, ante, p. 957 (dissenting from denial of certiorari). The instant case presents a related but less difficult issue, for we need not consider here whether the Constitution requires that 3 Police testimony conflicted with both petitioner’s claim that he had asked to see his father and the father’s claim that he had asked repeatedly to see his son. There is no dispute, however, about the father’s presence at the police station that evening, and the trial court assumed, in ruling on petitioner’s suppression motion, that petitioner had made the request to see his father. Id., at 306-307,310, 364 N. E. 2d, at 308, 310. 4 Petitioner was convicted of two counts of murder, for which he received concurrent sentences of 75 to 225 years. He was also convicted of one count of involuntary manslaughter, for which he received a sentence of 3 to 10 years. 5 The Illinois Supreme Court denied leave to appeal. App. B to Pet. for Cert. 1002 OCTOBER TERM, 1977 Marshall, J., dissenting 435 U. S. a juvenile always receive adult advice before making a confession. Compare ante, at 958-959, and nn. 5-6. Nor need we decide whether adult advice tainted by conflict of interest is nevertheless sufficient for constitutional purposes. See ante, at 959-960. The narrow question presented here is simply whether an accused child’s request to see a parent must be honored by the police before they continue interrogation, at least when the parent is available at the police station and interested in speaking to his child. There is a conflict of authority on this question that indicates a need for this Court to exercise its certiorari jurisdiction. See Sup. Ct. Rule 19. The Supreme Court of California has held: “[W]hen ... a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents . . . must... be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege. The police must cease custodial interrogation immediately upon exercise of the privilege.” People v. Burton, 6 Cal. 3d 375, 383-384, 491 P. 2d 793, 798 (1971). Other state courts have gone further, requiring that a juvenile always receive adult advice before the police may accept his confession, regardless of whether he asks to speak to an adult. See, e. g., Leiois v. State, 259 Ind. 431, 436-440, 288 N. E. 2d 138, 141-143 (1972); In re K. W. B., 500 S. W. 2d 275, 279-283 (Mo. App. 1973); Common wealth v. Webster, 466 Pa. 314, 320-328, 353 A. 2d 372, 375-379 (1975); Commonwealth v. McCutchen, 463 Pa. 90, 343 A. 2d 669 (1975). On the other hand, at least two courts in addition to the court below have upheld the admission of confessions obtained after juveniles’ requests to see parents had been ignored by the police. Chaney v. Wainwright, 561 F. 2d 1129 (CA5 1977) (2-1 decision); State v. Young, 220 Kan. 541, 555, 552 P. 2d 905, 916 (1976) (noting that honoring juvenile’s request to see ORDERS 1003 435 U. S. April 24, 1978 parent would be the “better police practice,” although not constitutionally required).6 In In re Gault, 387 U. S. 1 (1967), this Court emphasized that “the greatest care must be taken to assure that [a juvenile’s] admission was voluntary . . . [and] that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” Id., at 55. In light of this admonition, there is an obvious incongruity in requiring the police to honor an adult’s request for an attorney while allowing them to ignore a juvenile’s request to speak to a parent: “[T]he state readily concedes that the police would have been required to accede to a request for an attorney. The accused who requests his mother rather than his ever-available attorney is the less knowledgeable, more easily coerced person most in need of protection from police overreaching. It makes no sense to protect the knowledgeable accused from stationhouse coercion while abandoning the young person who knows no more than to ask for the one person he trusts, his mother.” Chaney v. Wainwright, supra, at 1134 (Goldberg, J., dissenting) (footnote omitted). These considerations, at the very least, indicate that the issue presented here is a substantial one. For this reason, and because of the conflict among state and federal courts on the question, I would grant the petition for certiorari. No. 77-6016. Franklin et al. v. Shields et al. C. A. 4th Cir. Motion of Public Defender of Wisconsin for leave to file a brief as amicus curiae granted. Certiorari denied. Mr. Justice Brennan, Mr. Justice White, and Mr. Justice 6 The Illinois court in the instant case similarly indicated that “ 'it would be preferable to make sure, whenever possible, that a parent or guardian is present when a juvenile waives his rights.’ ” 49 Ill. App. 3d, at 311, 364 N. E. 2d, at 311, quoting In re Stiff, 32 Ill. App. 3d 971, 978, 336 N. E. 2d 619, 625 (1975). 1004 OCTOBER TERM, 1977 April 24, May 1, 1978 435U.S. Marshall would grant certiorari. Reported below: 569 F. 2d 784. No. 77-6288. Gibson v. Florida. Sup. Ct. Fla. Certiorari denied. Reported below: 351 So. 2d 948. Mr. Justice Brennan and Mr. Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case. Rehearing Denied No. 77-863. Buthorn v. United States, ante, p. 915; and No. 77-1028. Insurance Company of North America v. Mosley et al., ante, p. 918. Petitions for rehearing denied. May 1, 1978 Appeals Dismissed No. 77-1061. Darks v. Transok Pipe Line Co. Appeal from Ct. Crim. App. Okla, dismissed for want of substantial federal question. No. 77-1250. International Tracers of America v. Estate of Hard et al. Appeal from Sup. Ct. Wash, dismissed for want of substantial federal question. Reported below: 89 Wash. 2d 140, 570 P. 2d 131. No. 77-1285. Township of Midland et al. v. Michigan State Boundary Commission et al. Appeal from Sup. Ct. Mich, dismissed for want of substantial federal question. Reported below: 401 Mich. 641, 259 N. W. 2d 326. No. 77-6361. Raitport v. Acro-Matic, Inc. Appeal from Super. Ct. Pa. dismissed for want of substantial federal question. Reported below: 248 Pa. Super. 588, 374 A. 2d 695. ORDERS 1005 435 U.S. May 1, 1978 No. 77-1176. Nabisco, Inc., et al. v. Korzen, Treasurer of Cook County, et al. Appeal from Sup. Ct. Ill. Motion of Northwestern University for leave to file a brief as amicus curiae granted. Appeal dismissed for want of substantial federal question. Reported below: 68 Ill. 2d 451, 369 N. E. 2d 829. No. 77-1287. Fisher v. Ohio. Appeal from Sup. Ct. Ohio dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 77-6289. Ward v. Utah. Appeal from Sup. Ct. Utah dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 571 P. 2d 1343. Miscellaneous Orders No. 76-1560. United States v. United States Gypsum Co. et al. C. A. 3d Cir. [Certiorari granted, 434 U. S. 815.] Motion of respondents Colon Brown et al. for leave to file supplemental brief after argument granted. Mr. Justice Blackmun took no part in the consideration or decision of this motion. No. 77-1234. International Association of Machinists & Aerospace Workers, AFL-CIO v. Compagnie Nationale Air France. C. A. 2d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States. No. 77-1471. Edwards et al., Members, House of Representatives v. Carter, President of the United States. C. A. D. C. Cir. Motion of petitioners to expedite consideration of petition for writ of certiorari denied. Application for injunction, presented to The Chief Justice, and by him referred to the Court, denied. 1006 OCTOBER TERM, 1977 May 1, 1978 435 U.S. No. 77-6278. Knight v. United States District Court for the District of Massachusetts ; No. 77-6352. Townsley v. Lindsay, Judge, et al. ; and No. 77-6358. Siddle v. United States District Court for the Southern District of Ohio et al. Motions for leave to file petitions for writs of mandamus denied. Certiorari Granted No. 77-1301. Gannett Co., Inc. v. DePasquale, Judge, et al. Ct. App. N. Y. Certiorari granted. Reported below: 43 N. Y>2d 370, 372 N. E. 2d 544. No. 77-1305. Parklane Hosiery Co., Inc., et al. v. Shore. C. A. 2d Cir. Certiorari granted. Reported below: 565 F. 2d 815. No. 77-6067. Duren v. Missouri. Sup. Ct. Mo. Motion of petitioner for leave to proceed in jorma pauperis and certiorari granted. Reported below: 556 S. W. 2d 11. Certiorari Denied. (See also Nos. 77-1287 and 77-6289, supra.) No. 77-755. Rocky Mountain Motor Tariff Bureau, Inc., et al. v. United States et al. C. A. 4th Cir. Certiorari denied. Reported below: 559 F. 2d 1251. No. 77-1008. Sioux City & New Orleans Barge Lines, Inc. v. Helena Marine Service, Inc. C. A. 8th Cir. Certiorari denied. Reported below: 564 F. 2d 15. No. 77-1062. Darks et al. v. Transok Pipe Line Co. C. A. 10th Cir. Certiorari denied. Reported below: 565 F. 2d 1150. No. 77-1095. Clemente et al. v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 567 F. 2d 1140. No. 77-1104. Monroe County Conservation Council, Inc., et al. v. Adams, Secretary of Transportation. C. A. 2d Cir. Certiorari denied. Reported below: 566 F. 2d 419. ORDERS 1007 435 U.S. May 1, 1978 No. 77-1128. Griffin et ux. v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 571 F. 2d 583. No. 77-1145. Vernell v. United States. C. A. 5th dr. Certiorari denied. Reported below: 559 F. 2d 963. No. 77-1155. Santana v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 568 F. 2d 770. No. 77-1170. Bibbs et al. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 564 F. 2d 1165. No. 77-1174. Bell v. United States. C. A. 2d Cir. Certiorari denied. No. 77-1182. United Air Lines, Inc. v. Inda. C. A. 9th Cir. Certiorari denied. Reported below: 565 F. 2d 554. No. 77-1190. All Island Delivery Service, Inc., et al. v. United States et al. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 290. No. 77-1235. Lake Livingston Washateria, Inc., et al. v. Hasty et al. C. A. 5th dr. Certiorari denied. Reported below: 566 F. 2d 104. No. 77-1242. Tally v. Johnson et al. C. A. 5th dr. Certiorari denied. Reported below: 565 F. 2d 161. No. 77-1249. Bisping v. Virginia. Sup. Ct. Va. Certiorari denied. Reported below: 240 S. E. 2d 656. No. 77-1252. Donovan Construction Company of Minnesota v. Florida Telephone Corp. C. A. 5th Cir. Certiorari denied. Reported below: 564 F. 2d 1191. No, 77-1256. Barone v. Barnes, Judge, et al. C. A. 10th Cir. Certiorari denied. No. 77-1259. Ben R. Hendrix Trading Co., Inc. v. J. Henry Schroeder Banking Corp, et al. C. A. 5th dr. Certiorari denied. Reported below: 560 F. 2d 1192. 1008 OCTOBER TERM, 1977 May 1, 1978 435 U.S. No. 77-1274. Aluminum Company of America et al. v. Cuyahoga County Board of Revision et al. Ct. App. Ohio, Cuyahoga County. Certiorari denied. No. 77-1280. E. F. I., Inc. v. M. I. I., dba Marketers International, Inc., et al. Ct. Civ. App. Tex., 14th Sup. Jud. Dist. Certiorari denied. Reported below: 550 S. W. 2d 401. No. 77-1286. City of East Detroit v. Llewellyn et al. ; City of East Detroit v. Vickery et al.; and Capri Theatre Co., Inc. v. City of East Detroit et Al. Sup. Ct. Mich. Certiorari denied. Reported below: 401 Mich. 314, 257 N. W.* 2d 902 (first case); 401 Mich. 843 (second and third cases). No. 77-1309. Maryland Public Interest Research Group v. Elkins, President, University of Maryland, et al. C. A. 4th Cir. Certiorari denied. Reported below: 565 F. 2d 864. No. 77-1406. Gaetano et al. v. Silbert, U. S. Attorney. C. A. D. C. Cir. Certiorari denied. No. 77-5941. Bhongsupatana v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 562 F. 2d 39. No. 77-5951. Smith v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 50 Ill. App. 3d 320, 365 N. E. 2d 558. No. 77-5957. Cedillo v. Estelle, Corrections Director. C. A. 5th Cir. Certiorari denied. No. 77-6084. Eminhizer v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. No. 77-6100. Washington v. Iowa. Sup. Ct. Iowa. Certiorari denied. Reported below: 257 N. W. 2d 890. ORDERS 1009 435 U.S. May 1, 1978 No. 77-6192. Greer v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 566 F. 2d 472. No. 77-6222. Brannon v. United States. C. A. 9th Cir. Certiorari denied. No. 77-6225. Rock v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 568 F. 2d 771. No. 77-6273. Moore v. Ford Motor Co., Wayne Assembly Plant. Sup. Ct. Mich. Certiorari denied. No. 77-6290. McDaniel v. Hopper, Assistant District Attorney of Tulsa County, Oklahoma. C. A. 10th Cir. Certiorari denied. No. 77-6330. Anderson v. Dabdo et al. C. A. 5th Cir. Certiorari denied. Reported below: 565 F. 2d 161. No. 77-6336. Christiansen v. Gunn, Warden. C. A. 9th Cir. Certiorari denied. No. 77-6337. Altizer v. Young, Acting Warden, et al. C. A. 4th Cir. Certiorari denied. Reported below: 569 F. 2d 812. No. 77-6338. Thornton v. Delaware. Sup. Ct. Del. Certiorari denied. Reported below: 383 A. 2d 283. No. 77-6340. Solomon v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 77-6341. Turner v. Louisiana. Sup. Ct. La. Certiorari denied. Reported below: 352 So. 2d 1007. No. 77-6343. Skinner v. Cardwell, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 564 F. 2d 1381. No. 77-6345. Apel v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida. C. A. 5th Cir. Certiorari denied. 1010 OCTOBER TERM, 1977 May 1, 1978 435 U.S. No. 77-6350. Hines v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 77-6351. Royse v. Washington et al. Sup. Ct. Wash. Certiorari denied. No. 77-6360. Holsey v. Warden, Maryland Penitentiary. Ct. Sp. App. Md. Certiorari denied. No. 77-6364. Martin v. New England Telephone & Telegraph Co. C. A. 1st Cir. Certiorari denied. Reported below: 566 F. 2d 360. No. 77-6369. Ray v. Cowan, Penitentiary Superintendent. C. A. 6th Cir. Certiorari denied. No. 77-6370. Ellis v. Oklahoma et al. C. A. 10th Cir. Certiorari denied. No. 77-6401. Reeb v. Economic Opportunity Atlanta, Inc. C. A. 5th Cir. Certiorari denied. Reported below: 565 F. 2d 1213. No. 77-6430. Fermin v. Qkltfkso, Secretary of Health, Education, and Welfare. C. A. 5th Cir. Certiorari denied. Reported below: 567 F. 2d 388. No. 77-6456. Montoya-Guerrero v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 570 F. 2d 353. No. 77-6464. Pugh v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 566 F. 2d 626. No. 77-6469. Burnett v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 568 F. 2d 205. No. 77-6490. Olivera v. United States. C. A. 1st Cir. Certiorari denied. ORDERS 1011 435 U. S. May 1, 1978 No. 77-6495. Warme, aka Warner v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 572 F. 2d 57. No. 77-784. Maryland v. Marzullo. C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 561 F. 2d 540. Mr. Justice White, with whom Mr. Justice Rehnquist joins, dissenting. This petition presents a question of fundamental importance to the administration of criminal justice in both the state and federal courts: What minimum standard of competence must be displayed by an attorney for a criminal defendant in order to satisfy the requirement of the Sixth Amendment that the defendant receive the effective assistance of counsel? Despite the clear significance of this question, the Federal Courts of Appeals are in disarray. Three Circuits subscribe to the view that the representation of a defendant will be deemed adequate as a matter of constitutional law unless it was “such as to make a mockery, a sham or a farce of the trial.” United States v. Madrid Ramirez, 535 F. 2d 125, 129 (CAI 1976); Rickenbacker v. Warden, 550 F. 2d 62, 65 (CA2 1976); Gillihan v. Rodriguez, 551 F. 2d 1182, 1187 (CAIO 1977). Four Circuits require, however, that defense counsel render “reasonably competent” assistance. United States v. De Coster, 159 U. S. App. D. C. 326, 331, 487 F. 2d 1197, 1202 (1973); Beasley v. United States, 491 F. 2d 687, 696 (CA6 1974) (“reasonably effective assistance”); United States v. Fessel, 531 F. 2d 1275, 1278 (CA5 1976) (“reasonably effective assistance”); United States v. Easter, 539 F. 2d 663, 665-666 (CA8 1976) (“customary skills and diligence that a reasonably competent attorney would perform under similar circumstances”). The Third and Seventh Circuits have developed their own, apparently different, standards for determining whether effective assistance of counsel has been rendered to a defendant. Moore v. United States, 432 F. 2d 1012 OCTOBER TERM, 1977 White, J., dissenting 435 U.S. 730, 736 (CA3 1970) (“the exercise of the customary skill and knowledge which normally prevails at the time and place”); United States ex ret. Williams v. Twomey, 510 F. 2d 634, 641 (CA7 1975) (“assistance which meets a minimum standard of professional representation”). The Court of Appeals for the Ninth Circuit is internally divided. Compare Saunders v. Eyman, No. 75-3485 (Apr. 18, 1977) (“farce or a mockery of justice”) with Cooper v. Fitzharris, 551 F. 2d 1162, 1166 (1977) (“reasonably effective assistance”), rehearing en banc granted. This case presents an appropriate occasion for addressing this issue. The District Court, following an earlier decision of the Fourth Circuit which held that “one is deprived of effective assistance of counsel only in those extreme instances where the representation is so transparently inadequate as to make a farce of the trial,” Root v. Cunningham, 344 F. 2d 1, 3 (1965), found that the representation which had been provided to defendant was adequate for constitutional purposes. The Court of Appeals for the Fourth Circuit expressly disavowed the test used in Root, adopted a new test requiring “representation within the range of competence demanded of attorneys in criminal cases,” and applied this new standard to reverse the District Court. Thus, the choice of standard was determinative of the outcome of this case. Moreover, the Court of Appeals focused on a relatively discrete problem in the conduct of the trial, so that analysis of the adequacy of representation will not require inquiry into all aspects of the preparation and handling of the case. The decisions of this Court recognize that the right to counsel is fundamental to a fair trial. Gideon v. Wainwright, 372 U. S. 335 (1963); Powell v. Alabama, 287 U. S. 45, 68-69 (1932); and, in the last analysis, it is this Court’s responsibility to determine what level of competence satisfies the constitutional imperative. It also follows that we should attempt to eliminate disparities in the minimum quality of representa ORDERS 1013 435 U.S. May 1, 1978 tion required to be provided to indigent defendants. In refusing to review a case which so clearly frames an issue that has divided the Courts of Appeals, the Court shirks its central responsibility as the court of last resort, particularly its function in the administration of criminal justice under a Constitution such as ours. I respectfully dissent. No. 77-943. Illinois v. Gray. Sup. Ct. Ill. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied, it appearing that the judgment below rests on an adequate state ground. Mr. Justice Stewart and Mr. Justice Marshall would deny petition without explanation. Reported below: 69 Ill. 2d 44, 370 N. E. 2d 797. Mr. Justice Stevens. The Court’s occasional practice of explaining its denials of certiorari, see, e. g., Michigan v. Allensworth, ante, p. 933; Illinois v. Pendleton, ante, p. 956; Illinois v. Garlick, 434 U. S. 988 (1977), is, I believe, inconsistent with the rule that such denials have no precedential value. Since I regard that rule as an important aspect of our practice, I do not join the Court’s explanation in this case. No. 77-1262. Beck v. Morrison Pump Co., Inc. C. A. 7th Cir. Certiorari denied. Mr. Justice Stevens took no part in the consideration or decision of this petition. Reported below: 566 F. 2d 8. No. 77-1266. Morial et al. v. Judiciary Commission of the State of Louisiana et al. C. A. 5th Cir. Certiorari denied. Mr. Justice White would grant certiorari. Reported below: 565 F. 2d 295. No. 77-1277. Missouri State Highway Commission v. Meyer. C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 567 F. 2d 804. 1014 OCTOBER TERM, 1977 May 1, 1978 435 U.S. No. 77-6025. Huffman v. Florida. Sup. Ct. Fla. Certiorari denied. Reported below: 350 So. 2d 5. Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting. Petitioner, a Negro male, was convicted by an all-white jury of raping a white woman, and was sentenced to life imprisonment.1 In a post-conviction proceeding, he moved for a new trial on the ground that racial bias in the jury selection process deprived him of his Sixth Amendment right to an impartial jury and his Fourteenth Amendment rights to equal protection and due process. The trial court denied the motion, and the Florida District Court of Appeal affirmed without opinion, 336* So. 2d 612 (1976). With three justices dissenting, a four-man majority of the Florida Supreme Court dismissed petitioner’s certiorari petition for lack of jurisdiction, without explanation. 350 So. 2d 5 (1977). There can be no dispute that Negroes were systematically excluded from petitioner’s jury in violation of the Fourteenth Amendment. The all-white jury was selected from an all-white venire, drawn from the same master jury list which the Florida District Court of Appeal held, in Jordan v. State, 293 So. 2d 131 (1974), to have been composed in a racially discriminatory fashion. As the District Court of Appeal noted in Jordan, the jury list was derived by a method rife with opportunity for racial discrimination, and reflected a substantial statistical disparity between the proportion of Negroes included and those who were eligible.1 2 The State was unable 1 Petitioner was also convicted of burglary, for which he was given a concurrent life sentence. On appeal, the convictions were affirmed, but the concurrent sentence for burglary was reduced to 15 years. 301 So. 2d 815 (Fla. App. 1974). 2 Petitioner was convicted in November 1972 in Sarasota County, Fla. The Jordan court found that the master jury list in use in Sarasota County at that time was compiled from voter registration cards, which indicated the race of the voter, and. were taken from only 4 or 5 out of the 45 ORDERS 1015 1014 Marshall, J., dissenting in Jordan to rebut the prima facie case of discrimination thus demonstrated, see, e. g., Castaneda v. Partida, 430 U. S. 482, 494-495 (1977); Alexander v. Louisiana, 405 U. S. 625, 630-631 (1972), and the State does not here contest that the jury which convicted petitioner was selected in an unconstitutional manner. The State argues, instead, that we are foreclosed from reaching the merits of petitioner’s claim by virtue of his failure to raise the issue by written motion prior to selection of the individual jurors, as required by Fla. Rule Crim. Proc. 3.290.* 3 But petitioner did present a timely oral motion, and, under the circumstances of this case, adherence to the requirement of a written motion would serve only “to force resort to an arid ritual of meaningless form.” Staub v. City of Baxley, 355 U. S. 313, 320 (1958). As soon as he saw the all-white venire, petitioner’s counsel moved to strike the panel, and requested voting precincts in the county. The jury commissioners did not use objective criteria for choosing precincts, and the precincts that were selected here “had virtually no registered black voters,” whereas approximately 50% of the registered voters in two precincts, and 2.65% of the voters in the county as a whole, were Negroes. 293 So. 2d, at 132-133, and n. 7. The Jordan court found that, out of a total of 1,344 persons on the jury list, at most 4 were Negroes (0.297%), and that the chance of drawing such a small percentage of Negroes in a random sample of 1,344 of the registered voters in the county as a whole would be less than 1 in 10 million. Id., at 133 n. 4. 3 Rule 3.290 provides: “The state or defendant may challenge the panel. A challenge to the panel may be made only on the ground that the prospective jurors were not selected or drawn according to law. Challenges to the panel shall be made and decided before any individual juror is examined, unless otherwise ordered by the court. A challenge to the panel shall be in writing and shall specify the facts constituting the ground of the challenge. Challenges to the panel shall be tried by the court. Upon the trial of a challenge to the panel the witnesses may be examined on oath by the court and may be so examined by either party. If the challenge to the panel is sustained, the court shall discharge the panel. If the challenge is not sustained, the individual jurors shall be called.” 1016 OCTOBER TERM, 1977 Marshall, J., dissenting 435 U. S. an opportunity to question the jury commissioners to determine whether Negroes had been systematically excluded.4 The trial judge expressed willingness to allow questioning of the supervisor of elections but not the jury commissioners, and—because the supervisor of elections would not have been able to offer any relevant testimony—counsel agreed to proceed with trial, with the “understand [ing] . . . that I have placed on the record that the jury panel is white.” App. to Pet. for Cert. E-6. The jury commissioners’ testimony clearly was essential to development of petitioner’s discrimination claim. See n. 2, supra. Thus, rejection of counsel’s request to interrogate the commissioners was tantamount to denial of petitioner’s claim, and the filing of a written motion would have served no immediate purpose and would have unnecessarily delayed the proceedings.5 The dissenting opinions in the Florida Supreme Court concluded that in this situation petitioner was not foreclosed as a matter of state law from raising his claim on collateral attack, notwithstanding his failure to comply with the letter of Rule 3.290. See 350 So. 2d, at 7-8 (Boyd, J., dissenting); id., at 8-9 (Sundberg, J., dissenting). But, even assuming that the Florida Supreme Court’s dismissal for lack of jurisdiction was based on petitioner’s failure to make a written motion,6 such a purely formalistic application of a 4 Counsel explained his failure to file a written motion, with the following: ‘T might say that I did not file such a motion in writing for the Court because I didn’t see the panel until today.” App. to Pet. for Cert. E-3. 5 Under these circumstances, it is simply untenable to suggest, as the State does, Response to Pet. for Cert. 1, that petitioner “abandoned” his oral motion by not accepting the trial judge’s offer to allow questioning of the supervisor of elections. 6 It is not clear whether the court’s dismissal was based on petitioner’s failure to comply with Rule 3.290, or solely on a conclusion that there was no direct conflict between the decision of the District Court of Appeal in this case, and the decision of that court in Jordan v. State. See Fla. ORDERS 1017 1014 Opinion of Stevens, J. state procedural rule does not constitute an independent and adequate state ground barring review in this Court. Cf. Wright v. Georgia, 373 U. S. 284, 289-291 (1963); NAACP v. Alabama ex rel. Flowers, 377 U. S. 288, 293-297 (1964). As Mr. Justice Holmes so eloquently stated: “Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, 263 U. S. 22, 24 (1923). I would grant certiorari and set the case for oral argument. Mr. Justice Stevens. As Mr. Justice Marshall points out, the dissenting members of the Florida Supreme Court expressed the opinion that, as a matter of state law, the petitioner could assert his federal claim in a state collateral proceeding. Ante, at 1016. The majority of that court, however, concluded that the claim could not be raised in such a proceeding. They therefore did not decide the federal constitutional question. Since petitioner has now exhausted his state remedies, the federal question remains open for decision in a federal habeas corpus proceeding. As the petition comes to us, we may assume that a summary reversal might have been appropriate on direct review of petitioner’s conviction, and also that a collateral attack in the federal court should succeed. It does not follow, however, that this Court has the power to compel a State to employ a collateral post-conviction remedy in which specific federal claims may be raised. See Case v. Nebraska, 381 U. S. 336. Accordingly, totally apart from the considerations discussed by Mr. Justice Marshall, there are serious procedural questions Const., Art. 5, § 3 (b) (3) (limiting certiorari jurisdiction of Florida Supreme Court to cases in which there is a “direct conflict” between decisions of district courts of appeal, and to several other categories of cases not relevant here.) 1018 OCTOBER TERM, 1977 May 1, 1978 435 U.S. that must be answered before addressing the merits of petitioner’s federal claim. In making this observation I do not presume to explain the reasons for the Court’s action; I write only to identify this as one of the many cases in which a persuasive dissent may create the unwarranted impression that the Court has acted arbitrarily in denying a petition for certiorari. No. 77-6359. Ross v. Hopper, Warden. Sup. Ct. Ga. Certiorari denied. Reported below: 250 Ga. 369, 240 S. E. 2d 850. Mr. Justice Brennan and Mr. Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg N. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case. Rehearing Denied No. 76-1719. Washington Medical Center, Inc., et al. v. United States, 434 U. S. 902; No. 77-953. Buffalo River Conservation and Recreation Council et al. v. National Park Service et al., ante, p. 924; No. 77-1056. Sunbeam Television Corp, et al. v. Shevin, Attorney General of Florida, et al., ante, p. 920; No. 77-5733. Morgan v. United States, ante, p. 926; and No. 77-5965. Cox v. United States, ante, p. 927. Petitions for rehearing denied. Reporter’s Note The next page is purposely numbered 1301. The numbers between 1018 and 1301 were intentionally omitted, in order to make it possible to publish in-chambers opinions with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports. OPINIONS OF INDIVIDUAL JUSTICES IN CHAMBERS BRACY et al. v. UNITED STATES ON APPLICATION FOR STAY No. A-798 (77-1360). Decided March 29, 1978 Application for stay of Court of Appeals’ judgment affirming applicants’ narcotics convictions and denying rehearing, pending a petition for certiorari wherein it is claimed that the indictment should be dismissed because a witness committed perjury before the grand jury, is denied where it does not appear that four Justices would vote to grant certiorari. An indictment is not invalidated by the introduction of inadmissible evidence before the grand jury, which sits not to determine the truth of the charges but only to determine whether there is probable cause to believe them true so as to require the defendant to stand trial. Mr. Justice Rehnquist, Circuit Justice. Applicants were convicted of several related narcotics offenses in the United States District Court for the Southern District of California. The Court of Appeals for the Ninth Circuit affirmed their convictions, and denied their petition for rehearing on February 28, 1978. That court granted their request for a stay of its mandate only pending consideration of their petition for rehearing, and not pending their petition for certiorari. The Court of Appeals denied rehearing and issued its mandate, and applicants now request that I stay the enforcement of the judgment of the Court of Appeals pending disposition of that petition for certiorari here. The chief contention raised by applicants in their petition for certiorari is that a witness committed perjury before the grand jury which indicted them. The witness admitted his perjury at trial, and applicants moved to dismiss the indictment, contending that the prosecutor should have immediately 1301 1302 OCTOBER TERM, 1977 Opinion in Chambers 435U.S. informed the defense and the court when he became aware of the perjury. The District Court denied the motion, and the Court of Appeals affirmed, relying on its opinion in United States n. Basurto, 497 F. 2d 781, 785-786 (1974), which held that perjury by a witness would invalidate an indictment only when his testimony was material. Applicants rely upon such cases as Mooney v. Holohan, 294 U. S. 103 (1935), in support of their contention that the disclosure of the perjury required the court to declare a mistrial on its own motion. Pet. for Cert. 10. In that case, this Court first held that the knowing introduction of perjured testimony at a criminal trial rendered the resulting conviction constitutionally invalid. Later cases have held that the prosecutor has a duty to correct testimony he knows to be false, even if its introduction was not knowing and intentional. Giglio v. United States, 405 U. S. 150 (1972); Napue v. Illinois, 360 U. S. 264 (1959). Applicants suggest that the prosecutor has a similar duty with regard to testimony introduced in grand jury proceedings which is later shown to have been false. Because it seems to me that applicants misconceive the-function of the grand jury in our system of criminal justice, I cannot conclude that four Justices of this Court are likely to vote to grant their petition. The grand jury does not sit to determine the truth of the charges brought against a defendant, but only to determine whether there is probable cause to believe them true, so as to require him to stand trial. Because of this limited function, we have held that an indictment is not invalidated by the grand jury’s consideration of hearsay, Costello v. United States, 350 U. S. 359 (1956), or by the introduction of evidence obtained in violation of the Fourth Amendment, United States v. Calandra, 414 U. S. 338 (1974). While the presentation of inadmissible evidence at trial may pose a substantial threat to the integrity of that factfinding process, its introduction before the grand jury poses no such threat. I have no reason to believe this Court BRACY v. UNITED STATES 1303 1301 Opinion in Chambers will not continue to abide by the language of Mr. Justice Black in Costello, supra, at 363: “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” The application is denied. 1304 OCTOBER TERM, 1977 Opinion in Chambers 435 U. S. VETTERLI et al. v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA et al. ON APPLICATION FOR STAY No. A-830 (77-1395). Decided April 10, 1978 Public school officials sought a stay, pending disposition of a motion for leave to file a petition for writ of mandamus and of a petition for writ of mandamus, of the District Court’s order allegedly issued in violation of this Court’s judgment in Pasadena City Board of Education v. Spangler, 427 U. S. 424, in that it had the effect of reimposing a desegregation plan requirement, held unauthorized by this Court, that there be no school in the system “with a majority of any minority students.” There being no clear indication in the record that the order had such effect, it does not appear that five Members of this Court would vote to grant a writ of mandamus and the application for a stay is denied. Mr. Justice Rehnquist, Circuit Justice. Applicants, members of the Pasadena City Board of Education, seek a stay of an order issued by the United States District Court for the Central District of California, pending disposition of a motion for leave to file a petition for a writ of mandamus and of a petition for writ of mandamus.1 They claim that portions of the District Court’s order violate the decision and judgment of this Court in Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976), and that the order, unless stayed, will subject them to the irreparable harm of having to engage in burdensome and disruptive activities necessary to comply with the District Court’s order. Since my reading of the record indicates that the order does not conflict with our decision in Spangler, supra, I decline to issue the stay. 1 Three separate orders are actually involved, but all are substantially identical. VETTERLI v. UNITED STATES DISTRICT COURT 1305 1304 Opinion in Chambers Spangler arose put of a suit commenced in 1968 by high school students and their parents, alleging that various school officials had unconstitutionally segregated the public schools in Pasadena. In 1970, after trial, the District Court, holding that the defendants had violated the Fourteenth Amendment, ordered them to submit a plan for desegregation which would provide that beginning with the 1970-1971 school year there would be no school “with a majority of any minority students.” The defendants complied. In 1974, however, applicants, successors in office to the previous defendants, filed a motion with the District Court seeking to modify the 1970 order by eliminating the “no majority” requirement. The District Court denied the motion, ruling that the “no majority” requirement was an inflexible one to be applied anew each school year even though subsequent changes in the racial mix in the schools were caused by factors for which the defendants might not be considered responsible. The Court of Appeals affirmed that ruling, but we reversed, concluding that the District Court had exceeded its authority in enforcing the “no majority” provision so as to require annual readjustment of attendance zones. Upon remand to the District Court, a hearing was scheduled on applicants’ motion for dissolution of the 1970 injunction.2 Applicants represented that there was no plan at that time to make any changes in the method of making student assignments. Shortly thereafter, on July 1, 1977, the District Court deleted the “no majority” provision from the injunction.3 The hearing was completed and the matter submitted 2 The cause was initially remanded to the Court of Appeals which in turn merely remanded it to the District Court, noting that “all determinations as to modifications required under [Spangler] . . . should initially be made by the district court.” Spangler v. Pasadena City Board of Education, 549 F. 2d 733 (CA9 1977). 3 The District Court entered the following order: “IT IS HEREBY ORDERED, ADJUDGED AND DECREED: The no majority of any minority provision contained in this Court’s judgment of 1306 OCTOBER TERM, 1977 Opinion in Chambers 435U.S. to the District Court for resolution. By late January 1978, when no further action had been taken by the District Court, however, applicants withdrew their representation that no changes would be made in the method of student assignments and on February 28, 1978, the District Court entered the following oral order: “[Plending decision of this Court on the submitted matters before the Court or until further order of the Court, . . . each of you are enjoined from making any changes in the method of student assignments in the Pasadena Unified School District that was in effect on October 21, 1977.”* 4 The applicants, concerned that the District Court did not include in the order anything expressly relating to the “no majority” provision, sought a clarification of the order later that same day. Applicants’ counsel stated: “We have concluded from that omission, your Honor, that the purport of the order which was issued or the injunction which was issued this morning to those defendants was that they are indeed enjoined to take measures for the purpose of insuring that no school in the district has a majority of any minority students.” The judge replied: “That is right, Mr. McDonough. There is to be no January 23, 1970 is hereby stricken from the Pasadena Plan as required by the Supreme Court’s opinion of June 28, 1976.” 4 Prior to issuance of the order the District Court had entertained proposed orders to be entered against the applicants pending disposition of the case. The United States and the student plaintiffs-intervenors submitted proposed written orders which expressly reaffirmed the District Court’s order striking the “no majority” requirement. Applicants argued that no further order was justified, but that if an order were made it should specifically include the provision that “£n]othing in this order requires defendants to take any measures for the purpose of insuring that no school in the Pasadena Unified School District has a majority of any minority students.” VETTERLI v. UNITED STATES DISTRICT COURT 1307 1304 Opinion in Chambers change in the student assignment system that was in force on October 21st, 1977.” Applicants, relying totally on the judge’s comment that “[t]hat is right,” now contend that the District Court has reimposed the “no majority” requirement contrary to the dictates of our decision in Spangler, supra. If that were true, a writ of mandamus might properly issue to execute the Court’s judgment. See Vendo Co. v. Lektro-Vend Corp., 434 U. S. 425 (1978). But I do not think the judge’s statements during the colloquy can be read as having that effect, and I accordingly deny the application for a stay. The District Court took steps which unequivocally lifted the offending part of the 1970 order. See n. 3, supra. That was done on July 1, 1977. And there is nothing in the record before me to indicate that after that date the “no majority” requirement was part of the method of student assignments. On February 28 the District Court ordered applicants to refrain from making any changes in the method of student assignments in effect as of October 21, 1977, a date well after the July 1 date on which the “no majority” requirement was eliminated from the 1970 injunction. On its face this order certainly cannot be read as reimposing the “no majority” requirement. Even as a matter of language, one would have to strain to read the colloquy occurring later that same day as indicating that the judge thought his order had reimposed the “no majority” provision. Busy judges and busy lawyers do not invariably speak with mathematical precision in such colloquies. The obligations imposed by an injunction must be clear and well defined. A judge should not be thought, by a cryptic and offhanded remark in a later proceeding, to have reimposed an obligation which he specifically and unequivocally eliminated just a few months before pursuant to the direction of this Court and to which he made absolutely no reference in the original order. I will not indulge the presumption that 1308 OCTOBER TERM, 1977 Opinion in Chambers 435U.S. the District Court acted contrary to these well-settled principles in the absence of a clear indication that it in fact did. Since the District Court’s order of February 28 does not conflict with our decision in Spangler by placing applicants under any obligation to annually reassign students so that there is no school “with a majority of any minority students,” I do not think five Members of this Court will vote to grant a writ of mandamus. Thus, I see no reason to issue the requested stay. Of course, if at some future time the District Court actually reimposes the “no majority” requirement in contravention of our decision in Spangler or otherwise requires applicants to comply with such a provision, applicants may again petition this Court or the Court of Appeals for relief. At this time such relief appears unwarranted, however, because applicants do not appear to be under any such obligation. INDEX ACADEMIC DISMISSAL FROM STATE SCHOOL. See Constitu- tional Law, III, 1. ACCESS TO JUDICIAL RECORDS. See Constitutional Law, Vili, 1; XII; Judicial Records. ADDITIONAL PUNISHMENT. See Criminal Law. ADMINISTRATIVE PROCEDURE ACT. See Judicial Review, 1. ADMINISTRATIVE RULEMAKING PROCEEDINGS. See Judicial Review. ADMISSIBILITY OF EVIDENCE. See Constitutional Law, XV. AGGRAVATED BANK ROBBERY. See Criminal Law. AIRPORT AND AIRWAY REVENUE ACT OF 1970. See Federal- State Relations, 1. ALIENS. See also Federal-State Relations, 2. G~4 aliens—Capacity to change domicile—Federal law.—Under federal law, aliens holding a G-4 visa (a nonimmigrant visa granted to officers or employees of international treaty organizations) have legal capacity to change domicile. Elkins v. Moreno, p. 647. ALLOWABLE DEDUCTIONS ON INCOME TAX RETURNS. See In- ternal Revenue Code, 2. ANTICOMPETITIVE AGREEMENTS. See Shipping Act, 1916. ANTICOMPETITIVE RESTRAINTS. See Antitrust Acts, 2. ANTITRUST ACTS. See also Constitutional Law, VII; Shipping Act, 1916. 1. Ban on engineers’ competitive bidding—Sherman Act—Restraint of trade.—Professional engineers’ association’s canon of ethics prohibiting competitive bidding by members, on its face, restrains trade within meaning of § 1 of Sherman Act, and Rule of Reason does not support defense based on assumption that competition itself is unreasonable. National Society of Professional Engineers v. United States, p. 679. 2. Cities as subject to antitrust laws.—Apart from whether petitioner cities, which own and operate electric utility systems, are exempt from antitrust laws as agents of State under “state action” doctrine of Parker v. Brown, 317 U. S. 341, there are insufficient grounds for inferring that Con- 1309 1310 INDEX ANTITRUST ACTS—Continued. gress did not intend to subject cities to antitrust liability. Lafayette v. Louisiana Power & Light Co., p. 389. APPEALS. See also Judicial Review. 1. Court of Appeals—Ineffective review.—Court of Appeals’ judgment affirming District Court’s denial of state prisoner’s habeas corpus petition is vacated and case is remanded, where it appears that ineffective review was accorded because of Court of Appeals’ reference to wrong statute, District Court, and case. Proctor v. Warden, p. 559. 2. Court of Appeals’ jurisdiction—Waiver of Fed. Rule Civ. Proc. 58’s separate-judgment requirement.—Court of Appeals properly assumed jurisdiction under 28 U. S. C. § 1291, where, although District Court failed to set forth judgment in separate document as required by Fed. Rule Civ. Pa oc. 58, parties were deemed to have waived such requirement. Bankers Trust Co. v. Mallis, p. 381. 3. Order denying dismissal of indictment—Appealability before trial.—■ A defendant may not, before trial, appeal a federal district court’s order denying his motion to dismiss an indictment because of an alleged violation of his Sixth Amendment right to a speedy trial. United States v. MacDonald, p. 850. APPELLATE JURISDICTION. See Appeals, 2. APPOINTMENT OF SEPARATE COUNSEL FOR CODEFENDANTS. See Constitutional Law, XI, 1, 2. APPOINTMENT OF STATE POLICE. See Constitutional Law, IV. ARMED BANK ROBBERY. See Criminal Law. ASSISTANCE OF COUNSEL. See Constitutional Law, XL ASSOCIATIONS. See Antitrust Acts, 1; 'Constitutional Law, VII. ATOMIC ENERGY COMMISSION. See Judicial Review, 2. ATTENUATION OF CONNECTION BETWEEN ILLEGAL SEARCH AND PROOF. See Constitutional Law, XV. AVIATION PROGRAMS. See Federal-State Relations, 1. BANK ROBBERY COMMITTED WITH FIREARMS. See Criminal Law. BANKS. See Constitutional Law, VI; Mootness. BAN ON COMPETITIVE BIDS BY ENGINEERS. See Antitrust Acts, 1; Constitutional Law, VII. BAN ON CORPORATE POLITICAL CONTRIBUTIONS OR EXPENDITURES. See Constitutional Law, VI; Mootness. INDEX 1311 BENEFITS UNDER GI BILL. See Constitutional Law, III, 2. BENEFITS UNDER SOCIAL SECURITY ACT. See Constitutional Law, XIII. BROADCASTERS’ RIGHT OF ACCESS TO JUDICIAL RECORDS. See Constitutional Law, VIII, 1; XII; Judicial Records. BUSINESS AND OCCUPATION TAXES. See Constitutional Law, I, 2; IX. CANON OF ETHICS PROHIBITING COMPETITIVE BIDS BY EN- GINEERS. See Antitrust Acts, 1; Constitutional Law, VII. CARRIERS. See Shipping Act, 1916. CAUTIONARY JURY INSTRUCTIONS ON ACCUSED’S REFUSAL TO TESTIFY. See Constitutional Law, X; XI, 3. CERTIFICATION. See Federal-State Relations, 2. CERTIORARI. Change in case’s posture—Improvident grant of certiorari—Dismissal.— Where respondents’ counsel urged in this Court that Court of Appeals’ judgment be affirmed on a theory different from that court’s reasoning in reversing District Court, writ of certiorari is dismissed as having been improvidently granted. Bankers Trust Co. v. Mallis, p. 381. CHANGE IN CASE’S POSTURE AS REQUIRING DISMISSAL OF CERTIORARI. See Certiorari. CITIES AS SUBJECT TO ANTITRUST LAWS. See Antitrust Acts, 2. CITIES AS SUBJECT TO VOTING RIGHTS ACT OF 1965. See Voting Rights Act of 1965, 1. CITIZENSHIP AS REQUIREMENT FOR STATE POLICE APPOINTMENT. See Constitutional Law, IV. CIVIL RIGHTS ACT OF 1871. Students’ actions for suspension without due process—Nominal damages.—In public school students’ actions under Act against school officials, wherein students were found to have been suspended from school without procedural due process, students, absent proof of actual injury, are entitled to recover only nominal damages. Carey v. Piphus, p. 247. CIVIL RIGHTS ACT OF 1964. Sex discrimination—Pension fund contributions—Differential between female and male employees—Retroactive recovery.—Employer’s requirement that its female employees make larger contributions to pension fund than its male employees violated § 703 (a) (1) of Act making it unlawful for an employer to discriminate against any individual because of such individ- 1312 INDEX CIVIL RIGHTS ACT OF 1964—Continued. ual’s sex, but it was inappropriate for District Court to order refund of excess contributions antedating amendment to pension plan, made while suit was pending, eliminating such contribution differential. Los Angeles Dept, of Water & Power v. Manhart, p. 702. CLERGY DISQUALIFICATION FROM PUBLIC OFFICE. See Constitutional Law, V. CODEFENDANTS’ RIGHT TO SEPARATE COUNSEL. See Constitutional Law, XI, 1, 2. COLLECTIVE-BARGAINING AGREEMENTS. See Federal-State Relations, 4; Shipping Act, 1916. COMMENTS ON ACCUSED’S REFUSAL TO TESTIFY. See Constitutional Law, X; XI, 3. COMMERCE CLAUSE. See Constitutional Law, I. COMMON CARRIERS BY WATER. See Shipping Act, 1916. COMMON-LAW RIGHT OF ACCESS TO JUDICIAL RECORDS. See Judicial Records. COMPENSATORY DAMAGES. See Civil Rights Act of 1871. COMPETITIVE BIDS BY ENGINEERS. See Antitrust Acts, 1; Constitutional Law, VII. COMPETITIVE RESTRAINTS. See Shipping Act, 1916. COMPULSORY SELF-INCRIMINATION. See Constitutional Law, X. CONFLICT OF INTEREST IN COUNSEL’S REPRESENTING CODEFENDANTS. See Constitutional Law, XI, 1, 2. CONSTITUTIONAL LAW. See also Appeals, 3. I. Commerce Clause. , 1. State regulation of oil tankers—Tug-escort requirement.—Washington Tanker Law tug-escort requirement for oil tankers does not violate Commerce Clause. Ray v. Atlantic Richfield Co., p. 151. 2. State taxation of interstate stevedoring.—Washington’s business and occupation tax does not violate Commerce Clause by taxing interstate commerce activity of stevedoring within State. Washington Revenue Dept. v. Association of Washington Stevedoring Cos., p. 734. II. Double Jeopardy. Indian Tribal Court conviction—Federal prosecution as not barred.— Double Jeopardy Clause of Fifth Amendment does not bar federal rape prosecution of Indian previously convicted in Tribal Court of lesser included offense. United States v. Wheeler, p. 313. INDEX 1313 CONSTITUTIONAL LAW—Continued. HL Due Process. 1. Academic dismissal from medical school.—Procedures leading to respondent’s dismissal from state medical school for academic deficiencies did not violate Due Process Clause of Fourteenth Amendment. Board of Curators, Univ, of Mo. v. Horowitz, p. 78. 2. Fifth Amendment—Equal protection of the laws—Veterans’ educational benefits.—GI Bill provisions requiring Administrator of Veterans’ Administration to disapprove veteran’s application for educational assistance benefits if veteran enrolls in course in which more than 85% of students are receiving financial assistance or which has been offered for less than two years, do not violate Due Process Clause of Fifth Amendment. Cleland v. National College of Business, p. 213. IV. Equal Protection of the Laws. Limiting state police to United States citizens.—New York statute limiting state police force appointments to United States citizens does not violate Equal Protection Clause of Fourteenth Amendment. Foley v. Connelie, p. 291. V. Freedom of Religion. State statute barring minister from serving as constitutional convention delegate.—Tennessee Supreme Court’s judgment holding that Tennessee statute barring clergy from serving as delegates to State’s constitutional convention did not violate minister’s right to free exercise of religion guaranteed by First Amendment, is reversed. McDaniel v. Paty, p. 618. VI. Freedom of Speech. State ban on corporate expenditures to influence referendum.—Massachusetts criminal statute prohibiting banks and business corporations from making contributions or expenditures for purpose of influencing vote on referendum proposals, violates First Amendment as made applicable to States by Fourteenth. First National Bank of Boston v. Bellotti, p. 765. VII. Freedom of Speech and Association. Engineers—Injunction against statements that competitive bidding is unethical.—In antitrust suit wherein professional engineers’ association’s canon of ethics prohibiting competitive bidding by members was held to violate § 1 of Sherman Act, District Court’s injunction prohibiting association from adopting any official opinion, policy statement, or guideline stating or implying that competitive bidding is unethical does not abridge First Amendment rights. National Society of Professional Engineers v. United States, p. 679. 1314 INDEX CONSTITUTIONAL LAW—Continued. VIII. Freedom of the Press. 1. Broadcasters’ right of access to judicial records—Presidential tape recordings.—First Amendment guarantee of freedom of press does not require release to broadcasters of tape recordings in District Court’s custody made in ex-President’s offices and admitted into evidence at his former advisers’ criminal trial. Nixon v. Warner Communications, Inc., p. 589. 2. Judicial disability and misconduct inquiries—State ban on publishing information about inquiries.—With respect to Virginia statute making it a crime to divulge information regarding proceedings before a commission authorized to hear complaints about judges’ disability or misconduct, First Amendment does not permit criminal punishment of third persons who are strangers to such proceedings for divulging or publishing truthful information regarding proceedings. Landmark Communications, Inc. v. Virginia, p. 829. IX. Import-Export Clause. State taxation of stevedoring.—Washington’s business and occupation tax, as applied to stevedoring so as to reach services provided wholly within State to imports, exports, and other goods, is not among “Imposts or Duties” prohibited by Import-Export Clause. Washington Revenue Dept. v. Association of Washington Stevedoring Cos., p. 734. X. Privilege Against Self-Incrimination. Jury instruction on accused’s refusal to testify—Accused’s objection.— State trial judge’s instruction to jury, given over accused’s objection, not to draw any adverse inference from accused’s decision not to testify, does not violate privilege against self-incrimination guaranteed by Fifth and Fourteenth Amendments. Lakeside v. Oregon, p. 333. XI. Right to Counsel. 1. Failure to appoint separate counsel for codefendants.—State criminal trial judge’s failure either to appoint separate counsel for codefendants or to take adequate steps to ascertain whether risk of conflict of interest was too remote to warrant separate counsel, in face of pretrial representations by joint counsel, deprived codefendants of guarantee of “assistance of counsel” under Sixth Amendment. Holloway y. Arkansas, p. 475. 2. Improper requirement of joint counsel for codefendants—Presumed prejudice. Whenever a criminal trial court improperly requires joint counsel for codefendants over timely objection, reversal is automatic, and prejudice is presumed regardless of whether it was independently shown. Holloway v. Arkansas, p. 475. 3. Jury instruction on accused’s refused to testify—Accused’s objection — State trial judge’s instruction to jury, given over accused’s objection, not INDEX 1315 CONSTITUTIONAL LAW—Continued. to draw any adverse inference from accused’s decision not to testify, does not deprive accused of right to counsel. Lakeside v. Oregon, p. 333. XII. Right to Public Trial. Broadcasters’ right of access to judicial records—Presidential tape recordings.—Sixth Amendment guarantee of a’ public trial does not require release to broadcasters of tape recordings in District Court’s custody made in ex-President’s offices and admitted into evidence at his former advisers’ criminal trial. Nixon v. Warner Communications, Inc., p. 589. XIII. Right to Travel. Social security benefits—Exclusion of Puerto Rico residents.—Social Security Act provisions limiting benefits under Supplemental Security Income program to residents of 50 States and District of Columbia are not unconstitutional in violation of right to travel as applied to persons who lost benefits upon moving to Puerto Rico. Calif ano v. Torres., p. 1. XIV. Right to Trial by Jury. Five-person jury.—Georgia Court of Appeals judgment rejecting petitioner’s contention on his appeal from misdemeanor conviction that his trial before five-person jury deprived him of his Sixth and Fourteenth Amendment right to trial by jury, is reversed, and case is remanded. Ballew v. Georgia, p. 223. XV. Searches and Seizures. Illegal search—Dissipation of connection with testimony—Exclusionary rule.—Court of Appeals erred in concluding that degree of attenuation between police officer’s illegal search and witness’ adverse testimony at respondent’s perjury trial was not sufficient to dissipate connection between search’s illegality and challenged testimony. United States v. Ceccolini, p. 268. XVI. Supremacy Clause. 1. State regulation of oil tankers—Design requirements.—Washington Tanker Law design requirements for oil tankers in Puget Sound different from and higher than those provided by Ports and Waterways Safety Act of 1972, standing alone, are invalid under Supremacy Clause. Ray v. Atlantic Richfield Co., p. 151. 2. State regulation of oil tankers—Exclusion of tankers exceeding certain weight.—Washington Tanker Law provision excluding from Puget Sound any oil tanker exceeding 125,000 deadweight tons is invalid under Supremacy Clause in light of Title I of Ports and Waterways Safety Act of 1972 and Secretary of Transportation’s actions thereunder in promul- 1316 INDEX CONSTITUTIONAL LAW—Continued. gating Puget Sound Vessel Traffic System. Ray v. Atlantic Richfield Co., p. 151. 3. State regulation of oil tankers—Pilotage requirements.—To extent that Washington Tanker Law requires enrolled oil tankers to carry state-licensed pilots, State is precluded by 46 U. S. C. §§ 215, 364 from imposing its own pilotage requirements and to that extent state law is invalid, but District Court’s judgment was overly broad in invalidating pilot provision in its entirety. Ray v. Atlantic Richfield Co., p. 151. 4. State regulation of oil tankers—Tug-escort requirement.—District Court erred in invalidating Washington Tanker Law tug-escort requirement for oil tankers in Puget Sound as conflicting with Ports and Waterways Safety Act of 1972, where no federal requirement has yet been promulgated, and tug-escort requirement does not violate Supremacy Clause. Ray v. Atlantic Richfield Co., p. 151. CONSTRUCTION PERMITS FOR NUCLEAR REACTORS. See Judicial Review, 2. CONTRIBUTIONS FOR PURPOSE OF INFLUENCING REFERENDUM VOTE. See Constitutional Law, VI; Mootness. CONTRIBUTIONS TO PENSION FUNDS. See Civil Rights Act of 1964. CORPORATIONS. See Constitutional Law, VI; Mootness. COURT REVIEW OF ADMINISTRATIVE PROCEEDINGS. See Judicial Review. COURTS OF APPEALS. See Appeals, 1, 2; Judicial Review, 2. CRIMINAL JURISDICTION. See Indians. CRIMINAL LAW. See also Appeals, 3; Constitutional Law, II; VI; VII, 2; X; XI; XIV; XV; Hobbs Act; Indians; Stays, 1. Armed bank robbery—Enhanced punishment.—A defendant convicted under 18 U. S. C. §§2113 (a) and (d) of bank robbery committed with firearms may not be sentenced to both an enhanced penalty under § 2113 (d) and an additional consecutive penalty under 18 U. S. C. §924 (c). Simpson v. United States, p. 6. CUMULATIVE PUNISHMENT. See Criminal Law. DAMAGES LIABILITY OF JUDGES. See Judges. DAMAGES LIABILITY OF SCHOOL OFFICIALS. See Civil Rights Act of 1871. INDEX 1317 DEDUCTIONS ON INCOME TAX RETURNS. See Internal Revenue Code, 2. DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL. See Constitutional Law, XI. DENIAL OF MOTION TO DISMISS INDICTMENT. See Appeals, 3. DESEGREGATION PLANS. See Stays, 2. DESIGN REQUIREMENTS FOR OIL TANKERS. See Constitutional Law, XVI. DISABILITY OF JUDGES. See Constitutional Law, VIII, 2. DISCRIMINATION. See Civil Rights Act of 1964. DISMISSAL FROM STATE SCHOOL FOR ACADEMIC CAUSE. See Constitutional Law, III, 1. DISMISSAL OF CERTIORARI. See Certiorari. DISMISSAL OF INDICTMENTS. See Stays, 1. DISQUALIFICATION OF CLERGY FROM PUBLIC OFFICE. See Constitutional Law, V. DISSIPATION OF CONNECTION BETWEEN ILLEGAL SEARCH AND PROOF. See Constitutional Law, XV. DISTRICT COURTS. See Judicial Records. DOMICILE. See Aliens; Federal-State Relations, 2. DOUBLE JEOPARDY. See Constitutional Law, II. “DUAL SOVEREIGNTY’’ CONCEPT. See Constitutional Law, II. DUE PROCESS. See Civil Rights Act of 1871; Constitutional Law, TIT. EDUCATIONAL ASSISTANCE BENEFITS FOR VETERANS. See Constitutional Law, III, 2. EFFECTIVE ASSISTANCE OF COUNSEL. See Constitutional Law, XI. ELECTIONS. See Voting Rights Act of 1965. ELECTRIC UTILITIES. See Antitrust Acts, 2. EMPLOYEE PENSION PLANS. See Federal-State Relations, 4. EMPLOYER AND EMPLOYEES. See Civil Rights Act of 1964; Federal-State Relations, 4; Internal Revenue Code, 1. EMPLOYMENT DISCRIMINATION. See Civil Rights Act of 1964. ENGINEERS. See Antitrust Acts, 1; Constitutional Law, VII. 1318 INDEX ENHANCED PUNISHMENT. See Criminal Law. ENVIRONMENTAL LAW. See Judicial Review, 2. EQUAL PROTECTION OF THE LAWS. See Constitutional Law, III, 2; IV. EVIDENCE BEFORE GRAND JURY. See Stays, 1. EXCLUSIONARY RULE. See Constitutional Law, XV. EXCLUSION OF CLERGY FROM PUBLIC OFFICE. See Constitutional Law, V. EXCLUSION OF PUERTO RICO RESIDENTS FROM SOCIAL SECURITY BENEFITS. See Constitutional Law, XIII. EXEMPTION FROM ANTITRUST LAWS. See Antitrust Acts, 2. EXPENDITURES FOR PURPOSE OF INFLUENCING REFEREN- DUM VOTE. See Constitutional Law, VI; Mootness. FAILURE TO APPOINT SEPARATE COUNSEL FOR CODEFENDANTS. See Constitutional Law, XI, 1, 2. FEDERAL ADMINISTRATIVE RULEMAKING PROCEEDINGS. See Judicial Review. FEDERAL AVIATION PROGRAMS. See Federal-State Relations, 1. FEDERAL INCOME TAXES. See Internal Revenue Code, 2. FEDERAL LABOR POLICY. See Federal-State Relations, 4. FEDERAL REGISTRATION TAX ON AIRCRAFT. See Federal-State Relations, 1. FEDERAL RULES OF CIVIL PROCEDURE. See Appeals, 2. FEDERAL-STATE RELATIONS. See also Antitrust Acts, 2; Constitutional Law, I, 1; XVI. 1. Federal registration tax on state-owned aircraft.—Annual “flat fee” registration tax on all civil aircraft, including those owned by States, imposed by Airport and Airway Revenue Act of 1970, does not violate implied immunity of state government from federal taxation. Massachusetts v. United States, p. 444. 2. G-Jf. aliens—State law as determining domicile—Instate status for nonimmigrant alien state college students—Certification.—Question whether aliens holding G-4 visas (nonimmigrant visas granted to officers or employees of international treaty organizations) can become Maryland domi-ciliaries is potentially dispositive of whether University of Maryland students who were dependent on G-4 alien parents are entitled to in-state status for admission and tuition purposes, and is purely a matter of state INDEX 1319 FEDERAL-STATE RELATIONS—Continued. law on which there is no controlling precedent, and hence question is certified to Maryland Court of Appeals for determination. Elkins v. Moreno, p. 647. 3. State regulation of oil tankers—Tug-escort requirement—Interference with foreign affairs.—Washington Tanker Law tug-escort requirement for oil tankers in Puget Sound does not interefere with Federal Government’s authority to conduct foreign affairs. Ray v. Atlantic Richfield Co., p. 151. 4. State regulation of pension plans—Pre-emption by federal labor policy.—National Labor Relations Act neither expressly nor by implication forecloses state regulatory power over employee pension plans that may be subject of collective bargaining, and fact that Minnesota statute regulating such plans applies to pre-existing collective-bargaining agreements does not render it pre-empted. Malone v. White Motor Corp., p. 497. FEDERAL TAXES. See Internal Revenue Code, 1. FEMALE EMPLOYEES. See Civil Rights Act of 1964. FIFTH AMENDMENT. See Constitutional Law, II; III, 2; X. FILING REQUIREMENTS FOR AGREEMENTS UNDER SHIPPING ACT, 1916. See Shipping Act, 1916. FIRST AMENDMENT. See Constitutional Law, V; VI; VII; VIII. FIVE-PERSON JURIES. See Constitutional Law, XIV. FOREIGN AFFAIRS. See Federal-State Relations, 3. FOREIGN COMMERCE. See Constitutional Law, I, 1. FOURTEENTH AMENDMENT. See Constitutional Law, ITT, 1; IV; V; VI; VIII, 2; X; XIV. FOURTH AMENDMENT. See Constitutional Law, XV. FREEDOM OF ASSOCIATION. See Constitutional Law, VIL FREEDOM OF RELIGION. See Constitutional Law, V. FREEDOM OF SPEECH. See Constitutional Law, VI; VII. FREEDOM OF THE PRESS. See Constitutional Law, VTTT, “FRUITS OF POISONOUS TREE.” See Constitutional Law, XV. GEORGIA. See Constitutional Law, XIV. G-4 ALIENS. See Aliens; Federal-State Relations, 2. GI BILL. See Constitutional Law, III, 2. GOVERNMENT’S AUTHORITY TO CONDUCT FOREIGN AFFAIRS. See Federal-State Relations, 3. 1320 INDEX GRAND JURIES. See Stays, 1. GUARANTEE OF PUBLIC TRIAL. See Constitutional Law, XII. HABEAS CORPUS. See Appeals, 1. HOBBS ACT. “Racketeering” as necessary element of offense.—Act’s plain language and legislative history make clear that Congress did not intend to limit Act’s scope by reference to undefined category of conduct termed “racketeering,” but intended to reach all conduct within Act’s express terms. United States v. Culbert, p. 371. ILLEGAL SEARCHES. See Constitutional Law, XV. IMMIGRATION AND NATIONALITY ACT. See Aliens. IMMUNITY OF JUDGES FROM DAMAGES LIABILITY. See Judges. IMMUNITY OF STATES FROM FEDERAL TAXATION. See Federal-State Relations, 1. IMPORT-EXPORT CLAUSE. See Constitutional Law, IX. IMPROVIDENT GRANT OF CERTIORARI. See Certiorari. INCOME TAXES. See Internal Revenue Code. INCREASED PUNISHMENT. See Criminal Law. INCRIMINATION. See Constitutional Law, X. INDIANA. See Judges. INDIANS. See also Constitutional Law, II. Tribal courts—Criminal jurisdiction over non-Indians.—Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress. Oliphant v. Suquamish Indian Tribe, p. 191. INDICTMENTS. See Stays, 1. INEFFECTIVE REVIEW OF APPEAL. See Appeals, 1. INJUNCTIONS. See Constitutional Law, VII. IN-STATE STATUS OF STATE COLLEGE STUDENTS. See Aliens; Federal-State Relations, 2. INSTRUCTIONS TO JURY ON ACCUSED’S REFUSAL TO TESTIFY. See Constitutional Law, X; XI, 3. INTERFERENCE WITH COLLECTIVE BARGAINING. See Federal-State Relations, 4. INDEX 1321 INTERFERENCE WITH FOREIGN AFFAIRS. See Federal-State Relations, 3. INTERNAL REVENUE CODE. 1. Employees’ lunch reimbursements—“Wages” subject to withholding.— Reimbursement for 1963 lunch expenses of employees on nonovemight company travel did not constitute “wages” subject to withholding by their employer within meaning of § 3401 (a) of Code. Central Illinois Public Serv. Co. v. United States, p. 21. 2. Sale-and-leaseback agreements—Income tax deductions allowable to lessor.—Under agreements by which it took title to building under construction by bank and simultaneously leased it back to bank for long-term use, taxpayer company is entitled to deductions on its federal income tax return for depreciation on building, interest on its construction loan and mortgage, and certain other expenses related to sale-and-leaseback transaction. Frank Lyon Co. v. United States, p. 561. INTERSTATE COMMERCE. See Constitutional Law, I. JOINT COUNSEL FOR CODEFENDANTS. See Constitutional Law, XI, 1, 2. JUDGES. See also Constitutional Law, VIII, 2. Judicial immunity from damages liability—Approval of sterilization petition.—Indiana law vested in Circuit Judge power to entertain and act upon mother’s petition for sterilization of her 15-year-old “somewhat retarded” daughter, and he is, therefore, immune from damages liability even if his approval of petition was in error. Stump v. Sparkman, p. 349. JUDGMENTS. See Appeals, 2. JUDICIAL IMMUNITY. See Judges. JUDICIAL RECORDS. Common-law right of access—Evidence in criminal trial—Presidential tape recordings.—'Common-law right of access to judicial records does not authorize release to broadcasters of tape recordings in District Court’s custody made in ex-President’s offices and admitted into evidence at his former advisers’ criminal trial. Nixon v. Warner Communications, Inc p. 589. JUDICIAL REVIEW. 1. Administrative rulemaking proceedings—Procedural requirements— Scope of judicial review.—Administrative Procedure Act establishes maxi-mum procedural requirements courts may impose upon federal agencies in conducting rulemaking proceedings, and, even apart from APA, formulation of procedures should be left within agencies’ discretion. Vermont Yankee Nuclear Power Corp. v. NRDC, p. 519. 1322 INDEX JUDICIAL REVIEW—Continued. 2. Atomic Energy Commission’s licensing, permit, and rulemaking proceedings—Improper Court of Appeals review.—Court of Appeals, in reviewing AEC’s grant of nuclear power plant license, related rulemaking proceedings, and grant of nuclear reactor permit, seriously misread or misapplied statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon federal agencies, and moreover as to Court of Appeals’ decision with respect to agency action taken after full adjudicatory hearings, it improperly intruded into agency’s decisionmaking process. Vermont Yankee Nuclear Power Corp. v. NRDC, p. 519. JURISDICTION. See Appeals, 2; Indians; Judges. JURY INSTRUCTIONS ON ACCUSED’S REFUSAL TO TESTIFY. See Constitutional Law, X; XI, 3. JURY TRIALS. See Constitutional Law, XIV. JUSTICIABILITY. See Mootness. LABOR. See Federal-State Relations, 4; Shipping Act, 1916. LAW GOVERNING DOMICILE. See Federal-State Relations, 2. LICENSING OF NUCLEAR POWER PLANTS. See Judicial Review, 2. LIMITING STATE POLICE TO UNITED STATES CITIZENS. See Constitutional Law, IV. LUNCH REIMBURSEMENTS. See Internal Revenue Code, 1. MARYLAND. See Aliens; Federal-State Relations, 2. MASSACHUSETTS. See Constitutional Law, VI; Federal-State Relations, 1; Mootness. MEDICAL SCHOOLS. See Constitutional Law, III, 1. MINNESOTA. See Federal-State Relations, 4. MISCONDUCT OF JUDGES. See Constitutional Law, VTTT, 2. MONOPOLIES. See Antitrust Acts, 2. MOOTNESS. State ban on corporate expenditures to influence referendum—Constitutionality—Effect of holding of referendum.—Action by banks and business corporations challenging constitutionality of Massachusetts criminal statute prohibiting corporate contributions or expenditures for purpose of influenc-ing vote on referendum proposals, is not rendered moot by fact that referendum for which plaintiffs wanted to spend money in opposition has been INDEX 1323 MOOTNESS—Continued. held and referendum proposal was defeated. First National Bank of Boston v. Bellotti, p. 765. MULTIPLE DEFENDANTS’ RIGHT TO SEPARATE COUNSEL. See Constitutional Law, XI, 1, 2. MULTIPLE PUNISHMENT. See Criminal Law. MUNICIPAL CORPORATIONS. See Voting Rights Act of 1965. MUNICIPAL UTILITY OPERATORS. See Antitrust Acts, 2. NATIONAL AIRSYSTEM. See Federal-State Relations, 1. NATIONAL LABOR RELATIONS ACT. See Federal-State Relations, 4. NAVAJO TRIBE. See Constitutional Law, II. NEWS MEDIA’S RIGHT OF ACCESS TO JUDICIAL RECORDS. See Constitutional Law, VIII, 1; XII; Judicial Records. NEWS MEDIA’S RIGHT TO PUBLISH INFORMATION ABOUT JUDICIAL MISCONDUCT PROCEEDINGS. See Constitutional Law, VIII, 2. NEW YORK. See Constitutional Law, IV. NOMINAL DAMAGES. See Civil Rights Act of 1871. NONIMMIGRANT ALIENS. See Aliens; Federal-State Relations, 2. NON-INDIANS AS SUBJECT TO TRIBAL COURT JURISDICTION. See Indians. NUCLEAR POWER PLANTS AND REACTORS. See Judicial Review, 2. OBJECTION TO JURY INSTRUCTION ON ACCUSED’S REFUSAL TO TESTIFY. See Constitutional Law, X; XI, 3. OIL TANKERS. See Constitutional Law, I, 1; XVI; Federal-State Relations, 3. OPERATING LICENSES FOR NUCLEAR POWER PLANTS. See Judicial Review, 2. PENSION FUNDS OR PLANS. See Civil Rights Act of 1964; Federal-State Relations, 4. PERJURY BEFORE GRAND JURY. See Stays, 1. PERMITS FOR NUCLEAR REACTORS. See Judicial Review, 2. 1324 INDEX PILOTAGE REQUIREMENTS FOR OIL TANKERS. See Constitutional Law, XVI. POLICE OFFICERS. See Constitutional Law, IV. POLITICAL CONTRIBUTIONS OR EXPENDITURES. See Constitutional Law, VI; Mootness. PORTS AND WATERWAYS SAFETY ACT OF 1972. See Constitutional Law, XVI. PRE-EMPTION OF STATE LAW BY FEDERAL LAW. See Constitutional Law, XVI; Federal-State Relations, 4. PREJUDICIAL ERROR. See Constitutional Law, XI, 2. PRESIDENTIAL RECORDINGS AND MATERIALS PRESERVATION ACT. See Judicial Records. PRESIDENTIAL TAPE RECORDINGS. See Constitutional Law, VIII, 1; XII; Judicial Records. PRETRIAL APPEALS. See Appeals, 3. PRIVILEGE AGAINST SELF-INCRIMINATION. See Constitutional Law, X. PROCEDURAL DUE PROCESS. See Civil Rights Act of 1871; Constitutional Law, III, 1. PROCEDURAL REQUIREMENTS FOR ADMINISTRATIVE PROCEEDINGS. See Judicial Review. PROFESSIONAL ENGINEERS. See Antitrust Acts, 1; Constitutional Law, VII. PROHIBITION AGAINST COMPETITIVE BIDS BY ENGINEERS. See Antitrust Acts, 1; Constitutional Law, VII. PROHIBITION AGAINST CORPORATE POLITICAL CONTRIBUTIONS OR EXPENDITURES. See Constitutional Law, VI; Mootness. PUBLIC SCHOOL STUDENTS. See Civil Rights Act of 1871. PUBLIC TRIAL GUARANTEE. See Constitutional Law, XII. PUBLIC UTILITIES. See Antitrust Acts, 2. PUERTO RICO. See Constitutional Law, XIII. PUGET SOUND. See Constitutional Law, I, 1; XVI; Federal-State Relations, 3. RACKETEERING. See Hobbs Act. REFERENDUMS. See Constitutional Law, VI; Montness; Voting Rights Act of 1965. INDEX 1325 REGISTRATION TAX ON AIRCRAFT. See Federal-State Relations, 1. REIMBURSEMENT FOR LUNCH EXPENSES. See Internal Revenue Code, 1. RESTRAINTS OF TRADE. See Antitrust Acts; Constitutional Law, VII; Shipping Act, 1916. RETROACTIVE RELIEF UNDER CIVIL RIGHTS ACT OF 1964. See Civil Rights Act of 1964. RIGHT OF ACCESS TO JUDICIAL RECORDS. See Constitutional Law, VIII, 1; XII; Judicial Records. RIGHT TO COUNSEL. See Constitutional Law, XI. RIGHT TO JURY TRIAL. See Constitutional Law, XIV. RIGHT TO PROCEDURAL DUE PROCESS. See Civil Rights Act of 1871. RIGHT TO PUBLIC TRIAL. See Constitutional Law, XII. RIGHT TO SPEEDY TRIAL. See Appeals, 3. RIGHT TO TRAVEL. See Constitutional Law, XIII. RULEMAKING PROCEEDINGS. See Judicial Review. RULE OF REASON. See Antitrust Acts, 1. RULES OF CIVIL PROCEDURE. See Appeals, 2. SALE-AND-LEASEBACK AGREEMENTS. See Internal Revenue Code, 2. SCHOOLS. See Civil Rights Act of 1871; Constitutional Law, III, 1; Stays, 2. SCOPE OF HOBBS ACT. See Hobbs Act. SCOPE OF JUDICIAL REVIEW OF ADMINISTRATIVE PROCEED- INGS. See Judicial Review, 2. SEARCHES AND SEIZURES. See Constitutional Law, XV. SELF-INCRIMINATION. See Constitutional Law, X. SENTENCES. See Criminal Law. SEPARATE COUNSEL FOR CODEFENDANTS. See Constitutional Law, XI, 1, 2. SEPARATE-JUDGMENT REQUIREMENT. See Appeals, 2. SEX-DIFFERENTIATED CONTRIBUTIONS TO EMPLOYEES’ PEN- SION FUND. See Civil Rights Act of 1964. SHEFFIELD, ALA. See Voting Rights Act of 1965. 1326 INDEX SHERMAN ACT. See Antitrust Acts, 1; Constitutional Law, VII. SHIPPING ACT, 1916. Collective-bargaining agreements—Filing requirements.—Collective-bar-gaining agreements are not categorically exempt from § 15 of Act requiring filing with Federal Maritime Commission of agreements between common carrier by water or other person subject to Act and another such carrier or person, including agreements “controlling, regulating, preventing, or destroying competition,” and here FMC made requisite findings to sustain its decision that collective-bargaining agreement between agent for dockworker employers and union was subject to filing under § 15. FMC v. Pacific Maritime Assn., p. 40. SIXTH AMENDMENT. See Appeals, 3; Constitutional Law, XI; XII; XIV. SOCIAL SECURITY ACT. See Constitutional Law, XIII. SOVEREIGNTY OF INDIAN TRIBES. See Constitutional Law, -II. “STATE ACTION” DOCTRINE. See Antitrust Acts, 2. STATE BUSINESS AND OCCUPATION TAXES. See Constitutional Law, I, 2; IX. STATE IMMUNITY FROM FEDERAL TAXATION. See Federal-State Relations, 1. STATE INTERFERENCE WITH FOREIGN AFFAIRS. See Federal-State Relations, 3. STATE MEDICAL SCHOOLS. See Constitutional Law, III, 1. STATE-OWNED AIRCRAFT AS SUBJECT TO FEDERAL TAXA- TION. See Federal-State Relations, 1. STATE POLICE. See Constitutional Law, IV. STATE REGULATION OF OIL TANKERS. See Constitutional Law, I, 1; XVI; Federal-State Relations, 3. STATE REGULATION OF PENSION PLANS. See Federal-State Relations, 4. STAYS. 1. Affirmance of conviction.—Stay of Court of Appeals’ judgment affirming convictions, pending certiorari petition claiming that indictment should be dismissed because witness committed perjury before grand jury, is denied. Bracy v. United States (Rehnquist, J., in chambers), p. 1301. 2. School desegregation plan requirement—Public school officials’ application to stay District Court’s order allegedly reimposing unauthorized INDEX 1327 STAYS—Continued. desegregation plan requirement, is denied. Vetterli v. United States District Court (Rehnquist, J., in chambers), p. 1304. STERILIZATION. See Judges. STEVEDORING. See Constitutional Law, I, 2; IX. SUBSTANTIVE DUE PROCESS. See Constitutional Law, III, 1. SUPPLEMENTAL SECURITY INCOME PROGRAM. See Constitutional Law, XIII. SUPPRESSION OF COMPETITION. See Antitrust Acts, 1; Constitutional Law, VII. SUPREMACY CLAUSE. See Constitutional Law, XVI; Federal-State Relations, 4. SUPREME COURT. Notation of the death of Walter Wyatt, the 12th Reporter of Decisions, p. III. SUSPENSION FROM SCHOOL. See Civil Rights Act of 1871. TANKERS. See Constitutional Law, I, 1; XVI; Federal-State Relations, 3. TAPE RECORDINGS. See Constitutional Law, VIII, 1; XII; Judicial Records. TAXES. See Constitutional Law, I, 2; IX; Federal-State Relations, 1; Internal Revenue Code. TENNESSEE. See Constitutional Law, V. TRAVEL RIGHTS. See Constitutional Law, XIII. TRIALS BY JURY. See Constitutional Law, XIV. TRIBAL COURTS. See Constitutional Law, II; Indians. TUG-ESCORT REQUIREMENTS FOR OIL TANKERS. See Constitutional Law, I, 1; XVI; Federal-State Relations, 3. UNIVERSITY OF MARYLAND. See Aliens; Federal-State Relations, 2. UNLAWFUL EMPLOYMENT PRACTICES. See Civil Rights Act of 1964. USE OF FIREARMS TO COMMIT BANK ROBBERY. See Criminal Law. UTILITIES. See Antitrust Acts, 2. 1328 INDEX VETERANS’ ADMINISTRATION. See Constitutional Law, III, 2. VETERANS’ EDUCATIONAL ASSISTANCE BENEFITS. See Con- stitutional Law, III, 2. VIRGINIA. See Constitutional Law, VIII, 2. VOTING RIGHTS ACT OF 1965. 1. City as subject to Act.—Section 5 of Act applies to all entities having power over any aspect of electoral process within designated jurisdictions, not only to counties or other units of state government that perform function of registering voters, and hence District Court erred in holding that city of Sheffield, Ala., is not subject to § 5. United States v. Sheffield Board of Comm’rs, p. 110. 2. Referendum on form of city government—Effect of Attorney General’s failure to object.—Attorney General’s failure to object to holding referendum on whether city should adopt a mayor-council form of government, did not constitute clearance under § 5 of Act of method of electing councilmen under new government. United States v. Sheffield Board of Comm’rs, p. 110. WAGES SUBJECT TO TAX WITHHOLDING. See Internal Revenue Code, 1. WASHINGTON. See Constitutional Law I; IX; XVI; Federal-State Relations, 3. WASHINGTON TANKER LAW. See Constitutional Law, I, 1; XVI; Federal-State Relations, 3. WELFARE AND PENSION PLANS DISCLOSURE ACT. See Federal-State Relations, 4. WITHHOLDING TAXES. See Internal Revenue Code, 1. WITNESSES BEFORE GRAND JURY. See Stays, 1. WORDS AND PHRASES. 1. “Imposts or Duties.” U. S. Const., Art. I, § 10, cl. 2 (Import-Export Clause). Washington Revenue Dept. v. Association of Washington Stevedoring Cos., p. 734. 2. “State . . . with respect to which.” § 5, Voting Rights Act of 1965, 42 U. S. C. § 1973c (1970 ed., Supp. V). United States v. Sheffield Board of Comm’rs, p. 110. 3. “Wages.” §3401 (a), Internal Revenue Code of 1954, 26 U. S. C. §3401 (a). Central Illinois Public Serv. Co. v. United States, p. 21. U. S. GOVERNMENT PRINTING OFFICE : 1980 0 - 257-734 r